« ПретходнаНастави »
In preparing for the Congress of Vienna, Talleyrand wrote and the King adopted instructions to the French ambassadors, from which the following extract is taken:
The general equilibrium of Europe can not be composed of simple elements. It can only be a system of partial equilibrium. The small or medium states should be allowed a vote only in the questions concerning the particular system to which they belong — the states of Italy in the arrangements relative to Italy, and the German states in the arrangements relative to Germany. The great Powers alone, being interested in the whole, should coördinate each part with regard to the whole.2
A mode of obtaining the same general result would be to make voting power, in international congresses and courts, relative to population, or to the general magnitude and diversity of interests to be guarded by the greater nations. It was in this way that the congress proceeded which met in 1906 to regulate wireless telegraphy.
It has been suggested that the scheme of successive Hague Conferences, under which two have already been held and a third resolved on, should be replaced by conferences of limited instead of unlimited membership. There is already an association of nations of the first importance headed by Great Britain and France, and another of a like character, though less numerous, headed by Germany and AustriaHungary. Why not make use of these as instruments for the reconstruction of social order in the family of nations? The objections to such a proposition would seem conclusive. Each would be the rival of the other in attracting adherents. Each, whether in court or congress, would add to the natural force of nationality the artificial influences incident to its own existence. There would naturally be two leagues, two courts, two tendencies of thought, two views of public law. Given two leagues, it would be practically impossible not to have two international courts. Given two international courts, and it could hardly be expected that they would always agree on points of international relationship. The continued existence, also, of two powerful alliances, originally formed for purposes of war, would be a constant menace to the peace of the world. The innate character and common experiences of each would at once, or certainly eventually,
? Broglie, Memoirs of Talleyrand, II, 157, 172.
bring a new and positive element of discord into the society of nations. If each alliance maintained an international court, these courts might be expected often to differ in their conclusions. If only one maintained such a tribunal, its judgments would be considered of light weight in countries not in the alliance to which it owed its origin.
There certainly ought to be, in the interests of human society, one standing tribunal of justice for the world. There is one now, though far from perfect, — the Permanent Court of Arbitration. A plan for adding what may prove a better one, the Court of Arbitral Justice, has proceeded from the same source. It may be possible and practicable to adopt some new method, either independent or supplemental, of attaining the desired end that is better than either or both. But it will only be if all civilized nations are asked to send delegates to the conference which devises that method, and probably not unless membership in the new tribunal is made open to all citizens of each on terms that give every country such weight of choice as its relative importance fairly merits.
The Hague Convention of 1907 for the creation of an International Prize Court, which failed of ratification, followed in most particulars these general principles. Its scheme, however, in securing on a bench of fifteen judges eight places for the great Powers, the others being filled by the lesser Powers in rotation or by lot, did not satisfy the views of the latter as to equity or right. The distinction between the two classes of Powers was deemed to be too pronounced.
Questions of this kind will be less easy to answer if a new world court is established with powers of physical coercion. The greater such powers, the harder it will be to agree on the method of choosing those to whom they are to be intrusted.
To the writer the objections to enforcing compliance with the orders of any world tribunal by its active use of a military and naval establishment seem insuperable under the conditions that will immediately follow the restoration of peace. The existing feelings of emnity between the peoples of the contending Powers will be too strong. Time only can conquer them. It may well be doubted if that would ever bring the world together as a fighting force to compel any particular sovereign to obey the decrees of such a tribunal. There well might, however, be an agreement to resort to international outlawry, or, in some other way, to use economic and social pressure under such circumstances, which would command general consent.
Wherever there can be instituted, by order of an international court, a state of what would amount to “imperfect war," the court would be kept filled with generals and admirals. A court of justice ought to have a bench of jurists.
It ought also to be such as to entitle it to be looked to as a court of honor. It must stand and prove its right to stand as an Ehrengericht, whose decisions can not be disregarded by honorable men, whether acting for themselves or for nations. Its real charter must proceed from public opinion.
Its members should be above reproach or suspicion of reproach. They should be originally selected only after painstaking inquiry as to their position and character.
Had the appointments of the American members of the present Hague Tribunal been submitted to the Senate for ratification, it would have given a public guaranty of their fitness for such a position, which would have been justly regarded by other nations as of high importance. Still more would such a mode of procedure be of value should any such court of arbitral justice with a small and definite membership be organized as was proposed by the Hague Conference of 1907.
