Suchergebnisse

Among the traditional political conceptions which in recent years have become the object of almost irreverent attack, is that which ascribes the quality of absolutism to that often elusive, but ever present, double-faced creation of the jurists which bears the name of sovereignty. Text-writers, sometimes in unqualified terms, still persist in claiming for it the unrestricted supremacy which was attributed to it in an age when its wielders everywhere were absolute monarchs; but an increasing number, less influenced by legal theories than by realities, see in it only the "ghost of personal monarchy," as Hobbes characterized it, "sitting crowned on the grave thereof."On the one side the attack is directed by a new school of political writers, who deny its very existence or maintain that it is not an essential constituent attribute of the state. According to them, the notion is useless if not fallacious; the theory is discredited by the facts of modern state life and the term should be abandoned and expunged from the literature of political science.

When the World War, in which aircraft was employed for the first time on an extensive scale as an instrument of combat, broke out, there were few conventional rules and naturally little or no customary law in existence governing the conduct of hostilities in the air. There was, to be sure, the declaration prohibiting for a period of five years the launching of projectiles and explosives from balloons or by other new methods of a similar nature, signed at The Hague in 1899 and renewed in 1907 for a period extending to the close of the third peace conference. Since the third conference has never been convoked, the declaration may be regarded as still binding onthe states which have ratified it, in a war in which both or all the belligerents are contracting parties. But it is significant that only about half the states represented at the second conference signed the declaration, and among those which did not were Germany, France, Russia, Spain and Italy. It thus happens that the principal military states of Europe are not parties to it and its value therefore is slight. In consequence of the so-called "solidarity" clause it was not binding upon any of the belligerents during the World War, not even upon those which had ratified it.

The treaty of peace between Germany and the Allied and Associated Powers, signed at Versailles on the 28th of June, 1919, formally sanctioned the principle that individuals belonging to the armed or naval forces of the adversary, as well as his civil functionaries, are responsible under military law for offenses against the laws and customs of war and may be tried and punished for such offences.The treaty declares that Germany recognizes "the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war." It adds: "Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies."The treaty further requires Germany to hand over to the Allied and Associated Powers, or to such of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office, or employment which they held under the German authorities, and to furnish "all documents and information of every kind, the production of which may be considered necessary to the full knowledge of the incriminating facts, the discovery of offenders, and the just appreciation of responsibility.

For some years prior to the outbreak of the great war the proposed reorganization of the administrative system of France occupied a leading place among the questions of French internal politics. It provoked a flood of discussion in parliament; it was the subject of investigation and report by various parliamentary, extra-parliamentary and inter-ministerial commissions; it was dwelt upon regularly in the annual reports on the budget; it was a standing subject of discussion by the functionaries in their associations and by the political parties in their annual congresses; it was responsible for a vast output of literature in the form of books, brochures and articles; and it occupied a conspicuous place in the declaration of each incoming ministry upon taking office. In the parliamentary election campaign of 1910 no other question, except proportional representation, was so widely discussed by the candidates.

English and American Doctrine and Practice. The question of the right of enemy subjects to sue in the courts of an adversary can hardly be said to be regulated by international law, unless the muchcontroverted Article 23(h) of the Hague Convention of 1907 respecting the laws and customs of war on land, is interpreted to apply to the actions of the judicial authorities. Certainly it is not true, as is sometimes asserted, that it is a principle of international law that they have no right of access to the courts of the adverse power. Like the practice in respect to trading with the enemy the matter is determined by the municipal law of each belligerent and is based upon considerations of public policy.