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legislative. Legislation should require further treaty cooperation in each new proposal.
The administrative powers are to be used, first, to protect newly formed states; second, to enforce other conclusions of the Peace Treaties, such as disarmament; third, to carry out decisions of the League.
Its judicial powers are to conciliate or judge disputes between members and more widely to substitute law for force in international relations, so far as possible.
Disarmament must reduce the strength of the individual members and thereby relatively increase the strength of the central body, ¿.e., the sum of the military units put at its disposal.
The League must also have the power of boycotting as one of its weapons, but otherwise is not an economic union.
Its field is political; it relegates social problems to the member states. For instance, women's and children's labor in Japan or Brazil, seamen's wages in India and the United States, can not be regulated from a League capital without disaster.
It is a loose union for the prevention of war; with no ulterior aims beyond this; a limited but a safe conception.
This was written before the first draft of the League Constitution was given out at Paris, and even yet the last word has not been said. Judging it in the light of the principles tentatively set forth above, it would seem to have avoided much that would be dangerous and to embody much that is hopeful and valuable. Its members retain their sovereignty. Much stress is laid upon disarmament and the control of private munition factories. Defense against external aggression is contemplated, but the right of a state to change its own condition is not questioned. As between members of the League, disputes are to be submitted either to arbitration or to inquiry by the Executive Council before resort to war; this implies a certain delay. Such submission to arbitration is voluntary, however, while the resort to inquiry at the hands of the Council is obligatory, an international league boycott being the penalty for non-compliance. The Council may also use force. These provisions are obscure and need rephrasing.
If the dispute is between a League member and an outside state, such state is forthwith to be asked to join the League for the purpose of settling the difference, but whether it does so or refuses, the Executive Council may use its judgment in trying to keep the peace, acting in accordance with League principles. This is vague and unsatisfactory.
Then there is a novelty in placing German colonies and backward states under the protection of advanced powers which are called Mandatories. The only provision for social welfare is in Article XX. “The high contracting parties will endeavor to secure and maintain fair and humane conditions of labor for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend; and to that end agree to establish as part of the organization of the League a permanent bureau of labor.” This does not call for uniformity of conditions, and is probably both meaningless and harmless.
Of course, it is too early to criticize textually. Nor has reference been made to other subjects treated in the Constitution, but which are not germane to the special purpose of this paper. In general, it seems to the writer that the effectiveness of the League machinery for checking war depends upon the impression of solidarity which the League produces, and that this solidarity will depend too largely upon the make-up of the Executive Council. But read in connection with the disarmament stipulations, the judicial provisions should be reasonably, perhaps absolutely, workable.
· These, then, are the two principal changes which international law should find impressed upon its system as a result of the great war, a league of states which retain their sovereignty but agree to get the judgment of the whole body in some way before resorting to war; a method of investigation and punishment which would make the violation of the laws of war highly dangerous.
There are now two or three other particulars in which the old law of nations may have new light cast upon it as a result, or byproduct, of the war. If a tribunal, under whatever auspices it comes into being, adjudges international causes, it will need a code of law, and it will also tend to build one up. The code with which it will set out is one of usage supplemented by treaty compact. It may lack precision, but is workable nevertheless. In time the demand for a Code of International Law will create one, not as a whole, but in partsdiplomatic intercourse, for instance, or maritime jurisdiction, or the laws of war on sea. Meanwhile, the court itself by dint of judicial decisions will add to and clarify the law which it administers. This double process of growth is a better, more reasonable, form of code-building than codification covering the whole field and jeopardizing its results by attacking in one engagement all the burning questions. This method of growth through the arbitral decisions of the last half century, has already been marked. Thus jurisdiction over seals' swimming free in the high seas has been denied to the country of their origin. The Alabama arbitration enlarged neutral duty and defined due diligence in its performance. Light was thrown upon the question of how territorial waters shall be measured, in the Alaska and Newfoundland cases. It is not necessary to multiply examples.
