to be adjudged by the parties themselves, as contradistinguished from judicial equity, administered by a court of justice, decreeing the equum et bonum of the case, let who or what be the parties before them." The first plank in the platform of the League to Enforce Peace provides that all "justiciable questions arising between the signatory Powers not settled by negotiation, shall, subject to the limitation of treaties, be submitted to a judicial tribunal for hearing and judgment.” 1 Likewise 66 the Bryce group of Great Britain distinguished between disputes which are of a justiciable character" and other disputes of a political nature. The best examples of questions which are justiciable are those relating to the interpretation of treaties and those relating to international law, the assumption being that the law cannot be compromised or evaded in its application to questions of this nature. The rules for the interpretation of treaties or the law of inviolability which protects an ambassador's person and premises cannot be compromised; they are fixed, and must be strictly applied. The framers of the Covenant have divided disputes into three categories: those capable of settlement by diplomacy (Article XIII); those recognized as suitable for submission to arbitration (Article XIII); and those which are likely to lead to a rupture and which do not come within the first two categories (Article XV). The first class of disputes will continue to be settled by the give-and-take methods of diplomacy. The second class are, according to Article XIII, 2 of the Covenant, those questions which have usually been called justiciable questions, but here are called questions generally suitable for submission to arbitration." It is 66 1 World Peace Foundation, pamphlet, Vol. VI, No. 5, Oct., 1916. 2 Woolf, L. S., The Framework of a Lasting Peace, p. 18. (London, 1917.) thought that these questions will always be submitted to the Permanent Court of International Justice. The definition of justiciable questions given in paragraph 2 of Article XIII of the Covenant, is due to Elihu Root. In a letter to Mr. Hays, March 29, 1919, he recommended the inclusion of the following paragraph in the revised draft of the Covenant: "Disputes of a justiciable character are defined as disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the nature and extent of the reparation to be made for any such breach." The members of the League determine for themselves what questions (in addition to justiciable questions which are always submitted) shall be submitted to arbitration (Article XIII, 1). It is possible that questions which may be partly political and partly justiciable will be referred to the permanent Court of Arbitration at The Hague. Such questions are called by Professor Oppenheim “complex cases which are justiciable but in which, besides the question 1 This definition appears in about the same form in Section 20 of the Smuts' Plan. Mr. Marburg has called the author's attention to the fact that the same wording appears in the Proposals for the Avoidance of War published by the Bryce Group, Feb. 24, 1915. It is likely that the prominence given to the definition by Mr. Root caused it to be inserted in the Covenant. By permission the following letter from Lord Bryce to Mr. Marburg relating to the origin of the definition of a justiciable dispute is given: MY DEAR MR. MARBURG: "3 Buckingham Gate, LONDON, S. W. After consulting a friend who worked with me on the small British Committee which prepared the "Proposals for the Avoidance of War" I find that the words you refer to as defining 'disputes of a justiciable character' were settled by us as the definition we thought most clear and complete and were not, so far as I know, taken bodily from any other source. My belief is that we composed this definition after reading others, but that, in the shape we gave it, it was our own. BRYCE" of law, there is at the same time involved a vital political principle or claim.” 1 Settlement of political disputes is reserved to the Council to be decided by conciliation. Compromise and expediency will govern the determination of these questions. The Council will, however, be expected to respect the law so far as that is possible. If the dispute is referred to the Assembly, the same principles which apply to the reports of the Council will govern. 1 L. Oppenheim, in an opinion regarding the proposed Court of International Justice, World Court, Feb., 1918, p. 75. CHAPTER VIII SOME MODIFICATIONS IN THE THEORY OF INTERNATIONAL LAW "THE press, which reaches millions of Americans, must help break down the international law," said Henry Morgenthau, former United States Ambassador to Turkey, “which says no nation can interfere with the internal affairs of another nation. Whenever I tried to intercede for the oppressed people in Turkey I was told that it was none of America's business." 1 The conceptions of international law which have been considered in the preceding pages have, with the exception of the last-considered conception under the League of Nations, been based upon the assumption that every nation is sovereign and independent, with its own interests entirely separate from those of other nations. No sovereign nation could in any way interfere in the affairs of another nation except in certain cases where its own special interests were endangered. Hall holds that intervention is illegal except "for the purpose of self-preservation, unless a breach of the law as between states has taken place or unless the whole body of civilized states have concurred in authorizing it.” 3 The collective intervention in China in 1900, to suppress the Boxer uprising and protect the legations, is the best example of combined action by several nations. "In the society of nations," said Professor Munroe 1 World Court, Aug., 1918, p. 475. 2 Wilson and Tucker, International Law, p. 87. (7th ed., 1917.) 66 Smith, the redress of an international wrong by the concerted action of a number of states is a significant step. . . . In the development of tribal law, such reactions indicated that offenses previously regarded as torts were beginning to be viewed as crimes. Concerted action by the society of nations against an offending state seems to imply a recognition that a state may be held accountable, not only to other single states which it has directly injured, but also to the world for a crime against civilization." 1 "If," said Mr. Root, "the law of nations is to be binding, . . . there must be a change in theory, and violations of the law of such a character as to threaten the peace and order of the community of nations must be deemed to be a violation of the right of every civilized nation to have the law maintained and a legal injury to every nation." 2 Several clauses of the Covenant actually apply the change in the theory of international law which Professor Smith and Mr. Root had in mind. Article X gives the members of the League the right to intervene in case the territorial integrity or political independence of one of their number is endangered or violated by outside aggression. Articles III, 3, and IV, 4, give the Assembly and Council respectively, the competency to deal with " any matter affecting the peace of the world" and within the sphere of action of the League. Article XI, 1, makes any war or threat of war a "matter of concern to the whole League." Article XI, 2, makes it the friendly right of each member to bring to the attention of the Council or the Assembly “any circumstance whatever affecting international relations which threatens to disturb international peace or the good 1 "The Nature and Future of International Law," Presidential address, Amer. Pol. Sci. Association, Am. Pol. Sci. Rev., Feb., 1918, p. 1. 2 "The Outlook for International Law," Presidential address, Am. Soc. International Law, Washington, Dec. 28, 1915. |