Another possibility in world reconstruction which deserves consideration in this connection is the formation of a confederation of nations with power to judge between them, but whose judgments should be enforceable only according to the determination of another and distinct tribunal. The confederation might decide that one of its members had committed or was threatening to commit some act in breach of its international duties, and then it might be reserved for some kind of executive council to promulgate and execute the judgment.
In mediæval Germany disputes between the states of the Empire had come to be generally regarded as proper subjects of arbitration. The arbitrators (Austregues) were commonly agreed on by the states concerned, sometimes chosen by lot. The Diet of Worms, in 1495, framed what it deemed a better plan to preserve perpetual peace within
the Empire. This provided that if any party to such an arbitration did not accept the decision as final, it might appeal to a standing Imperial Chamber of Justice (Reichskammergericht), composed of seventeen judges, proceeding according to the principles of the Roman law; but that the judgments of the Chamber were only to be executed as and when an Imperial Council (Reichsregiment) might determine. A few years later this function was confided to “circles" of neighboring states, and the Imperial Council soon gave way to the Aulic Council, a mere mouthpiece of the Emperor.
Hamilton, in the Federalist (No. LXXX), in urging the necessity of securing the peace of the United States by a judicial determination of controversies between the States of the Union, spoke of the institution of this Imperial Chamber of Justice, in 1495, as a wise and successful measure.
Under any such plan (whether a previous resort to arbitration should be required, or not) the body which was to speak first as a regular court of justice would naturally be composed of jurists and publicists, for their office would be to settle rights. The other body would be largely concerned with functions of policy and expediency. It might be of opinion that the case was governed by the principle, Summum jus, summa injuria, and so refuse to issue an execution. It might believe the judgment to be right on all points and yet decline to take any action. A council with authority to act in such a manner would be mainly executive in character. Its members, therefore, would naturally be men of affairs rather than of books.
There are those who would exclude from a share in framing a world tribunal for promoting permanent peace any state which is in a marked degree inferior to most of the other Powers as respects the education and general cultivation of its people. Such a test is one difficult to apply and invidious in its nature. It might result in a discrimination that would bar out Powers of large population and extensive trade, though they have political leaders of the highest rank for learning, wisdom, and character. A body to promote the peace of the world can not safely be founded on principles of inequality and exclusion.
SIMEON E. BALDWIN. • Robertson, History of Charles V, I, 359; Hallam, Middle Ages, 306; Snow, Report of the Am. Society for Judicial Settlement of International Disputes for 1916, 47.
THE NEUTRALITY OF SWITZERLAND
GENEVA, THE PAYS DE GEX, AND HAUTE-SAVOIE THE conception of a permanent neutrality for Switzerland sharply differentiates itself from the various phases of neutralization created chiefly after the Congress of Vienna in Europe and elsewhere in the important respect that in the case of Switzerland the Powers did no more than attempt to crystallize in diplomatic and lasting form a political condition which had, as we have heretofore seen, characterized the country during nearly three centuries. The Powers, consequently, merely recognized an existing status and one deemed essential as well to the peace of Europe as to the welfare of Switzerland itself. But at Vienna it was clearly seen that recognition would prove valueless were it not supported by an international guarantee, and one, moreover, which would not only necessarily take the shape of an international protection of Switzerland against outside aggression, but also conserve a unitary and harmonious federal administration within the Swiss boundaries. We are not surprised, accordingly, to find the conception of such a guarantee appearing in the various diplomatic documents heretofore noted which create or attest Swiss neutrality, as in the Treaty of Lunéville, February 9, 1801, and the identical treaties concluded at Paris, May 30, 1814, known as the First Peace of Paris (noted in Part I of this series, April, 1918, JOURNAL, p. 241, at p. 246), in which Swiss independence and self-government are expressly recognized: “La Suisse, indépendante, continuera de se gouverner par elle-même.” (Art. VI)
Before the Vienna Congress, then, there lay the problem of not merely declaring the fact of Swiss neutrality, independence, and selfgovernment, but of providing, further, such practical means as lay within the power of the envoys toward assuring a lasting maintenance