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land into the league of Nations might be reaUzed."

One of the curiosities of the campaign was an argument widely
disseminated in certain clerical circles to the effect that Clemenceau,
Lloyd George and President Wilson were all notorious free masons,
and the league itself a free masonic conspiracy against God, religion
and the Pope.

The referendum resulted in a popular vote of 415,819 for to 323,225
against the league. It is estimated that about 76 per cent of the elec-
torate voted, which is a very high, although not the highest, percentage
of participation on record. The vote by cantons was not so decisive as
the substantial popular majority of 92,594. Eleven and a half cantons
were carried for the league, ten and a half against it. A change of
ninety-four popular votes in Appenzell Exterior would have tied the
state vote and defeated the league. Of the larger cantons Bern, Vaud



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480 THE AMERICAN POLITICAL SCIENCE BEVIEW

and Luzern were for the league; Zurich, St. Gallen and Aargau against
it. In Romance Switzerland the popular vote was overwhelmingly
in favor of the league, being estimated at 171,000 for to 31,000 against.
In German speaking Switzerland the vote stood about 244,000 for to
292,000 against the league. .

Deep as were the divisions among the Swiss people on this issue the
morrow of the referendum showed them ready to accept the popular
verdict without question. Only the future can decide whether their
decision was for the weal or the woe of their country. Meanwhile,
however, Switzerland enters the league in good faith, people and govern-
ment alike loyally determined to do all in their power to make it a
success. An American may be pardoned the regret that an equally
clear-cut popular decision, free from all extraneous considerations, is
not possible in his own coimtry.^

Robert C. Brooks.

Swarihmore CoUege.

^ The writer desires to express his cordial thanks to Mr. S. Meier, editor of
the Amerikanische'Schweizer Zeitung for a very complete file of Swiss exchanges
on this subject.



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NOTES ON INTERNATIONAL AFFAIRS

CHARLES G. FBNWICK

Bryn Mawr College

The Outlook for International Law. Now that a year has elapsed
since the signing of the Treaty of Versailles it is possible to sur-
vey the more immediate effect of- its provisions upon the rules of
international law in force in 1914, as well as to examine the general effect
which the war itself has had in preparing the way for the establish-
ment of new legal relations between the nations. From the outset it is
clear that the high hopes which ideaUsts entertained that the close of
the war would be followed by a new era of international relations have
not been fulfilled. The vision of a "governed world," of a federated
republic of the nations, of an international commonwealth, is still a
dream of the future, not a picture of things fulfilled. For the moment
the old order continues in all of its essential respects. The individual
interpretation by each nation of its rights and duties and the individual
arming by each nation for self-protection have not yet been definitely
renounced by the foreign offices of the states. Trade rivalries which
had been subdued in part by the conditions of the war have sprung up
again with renewed sharpness and animosity. The territorial lines
marked out by the treaty have given rise to disputes outnumbering
mcLny times the dissensions of the decade preceding the war. Yet as
against these signs of an imreconstructed world of nations there are on
the other hand signs of progress towards the development of a more
logical and more effective system of international law. If Uttle advance
has been made towards the desired goal, at least the goal itself has
been erected, and the mind of the nations has been prepared for more
rapid progress towards it in the near future.

A New Basis of International Relaiions. In the first place the legal,
foundations upon which an effective system of international law may
be based have been defined with greater clearness than ever before.
It is not too much to say that a new conception of international law
has been brought about in the realization that the nations as a body
must assmne the obUgation of maintaining the peace of the world.

481



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482 THE AMERICAN POLITICAL SCIENCE REVIEW

Before the war there was an open recognition of the attitude of neu-
trality on the part of third powers in the event of a war between two or
more members of the international community. Public opinion had
by tradition the right to express itself in cases of manifestly unjustified
aggression; but it never imdertook to condemn war itself as a means of
supporting the just claims of one nation against another. War was a
legal remedy, to be resorted to at the discretion of the injured party;
and provided the war was conducted in accordance with the established
usages its results, as recorded in the treaty of peace, were not vitiated
by the fact that force had been used to obtain them. This traditional
recognition of the legality of war and of the right of neutrality on the
part of parties not directly concerned has now been replaced by a
definite conception of the collective responsibility of the nations at
large to see that justice prevails in the relations of state to state. The
Covenant of the League of Nations gives clear expression to this f unda^
mental principle of law. Article XI states in explicit terms that "any
war or threat of war, whether immediately affecting any of the mem-
bers of the league or nofc, is hereby declared a matter of concern to the
whole league, and the league shall take any action that may be deemed
wise and effectual to safeguard the peace of nations." This is a clear
intimation of the adoption of the principle of collective responsibility,
and it is further strengthened by the agreement set forth in Article
XVI that if any of the contracting parties should break the several
covenants to arbitrate it shall thereby "ipso facto be deemed to have
committed an act of war against all the other members of the league."
Measured against the feeble voeux expressed by the Hague Conferences
of 1899 and 1907 this declaration of the covenant of the league is seen
to be of fundamental importance. It becomes, as it were, the comer-
stone of a new system of international law. The absence of the United
States from the membership of the league lessens, indeed, the authority
of the new principle; but even in the case of the United States this
particular article of the league may, by inference from the vote upon
the treaty, be said to have been accepted by a large majority of the
senate.

