Section 4.. Professor De Martens on the Situation

PROFESSOR DE MARTENS ON THE SITUATION

Sir,--The name of my distinguished friend, M. de Martens, carries so much weight that I hope you will allow me at once to say that I am convinced that to-day's telegraphic report of some communication made by him to the St. Petersburg newspapers fails to convey an accurate account of the views which he has thus expressed.

On matters of fact it would appear that he is no better informed than are most of us in this country; and under matters of fact may be included the breaches of neutrality which he is represented as counter-charging against the Japanese. It is exclusively with the views on questions of law which are attributed to Professor de Martens that I am now concerned. He is unquestionably right in saying, as I pointed out in a recent letter, that the hard-and-fast rule, fixing 24 hours as the limit, under ordinary circumstances, of the stay of a belligerent warship in neutral waters, is not yet universally accepted as a rule of international law; and, in particular, is not adopted by France.

But what of the further dictum attributed to Professor de Martens, to the effect that "each country is its own judge as regards the discharge of its duties as a neutral"? This statement would be a superfluous truism if it meant merely that each country, when neutral, must, in the first instance, decide for itself what courses of action are demanded from it under the circumstances. The words may, however, be read as meaning that the decision of the neutral country, as to the propriety of its conduct, is final, and not to be questioned by other Powers. An assertion to this effect would obviously be the negation of the whole system of international law, of which Professor de Martens is so great a master, resting, as that system does, not on individual caprice, but upon the agreement of nations in restraint of the caprice of any one of them. The last word, with reference to the propriety of the conduct of any given State, rests, of course, not with that State; but with its neighbours. "Securus indicat orbis terrarum." Any Power which fails in the discharge, to the best of its ability, of a generally recognised duty, is likely to find that self-satisfaction is no safeguard against unpleasant consequences. Professor de Martens would, I am certain, endorse this statement.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 12 (1905).

NEUTRALS AND THE LAWS OF WAR

Sir,--The interesting address by Sir Edward Carson reported in your issue of yesterday will remind many of us of our regret that President Wilson, in Notes complaining of injuries sustained by American citizens, dwelt so slightly upon the violations of international law by which those injuries were brought about.

Sir Edward seems, however, to have made use of certain expressions which might be taken to imply a view of neutral responsibility which can hardly be accepted. The United States were warned in the address that they will not "by a mere Note maintain the obligations which are put upon them, as parties to international law, which are to prevent breaches of civilisation and to mitigate the horrors of war." Neutrals were spoken of as "the executives of international law," and as alone standing "behind the conventions" (for humanising warfare). "Abolish," we were told, "the power of neutrals, and you have abolished international law itself."

Is this so? The contract into which a State enters with other States, by adopting the customary laws of war and by ratifying express Conventions dealing with the same subject, obliges it, while remaining neutral, to submit to certain inconveniences resulting from the war, and, when belligerent, to abstain from certain modes of carrying on hostilities. It is assuredly no term of the contract that the State in question shall sit in judgment upon its co-contractors and forcibly intervene in rebus inter alios actis. Its hands are absolutely free. It may remain a quiescent spectator of evil, or, if strong enough and indignant with the wrongdoing, may endeavour to abate the mischief by remonstrance, and, in the last resort, by taking sides against the offender. Let us hope that at the present crisis the United States may see their way to choosing the better part.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 28 (1915).

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