Another question which the events of the war have brought into prominence and which the future law might possibly take cognizance of, relates to armed intervention in the affairs of a state with which one is not at war, on the plea of self-defense. The condition of portions of Russia illustrates what is meant. The forces of anarchy, of chaos, have gained the upper hand. Life and property of native and of alien are in jeopardy. The obligations of the old state are disregarded. Moreover, the spirit of misrule, like a religion, is being spread as widely as possible over the world. Our own country, Uruguay, Argentina, Mexico, are objects of attack, besides contiguous states. Shall resistance to these noxious doctrines be defensive only, or may they be attacked at their source! We justify the presence of our troops in Russia at this moment on the ground of self-defense, as an outcome of war. But if no declared war existed, and organized society found itself attacked out of a clear sky, under the new dispensation, what is society to do! Here is war no less real and dreadful because unregularized. If a league of states exists to keep the peace, with powers to settle disputes and to police the world granted to it, the anarchical menace, if anything, should call those powers out. Yet, on the other hand, if we incorporate into the new League the right of intervention in the affairs of individual states for any purpose whatsoever, we run a serious risk; we play the rôle of the Concert of Europe; we weaken the educative power of responsibility. To frame a formula for the conduet of a League of Nations, which shall be broad enough to crush anarchy anywhere, yet restricted enough to guarantee to each state sovereignty and independence, will require high statesmanship.
I have spoken of the educative power of state responsibility. In theory this should be a result of independence. But on our own hemisphere we see too many examples of the failure of the rule. Through the Monroe Doctrine we have shielded our neighbor republics from foreign intervention, doing it for our own sake and often resented by them. We mean well by them. Certain of their qualities we admire. But excepting half a dozen of the better developed, the Latin American states, from their want of order and of educa. tion and of self-control, are a menace to our world. Shall they and their problems, like Bolshevism, come before the League for treatment? Or shall an American league be set up for local treatment, to assume both responsibility and control? Or more probably still, shall this old world and this new one muddle along very much as they have since the beginnings of history, gaining here a little and there a little, the law of their relations changing with the law of their progress, the moral uses of dark things revealed, to those who can see, by Divine Providence.
When a criminal breaks the law and at last is caught and punished, we do not say that the law has broken down; we say rather that it has been enforced, that the law works. So is it with the law which governs the relations of states. It has been cruelly violated. There were times when the criminal seemed immune. But his punishment has begun. Every restitution, every penalty, every act of atonement, is proof that the law he scorned is stronger than he. Its grasp is firmer, its future is brighter than before, and its field is greater. Like the last runner in a relay we have reached the line, and the line is justice.
THEODORE S. WOOLSEY.
THE GERMAN CONCEPTION OF THE FREEDOM OF THE
THE World War has given rise to some of the most remarkable views or expressions of opinion, particularly in Germany, regarding the freedom of the seas that have ever been uttered. Indeed, it may be said to have revived this old controversy in an entirely new form, but with the ideas frequently stated in the most excessive manner. Though, along with many other products of German war psychology, the most extravagant of these views seem for the most part to be doomed to defeat, and perhaps to a deserved oblivion, yet there may be a nucleus of sense or residuum of wisdom in some of them that is worthy of consideration. In any case, it may be claimed that they possess a certain historical or academic interest which appears to justify this discussion and record, filled, as it is, with copious extracts.
There have been in Germany during recent years two extreme and fundamentally opposed conceptions of the freedom of the seas, or rather, of the means through which this so-called freedom may be attained and preserved. And these conceptions of means or methods have been held as applicable in securing this freedom in times of peace as well as during war. This fact is thus stated by the German authority on naval matters, Captain Persius: “There are two theories in Germany, one advocating the freedom of the sea by virtue of a huge
1 The documentary basis of this article is a collection made by the writer of several hundred pages of extracts drawn from many and various sources. These sources include a number of German pamphlets on the “Freedom of the Seas," notably the one by Meurer (to which repeated reference is made in the text), German periodicals of various sorts, including newspapers as well as magazines, resolutions and petitions adopted by the political parties, chambers of commerce and other public bodies in Germany, speeches of leading German statesmen and politicians, articles and lectures by German authorities on international law, etc. A considerable number of them were drawn from Das annexionistische Deutschland, by S. Grumbach, Lausanne, 1917.