The acceptance of the principle of collective responsibility in what is
as yet a qualified form has been supplemented by the further recogni-
tion that if international law is to have the force and effect of law it
must have behind It a more definite sanction than that which has
hitherto been its support. The old problem of the text books, as to
whether international law, lacking a physical sanction, was true law,



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NOTES ON INTERNATIONAL AFFAIRS 483

may still be debated as a point of academic interest, but it is clear that
unless a definite physical sanction can be supplied the range of inter-
national law cannot be extended beyond its narrow confines of 1914.
It is a small matter whether we concede or deny that international
law was true law within the limited scope assigned to it before the war.
What is of importance is that international law cannot be extended
to cover the vital interests of the nations, which are involved in the
disputes that lead to war, unless the public opinion of the nations be
so organized as to be able to compel acquiescence in its decisions.
Public opinion may be an effective sanction in cases where nothing
further is involved than the settlement of fishing rights or of a bound-
ary line, but it cannot be relied upon where urgent national interests
are at stake. The Covenant of the League of Nations recognizes the
need of such a sanction and provides in Article XVI that a breach of
the covenants to arbitrate shall, as we have seen, be regarded as an
act of war against all the other members of the league and shall there-
upon be followed by a "severance of all trade or financial relations"
between the members of the league and the offending state. Should
this economic boycott prove ineflfectuai, the coimcil of the league is
authorized in such case "to recommend to the several governments
concerned what effective military or naval force the members of the
league shall severally contribute to the armed forces to be used to
protect the covenants of the league.'* The agreement to use force is,
therefore, a conditional one, being adopted as a substitute for the
proposal of an international army and navy; but even in its qualified
form it marks the recognition that public opinion of itself is an inade-
quate sanction of the law.

It need scarcely be said that the acceptance of the principle of collec-
tive responsibility and the adoption of a physical sanction of inter-
national law both encroach upon the traditional principle of the
sovereignty of the individual state, and there are signs, especially in
the United States, that the old theory is dying hard. Of all the out-
worn conceptions of international law sovereignty is the most illogical.
In the restricted sense of national autonomy in matters of internal
self-government it has, of course, a very real meaning, and one which
has been qualified in no way by the agreements contained in the cove-
nant of the league. But in its wider sense of the right of each state to
be the arbiter of its own claims and obligations, and to determine for
itself the extent of its armaments for self -protection, "sovereignty''
was and is a standing contradiction to the most elementary concep-



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484 THE AMERICAN POLITICAL SCIENCE REVIEW

tions of law. A world of literally sovereign nations is a world of
anarchy. Even before 1914 the reality of sovereignty had long since
been abandoned in the presence of the intimate commercial and social
relations of the nations. Henceforth the term must be used with
caution, emphasis being laid upon the distinction between domestic
self-government and the right of arbitrary judgment.

The Persons of International Law. Some little progress may be re-
corded in the development of more definite rules regarding the persons
of international law. The old distinctions between sovereign and semi-
sovereign states, between those who were members of the family of
nations and those who were not, have now been practically abandoned,
but no satisfactory substitute has yet been found to take their place.
The so-called great powers have for the time being been reduced in
number from eight to five, while the rival alliances which divided the
great powers of 1914 have disappeared. But on the other hand a
sort of qualified legal standing in international law has been given to
the five great powers by constituting them a majority group of the
Council of the League of Nations. Provision is made in the covenant
of the league that in addition to this permanent group four other states
shall be represented upon the council, the designation of these latter
to be made by the assembly; and provision is further made for subse-
quent increases of membership. Thus far the selection of these addi-
tional members has not been made, and in consequence the organiza-
tion of the league has been criticized as being an attempt on the part of
the great powers to perpetuate their exclusive position within the
international community.

