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each particular case may admit. No formula can be found to cover all possible contingencies. In some cases, such as the war crisis of 1914, effective consultation may be a physical impossibility. Or again it may happen, as in the case of the Lausanne conference, that

"The following is the text of the resolutions agreed upon at the Imperial Conference of 1923:

"The Conference recommends for the acceptance of the governments of the Empire represented that the following procedure should be observed in the negotiation, signature, and ratification of international agreements.

The word 'treaty' is used in the sense of an agreement which, in accordance with the normal practice of diplomacy, would take the form of a treaty between Heads of States signed by plenipotentiaries provided with Full Powers issued by the Heads of the States and authorizing the holders to conclude a treaty.

1. Negotiation.


(a) It is desirable that no treaty should be negotiated by any of the governments of the Empire without due consideration of its possible effect on other parts of the Empire or, if circumstances so demand, on the Empire as a whole. (b) Before negotiations are opened with the intention of concluding a treaty, steps should be taken to ensure that any of the other governments of the Empire likely to be interested are informed, so that, if any such government considers that its interests would be affected, it may have an opportunity of expressing its views or, when its interests are intimately involved, of participating in the negotiations.

(c) In all cases where more than one of the governments of the Empire participates in the negotiations, there should be the fullest possible exchange of views between those governments before and during the negotiations. In the case of treaties negotiated at Interntaional Conferences, where there is a British Empire Delegation, on which, in accordance with the now established practice, the Dominions and India are separately represented, such representation should also be utilized to attain this object.

(d) Steps should be taken to ensure that those governments of the Empire whose representatives are not participating in the negotiations should, during their progress, be kept informed in regard to any points arising in which they may be interested.

2. Signature.

(a) Bi-lateral treaties imposing obligations on one part of the Empire only should be signed by a representative of the government of that part. The Full Power issued to such representative should indicate the part of the Empire in respect of which the obligations are to be undertaken, and the preamble and text of the treaty should be so worded as to make its scope clear.

(b) Where a bi-lateral treaty imposes obligations on more than one part of the Empire, the treaty should be signed by one or more plenipotentiaries on behalf of all the governments concerned.

(c) As regards treaties negotiated at International Conferences, the existing practice of signature by plenipotentiaries on behalf of all the governments of the Empire represented at the Conference should be continued, and the Full Powers should be in the form employed at Paris and Washington.

3. Ratification.

The existing practice in connection with the ratification of treaties should be maintained.


Apart from treaties made between Heads of States, it is not unusual for agreements to be made between governments. Such agreements, which are usually of a technical or administrative character, are made in the names of the signatory governments, and signed by representatives of those governments, who do not act under Full Powers issued by the Heads of the States: they are not ratified by the Heads of the States, though in some cases some form of acceptance or confirmation by the governments concerned is employed. As regards agreements

the interests of the Dominions are only very slightly involved, and their admission to the council table would only serve to complicate a difficult negotiation without producing any corresponding advantages. Every case must be dealt with on its own merits. Whatever may be the procedure adopted it is clear that in the last resort the decision of the London cabinet must prevail, and its decision must be accepted by the Dominions unless they are prepared to sever the imperial connection and assume the responsibilities of independent states. Without violating the unity of the Empire they are at liberty to refuse active assistance in any war, and furthermore they cannot in practice be compelled to pass the legislation which may in any particular case be necessary to implement the obligations of a treaty. That is the maximum of liberty which, when the great issues of foreign policy are concerned, is compatible with the continuance of the British Empire as a single sovereign unit in the eyes of international law. Beyond that limit a claim for autonomy would amount in substance to a demand for independence. At present there is no likelihood that any body of responsible opinion in any part of the Empire will acquire sufficient strength to put forward such a demand as part of the considered policy of any of the self-governing Dominions.

of this nature the existing practice should be continued, but before entering on negotiations the governments of the Empire should consider whether the interests of any other part of the Empire may be affected, and if so, steps should be taken to ensure that the government of such part is informed of the proposed negotiations, in order that it may have an opportunity of expressing its views."

The Resolution was submitted to the full Conference and unanimously approved. It was thought, however, that it would be of assistance to add a short explanatory statement in connexion with part I (3), setting out the existing procedure in relation to the ratification of Treaties. This procedure is as follows: (a) The ratification of treaties imposing obligations on one part of the Empire is effected at the instance of the Government of that part.

(b) The ratification of treaties imposing obligations on more than one part of the Empire is effected after consultation between the Governments of those parts of the Empire concerned. It is for each Government to decide whether Parliamentary approval or legislation is required before desire for, or concurrence in, ratification is intimated by that Government.

The report of the Inter-Imperial Relations Committee of the Imperial Conference of 1926 was not issued until the present article was in proof. The proposals outlined in 1923 are worked out in greater detail, but the report contains nothing inconsistent with the arguments which I have advanced, and there is an explicit admission of the fact that the control of all major diplomacy must continue to be vested in the British Cabinet.

International Law in Relation to

Private Law Practice*


There is a current notion, or, perhaps I should say a fancy, not wholly confined to layman that "international law" is a misnomer. The underlying thought appears to be that, as there is not an international sheriff who can beckon to posse comitatus to enforce the final judgment of some court possessed of statutory jurisdiction, international law so-called is not really law.

