NOTICES OF BOOKS.

WORKS ON INTERNATIONAL LAW.

WAR AND NEUTRALITY.

WHEN Professor Oppenheim's death came in October 1919 the work of preparing a third edition of his treatise,1 upon which he had been occupied for some time, was still unfinished. Happily, the publishers found in his faithful pupil, Mr. Roxburgh, formerly a Whewell scholar in the University of Cambridge, a thoroughly qualified editor to complete the unfinished task. The first volume as revised by Mr. Roxburgh was published in 1920, and the second volume has now made its appearance. With him the undertaking has been a genuine labour of love, and he has performed the task with the conscientiousness of one upon whom has fallen the duty of executing the trust of a devoted friend. The task has not been without difficulty. Professor Oppenheim himself had left many notes, but they were not always complete, and it is not improbable that had he lived he would have altered some of his conclusions in the light of subsequent events and more mature reflection. Upon a goodly number of questions he left no memoranda at all, or only fragmentary notes which were doubtless intended to be the basis of more complete observations. Upon the editor devolved the somewhat difficult task of weaving into the body of the text the author's own materials, of endeavouring to say for him what he himself would have said, had he lived to finish his undertaking, of rewriting and bringing up to date pages which needed revision and of adding new matter upon questions and events which arose or occurred subsequent to the author's death.

As to the new matter added, it is not always clear what represents the contribution of the author and what is the work of the editor. But we are told in the editor's preface that Professor Oppenheim himself revised the section (53), dealing with the legality of war, section 57a, relative to the threatened disappearance of the distinction between combatants and non-combatants, various sections concerning the rights and duties of neutrals, reprisals and the right of angary, and some of the sections relating to contraband, the seizure of enemy reservists, on neutral vessels, prize law, and other matters. The editor added

International Law, by L. Oppenheim, formerly Whewell Professor of International Law in the University of Cambridge. Vol. II-"War and Neutrality." Third edition. Edited by Ronald F. Roxburgh. (Longmans, Green & Co., 1921.) Pp. v-xlv, 4-671. 36s. net.

some pages dealing with the League of Nations, upon which Professor Oppenheim had published a monograph, expanded the author's notes on aerial warfare into a new chapter, added new sections dealing with long distance blockades, and incorporated new matter on a great variety of subjects upon which the author had left no notes. The revision of the second volume, which deals with war and neutrality, proved to be a much larger undertaking than the revision of volume I, which covers the law of peace-this, because of the numerous changes and additions made necessary by the events of the World War. During this war, as is well known, not only nearly every old question of war law was raised, sometimes again and again, but many questions which were entirely new and often novel had to be interpreted and applied. A variety of new instruments and unprecedented methods were employed during this war for the first time. The submarine torpedo-boat and automatic mine, armed merchantmen, poisonous gases, the airship, wireless telegraphy and other new instrumentalities and agencies all played an important rôle. What is more, the war was carried on under conditions which were largely different from those under which all former wars were fought. Rules, therefore, which had been formulated to meet the old conditions proved inadequate or illogical. It is not surprising that they were interpreted so as to make them conform to the new conditions or were entirely disregarded. In respect to many questions which arose during the war there were no rules of international law at all or only very imperfect rules. Such was the case of aerial warfare, concerning which there was no law except article 25 of the Hague regulations which prohibits the bombardment of "undefended" places by aircraft-a rule of little practical value, since it lays down no test for distinguishing between defended" and undefended" places. In fact, it served as little or no restraint at all upon the conduct of belligerents. As to other matters, there was a divergence of opinion as to what the law required or permitted. The events of the war, therefore, abundantly demonstrated not only the ineffectiveness but indeed the utter inadequacy of the existing body of conventional and customary law for the regulation of the conduct of both belligerents and neutrals. Under these circumstances, the World War was of unprecedented significance in its effect upon international law. To have considered with any degree of adequacy all the questions of international law, new and old, to which the war gave rise, to have examined the conflicting interpretations and practices of belligerents and neutrals, and to have discussed the results upon international law, would have necessitated the rewriting of Oppenheim's original treatise, and its expansion into several volumes. This task lay beyond the purpose of the author and the editor. They limited themselves merely to the addition of such new matter and to such alterations as were necessary to bring the treatise up to date and to record the more important events and results in so far as they affected the development of international law. As it is, there are few pages on

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which there are not references to the World War. On account of the limitations of space it necessarily happened that the new matter added often consists merely of citations to important cases and of references to other sources of information where the details may be found. There is a great abundance of matter of this kind, either interwoven in the text or inserted in copious footnotes. Under the circumstances, it is difficult to see how more could have been done or better done without going beyond the task set for the editor. One may regret that the author and the editor did not more frequently express their own opinions on the more important controverted questions raised in respect to the interpretation and application of the law. The views of the author, in particular, who was one of the acknowledged masters of international law, would have been interesting and instructive to students of international law. But, even admitting that it is within the rightful province of the jurist to evaluate and pass judgment, there were sufficient reasons why both the author and the editor generally refrained from expressing their own views on the points in controversy. As to Professor Oppenheim, the notes which he left were written from time to time as the events with which they dealt occurred, and were probably not always intended to represent the final form which he expected to give them. As to Mr. Roxburgh, he naturally did not consider that it properly fell within his province to express his own opinions in the work of another, of which he was merely the editor. And as to both, the limitations of space left little opportunity for more than a brief statement of the more important facts. Nevertheless, the author did occasionally express his own opinions. Thus he qualifies as an "absurdity" the opinion sometimes expressed that war and law are inconsistent and that the existence of war is the negation of law. He points out that the events of the late war, coupled with certain conditions of modern life, threaten to break down the timehonoured distinction between the armed forces and the civilian population, yet he does not admit that the assimilation can be carried to the point where it ought to be recognized as legitimate, for example, for an aviator to fly far beyond the theatre of war, and drop his deadly bombs upon peaceful civil populations. It may be remarked, in this connexion, that in his new chapter on aerial warfare he points out that the injury done to innocent non-combatants and private property by aerial raiders during the World War was out of all proportion to the military damage wrought, and he gives us his opinion that the limits within which aviators ought to be allowed to commit raids outside the theatre of military and naval operations should be regulated by international agreement. He speaks again and again of the "nefarious" submarine methods of the Germans and the shooting of Captain Fryatt is properly denounced as a plain case of judicial murder. Regarding the violation of fundamental rules of international law by belligerents, he ventures the suggestion that the League of Nations should intervene to prevent such acts. He even expressed the opinion that the duty of impartiality by which