Membership in the League of Nations will doubtless become in the
future the test of intemationail personality, and will replace the ill-
defined status of membership in the "family of nations." It will be
observed that the league already contains several members not included
in the family of nations of 1914. The four British self-governing
dominions, together with India, have been admitted to membership,
and a new rule of international law is thus introduced which permits a
state to possess international personaUty while remaining formally a
dependent member of a larger empire. The situation is without
precedent in international law. Before 1914 Canada could only have
obtained recognition of its separate international personality by suc-
cessful revolt against the mother country, and no proof of its de facto
autonomy would have entitled it to a place in the councils of the nations,
although it may be noted that Canada had already secured for itself a



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NOTE9 ON INTERNATIONAL AFFAIRS 485

qualified position in international aJBTairs by reason of the separate,
commercial treaties made between Canada and other states. The
right conferred upon the British dominions and India of voting in the
assembly of the league has, however, raised the issue whether the
British Empire is not thereby overrepresented in the assembly, and in
consequence one of the reservations adopted by a majority of the
United States senate proposed that these five votes be not counted
when disputes involving Great Britain were. before the assembly.

Several new states appear on the list of members of the league.
Czechoslovakia, Poland and Hedjaz obtained membership as signa-
tories of the Treaty of Versailles. Jugoslavia, the "Serbo-Croat-
Slovene State," signed the treaty, but to March 20 had failed to ratify
it. It is of interest to note that the, three European states were ad-
mitted to membership of the league subject to certain definite condi-
tions contained in the treaties of peace with Germany and Austria.
In the treaty with Austria, Czechoslovakia and Jugoslavia agreed to
embody in a special treaty with the principal allied and associated
powers such provisions as might be deemed necessary to proteqt
racial, linguistic, or religious minorities, and to assure freedom of
transit and equitable treatment for the commerce of other nations.
Similar provisions with respect to the protection of racial and religious
minorities in Poland were included in the Treaty of Versailles. The
importance of these provisions is not only that they are definite restric-
tions upon the sovereignty of the states in question, which do not,
however, aflFect their international personaUty, but that they consti-
tute precedents for the assumption by the League of Nations of a right
to regulate domestic conditions within new states when such condi-
tions might be Ukely to give rise to disputes with neighboring states.

The "right of self-determination" may now be said to have obtained
a foothold among the principles of international law. International
law of 1914 recognized a new state only when, after revolting against
the larger state of which it formed a part, it succeeded in maintaining
its de facto independence. The treaties of peace with Germany,
Austria, Hungary and Turkey create new states by the fiat of the
league; but since^ the creative decree has only been pronounced in
favor of the subject nationalities of the defeated powers, it cannot
be said that there has been any very definite recognition of self-deter-
mination as a fundamental principle of international law. Political,
and economic conditions still qualify the application of the principle
in a given case, and there has been no relinquishment by the powers



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486 THE AMERICAN POLITICAL SCIENCE REVIEW

of their right to treat as a domestic issue the question of self-deter-
mination when arising within their borders. Moreover, it is still
unsettled what is to be the proper basis or unit of self-determina-
tion. The "well-defined national aspirations" which President Wilson
believed should be accorded satisfaction are in most cases associated
with ill-defined geographical limits where the point of contact begins
with other nationalities. The decisions of the several treaties of peace
appear likely in a number of cases to give rise to disputes for many
years to come. In the interest of maintaining the historical boundaries
of Bohemia a large body of Germans was included within the western
boundary of Czechoslovakia. Italy was given a strategic boundary
in the Tyrol which embraces a dominant Austrian population. Sea-
ports along the Adriatic have be¬Ђa cut oflf from the hinterland. Poland
has been given a boundary which drives a wedge between East and
West Prussia. The plebiscite taken by zones in Schleswig-Holstein
represents, perhaps, the most equitable adjustment of the difficulty of
mixed populations. It is evident that there can be no offhand or gen-
eral solution of the prol?lem of nationalities on the basis of boundary
lines, and that only in the protection by constitutional provision of
the rights of minorities can many of the special situations be satis-
factorily met.

The provisions contained in the covenant of the league and in the
treaties with Germany and with Tiu^key with respect to the creation
of international mandates for the government of backward territories
are a marked departure from the precedents of international law.
If they may be judged by the principles they enunciate rather than
by their present promise of practical results they may be regarded as a
reform of the highest importance. Article XXII of the covenant recog-
nizes the existence within the Turkish Empire of certain commilnities
which have reached a stage of development at which they are ready
for separate statehood subject to a temporary regime of administrative
assistance from a mandatarj^ state. Mandates for S3Tia and Mesopo-
tamia have been accepted by France and Great Britain, while the
senate has refused to give its consent to the President's plea that the
mandate for Armenia be accepted by the United States. Unfortu-
nately the abstract issue of administrative assistance to be rendered by
the mandatary is complicated by the fact that some of the territories
in question have valuable natural resources, so that the possession of a
mandate appears to be regarded as the equivalent of a "sphere of
influence" within which the mandatary would have special facDities
for commercial exploitation.



