A League Of Nations
The Danger Of The Proposed League Contrasted with The Advantages
Of Using And Extending The Present Machinery Of Arbitration
At The Hague.
By Ellery C. Stowell
At the present moment the whole world is interested in the establishment of a League of Nations. Although there is nothing novel in this perennial topic of discussion, illustrious support for the project has now been obtained: both candidates for the Presidency announced their sympathy with the plan, which is also approved by President Lowell, of Harvard, well known as an authority upon questions of government; ex- President Taft, Viscount Bryce, Viscount Grey, and a host of-others. A further interest attaches to the present propaganda, since it is generally acknowledged that the approaching conclusion of the great war in Europe will be an opportune moment for improving the constitution of our international relations. The magnitude of the present conflict and the advance in civilization will make it possible to effect reforms much more radical and far-reaching than at any previous period. In the midst of the tragic events of the war many philosophers and philanthropists are looking forward to the realization of this League of Nations, as in the nature of an atonement for the degradation of carnage into which we have been plunged. It is interesting to compare their hopes and prophecies with an important proposal made by a philosopher of Massachusetts in the year 1840.* [* An Essay on the Congress of Nations. By William Ladd. Reprinted from the original edition for the Carnegie Endowment for International Peace, 1916.]
William Ladd's own words were: "It is proposed to organize a Court of Nations, composed of as many members as the Congress of Nations will agree upon, say, two from each of the Powers represented at the Congress (p. 34). The members of this court were to enjoy the same privileges and immunities as Ambassadors and to give their verdicts by a majority. In regard to their jurisdiction, Mr. Ladd proposed: "All cases submitted to the court should be judged by the true interpretation of existing treaties, and by the laws enacted by the Congress and ratified by the nations represented; and where these treaties and laws fail of establishing the point at issue, they should judge the cause by the principles of equity and justice" (p. 35).
The author, in an illuminating discussion of the objections which might be raised against such a court, enumerates them substantially as follows: that it was an innovation; that it gave too much power to a few men; that there was no machinery for the enforcing of the decrees of the court; that it would be dangerous to the maintenance of existing forms of government; that republics, being in a minority among the nations, would not have so good a chance of obtaining justice; that there existed already a satisfactory system based upon many precedents of submitting international disputes to arbitration. Ladd gives a convincing refutation to many of the arguments against this latter system, and obtained a practical vindication, when the calling of the first Hague Conference brought to pass the great Congress of Nations which he foretold. This Legislature of the World, as he described it, became, as he also proposed, the Constituent Assembly of an Arbitral Tribunal. The Permanent Court of Arbitration at The Hague differed, however, in one important particular. Instead of Ladd's plan of two representatives appointed by each nation, holding office during good behavior, and rendering their decisions by a majority vote, the Permanent Court, as at present organized, consists of a list of arbitrators—not more than four representatives from each country—who are appointed for terms of six years, which may be renewed. They serve without compensation, except as they may be specially designated to act as arbitrators in some case which is submitted to the court.
The Hague Court is evidently a compromise between the plan proposed by Ladd and the older system of unlimited choice for the selection of the arbitrators. Nevertheless,. it seems to be a happy mean, such as Ladd himself commends as a cautions step along the road of progress. In the future, as public opinion becomes more and more convinced of the advantage and the necessity of having recourse to arbitration for the settlement of international differences, there will develop a greater and greater sense of obligation to select the arbitrators from the panel of The Hague. The nations now vie with one another in appointing the most distinguished of their jurists to membership on the Court, and although there are still a few political appointees, we make expect them to disappear with the education of public opinion. As the business of the Court grows, those judges who are known to be the most impartial. Wise, and expeditious will be chosen again and again as arbitrators, until it will become a physical impossibility on the Court, and although there are still a few political appointees, we may expect them to disappear with the education of public opinion. As the business of the Court grows, those judges who are known to be the most impartial, wise, and expeditious will be chosen again and again as arbitrators, until it will become a physical impossibility for them to undertake any other work. This will mean that they will have become world judges in the truest and most complete sense of the word. The permanency of their tenure will be secure, since the nations can hardly fail to recognize the necessity of reappointment during good behavior. Four judges from each nation will furnish a list large enough to provide for several concurrent arbitrations. All, then, that is needed for the development of the existing Court is the increasing recourse to arbitration among the nations, and this can come about only through the education of public opinion.
There is no sufficient reason why we should hasten too rapidly to organize a court of more limited numbers sitting permanently at The Hague. At the present moment such an institution would present certain political dangers, and only those nations would be likely to have recourse to it who believed that its decisions would generally prove advantageous. Others would hesitate to add to the prestige of an institution which might limit their freedom of action. The remarkable institution, which we now possess preserves the perfect impartiality of its action by the elasticity of its composition. Again, a court sitting permanently, if it is to provide for the great development of arbitration which is likely to ensue in the near future, must be of sufficient numbers to make it possible to detail from its members one or more judges to hear certain of the less important cases which are referred to it; otherwise the procedure and the reaching of a decision will be prolonged, to the general disrepute of the method. The inability of a small, rigid court to expedite its business will endanger its usefulness at the very moment when the advantage o£ recourse to arbitration is becoming most widely appreciated. The present loose organization, on the contrary, permits the Powers to choose from the panel of the Hague Tribunal the best group of jurists free to accept the office of arbitrator. If four from each nation should not prove a sufficient quota for the business of the world, it would be an easy matter at any time to increase the number.
