Hague Regulations of Land War

Article 23 (h) of the Hague Regulations of Land War is an Example

Lassa Oppenheim, in the book entitled The Future of International Law, about Article 23 (h) of the Hague Regulations of Land War is an Example, wrote in 1921: An example of such carelessness is afforded by the incorporation–at the second Hague Conference–of a new provision in the former Article 23 of the ‘Regulations respecting the laws of land warfare’. I am referring to the provision added under the letter (h), which runs as follows: [It is forbidden] ‘to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party’.

The German and the English Interpretation of Article 23(h)

Lassa Oppenheim, in the book entitled The Future of International Law, about The German and the English Interpretation of Article 23(h), wrote in 1921: 36. From the German memorandum on the second Peace Conference it is quite clear that this additional rule, which was proposed by Germany and adopted by the Conference, was directed to the alteration of the rule, prevailing in several states, whereby during a war the subjects of one belligerent lose in the country of the other belligerent their persona standi in judicio, and the like. It is in this sense, then, that the addition has been unanimously interpreted by German literature, with the agreement of many foreign writers. The official standpoint of England, on the contrary, is that Article 23 (h) has nothing whatever to do with the municipal law of the belligerent countries. Article 23 (h), so the English Foreign Office explains, forms a subdivision of Article 23, which itself comes under the second section (headed ‘Hostilities’) of the Regulations, and forbids a series of acts which otherwise might be resorted to in the exercise of hostilities by the members of the contending armies, and by their commanding officers. That this interpretation is the right one–so it is further explained by the English side–is shown by the fact that Article 1 of the Convention expressly says, with reference to the ‘Regulations respecting the laws of land warfare’, that the contracting parties shall issue to their armed land forces instructions which shall be in conformity with the ‘Regulations respecting the laws of land warfare’ annexed to the Convention. It would therefore be the duty of every contracting power to instruct the commanders of its forces in an enemy’s country (among other things) not ‘to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party’.