The League of Nations and Its Problems: Three Lectures

by L. Oppenheim

Many international disputes have been due in the past to this difficulty of interpretation and construction. A notorious example is that of the interpretation of Article 23(h) of the Hague Regulations of 1907 concerning Land Warfare, which lays down the rule that it is forbidden 'to declare abolished, suspended, or inadmissible in a Court of Law the rights and actions of the nationals of the hostile party.'

Germany and other continental States interpret this article to mean that the Municipal Law of a State is not allowed to declare that the outbreak of war suspends or avoids contracts with alien enemies, or that war prevents alien enemies from bringing an action in the Courts.

On the other hand, England and the United States of America interpret this article to mean merely that the occupant of enemy territory is prohibited from declaring abolished, suspended, or inadmissible in a Court of Law the rights and actions of the nationals of the hostile party.

What is the cause of this divergent interpretation of an article, the literal meaning of which seems to be quite clear? The divergence is due to the different mode of interpretation of statutes resorted to by continental Courts, on the one hand, and, on the other hand, by British and American Courts.

Continental Courts take into consideration not only the literal meaning of a clause of a statute, but also the intention of the legislator as evidenced by—what I should like to call—the history of the clause. They look for the intention of the draftsman, they search the Parliamentary proceedings concerning the clause, and they interpret and construe the clause with regard to the intention of the draftsman as well as to the proceedings in Parliament.

Now Article 23(h) of the Hague Regulations was inserted on the motion of the German delegates to the Second Hague Peace Conference, and there is no doubt that the German delegates intended by its insertion to prevent the Municipal Law of belligerents from possessing a rule according to which the outbreak of war suspends or avoids contracts with alien enemies, and prohibits alien enemies from bringing an action in the Courts. It is for this reason that Germany and other continental States interpret Article 23(h) according to the intention of the German delegates.

On the other hand, in interpreting and construing a clause of a statute, British and American Courts refuse to take into consideration the intention of the draftsman, Parliamentary discussions concerning the clause, and the like. They only take into consideration the literal meaning of the clause as it stands in the statute of which it is a part. Now Article 23(h) is a clause in the Convention concerning the Laws and Customs of War on Land. It is one of several paragraphs of Article 23 which comprises the prohibition of a number of acts by the armed forces of belligerents in warfare on land, such as the employment of poison or poisoned arms, and the like. The British and American delegates, believing that it only concerned an act on the part of belligerent forces occupying enemy territory, therefore consented to the insertion of Article 23(h), and our Court of Appeal—in the case of Porter v. Freundenberg (1915)—held that Article 23(h) is to be interpreted in that sense.[1]

Be that as it may, the difficulty of interpretation and construction of international treaties will exist so long as no International Statute has been agreed upon which lays down detailed rules concerning interpretation and construction, or so long as International Courts have not developed such rules in practice. But the problem of International Courts is itself a very difficult one; it will be the subject of my third lecture which will deal with Administration of Justice and Mediation within the League of Nations.

[1] By a letter of February 28, 1911, I drew the attention of the Foreign Office to the interpretation of Article 23(h) which generally prevailed on the Continent. This letter and the answer I received were privately printed, and copies were distributed amongst those members and associates of the Institute of International Law who attended the meeting at Madrid. Since French, German, and Italian International Law Journals published translations, but the original of the correspondence was never published in this country, I think it advisable to append it to this lecture.