neutrals are bound does not oblige them to remain inactive in the presence of a grave violation of international law by a belligerent. Regarding the injuries which neutrals inevitably suffer during wars of to-day, and in particular from reprisals by one belligerent against his adversary, he thinks they cannot justly complain if they are unable or make no effort to prevent the belligerent against whom the reprisal is directed from committing the acts for which the reprisal is resorted to by the other. He seems therefore to approve the decision of the Privy Council in the Stigstad and Leonora cases. He is in agreement with the position taken by the United States during the World War, that, as international law now stands, a neutral is not bound to prevent its nationals from supplying belligerents with arms and munitions, though he ventures the suggestion that, with a rising standard of public morality, a new rule forbidding such traffic may be introduced. The editor tells us that the author left a note indicating that he recognized the legality of the " long distance" blockade, but that apparently he had reached no conclusion in regard to the validity of the alleged blockade of neutral ports by the Allies. The editor in his revision of the chapter on contraband, adverting to the old distinction between absolute and conditional contraband, remarks that the World War has shaken its foundation. In the judgment of the reviewer there is no doubt as to this, and it might be added that the old rules governing the destination of the two classes of goods were shown to be illogical and based upon no sound principle. The action of the British Government in disregarding the distinction between absolute and conditional contraband, and applying the doctrine of ultimate destination to the transportation of both, in our judgment, was justified under the existing conditions, although the editor himself does not go to the length of expressly saying as much. Finally, in his discussion of the modern right of angary, as it was exercised in connexion with the requisitioning of Dutch ships in 1918, he aptly remarks that the World War clearly demonstrated that belligerents will not readily renounce the exercise of any right claimed by them unless it is absolutely clear that it does not exist. For this reason, it is of the highest importance that the rights of belligerents should be more precisely defined and embodied in an international convention, so that their legal power to interfere with the just rights of neutrals may be removed beyond the realm of controversy. Until means shall be found for preventing wars themselves, this task should occupy the chief place on the programme of the next Hague Conference-if there should ever be another one. JAMES W. GARNER.

UNIVERSITY OF ILLINOIS.

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THE BRITISH YEAR-BOOK OF INTERNATIONAL LAW.1 THIS, the third annual volume, will be welcomed by all interested in the study and development of international law, the more especially as with each year the volume, while maintaining its general high standard, tends to become more extensive in its scope and also more detailed and exhaustive in certain very valuable particulars, as, for instance, in its Summary of Events and Bibliography of the year. We are not sure, however, that the editors have been well advised in abandoning the original separate tabular List of International Agreements—a form which, if only on the score of convenience, has much to recommend it. The body of the volume contains eleven articles, remarkably uniform in their value and interest, on various important and practical topics of international law.

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The opening contribution is an article on Contraband, by the late Sir Erle Richards. Following it is an appreciation by Lord Finlay of the work and personality of that distinguished jurist, whose premature death, so deeply deplored by all, was a severe blow to the science to which he had so whole-heartedly devoted his genius and attention. "It is deeply to be regretted," writes Lord Finlay, voicing universal opinion, 'that he has left us no work embodying in more permanent form his conception of international law." In this article Richards emphasizes the great importance of the right to seize contraband, which “is, perhaps to some, an unexpected result of our war experience." And he takes the view that if any one of the proposed changes had become law before August 1914 the fortunes of war might well have been different. With this experience it is idle now to expect that Sea Powers will ever assent to the surrender of the right to interfere with traffic which directly assists the operations of their enemy. Two points, particularly, are considered in the article the extension of the Lists of Contraband and Destination and these are dealt with in certain general aspects, in the hope of facilitating, if only in some small degree, their future consideration. As might be expected, the articles, as a rule, are suggested by and treated in the light of war experience. And perhaps it is in this fashion only-by special discussion of particular subjects in juridical periodicals and volumes such as this-that, for the present, the new foundations of international law can be laid. Those least associated with the war are, perhaps, "The Territoriality of Bays," by Sir Cecil Hurst, and“ The History of Intervention," by Dr. P. H. Winfield. Of the others, may be mentioned "An International Criminal Court," by Lord Phillimore, Blockade in Modern Conditions," by Mr. H. W. Malkin, "Submarines at the Washington Conference," by Mr. R. F. Roxburgh, and "The Barcelona Conference," by Mr. G. E. Toulmin.

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Third year of issue.

1 The British Year-Book of International Law, 1922–3. (London: Henry Frowde and Hodder & Stoughton, 260 pp.) 16s, net.