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casus belli.

It may, indeed, be said that there have
been instances of failure to keep treaty en-
gagements, which have been nullified either
by the refusal to pass the laws necessary to
the execution of the treaty, or by the enact-
ment of legislation forbidding the acts which
it requires. But the United States has never
done this in the case of any Great Power able
to enforce the obligation thus repudiated.
It would have been a simple matter, for ex-
ample, to pass the necessary legislation and
proceed to the building of an isthmian canal,
regardless of the famous Clayton-Bulwer
treaty with Great Britain. It was, however,


never claimed that an act of legislation by
the Congress of the United States could ab-
solve this country from the embarrassing ob-
ligations of that treaty; although it could
have been argued that it was already invali-
dated by acts performed by Great Britain.
But so long as those arguments were not ac-
cepted by the other contractant, it was neces-
sary to admit that a denunciation of the
treaty would have been a breach of faith and
even a casus belli had Great Britain chosen
to consider it in that sense. It is futile,
therefore, to maintain that treaties may be
abrogated by a unilateral legislative act.

It may be said of the proposed League of
Nations, although the word Constitution is
now omitted, that it is much more than a
mere treaty involving mutual obligations.
It is spoken of as a "Covenant," but it is
much more than an assemblage of reciprocal
promises. If the League were a mere pledge
to do or not to do certain things, it would
never have seemed to require a "Constitu-
tion," which implies the creation of a new
entity, something which can perform certain


actions by itself; and, beyond all possible
contradiction, this League is such an entity,
and is endowed with powers of immense con-
sequence which prior to its creation have
never had a legalized existence.

Perhaps the most important of all the con-
siderations thus far emphasized by those who
have discussed this project of a League is
the legal interpretation of the original form
of this document made by Mr. Justice Staf-
ford, of the Supreme Court of the District
of Columbia, in his discriminating analysis.
He finds it to be not merely a treaty of alli-
ance or agreement to preserve peace, but the
creation of a corporate entity possessing not
only advisory but strictly governmental
powers. He considers that these powers may
come into conflict with those of the separate
governments that enter into the League.
That is a question which I shall not discuss
at this time; but I shall undertake to show
that the League, even in its revised form, as
a distinct corporate entity, exercising a will
not identical with that of all the separate
members, is organized with power to coerce


other States not belonging to it, to act un-
der its own rules and by its own judgment,
and even to dictate the form of government
and degree of authority to be exercised over
wide areas and great populations subjected
to its control. Whatever ambiguities this
document may contain and they are many
upon these subjects it is unequivocal.

If the League w r ere based merely on a
"Covenant," the mutual agreements would
be the whole substance of the document.
But this is by no means the case. The
League of Nations, as here planned, is not
a federation, in which the component States
are combined into a new political organism.
It is an autonomous corporation, endowed
with its own organs of action. Its being and
its powers, when once constituted, would per-
sist if a great part of the constituents should

A mere agreement between sovereign
States for their mutual defense, like that in
Article X, requires no such organic law. An
agreement implies merely an assent, an asso-
ciation, or a partnership of persons, natural


or legal, for certain specified purposes, which
may terminate when its ends have been ac-
complished by the performance of certain
definite acts on the part of the contractants
thus making the agreement. This so-called
Covenant is not such an agreement or part-
nership. It creates a new legal person, act-
ing by itself in a manner to be determined
by itself, and in accordance with rules to be
adopted by itself. It creates a body, at first
called the Executive Council, which, in turn,
chooses and directs its own organs of action,
defines their rights and duties, and confers
new authority upon them. It creates obliga-
tions on the part of the nations composing
the League which these nations owe not to
one another but to the League, as a distinct
and separate legal person, who can call them
to account for non-performance of duty and
inflict punishment upon them. It attributes
to the League as a corporate entity, powers
which, under International Law, the separ-
ate States do not, either singly or in com-
bination, themselves possess; thus creating
an imperium over States not belonging to the


League, which is empowered to coerce and
punish them for not submitting to its deci-
sions. The duties of the officers of the
League are duties to the League, not to the
component States, which cannot separately
hold them to accountability or punish them
for excesses or disobedience. The League
is empowered to govern through its manda-
taries certain colonies and territories ac-
quired by conquest. These mandataries are
required to exercise their authority, which
is derived entirely from the League, as ex-
plicitly directed by the Council in a special
"Act or Charter"; which is, in effect, a royal
prerogative, such as that which the Kings of
England exercised in granting colonial char-
ters in America. 2

From this enumeration of powers it is evi-
dent that the League created by this Consti-
tution is not merely a corporate entity but in
effect a super-government. If a sovereign
State, cited to appear as provided under Ar-
ticle XVII, should refuse the "invitation,"

* The words of the original draft. The words are omitted
in the revision, but the intention is not changed. See Ar-
ticle XXII, next to last paragraph.



and commit a breach of Article XII, all the
provisions of Article XVI would become ap-
plicable to it. All the members of the
League would then be in a state of war with
the offending State. If it continued to be
refractory, and refused to yield its independ-
ence by submitting to the decision of the Ex-
ecutive Council, the League would make war
upon it. If the result should be subjugation
and conquest, the occasion would arise for
designating a mandatary ; and the imperium
of the League would thus be imposed upon
the conquered State. That a defenseless
State would probably prefer obedience to
conquest does not in the least modify the
imperial character of the League.

