The American Plan for Enforcing Peace

I AM asked to give an opinion from a British point of view of the proposals of the League to Enforce Peace. Liberal compliance with this request would be rather difficult, for I fail to see why there is, or should be, any specially British point of view on a question of universal international justice. Neither can it be said that there exists in fact any decided national view; we have not so far had any thorough discussion. My impression is that competent opinion here is not at present so near a general consent as it appears to be in America. Be that as it may, my individual opinion is so much in accordance with that of the League that I have really no criticism of substance to offer, and can only make some observations on the proposals by way of illustration and supplement. Again, I do not know what risk there may be in America of such misunderstandings as have exercised one or two able publicists here, and therefore must crave excuse if any cautionary explanation here set down is superfluous for most readers of the Atlantic Monthly. I will follow the proposals of the League in the order in which they are laid down.

First: All justiciable questions arising between the signatory powers, not settled by negotiation, shall, subject to the limitations of treaties, be submitted to a judicial tribunal for hearing and judgment both upon the merits and upon any issue as to its jurisdiction of the question.

The reference to the limitations of treaties apparently means that signatory powers would remain free to act in particular cases, as between themselves, on any special arbitration treaties to which they were already parties, such as the treaty of 1914 between Great Britain and the United States. Disposal of any question under such a treaty would in effect be a species of settlement out of court, and rather to be encouraged. The constitution of the tribunal is wisely not specified in detail. Until the plan is seriously taken up by the authority of a quorum of governments, in such number and value as will suffice to make it workable, it is useless to spend time in weighing out the imaginary mint and anise and cummin. One of the things to be considered will be whether, and to what extent, the machinery already established on a merely voluntary basis at The Hague can be made use of. It would be wholly premature to express an opinion on this.

The tribunal itself is to be charged with the duty of determining whether any question submitted to it is ‘justiciable ’ — as leading to issues capable of definite judicial determination; or ‘ non-justiciable’—as depending on moral or political considerations which cannot be reduced to a definite issue. In the latter case, the matter would, I presume, be passed on to the Board of Conciliation to be next mentioned. This would be simpler than instituting some kind of special examining committee or tribunal des conflits, and I see no reason why it should be less efficient.

Nothing is said about enforcing the awards of the tribunal when made; and it does not appear that any such provision is necessary. There have, in fact, been very few cases of refusal to execute an international award on a question submitted to arbitration by agreement of the parties. It must not be supposed, however, that the League would be wholly indifferent to the subsequent conduct of the litigants. A successful litigant state should not be left under the unrestrained temptation to execute the award for itself by military force if the defeated party fails to comply with it for a time which appears unreasonable. It seems that taking the law into one’s own hand without the authority of the League, even after an award, would be in spirit, if not in the absolute letter, such an act of hostility as is provided against in the third article, and that the proper course in case of excessive delay would be to appeal to the League — in an executive, not a judicial capacity — for license to take the necessary steps. I cannot help thinking that the first case of this kind which arose would probably lead to the League being invested with direct executive power, tempered perhaps by the requirement of using, in this class of emergencies, economic pressure before military action. But it is possible that the need might never arise. In cases of extraordinary difficulty there might be a provision for rehearing by a specially reinforced tribunal. Any regular appellate procedure, however, seems neither practicable nor desirable.

The suggestion of President Lowell of Harvard, that the court should have power to issue decrees in the nature of interlocutory injunctions, pending the hearing and decision of a cause, is eminently reasonable and proper.

The judicial proceedings of the tribunal would presumably be public, except for some very special reason. Not that such reasons appear likely to occur, but it would be unwise not to leave room for the possibility.

Some people here have gratuitously assumed that the League would undertake to guarantee the territorial status quo of its members, and have thereupon raised an alarm of a revived Holy Alliance for the oppression of national movements and subjection of minor states. There is no foundation whatever for this. Neither boundaries, nor forms of government, nor domestic regulation of provincial autonomy, the condition of protected or personally united states, and the like, would be guaranteed against anything but the forcible interference of an external power which refused to submit the matters in difference to conciliation or arbitration. It is true that the formation of a stable and effective league presupposes the establishment of a more stable and rational system of political boundaries, and a much better approximation to the general satisfaction of national desires and sympathies than had been attained in 1914. But reconstruction of that kind has to be undertaken in any case as part of the settlement after the war, and the prospect of a standing League of Peace would in my judgment make it easier, if anything. As for the smaller states, which are now powerless in isolation, they would have everything to gain by acquiring a defined position and an assured voice in closer contact with the greater powers and with one another.

The second article runs: All other questions arising between the signatories and not settled by negotiation shall be submitted to a council of conciliation for hearing, consideration and recommendation.

Such a body would have to be called ‘ conseil’ in French, but I should prefer ‘board’ as the English equivalent; this, however, is a very small verbal detail. The Board would not, I presume, be bound strictly to follow judicial forms, but would adopt such procedure as it thought best fitted for the nature of the case. Professional advocates, for example, might sometimes be dispensed with. The recommendations of the Board would have only a persuasive force, but its real power would be that of gaining time for reflection, and its greatest triumph would be to guide the parties to a settlement which they should believe to be of their own finding. It ought, I think, to be in the Board’s discretion whether its proceedings should be public, and whether anything should be published beyond the result. In discussions of this kind, which are a mixture of moral or political argument and of negotiation, the less temptation either side has to play to its own gallery the better.

