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BOOK REVIEW8—Continued

Roxburgh: The Prisoners of War Information Bureau in London...... 198

Diplomatist: Nationalism and War in the Near East..


Lobo: O Brasil e seus principios de neutralidade. .


Van Praag: Jurisdiction et Droit International Public.


Geny: Science et Technique en Droit Privé Positif.


Foraker: Notes of a Busy Life.....


Satow: The Silesian Loan and Frederick the Great.


Stockton: Outlines of International Law..


Stowell: The Diplomacy of the War of 1914.


Wheaton: Elements of International Law..


Beale: Treatise on the Conflict of Laws, Part I.


Maliniak: Andreas Fricius Modrevius...


Manning: Early Diplomatic Relations between the United States and



Kuhn: Grundzüge des Englisch-Amerikanischen Privat-und Prozessrechts 674

Crandall: Treaties, their Making and Enforcement....


Strupp: Der Streitfall zwischen Schweden und Norwegen.


Williams: Anglo-American Isthmian Diplomacy, 1815–1915.


Diena: Per un Irredentismo in fatto di Scienze Giuridiche.


Horowitz: l'Organisme des états-tampons gardiens de la paix. .


Boye: De vaebnede Neutralitets-Forbund: Et avsnit av Folkerettens



Bajer: Nordens, sarlig Danmarks, Neutralitet under Krimkrigen.


Nicholson: War or a United World....


Kaufmann: Kriegführende Staaten als Schuldner und Gläubiger feindlicher



Planas Suarez: Tratado de Derecho Internacional Publico


Grotius: The Freedom of the Seas ..


Pyke: The Law of Contraband of War.


Johnson: America's Foreign Relations.



682, 950



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The incidents of the great war now raging affect so seriously the very foundations of international law that there is for the moment but little satisfaction to the student of that science in discussing specific rules. Whether or not Sir Edward Carson went too far in his recent assertion that the law of nations has been destroyed, it is manifest that the structure has been rudely shaken. The barriers that statesmen and jurists have been constructing laboriously for three centuries to limit and direct the conduct of nations toward each other, in conformity to the standards of modern civilization, have proved too weak to confine the tremendous forces liberated by a conflict which involves almost the whole military power of the world and in which the destinies of nearly every civilized state outside the American continents are directly at stake.

The war began by a denial on the part of a very great Power that treaties are obligatory when it is no longer for the interest of either of the parties to observe them. The denial was followed by action supported by approximately one-half the military power of Europe and is apparently approved by a great number of learned students and teachers of international law, citizens of the countries supporting the view. This position is not an application of the doctrine rebus sic stantibus which justifies the termination of a treaty under circumstances not contemplated when the treaty was made so that it is no longer justly applicable to existing conditions. It is that under the very circumstances contemplated by the treaty and under the conditions for which the treaty was intended to provide the treaty is not obligatory as against the interest of the contracting party.

This situation naturally raises the question whether executory treaties will continue to be made if they are not to be binding, and requires

1 Opening Address by Elihu Root, as President of the American Society of International Law, at the Ninth Annual Meeting in Washington, December 28, 1915.

consideration of a system of law under which no conventional obligations are recognized. The particular treaty which was thus set aside was declaratory of the general rule of international law respecting the inviolability of neutral territory; and the action which ignored the treaty also avowedly violated the rule of law; and the defense is that for such a violation of the law the present interest of a sovereign state is justification.

It is plain that the application of such a principle to a matter of major importance at the beginning of a long conflict must inevitably be followed by the setting aside of other rules as they are found to interfere with interest or convenience; and that has been the case during the present war. Many of the rules of law which the world had regarded as most firmly established have been completely and continuously disregarded, in the conduct of war, in dealing with the property and lives of civilian non-combatants on land and sea and in the treatment of neutrals. Alleged violations by one belligerent have been asserted to justify other violations by other belligerents. The art of war has been developed through the invention of new instruments of destruction and it is asserted that the changes of conditions thus produced make the old rules obsolete.

