« ПретходнаНастави »
THE MEMBERSHIP OF A WORLD TRIBUNAL FOR
PROMOTING PERMANENT PEACE
It is generally believed that some kind of an agreement between some, at least, of the different governments of the world, for the better regulation of their mutual relations, must follow the close of the present wars in order most effectively to promote permanent peace. Such an agreement would naturally take the form of a treaty. It is not too soon for all peoples to consider what should be its essential nature. From a state of peace to a state of war is a short step. From a state of war to a state of peace is a long one. Official overtures of a more or less informal character must come first. A preliminary protocol of some kind must then be framed, either with or without a suspension of hostilities. One or more peace conferences naturally follow, to make more definite and permanent arrangements, and their work must practically be ratified by the legislatures of the Powers concerned. Meanwhile public opinion in each of these countries must be considered and clarified. All this takes time, and the most enduring peace is apt to be one that has not been hurried to a conclusion.
It required more than seven years of negotiation to put an end to the Thirty Years' War. Three were spent in feeble and sporadic attempts at a settlement. Four followed which laid, by the Peace of Westphalia, the foundation of modern political history. Meanwhile fighting continued, and with the bitterness which has always characterized wars of religion. The very men who finally agreed on terms of peace met in separate congresses, one Protestant and the other Catholic, one in Münster and the other in Osnabrück.
They would not have agreed on them so soon had not, early in that war, international law been systematized by Grotius. Every treaty rests on public law. The public law of the world is continually growing. Its essential principles are receiving new applications and interpretations from year to year. Their relations to society are shifted. New rules are added. Old rules are modified. The treaty that is to end the present wars will relate itself to the public law of the day. And how is it to be determined what this law is? It will, on important points, be for those making that treaty to exercise that power, in behalf of those for whom they act; and, if they exercise it wisely, they may thus permanently affect the course of legal history as to the entire family of nations.
But this family as a whole has a direct interest of its own in whatever belongs to public law. The present wars have shown that there is a grave question whether some of the rules attributed to it have ever existed or, if they once existed, exist now. The restoration of peace will present a great opportunity to restate that law, authoritatively, by general consent.
The restatement of public and of international law would be of the greatest potential value if an agency existed by which, as restated, it could and would be applied to settle future disagreements between nations. The Hague Peace Conferences of 1899 and 1907 made substantial progress in these directions. So did the London Naval Conference of 1908, at which, in 1909, the Declaration of London was framed. We must not allow the advantages thus gained to be lost. Ground once secured must not be surrendered. Half the world met for a friendly interchange of views as to the best way to promote international peace, at the first Hague Conference. All the world met at the second. A new point of departure was thus attained.
Whatever new provisions for the maintenance of peace are devised, they will be most apt to endure if there is some historical foundation on which to rest them. They must be a product of evolution from former rules affecting international relations. These rules are part of the international capital of mankind. It is a capital to be carefully guarded with a view to its gradual increase.
It may be assumed that there will ultimately be either a peace congress to close the present wars, composed of representatives of the leading belligerents on each side, and probably of all the belligerents; or two peace congresses for that purpose: one composed of all the nations which are at war with Germany and her allies, and one representing the latter. The second plan would be that which was adopted
to close the Thirty Years' War, - two congresses sitting at the same time, and communicating with each other through some sort of mediation. The first plan is the simpler and more direct.
But whichever may be adopted, the main work to be undertaken will be to accomplish a general pacification by common agreement on reasonable terms. The office of a peace congress is to make peace. Whatever more it might effect in defining or improving the public law of the world, or creating new facilities for defining or improving it, could probably be better effected by a congress called specially for that purpose, and proceeding with the deliberation necessarily to be expected from such a body.
It is also true that a peace congress, after bringing a war to a close, can adjourn for a considerable period, to be reconvened as a congress for the settlement of general principles of international conduct. It may be doubted, however, whether a congress of the latter kind, even with large changes in its membership, could ever approach the subject with the freedom from influences occasioned by the war, and the juristic sense and power, that might be expected from a body newly and specially constituted for its consideration.
