I realize that any subject which has to do with the Peace Conference possesses at this time a peculiar interest not only to members of the legal profession but in fact to men of every avocation and every nationality.

There is at present considerable discussion regarding questions with respect to “the freedom of the seas.” These questions, so often vaguely referred to, should presumably be understood to relate to the exercise of belligerent rights on the sea and to embrace such matters as a possible codification of international law touching this subject, proper compliance with rules heretofore generally accepted if not always strictly observed, the desirability of amendments to such rules, and the formulation of principles to meet new problems that have grown out of the recent conflict. In the light of events in connection with the war the present situation with regard to the disposition of such questions through international agreement unhappily appears more difficult than that which confronted the delegates who assembled in conference at London in 1908 on the invitation of the British Government to reach an understanding among the nations represented relative to the rules of international law concerning the laws of naval warfare, and formulated the so-called London Declaration signed February 26, 1909.

On January 18, 1919, the forty-eighth anniversary of the proclamation of the German Empire at Versailles after the invasion of France in 1870-1871, there assembled in the Ministry of Foreign Affairs at Paris a meeting of the representatives of the Allied and Associated belligerent Powers, as well as the Powers which had broken off diplomatic relations, to decide upon the terms of peace to be offered to Germany and her allies.

Emulating Bismarck, who used the emasculated telegram of Ems as the pretext of waging a war of conquest upon France, William II and his General Staff seized upon the rupture between Austria-Hungary and Serbia growing out of the assassination of the Austrian Crown Prince at Serajevo in June, 1914, as the pretext for launching Germany upon a carefully prepared program of world domination. Fearful lest delay might result in the loss of the opportunity for which she had deliberately planned and anxiously awaited, within a week after Austria-Hungary declared war on Serbia on July 28, 1914, Germany had declared war on Russia and France and had shamelessly violated the neutrality of Belgium which she had solemnly undertaken to respect. Great Britain, for self-protection and in response to treaty obligations, immediately entered the war against Germany, and was successively followed from time to time, as Germany evinced her disregard of international law, the laws of war and the dictates of humanity, by all the other large Powers and many of the smaller ones whose interests were jeopardized or rights infringed upon by Germany’s increasingly reckless and ruthless conduct.

One of the earliest examples of a sort of ratification is found in the treaty between Justinian and the Persian King, Chosroes, in 561 A. D. In this case the sovereigns agreed to accept that which their plenipotentiaries had promised and agreed upon. The French-Swiss alliance of May 28, 1777, was sanctioned by solemn oaths. It was the custom in earlier times to take hostages to insure ratification; this Grotius believed entirely proper. The oath gave way to a mere act or declaration of ratification.

Grotius likened a plenipotentiary to a mandatory, holding that all agreements reached by him were binding upon the sovereign from the time of signature, unless the secret instructions were transcended. Thus he regarded ratification as a mere form, not affecting the validity of the treaty. Likewise Martens, writing in 1789 at the time of the adoption of the Constitution of the United States, believed that if a mandatory had not exceeded his secret instructions, all that he agreed to was binding upon the state represented, and that the law of nations required no particular ratification (ratification particulière). Pufendorf regarded treaties valid from signature and thought ratification superfluous.

Second only to the proposed Covenant of the League of Nations in its claims upon the interest and attention of the American people and the Senate of the United States, and of far more importance and interest to them than the terms of the proposed treaty with Germany, outside of the section of that treaty which contains the Covenant of the League of Nations, is the proposed treaty with France.

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.

When, in 1914, the Great War broke upon an astonished world, we rather took comfort to ourselves in the thought that no matter how swiftly and vigorously military operations might be prosecuted, the Conventions of Geneva and of The Hague would insure humane care and chivalrous treatment to the prisoners of war of both sides. Perhaps unconsciously we based our feeling of assurance in this regard upon two assumptions. The first of these was that the terms of those conventions were of themselves legally binding upon the parties to the great conflict; and the second that in this day and generation of high development in the elements of morality and humanity the belligerents would feel themselves morally if not technically constrained to abide by the principles, and to follow, in practice, the honorable provisions of the conventions.

There are two particular conventions falling under consideration in this connection. These are, the Convention Respecting the Laws and Customs of War on Land, generally referred to as Hague IV of 1907; and the Convention for the Adaptation to Maritime War of the Principles of the Geneva Convention of 1906, commonly known as Hague X of 1907. Each of these agreements contains a provisional article, practically identical in the two instances, worded substantially as follows:

War, therefore, is an act of violence intended to compel our opponent to fulfil our will.

If our opponent is to be made to comply with our will, we must place him in a situation which is more oppressive to him than the sacrifice which we demand.

As long as the enemy is not defeated he may defeat me; then I shall be no longer my own master; he will dictate the law to me as I did to him.—Clausewitz on War.