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In discussing the legal questions, which are suggested by the Peace Conference or are directly raised by the Treaty of Peace, it is my purpose to do so as impartially as possible. Of the two classes the suggested questions rather than the definite questions presented by the provisions of the treaty are to my mind the most important. They may lack the preciseness of a formulated provision but they invite the especial consideration of those who are interested in the philosophy of law and its interpretation into a standard of international conduct. It is manifest that this war has given an impetus to what is commonly termed Internationalism, though it would be more proper to call the communistic doctrine Mundanism. This pseudo-Internationalism seeks to make classes or in some cases individuals the units of world organization rather than nations. It is the enemy of Nationalism which is the basis of world order as we know it. It is a real, though not always an open, enemy of national independence and of national sovereignty. Its more radical adherents demand class allegiance and discourage or denounce national allegiance. In its extreme form it purposes to remove national barriers and to overthrow national governments whether democratic or monarchic in form. This is not a new communistic doctrine or theory, but it never became an actual menace to the present social order until the successful revolution in Russia fell into the hands of the Bolsheviks. Spreading from this center of unrest and disorder the movement has today assumed proportions which command the serious consideration of every civilized people. In certain lands the economic conditions and state of wretchedness resulting from the war have been peculiarly favorable to its growth. However safe this country may be from the more pernicious forms of this doctrine and however confidently we may rely upon the sound common sense of the American people, we cannot ignore the dangerous possibility that moderate forms may under certain influences develop into extreme and threaten our political institutions. We ought to realize that the world can not be organized on both Mundanism and Nationalism. The political cleavage must be between nations or between classes. We must choose between these two conceptions of world order.
I have no doubt what the final verdict will be unless thoughtful men fail in their duty. It will be for Nationalism, not the evil form of Nationalism which was the bane of the eighteenth and nineteenth centuries, but the democratic form which will develop in the present century and become the cornerstone of the new order.
I have referred to Nationalism in this connection because the Treaty of Peace by its terms and method of negotiation makes the nation the unit of responsibility and of right. The treaty is an agreement between sovereign states and imposes obligations upon nations, not upon individuals. Thus, it announces to mankind that the nationalistic idea is to be preserved as the basis of society and that nation will deal with nation as in the past.
This fact is of importance from the legal standpoint, since it shows that international law, and not world law affecting individuals, is to continue as the standard of intercourse between governments and peoples. With such an evidence of the will of mankind and with such an assurance that Nationalism will not be abandoned, we can proceed to rebuild our international system and codes upon sure foundations.
In times of peace there have been three ways of composing international controversies—namely, diplomatic settlement, mediation (an aid to diplomatic settlement), and judicial settlement. The Treaty of Versailles has not changed these three methods. They exist in the Covenant of the League of Nations which declares for arbitration, international inquiry and mutual understanding. The peaceable settlement of a controversy between nations thus falls within the sphere of legal justice or the sphere of diplomacy, since mediation or inquiry is an adjunct to an amicable arrangement between the parties to a dispute, and therefore is diplomatic in character.
The Covenant has gone far in developing a new process of diplomatic adjustment of such differences as have been heretofore the frequent causes of war between the disputants, but its only contribution to the advancement of international arbitration is to make it in a measure partially compulsory, and to provide that “plans for the establishment of a permanent Court of International Justice” should be formulated and submitted to the members of the League by the Council. It is with this latter provision that jurists should be par
ticularly concerned for the usefulness of this instrument of settlement depends upon the proper constitution of such a tribunal and the practical method of procedure before it.
Many of us, who have had experience before international courts and commissions, have realized the inadequacy and unsatisfactory character of the present system of arbitration and the imperfect, if not objectionable, method of procedure which has been followed. Appreciating now as we did not before the evil purposes which the Powers of Central Europe had so long secretly cherished, it is remarkable that The Hague Convention of 1907 developed as far as it did a workable system for the judicial settlement of international disputes. I have no sympathy with those who criticize or condemn the accomplishment of that great assembly of distinguished statesmen and jurisconsults who formulated an instrument and a method, by which justice could be applied to nations as national judiciaries have applied it to individuals. It is ignorance of the difficulties of their task or in some cases I fear a less justifiable reason which has induced unfavorable comment of or contemptuous indifference to the real achievements of The Hague Conferences.