Internal difficulties of a constitutional or political kind would not be within the jurisdiction of the Board. Such, for instance, are the questions that have arisen with regard to the union of the Empire of Russia with the Grand Duchy of Finland. The Board, however, might well be empowered to deal with such disputes if authorized representatives of the interests concerned agreed to refer them for mediation. Contentions of this kind are apt to excite sympathies and agitations beyond their own borders, and have often afforded a reason or pretext for warlike interference on the part of other states. It seems, therefore, quite within the spirit of the League to do what it can in the way of opening a door to voluntary conciliation, the rather that the greatest danger to the stability and permanence of the League itself may be thought to lie in this direction.

In any case where all the efforts of the Board were unavailing, the parties would be remitted to the old condition of independent powers having an irreconcilable difference. The League, however, would have acquired full information and would be in the most favorable position for preventing any further spread of war should hostilities ensue, and for making a fresh offer of mediation should any good opportunity present itself. At worst, we should have the extinct ‘Concert of Europe’ revived in a much improved form.

The third article is the executive one: The signatory powers shall jointly use forthwith both their economic and military forces against any one of their number that goes to war or commits acts of hostility against another of the signatories, before any question arising shall be submitted as provided in the foregoing.

The drafting, like that of President Monroe’s celebrated message, is rather cramped, and shows the marks of not being the work of one hand; but the meaning is clear. A practical question arises at once, which appears to me of capital importance. How is the process of joint application of economic or military forces to be worked?

Suppose there are ten signatory powers. B has a boundary claim against A, and they have been in negotiation for some time (a fact of which the League is not bound to take notice). During this time B has been making secret preparations for seizing the coveted territory, which may include an especially desirable sea-port in a commanding strategic position, or the like. B turns upon A with a trumped-up charge of willful bad faith, picks a sudden quarrel thereupon, and invades the territory in dispute. A is not strong enough to resist alone. What are the other eight signatory states to do? If they all have to hold a conference before any of them move, B may seize the coveted positions and occupy them firmly, or even proceed to encroach on A’s undisputed possession, while the joint action is being elaborated. In an extreme case, A may be in danger of a hostile occupation hardly distinguishable from conquest. Again, whose business shall it be to take the first steps? and will emergency justify the nearest or strongest signatory power in taking action without waiting to confer? Here are grave and perilous occasions for delay, confusion, and discord. Yet again, B, if a willful wrongdoer, will probably be ready with some tale that A began hostilities; and who is to decide whether the plea of self-defense is genuine or not? Without some kind of pre-appointed emergency power which need not await a conference, it seems that there would still be an opening — less tempting than if there were not any League of Peace, but still, with luck and cunning, practicable — for a bold and unscrupulous aggressor.

The residt, I submit, is that if a league to enforce peace is to be in a position to exercise timely and effective force at need and to nip offenses in the bud, it must have a standing and thoroughly organized executive authority.

The constitution of such an authority might conceivably be devised in various forms, and one must resist the temptation to speculate too much on details. Two things appear, however, to be essential: a representative, but not too numerous, body, to decide when an emergency calling for joint action has arisen, and whether that action shall be limited in the first instance to economic pressure, or prompt military measures are required; and, for the latter case, a military command ready to give effect to the decision, and authorized, without waiting for further approval, to employ the common power to the best advantage. In other words, there should be a common general staff in readiness to take charge of the necessary operations by land or by water, on the requisition of the Executive Council. Otherwise, even on the assumption that the governments concerned are perfectly unanimous, much precious time would be wasted, and this would be just the weak point of concerted action on which an aggressor would count. On the other hand, the manifest risks of aggression will be more deterrent in proportion as the means of crushing any such attempts are better prepared in advance; and in the same proportion it will be less likely that the League will be called upon to resort to actual use of the strong hand.

In any case, there will have to be a standing council of the League for preparation and supervision of the business contemplated by the fourth article. An executive committee might either be formed out of this or constituted as an independent body. Two members from every state, one of them being a member of its government, would give a number large enough to be representative, not too large for swift and effectual decision, and in touch at all times with their respective constituents.

An actual meeting of the Executive Council should not be necessary fora decision. On a manifest emergency the chairman should be empowered to collect votes by telegraph.

The formation of an expert general staff, the technical definition of its functions, and the assignment of the quotas for which it shall be entitled to call upon the constituent states, will be matter for nice and careful adjustment. Obviously there are plenty of difficulties in this operation; but it seems no less obvious that they are of the kind which can be overcome if there is a general will to overcome them; and if there is not such a general will there cannot be any league at all.