It is not my purpose at this time to discuss the right or wrong of these declarations and actions. Such a discussion would be quite inadmissible on the part of the presiding officer of this meeting. I am stating things which whether right or wrong have unquestionably happened, as bearing upon the branch of jurisprudence to which this Society is devoted. It seems that if the violation of law justifies other violations, then the law is destroyed and there is no law; that if the discovery of new ways of doing a thing prohibited justifies the doing of it, then there is no law to prohibit. The basis of such assertions really is the view that if a substantial belligerent interest for the injury of the enemy comes in conflict with a rule of law, the rule must stand aside and the interest must prevail. If that be so, it is not difficult to reach the conclusion that, for the present at all events, in all matters which affect the existing struggle, international law is greatly impaired. Nor can we find much encouragement to believe in the binding force of any rules upon nations which observe other rules only so far as their interest at the time prompts them.



Conditions are always changing, and a system of rules which cease to bind whenever conditions change should hardly be considered a system of law. It does not follow that nations can no longer discuss questions of right in their diplomatic intercourse, but upon such a basis it seems quite useless to appeal to the authority of rules already agreed upon as just and right and their compelling effect because they have been already agreed upon.

When we recall Mansfield's familiar description of international law as "founded upon justice, equity, convenience, the reason of the thing, and confirmed by long usage,” we may well ask ourselves whether that general acceptance which is necessary to the establishment of a rule of international law may be withdrawn by one or several nations, and the rule be destroyed by that withdrawal, so that the usage ceases and the whole subject to which it relates goes back to its original status as matter for new discussion as to what is just, equitable, convenient and reasonable.

When this war is ended, as it must be some time, and the foreign offices and judicial tribunals and publicists of the world resume the peaceable discussion of international rights and duties, they will certainly have to consider not merely what there is left of certain specific rules, but also the fundamental basis of obligation upon which all rules depend. The civilized world will have to determine whether what we call international law is to be continued as a mere code of etiquette, or is to be a real body of laws imposing obligations much more definite and inevitable than they have been heretofore. It must be one thing or the other. Although foreign offices can still discuss what is fair and just and what is expedient and wise, they can not appeal to law for the decision of disputed questions unless the appeal rests upon an obligation to obey the law. What course will the nations follow?

Vague and uncertain as the future must be, there is some reason to think that after the terrible experience through which civilization is passing there will be a tendency to strengthen rather than abandon the law of nations. Whatever the result may be, the world will have received a dreadful lesson of the evils of war. The sacrifice of millions of lives, millions homeless and in poverty, industry and commerce destroyed, overwhelming national debts,--all will naturally produce a


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strong desire to do something that will prevent the same thing happening again.

While the war has exhibited the inadequacy of international law, so far as it has yet developed, to curb those governmental policies which aim to extend power at all costs, it has shown even more clearly that little reliance can be placed upon unrestrained human nature, subject to specific temptation to commit forcible aggression in the pursuit of power and wealth. It has shown that where questions of conduct are to be determined under no constraint, except the circumstances of the particular case, the acquired habits of civilization are weak as against the powerful, innate tendencies which survive from the countless centuries of man's struggle for existence against brutes and savage foes. The only means yet discovered by man to limit those tendencies consist in the establishment of law, the setting up of principles of action and definite rules of conduct which can not be violated by the individual without injury to himself. That is the method by which the wrongs naturally flowing from individual impulse within the state have been confined to narrow limits. That analogy, difficult as it is to maintain in view of the differences between the individual who is subject to sovereignty and the nation which is itself sovereign, indicates the only method to which human experience points to avoid repeating the present experience of these years of war consistently with the independence of nations and the liberty of individuals. The Pax Romana was effective only because the world was subject to Rome. The Christian Church has been urging peace and good-will among men for nineteen centuries, and still there is this war. Concerts of Europe and alliances and ententes and skilful balances of power all lead ultimately to war. Conciliation, good-will, love of peace, human sympathy, are ineffective without institutions through which they can act. Only the possibility of establishing real restraint by law seems to remain to give effect to the undoubted will of the vast majority of mankind.

In the effort to arrange the affairs of the world so that they will not lead to another great catastrophe, men will therefore turn naturally towards the re-establishment and strengthening of the law of nations. How can that be done? How can the restraints of law be made more effective upon nations?

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