When we pass from the general nature of
the League of Nations to examine more
closely the extent and character of the pow-
ers possessed by the League, as a corporate
entity, it is evident that, if these powers are
real and become operative, and are not
merely advisory or minatory, they derogate
materially from the independence and sov-
ereignty of the States composing the


League. If, on the other hand, these powers
are not real and operative, but merely ad-
visory, then the League possesses only an
apparent but altogether illusory authority.

The ambiguity of this document, as orig-
inally worded, whether called a "Covenant"
or a "Constitution," is generally admitted.
It has received from persons supposed to be
competent diametrically opposite interpreta-
tions, and such conflicting views have been
expressed even by the same person, at differ-
ent times, and upon different occasions.

More precision is still necessary regarding
the exact force of the expression "recom-
mend." When so serious a matter as the
punishment or compulsion of a refractory
State comes up for action, the Council is to
"recommend" what effective military or na-
val force the members of the League shall
severally contribute to the armed forces to
be used to protect the Covenant of the
League (Article XVI).

Is it conceivable that such a contribution,
thus demanded, can honorably be refused?
To what purpose, then, is the recommenda-


tion made, or authorized? Such a refusal
would have two effects: it would produce
among members a general condemnation of
the delinquent Power for failure to support
the League; and it would render the Ex-
ecutive Council derisory as an organ of
executive action. No self-respecting man
would long consent to retain an office of such
responsibility when its purpose was thus
treated with contempt and left ineffective.
We must assume, therefore, that, while
terms of courtesy are employed in this docu-
ment, that the "recommendations" of the
Council are to be respected; and that no ob-
stacles of the nature of mere expense, incon-
venience, or national preference are to be
placed in the way of their prompt and effec-r
tive execution. It should, then, be clearly
understood that this virtually terminates the
independent foreign policy of the separate
members of the League, and places the guid-
ance and control of strictly foreign affairs in
the hands of a Council, in which the United
States has but a single voice, and we do not
know what voice it may be, while there are


eight others that may assent or oppose. If
decisions were made by a majority, the
American member might be at any time
overruled. If they are to be made by una-
nimity, as for most cases is now proposed,
he could prevent undesirable action; but the
League could seldom hope to arrive at any
positive conclusion, and the liberum veto
would virtually paralyze all policy what-

We are here confronted with the question,
whether or not the League, as finally pro-
posed, offers any promise of being really
effective. Between free self-governing na-
tions on the one hand and a super-govern-
ment on the other, there is no intermediate
condition, no third alternative. It is a case
of what the logicians call "excluded middle."
It is a choice between "free" and "not-free."

There is, no doubt, a possible case of inter-
national understanding which does not in-
volve this dilemma. A declaration of prin-
ciples, with a solemn pledge to support them,
does not necessarily create a super-govern-
ment, and would leave the nations making


the declaration free. But there is in this
Covenant no such declaration. The determi-
nation to treat persistently turbulent or ag-
gressive States as public enemies, and to de-
clare that they should be suppressed, would
involve no limitation of national freedom.
An agreement between nations to arbitrate
justiciable differences, not to make war upon
one another without cause, and to submit
what they believe to be just causes to exam-
ination and mediation, would involve no
alienation of sovereignty. A combination of
all these "covenants," if one chooses to call
them by this name, would be a durable and
effective "Entente of Free Nations"; that
is, a mutual understanding and agreement
that certain principles are to be sacredly re-
spected and defended, leaving the decision of
the manner of action to the participants, in
view of the circumstances that may arise.

As between the actual co-belligerents of
the existing Entente, such a covenant is pos-
sible and desirable ; and the proof of it is that
it has freely come into existence, has won the
war, and is capable of making peace. There


can, therefore, be no doubt regarding its ef-
fectiveness. It was conceived in freedom,
and it should be perpetuated with honor.