It will be said that the establishment of a common authority with discretion to declare a state of urgency and take the appropriate action involves a serious delegation of sovereign power. This is very true. There is only one material out of which commonwealths or associations of any kind, starting from independence, can make an effective power for handling affairs of common interest, and that is individual power surrendered on equal terms by all of them. It is possible, to be sure, for several distinct and independent bodies to work together through joint committees whose recommendations come back for ratification by all the principals; and my experience of one such case with which I am familiar tends to show that rejection by any member of these recommendations, made by delegates who themselves have their voices in the ultimate decision, will be exceptional. Indeed, the constructive work to be undertaken under the fourth article of the present platform belongs to this type. But the method is plainly fitted only for matters in which time is not of the essence, and leisurely deliberation is practicable. In the problem under consideration time is essential, and if action cannot be swift there is great risk that it will be futile, or will achieve its end only at excessive cost.

For Americans it is a special question how executive provisions of this kind can be brought into harmony with the constitutional functions of the Senate. I shall not presume to meddle with the solution, and will only say that it would be no less presumptuous to despair of it.

The fourth article deals with the consolidation and codification of international law.

Conferences between the signatory powers shall be held from time to time, to formulate and codify rules of international law, which, unless some signatory shall signify its dissent within a stated period, shall thereafter govern in the decisions of the Judicial Tribunal mentioned in article one.

This happy mean between interminable negotiation and unlimited delegation of legislative power is due, I believe, to Mr. Taft. I have already expressed my approval of it. In the wording I should have preferred to avoid speaking of conferences: the term smacks too much of The Hague as things were ten years ago, with abundance of starched and frilled ceremonial and elaborate compliments about trifles, and more abundance of evasion in the points that really mattered. I do not see how the object of this article can be properly worked out without a strong standing committee to prepare and guide the business. Without this, years might be spent over mere verbal tinkering of the Hague Conventions, which, if it did no particular harm, would do no good worth the trouble. On the whole this article appears to point to a fairly large deliberative council working through an expert committee. But if its authors mean that they are content with the machinery of The Hague as it exists, then I must respectfully differ.

There remains a question of great practical importance that must not be overlooked, though it cannot be dealt with in a preliminary statement of the general principles. Who are to be the signatory powers? Is there to be a general invitation from some convening power or group of powers to the governments of every state that was represented at the last Hague Conference, and possibly of states which may appear as new international units after the war — or how otherwise?

A month ago this question could not be freely discussed in America. Now the rupture of diplomatic relations between the United States and Germany has made it both possible and necessary to speak plainly of the facts which could not in any case be neglected in practice. If this war should end in the victory of the Central Powers there could be no talk of a league of peace of any kind. There would be a Central European alliance as much under the control of Germany as the German States are now under the control of Prussia; and any state entering into close relations with that system would in effect constitute itself a German protectorate. Such is the only intelligible interpretation of Herr von BethmannHollweg’s talk about German willingness to enter a league of peace. What he means is a victorious Germany imposing her policy on the world. It will be remembered that for many years German diplomacy has persistently opposed and thwarted all attempts to frame any scheme of real international jurisdiction. Limitation of armaments, obligatory reference to arbitration — whatever could be charged with derogation from the absolute and inalienable right of the state to be judge in its own cause — met with a German non possumus at The Hague and elsewhere.

But, it may be said, the present rulers of German kingdoms and the lands making up the Austro-Hungarian Empire are not immortal; even as they are, they may change their minds; why not leave the door open and hope for the best? For my part, I will believe in such a change of mind when I not only hear of it, but see its fruit in very different works from those which German statecraft and militarism have brought forth; and if anything is humanly certain, it is that such would not be the fruits of German victory. Much the same would be the result of such a compromise peace as some good folks are still dreaming of — amiable persons and some of them even quite useful citizens under peace conditions, but wholly unfit for counsel in this war.

Let us turn to the other and only definite alternative — the decisive victory of the Allies. In that event the restoration of law among nations will be in the hands of the Allies and of the United States, virtually, if not formally, associated with them; and it is from the alliance of law-abiding powers, whether the nominal lead is taken by a group or by one of them, — for preference I should say the United States, as having the fewest particular interests, — that the movement toward a permanent league of peace must proceed. Can we conceive the Allies issuing a comprehensive invitation in general terms, including the very governments against whose defiance of justice they have been fighting? The Prussians and their pupils in the devil’s doctrine of military necessity have devastated Belgium, Poland, and Serbia; they have murdered, ravished, plundered — not in the way of casual excess, but as part of a carefully applied system of terrorism; they have declared piratical warfare against neutral shipping under pretense of defending something they call the freedom of the sea; there is no law of God and nature they have not set at naught, no covenant they have not broken — and shall we mock Justice by pretending to regard them as fit helpers in rebuilding her temple?

I see no escape from the conclusion that the League must spring out of the Alliance, and the admission of other members must be a matter, not of right, but of discretion, for our time at least. Of a regenerate Germany, such as perhaps our children or grandchildren may see, I do not speak, having a very faint expectation of living to see it myself. The immediate point for us is that the Allies will be strong enough to lay the foundations of a league for the peace of nations which, even without or against the will of the states which have outlawed themselves from the commonwealth of humanity, will suffice for practical purposes. Will the United States join in that work or stand aside from it?