The creation of The Hague Court was a tremendous forward step in the prevention of international wars in that the signatories to the organic convention committed themselves to the standing policy that justice should be the controlling principle in all relations between nations and that its application to concrete cases by an impartial tribunal ought to supersede the ancient and barbarous method of trial by combat. I desire to register here my personal appreciation of the great service which was rendered by The Hague Conferences of 1899 and 1907 in furnishing the world a definite system of international judicature. Along the general lines of The Hague Convention the nations should build a new and more substantial structure, eliminating those weaknesses and undesirable features which were the consequence of the improper motives of certain Powers, particularly the German Empire, and of the false conception of their national interests. It would be folly to cast aside all that has been achieved and attempt to create something entirely different. In our desire to make this new era a better one than the one from which we
have emerged, we must not let idealism run away with common sense or assume that we possess a mentality far superior to our predecessors. Past methods are not all worthless because they failed to accomplish their objects in the extraordinary and abnormal circumstances which resulted in the World War. I do not believe that any human agency could have prevented the conflict through which we have passed so long as greed and ambition were the supreme impulses of the German Autocracy. If the German Government had not been inspired by these evil motives and had not believed that it possessed the physical power to gratify its desires, who is prepared to say that The Hague Convention of 1907 would not have furnished a sufficient instrument to settle peaceably controversies which might without it have produced international wars? The fact is that under present conditions, even with autocracy vanquished and democracy triumphant, we have to face the same problems, though modified by a better conception of the truth and a less ruthless disregard of right. It is, I believe, a better world, but by no means a perfect world. Though less threatened by the simister influence of national avarice, we are not free from it entirely. I do not know that the world will ever be until it is spiritually regenerated. As I see it there is only one principle for the direction of international intercourse which will under present conditions command the universal approval of nations, and that is the principle of justice, not in the general and abstract sense, but in the restricted sense of legal justice. Justice in the broad sense is attractive to the reformer and the idealist. As a nation we ought and doubtless will be guided by it in our relations with other nations. But, when we come to formulate our foreign policies upon the belief that justice in the abstract is a dominant force in the regulation of world affairs, we are building on a foundation which, however desirable, is by no means certain. We must recognize the fact, unpalatable though it may be, that nations to-day are influenced more by selfishness than by an altruistic sentiment of justice. The time may come when the nations will change their present attitude through a realization that uniform justice in foreign as well as in domestic affairs is the highest type of expediency, but that time has not yet come, and, if we are wise, we will not deceive ourselves by assuming that the policies of other governments are founded on unselfishness or on a constant purpose to be just even though the consequences be contrary to their immediate interests. Yet, while abstract justice cannot be depended upon as a firm basis on which to constitute an international concord for the preservation of peace and good relations between nations, legal justice offers a common ground where the nations can meet to settle their controversies. No nation can refuse in the face of the opinion of the world to declare its unwillingness to recognize the legal rights of other nations or to submit to the judgment of an impartial tribunal a dispute involving the determination of such rights. The moment, however, that we go beyond the clearly defined field of legal justice we enter the field of diplomacy where national interests and ambitions are today the controlling factors of national action. Concession and compromise are the chief agents of diplomatic settlement instead of the impartial application of legal justice which is essential to a judicial settlement. Furthermore, the two modes of settlement differ in that a judicial settlement rests upon the precept that all nations, whether great or small, are equal, but in the sphere of diplomacy the inequality of nations is not only recognized but unquestionably influences the adjustment of international differences. Any change in the relative power of nations, a change which is continually taking place, makes more or less temporary diplomatic settlements, but in no way affects a judicial settlement. However then international society may be organized politically for the future and whatever machinery may be set up to minimize the possibilities of war, I believe that the agency which may be counted upon to function with certainty is that which develops and applies legal justice. Every other agency, regardless of its form, will be found, when analyzed, to be diplomatic in character and subject to those impulses and purposes which generally affect diplomatic negotiations. With a full appreciation of the advantage to be gained for the world at large through the common consideration of a vexatious international question by a body representing all nations,