One has occasionally noted the smile of a sarcastic friend in emphasizing the word "international" prefixed to lawyer. The smile may be kindly, but the thought is that the phrase is a contradiction in term. This is an attitude not uncommon and perhaps quite natural among the brethren of the bar who have never had to perplex their heads with questions of international law which had found their way into the law courts, and whose information was derived from the newspapers.

It is gratifying to find that in the law schools we have passed beyond this phase, and international public law as well as private law, (or conflict of laws), is now taught as part of the ordinary curriculum.

A quarter of a century ago, and, in fact, until quite recently, neither constitutional nor administrative law were looked upon as worthy of treatment in the schools of law. Law was confined to contracts, real property, equity, and the general matters which the ordinary country lawyer treated for a living and which alone were deemed sufficiently important to occupy the attention of technical schools.

To the School of Political Science at Columbia University, founded in 1880, and composed of a group of original thinkers and men of vast erudition, is largely due the credit of having insisted that public law was law in the wide and full sense of the term, and that to understand and apply it were needed the qualifications of the trained legal mind. The popular notion is, therefore, a mere survival of another age; it can easily be explained in the light of history.

*Of the New York bar.

†A lecture delivered at the Cornell Law School, under the Frank Irvine Lectureship of the Phi Delta Phi Foundation, May eighth, nineteen hundred and twenty-six.

International law is a recent growth and began with the rise of the national States upon the ruins of the old concept of universal empire. It was due largely to Grotius and to eminent successors who stressed international morality and the law of nature rather than treaties or judicial precedents of which there were so few.

The teachers of public law on the continent for many generations were men of academic minds whose thoughts ran upon general political or philosophic concepts and who were remote from the forum. International arbitrations were comparatively rare until the beginning of the Nineteenth Century.

Since then international law has developed so that today it is as much a thing of legal reasoning, of precedent and of juristic analysis as the law of tort or contract. This has been demonstrated with complete finality by a living jurist to whom the world owes a profound debt. I refer to John Bassett Moore, Judge of the Permanent Court of International Justice.

To the mind of John Bassett Moore, a man accustomed to dealing with questions between nations, and familiar with the history of international relations, counsel in various cases before international tribunals, the Austinian view of international law was not only false but misleading and destructive. For a generation he preached the doctrine that international law was as truly law as was constitutional law; that its uncertainties, its problems and its perplexities were due, not to its lack of sanction, but to those factors which made for uncertainty in every branch of law-the rapidly moving and changing tide of human development.

To him the idea that national States existed without subjection to law, that wrongs to the individual which would have constituted crimes, torts or breach of contract in municipal law, were without legal redress was not only abhorrent, but absurd. Instead of dealing with the matter by philosophic generalization, by subtle argument, or by sterile controversy, he undertook, alone, the work of compiling a real corpus juris of international law. This great work was begun by the writing of seven volumes, recounting in all necessary, useful and interesting detail the great body of controversies to which the United States had been a party and which had been settled before arbitral tribunals in accordance with law. (Moore's International Arbitrations.)

I think that this work may be said to have been a real revelation even to the educated lawyer and diplomat. It demonstrated that every form of controversy, from that of national boundaries to torts committed against the humblest individual, had been satisfactorily

disposed of before tribunals administering definite rules of law in the same prosaic fashion as that applied by municipal courts. Questions between Great Britain and the United States, as appealing to bellicose instincts as any arising between nations, were, in the end, submitted to bodies of jurists who, after interminable written and sometimes oral arguments by venerable lawyers, disposed of them in accordance with the accepted canons of international law.

Nearly every one of these decisions, it was shown, had created an additional precedent, a new starting-point, a further advance toward certainty, clarity and justice in the law. Years of international friction, diplomatic wrangling, phrase-making and oratory were brought to an end by the Bering Sea Arbitration. Boasted sovereignty over closed oceans, threatened and actual seizures of ships upon the high seas, with all the concomitant stimulation of national sentiment, ended in legal arguments of interminable length through warm summer days before an intelligent, though somewhat somnolent Arbitrable Tribunal in Paris. The result was that the questions raised with such vehemence and discussed with such acrimony are now quite forgotten save by the occasional historian or international lawyer.

All these things were demonstrated by Judge Moore in two monumental works in undramatic fashion and with a conclusiveness that foreclosed discussion or academic refutation.

The World War did not invalidate, but on the contrary, it immensely emphasized the importance of international law. In consequence of the Versailles Treaty and of our own Treaty with Germany, the Berlin Treaty so-called, mixed arbitral tribunals have been established as a necessary part of the peace adjustment and have in accordance with principles of law disposed of thousands of cases in the same fashion as would have been done by the House of Lords, the Privy Council or the Supreme Court of the United States.

Throughout the war the newspapers were daily filled with the questions of the applicability of the Hague Treaty Conventions, the legality of the allied blockade, contraband lists, the doctrine of continuous voyage and ultimate destination, as well as kindred matters. These questions could no more be fully understood without a knowledge of the history of international law than could questions of equitable jurisprudence be comprehended by one without the necessary training. Sooner or later every one of these great questions must and will come before a court, either a court constituted ad hoc, or the Permanent Court now functioning at the Hague. The cases will be argued by lawyers upon definite pleadings and upon

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