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NOTES ON INTERNATIONAL AFFAIRS 487

In addition to these territories which are to be emancipated under
the protection of stronger states, there are the former colonies of
Germany, some of which are to be administered by a mandatary mider
a separate form of government and others to be administered as integral
portions of the territory of the mandatary. In both cases provision
is made in the covenant and in the body of the treaty that the admin-
istration shall be conducted under conditions approved by the league,
by .which equal opportunity for trade will be allowed to all members of
the league, and certain abuses, such as the trade in slaves, arms, and
liquor, will be prohibited; and the requirement is laid down that the
mandatary shall render to the council of the league an annual report
in reference to the territory committed to its charge. The value of
these provisions, if it is not too much to assume their observance, lies
not only in the fact that they attempt to protect the backward peoples
of Africa against possible exploitation, but that they introduce a new
principle of international responsibility into the relations of nations,
in that they recognize that the development of such peoples forms
"a sacred trust of civilization.'* If the league can seciu-e the fulfill-
ment of the promises thus made, a strong impetus will be given to the
further development of international administrative law. At the
present moment the functions of the permanent mandates commission,
which is to receive the reports of the several mandataries, have been
outlined and the personnel of the commission is about to be appointed.

A word may be said with respect to the future status of neutralized
states. International law of 1914 recognized the status of permanent
neutralization imposed upon a small state by a formal guaranty of
the great powers. The guaranty operated as a contractual restriction
upon the great powers to prevent them in time of war from taking
advantage of the strategic position of the small state, and at the same
time it placed the small state in the position of being unable to take
sides in a conflict between neighboring states. On the other hand the
general rules of international law forbade the violation of the territory
of all states not parties to a war in progress, so that these latter were
likewise immime from attack should they choose to remain neutral.
The distinction between the formal contractual guaranty and the
protection of the ordinary rules of international law is illustrated in
the attitude of Great Britain and of the United States towards the
violation of the neutrality of Belgium. Great Britain had no choice
but to uphold the treaty of 1839; whereas the United Sfates, although
a signatory of the Hague Convention which declared the territory of



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488 THE AMERICAN POLITICAL SCIENCE REVIEW

neutral states to be inviolable, did not acknowledge any obligation to
enforce a mere rule of international law, however applicable to the
facts of the case. The distinction only shows the weakness of the
sanction of international law in 1914 and the unorganized character of
the international community. The covenant of the league puts an
end to all special guaranties, and lays down the principle that all
states are to be equally protected in their territorial integrity and polit-
ical independence, and that any nation which undertakes to make war
without first resorting to arbitration will be regarded as making war
.upon the league itself. All states henceforth become neutriJized, and
the old distinctions between ''several" and ''collective" guaranties
and between neutralized and merely neutral states cease to have a
meaning. It is of interest to note that at the opening of the Belgian
parliament following the signing of the armistice. King Albert formally
repudiated the treaty of 1839 as an infringement upon the independ-
ence and full sovereignty of the coimtry.

Need of Positive Legislation. Little progress is to be recorded in
respect to the most urgent need of international law, namely, the
development of a clearer and more comprehensive code of international
rights and duties. Several special legislative functions have, however,
been conferred upon the council of the league, among them being the
determination of plans for the reduction of national armaments and of
plans for offsetting the evils of the manufacture, by private enterprise,
of munitions and implements of war. Thus far no steps have been
.taken in the matter of plans for disarmament further than the appoint-
ment of a permanent commission which is to draw up recommendations
for the council. Unfortunately no general legislative powers have
been conferred upon the assembly of the league, but there is no reason
why it should not assume such powers subject to the ratification of its
conventions by each individual state, as in the case of the agreements
reached at the Hague. A number of constructive provisions in regard
to international transportation are included in the Treaty of Versailles,
but they have been limited in their application to the grant of ease-
ments in favor of the allied and associated governments on German
railways and waterways and in German ports, instead of being extended
to the commercial intercourse of all members of the league. The
treaty does, however, make provision for an ultimate grant of reci-
procity after five years, unless the league decides to prolong the time.
A permanent commission has been created to carry out the special
provisions of the treaty; and there is discussion of a world conference



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NOTES ON INTERNATIONAL AFFAIRS 489

to be called which would work out a plan for a more general enjoy-
ment of international waterways and for the prevention of discrimina-
tions in their use in favor of the riparian states. It is clear that the
whole subject of economic rights of way, including the use of railwajrs
and waterways, freight rates, freight facilities, through traflSc, the use
of ports, and port dues must sooner or later be regulated by general
international agreement if one of the chief sources of international
jealousy and bitterness is to be removed.

The most important problem, however, awaiting settlement is the



Online LibraryWestel Woodbury WilloughbyThe American political science review → online text (page 48 of 77)