It is fortunate that we have already a world tribunal, created by a common agreement for the settlement of international disputes, and which has proved its right to exist by what it has already accomplished. The Permanent Court of Arbitration, commonly called the Hague Tribunal, is the work of two peace congresses. As revised in the second, it is the voice of an association of nations universal in character. Notwithstanding the pending wars, its functions continue the same, though for the time being it has not been called on to exercise them. One of its distinctive features is that its members are a panel of between one and two hundred, coming from all nations. Not all sit in every instance. The particular nations which may be parties to a dispute choose each two of the members to constitute with an umpire the tribunal in that particular case. The fundamental requirement here is the absolute equality of the contending nations before the court and in the preparation for the court.
As to the court itself, no one, except the umpire, is eligible as a member unless he be of recognized competency to pass on questions of international law and of the highest moral reputation. But as to the governments which choose them there is no distinction. The greatest and the least Powers stand here on the same footing. There is no inquiry into their national characteristics or moral reputation. So long as they are recognized as political sovereigns, they can appeal to the Permanent Court of Arbitration. Their previous records can not serve to exclude them. So long as a political sovereign, party to such a proceeding, selects, through such of its authorities as may be charged by its own laws or institutions with the conduct of its foreign relations, the two judges whom it is entitled to place upon the court, it can not be objected that those authorities were not duly qualified to make the selection.
Should such a body as is now proposed by the League to Enforce Peace come into existence after the present wars, a very different set of considerations would apply to the mode of its organization. Inequality, rather than equality, would, in some things at least, be the guiding principle. It would have the most delicate duties to discharge. It would be a council of nations rather than a court of justice. It would be apt to prove, in essence, something like the Diet of the former German Empire and the later Germanic Confederation, with its power of issuing a “federal execution” against any recalcitrant state. It is not to be forgotten that it was an exercise of that power which finally led to the destruction of the Confederation in 1866.
A bold attempt to plan out such an international assembly for the government of the world was made in 1911 by Mr. Jerome Internoscia of Montreal. It was to consist of one or more delegates from any adhering state, according to its population; to have executive, legislative, and judicial powers; to sit part of the year as a legislature and part as a court; and to be supported by an irresistible military and naval force. Action on all matters was to be determined by a majority vote. This, while a fantastic scheme, is worth mention, because of its fundamental postulate that any state in the world, at all times, must have a right to representation in such an assembly. This, of course, does not proceed from the principle of jurisprudence which guarantees to every one his “day in court.” A man charged with some fault before a court can claim, not to be a member of the court, but to be heard before it. If assailed there, he must be allowed to defend there. This is a right that belongs even to alien enemies. It can, in the nature of things, belong no less to a nation and to every nation.
In any international conference that may be convened to plan for putting an end to the present wars, it can hardly be doubted that each of the belligerent Powers will be at least asked to participate. It would seem probable that two such assemblages would be found necessary, one of a preliminary nature, to settle the points of most immediate importance, and one to act finally on all matters remaining unsettled. The latter might be an adjourned session of the first, but would be more likely to be separately constituted. In the first, called to try to create peace, the military questions involved would call especially for consideration by military officers; in the second, called to try to improve international conditions in time of peace, there would be more need of the services of statesmen and jurists.
When, in 1814, the Powers successful in overthrowing Napoleon convoked the Congress of Vienna, while they allowed France to join in the call, they hoped, by a secret agreement made for that purpose, to exclude her from any real voice in the proceedings. France nevertheless claimed an equal voice when the Congress met, and it was conceded to her. It could not have been denied if the Treaty of Vienna was to have any permanent effect on her relations to the other European Powers.
So in the organization of any world tribunal of justice which may follow the present wars (whether it be the present Hague Tribunal, or the Court of Arbitral Justice contemplated by the draft of a convention approved by the Hague Conference of 1907, or something better than either) every civilized nation should have a voice in the international assembly from which it may proceed.
Justice would not demand that it should be an equal voice. Rather it would demand that the small Powers should not have this. Whether the representation of each should be equal in number or unequal, the weight of every vote should be proportioned to the weight of the Power which casts it.
1 Ex parle McVeigh, 11 Wallace, 207.