It may be said indeed, it is sometimes in-
sisted upon that an Entente of Free Na-
tions is precisely what the League is intend-
ed to be. It is impossible to give the Cove-
nant of the League of Nations this interpre-
tation. The League professes to bind its
members to united action, and it is in the
next breath pretended that there is nothing
binding about it ! The choice must be made,
and it is important that it should be clearly
understood. Does the League invite, or does
it command? If it only invites, it is not a
League. If it commands, it is a super-gov-

If it is not a super-government, if the Ex-
ecutive Council cannot bring an army into
the field to enforce its decisions, the provi-
sions of this Covenant create enormous risks
and positive dangers. Although it is one of
the alleged objects of this League to prevent
war, war is not only distinctly provided for,
but the occasions when it must occur are


plainly indicated and are even rendered nec-
essary. Suppose one of these occasions to
arise, which may easily happen through a
misunderstanding or even a misrepresenta-
tion, when another procedure might avert it ;
having foreordained the war by prescrip-
tion, having defined the circumstances in
which it must occur, what becomes of the
League if the recommendation of the Ex-
cutive Council is not promptly and effec-
tively followed ?

The truth is, if the conditions in which
military action, or even economic action, will
be unitedly undertaken are distinctly pre-
scribed beforehand, when that action is called
for it must be taken, or the whole plan is
ridiculous. The same cannot be said of an
Entente, which lays down certain principles
which it agrees to support and maintain. It
does not say that, in such and such condi-
tions, it will act thus and so. It says, We
stand for the arbitration of justiciable dis-
putes, for International Law as a standard
of conduct, for a court of justice, for concil-
iation and mediation, and we shall both re-


spect and support these purposes. If you
make war and disregard the rights of hu-
manity, we are against you. We do not tell
you now what we shall do; but we shall do
what we think right, as we have in the Great
War. You may judge for yourself whether
you want the United States on your side.
We are with all of you, so long as you live
according to law ; but we shall stand for the

No one can carefully examine this Cove-
nant without discerning that it is the work
of politicians and not the work of jurists.
They have created an organ of power, but
not an institution of justice. They have not
distinctly recognized any rights, or made any
provision for determining them on judicial

As Mr. Elihu Root has well said of the
original draft:

"The scheme practically abandons all ef-
fort to promote or maintain anything like a
system of International Law or a system
of arbitration, or of judicial settlement,
through which a nation can assert its legal


rights in lieu of war. It is true that Article
XIII mentions arbitration and makes the
parties agree that whenever a dispute arises
which they recognize to be suitable for sub-
mission to arbitration they will submit it to
a court 'agreed upon by the parties.' That,
however, is merely an agreement to arbitrate
when the parties choose to arbitrate, and it
is therefore no agreement at all. It puts the
whole subject of arbitration back where "it
was twenty-five years ago.

"Instead of perfecting and putting teeth
into the system of arbitration provided for
by the Hague Conventions it throws those
conventions upon the scrap heap. By cov-
ering the ground of arbitration and prescrib-
ing a new test of obligation it apparently by
virtue of the provisions of Article XXV ab-
rogates all the 200 treaties of arbitration by
which the nations of the world have bound
themselves with each other to submit to arbi-
tration all questions arising under Interna-
tional Law, or upon the interpretation of

"It is to be observed that neither the Ex-


ecutive Council nor the Body of Delegates
to whom disputes are to be submitted under
Article XV of the agreement is in any sense
whatever a judicial body nor an arbitral
body. Its function is not to decide upon
anybody's right.

"This is a method very admirable for deal-
ing with political questions ; but it is wholly
unsuited to the determination of questions
of right under the Law of Nations."

The attitude of this Covenant, even in its
revised form, toward International Law is,
indeed, surprising. It nowhere makes refer-
ence to it, except briefly in the Preamble;
and it does not even there commit itself to
the support of it or the improvement of it. It
speaks of "understandings of International
Law," but it does not admit the authority of
International Law as an accepted corpus
juris to which civilized nations have already
agreed. It does not state whose "under-
standings" are to be applied, and it does not
inform us where or how any "understand-
ings" are to be obtained. It leaves the sub-
ject with ground for inference that they are


to be discovered, if at all, only in its own de-

In view of the fact that the League as it
will be constituted is an exclusive corpora-
tion, to which only those it is willing to re-
teive can be admitted, it is evident that by
itself it will not be a body competent to make
laws. It will probably consist, if it comes
into existence, of a minority of the sovereign
States of the civilized world. Even if it were
a majority it would not be sufficient. It may
through its preponderance of power be able
to command, and even to enforce its will,
but law does not rightly issue from mere
power, or rest on power. It can never just-
ly claim obedience merely because it is an
expression of somebody's will. It must be
the offspring of reason, or it cannot claim to
be law in any true juristic sense. It will re-
main only policy.

