A League of Nations
The Plan For An Alliance Of The Great Powers For The Enforcement Of Peace

Discussed By William Howard Taft
Former President Of The United States

A. Lawrence Lowell
President 0f Harvard University

Theodore Marburg
Former Minister To Belgium

A Restraint Upon War

By William Howard Taft
Former President Of The United States

[The Independent; June 14, 1915]

To constitute an effective League of Peace, we do not need all the nations. Such an agreement between eight or nine of the great powers of Europe, Asia and America would furnish a useful restraint upon possible wars.

The successful establishment of a League between the great powers would draw into it very quickly the less powerful nations.

What should be the fundamental plan of the League?

It seems to me that it ought to contain four provisions. In the first place, it ought to provide for the formation of a court, which would be given jurisdiction by the consent of all the members of the League to consider and decide justiciable questions between them or any of them which have not yielded to negotiation according to the principles of international law and equity, and that the court should be vested with power, upon the application of any member of the League, to decide the issue as to whether the question arising is justiciable.

Second: A Commission of Conciliation for the consideration and recommendation of a solution of all non-justiciable questions that may arise between the members of the League should be created, and this commission should have power to hear evidence, investigate the causes of differences, and mediate between the parties and then make its recommendation for a settlement.

Third: Conferences should be held from time to time to agree upon principles of international law, not already established, as their necessity shall suggest themselves. When the conclusions of the commission shall have been submitted to the various parties to the League for a reasonable time, say a year, without calling forth objection, it shall be deemed that they acquiesce in the principles thus declared.

Fourth: The members of the League shall agree that if any member of the League shall begin war against any other member of the League, without first having submitted the question if found justiciable to the arbitral court provided in the fundamental compact, or without having submitted the question if found non-justiciable to the Commission of Conciliation for its examination, consideration and recommendation, then the remaining members of the League agree to join in the forcible defense of the member thus prematurely attacked.

First. The first feature involves the principle of the general arbitration treaties with England and France, to which England and France agreed, and which I submitted to the Senate, and which the Senate rejected or so mutilated as to destroy their vital principle. I think it is of the utmost importance that it should be embraced in any effective League of Peace. The successful operation of the Supreme Court as a tribunal between independent states in deciding justiciable questions not in the control of Congress, or under the legislative regulation of either state, furnishes a precedent and justification for this that I hope I have made clear. Moreover, the inveterate practise of arbitration which has now grown to be an established custom for the disposition of controversial questions between Canada and the United States, is another confirmation of the practical character of such a court.

Second. We must recognize, however, that the questions within the jurisdiction of such a court would certainly not include all the questions that might lead to war, and, therefore, we should provide some other instrumentality for helping the solution of those questions which are non-justiciable. This might well be a Commission of Conciliation, a commission to investigate the facts, to consider the arguments on both sides, to mediate between the parties, to see if some compromise cannot be effected, and finally to formulate and recommend a settlement. This may involve time, but the delay, instead of being an objection, is really one of the valuable incidents providing for the performance of such a function by a commission. We have an example of such a Commission of Conciliation in the controversy between the United States and Great Britain over the seal fisheries. The case on its merits as a judicial question was decided against the United States, but the world importance of not destroying the Pribiloff seal herd by pelagic sealing was recognized, and a compromise was formulated by the arbitral tribunal, which, was ultimately embodied in a treaty between England, Russia, Japan and the United States. Similar recommendations were made by the court of arbitration which considered the issues arising between the United States and Great Britain in respect to the Newfoundland fisheries.

Third. Periodical conferences should be held between the members of the League for the declaration of principles of international law. This is really a provision for something in the nature of legislative action by the nations concerned in respect to international law. The principles of international law are based upon custom between nations established by actual practise, by their recognition in treaties and by the consensus of great law writers. Undoubtedly the function of an arbitral court established as proposed in the first of the above suggestions would lead to a good deal of valuable judge-made international law. But that would not cover the whole field, and something in the nature of legislation on the subject would be a valuable supplement to existing international law. It would be one of the very admirable results of such a League of Peace that the scope of international law could be enlarged in this way. Mr. Justice Holmes, in the case of Missouri vs. Illinois, points out that the Supreme Court, in passing on questions between the states, and in laying down the principles of international law that ought to govern in controversies between them, should not and cannot make itself a legislature. But in a League of Peace, there is no limit to the power of international conferences of the members in such a quasi-legislative course, except the limit of the wise and the practical.

Fourth. The fourth suggestion is one that brings in the idea of force. In the League proposed, all members are to agree that if any one member violates its obligation and begins war against any other member, without submitting its cause for war to the arbitral court, if it is a justiciable question, or to the Commission of Conciliation if it is otherwise, all the members of the League should unite to defend the member attacked against a war waged in breach of plighted faith. It is to be observed that this does not involve the members of the League in an obligation to enforce the judgment of the court or the recommendation of the Commission of Conciliation. It only furnishes the instrumentality of force to prevent attack without submission. It is believed it is more practical than to attempt to enforce judgments after the hearing. One reason is that the failure to submit to one of the two tribunals the threatening cause of war for the consideration of one or the other, is a fact easily ascertained, and concerning which there can be no dispute, and it is a palpable violation of the obligation of the member. It is wiser not to attempt too much. The required submission and the delay incident thereto, will in most cases lead to acquiescence in the judgment of the court or in the recommendation of the Commission of Conciliation. The threat of force against plainly unjust war, for that is what is involved in the provision, will have a most salutary deterrent effect. I am aware that membership in this League would involve, on the part of the United States, an obligation to take part in European and Asiatic wars, it may be, and that in this respect it would be a departure from the traditional policy of the United States in avoiding entangling alliances with European or Asiatic countries. But I conceive that the interest of the United States in the close relations it has of a business and social character, with the other countries of the world, much closer now than ever before, would justify it if such a League could be formed in running the risk that there might be of such a war in making more probable the securing of the inestimable boon of peace of the world that now seems so far away.

New Haven, Connecticut

© J. Fred MacDonald, 2013



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