There is in the Covenant no provision for
a legislative body. Neither the Council nor
the Assembly is such a body. They do not
claim to be, yet they propose to decide and
to enforce their decisions. The Council gives


or withholds its "permission." It proposes
to settle disputes "upon such conditions as
the Council may deem just," and to apply its
provisions "with such modifications as may
be deemed necessary by the League." It
even summons other States, not members of
the League, having disputes either with
members of the League or with States not
members of the League, to appear before it,
to accept its judgment, and to become sub-
ject to the provisions of this Covenant.

In order that my affirmation on this point
may not stand alone, I quote the following
statement from one of the ablest advocates
of the League, whose eminence as a lawyer
no one will dispute, Mr. Henry W. Taft.
Commenting on Article XVII, he says:

"This article is designed to bring to bear
upon the States which do not become mem-
bers of the League the coercive effect of the
covenants so as to prevent disputes among
them from leading to war. It provides for
cases of dispute between a member and a
non-member and between States which are
non-members. For the sole purpose of the


settlement of the dispute, non-members are
invited to become members of the League,
and upon the acceptance of such invitation
an investigation and a recommendation is
made by the Executive Council. In case a
non-member State refuses to accept the invi-
tation and thus to subject itself to the provi-
sions of Article XII, postponing the com-
mencement of war, the member nations agree
to apply to the refusing State the boycott
provided for in the first paragraph of Arti-
cle XVI. Thus the drastic measures of that
article will be resorted to for the purpose of
preventing war, not alone among members
of the League, but also among all the na-
tions of the earth. Article XVII also pro-
vides that where two non-members refuse to
accept the invitation to assume the obliga-
tions of membership for the purposes of the
dispute, the Executive Council may take
such action and make such recommendations
as will prevent hostilities and result in the
settlement of the dispute."

By what principles of law does the Coun-
cil of this League "bring to bear the coercive


effect of the covenants" upon States that do
not belong to the League, citing a State to
appear before it even before any violation
of International Law has been committed?

Nominally, no doubt, it does this in the
interest of peace; and I shall not deny that
this interest may be so great that the effort
to settle a dispute should be made, but this
right of coercion by a self-constituted body
has no justification in law, as International
Law now exists, nor is there here any means
proposed to secure the recognition of such
coercion as a legal right.

It may, of course, be that the will of the
Council of this League will always be a
righteous will; but it cannot be denied that,
if it is to be exercised in this manner, it is an
imperious will. It can be justified only by
the assumption that the League possesses an
imperium over States outside its member-
ship. It claims a sovereignty that nullifies
the sovereignty of the States which it sum-
mons for judgment, for it insists that, unless
its judgment is accepted, the League will en-
force it by war.



A State which is a member of the League
especially a very powerful State may on
Complaint, under this Covenant, bring any
other nation into its own court in a dispute
of which it is itself the author. Thus a Euro-
pean government might bring a case against
the Republic of Cuba, for the recovery of
debts dating from the Spanish occupation,
in which technically Cuba would be held lia-
ble for the payment of securities issued to
oppress her people and prevent her inde-
pendence. If the case were submitted, a
European court might justify the claim; at
least, I know of jurists who believe it would
be thus collectible. Should Cuba be advised
to accept a trial in such a case?

In this connection the question inevitably
arises, How far would the mere policies of
the League become, in its own understand-
ing, identified with International Law, as its
Executive Council would apply it? By what
code, or rules, or standards of international
conduct would this Council render its deci-
sions ? If the answer is, by the principles and
maxims of International Law at present



generally accepted, its procedure in citing
nations not members of the League, as we
have seen, would be illegal. It would, there-
fore, undoubtedly undertake to alter, and
even to create, rules of law. By what au-
thority could a limited number of Powers do
this? And what would the attitude of inde-
pendent sovereign States outside of this
League which would probably for some
time, and possibly always, constitute the mi-
nority of States continue to be? Could
they accept decisions regarding the princi-
ples and maxims of International Law, ar-
bitrarily made by a limited body in which
they were wholly without representation?

The policy of the League appears to be
that neutrality is to be abolished. That is the
assumption underlying the President's aban-
donment of the "freedom of the seas," and
his acceptance of Great Britain's retention
of her supremacy at sea, on the ground that
when the League comes into being there are
to be no neutrals. But who can affirm that
there are to be no neutrals? By what right
can this League declare that there are no


neutrals? And if there are neutrals, what
is to become of the existing rights of neu-
trals under International Law? Is neutral
territory no longer to be inviolable ? Are the
armies of the League to march freely against
its enemies across neutral territory, without
regard to the wishes of neutral States ? Are
there to be no neutral rights on the sea?
What is to happen when the League declares
an economic boycott against an offending
State ? Are all States, even the neutralized,
like Switzerland, which desires to retain that
status, to be compelled to observe it?

According to International Law as it ex-

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Online LibraryDavid Jayne HillPresent problems in foreign policy → online text (page 6 of 17)