It is hard to believe that the gifted author of a plan for the Congress of Nations would not have recognized these advantages of the present panel of The Hague and have preferred this flexible form of court to a more rigid organization which might not stand the strain of necessary world adjustment. However that may be, it is impossible to misinterpret him in regard to the machinery for the enforcing of the court's decrees. He says:
The power, of the court to be merely advisory. It is to act as a high court of admiralty, but without its enforcing powers. There is to be no sheriff, no posse, to enforce its commands. It is to take cognizance, only of such cases as shall be referred to it, by the free and mutual consent of both parties concerned, like a chamber of commerce; and is to have no more power to enforce its decisions than an ecclesiastical court in this country (p. 34).
Further on in his essay he discusses Sully's "Great Design," and notes the impossibility of any union of states for the purpose of enforcing compliance, with international law. The real object of the project, which Henry IV of France supported, for a union of the nations of Europe, though "uncertain," was possibly, Ladd remarks, "defence against the encroachment of Mohammedan nations on Christendom—probably the humbling of the house of Austria" (p. 45). The object of defence or conquest, which is still the only possible basis for a firm union of independent states, is thus indicated. Referring to the effects of the adoption of the plan, Ladd continues:
The condition of mankind, probably, would not have been immediately much ameliorated; for they might have lost as much in liberty as they would have gained in a peace compelled by the power of the sword and great standing armies, always dangerous to liberty and the favorite instrument of tyrants (p. 45).
As much may be said for the present proposals for a League of Nations. If the Entente Allies and the United States desired to enter into an alliance, through fear of German efficiency or aggression, we should have the necessary basis for a league, and a title of a League of Nations for the Purpose of Enforcing Peace, or Respect for International Law, would be one of those euphemisms in which the Anglo-Saxon world delights. It would have the additional advantage of glossing over our departure from the traditional policy of the United States of holding aloof from entangling alliances. Germany even now seems to recognize the threatening danger which this movement may hold for her future security. A press report from Berlin (World, November 1, 1916) announces that Professor Delbrück, the distinguished German statesman and editor of the Preussische Jahrbücher, has called attention to Germany's error in not evincing more sympathy towards the suggestion of the other Powers for the extension of obligatory arbitration. Now comes the German Chancellor and declares that Germany may be expected to join a league of the nations to enforce peace. After so hearty a response to and acceptance of the proposed League, it would be a reductio ad absurdum for the other Powers to refuse Germany's cooperation. "With Germany's inclusion in the League, however, it would embrace all the great nations of the world and be subject to the same disrupting political currents which are an inevitable feature of the international situation. Consequently the League, like the Holy Alliance, would burst asunder after a few years, or would become a political machine for coercing he minority. So long as it was wisely administered in accordance with the true alignment of forces, the League would preserve its position of a world government, but upon the first occasion when it misjudged the strength of the opposing political tendencies, it would topple over, and great would be the fall thereof. Humanity would be lucky if the temple of civilization did not fall about its head.
The advocates of the scheme do their best to parry the force of the opposing arguments by designating the action of the proposed League as "prevention" instead of "compulsion," but a change of language cannot alter the underlying principle which still remains compulsion in one of its forms; compulsory arbitration or compulsory mediation, sometimes designated as "conciliation," and the instances when it is proper to compel recourse to "conciliation" must be left to the political discretion of the contracting states.
It is lamentable that philanthropists should waste their effort and by advocating an impossibility withdraw public attention from needs more pressing for the advancement of civilization. By the education of public opinion we can surely obtain on the part of governments a wider recourse to the method of arbitration for the settlement of international differences. In 1840 Ladd remarked: "I believe that even now, public opinion is amply sufficient to enforce all the decisions of a Court of Nations, and the 'schoolmaster is abroad,' and public opinion is daily obtaining more power…. It is therefore necessary, only to enlighten public opinion still farther, to insure the success of our plan" (p. 77). Students of international affairs would find it difficult to point out any instance where a great civilized Power has failed to comply with an arbitral award. As has been well said, the trouble is not with the medicine, but with the failure to take it.
Ladd terminates his prophetic proposal by a quotation from St. Pierre. He says: "The only supposition which we have made is that mankind have sense enough, in general, to know what is useful to them, and fortitude enough to embrace the means of their own happiness." In these few words he has set forth the problem of saving mankind from its folly. With its tendency to believe what it wishes, mankind ever seeks a royal road for the elimination of its ills. Constantly taught by new disappointments, it finds at last that the surer method of education gives the best results. Let our would-be reformers turn their energies into a propaganda for the widest possible voluntary adoption of international arbitration and international mediation or conciliation; let them further study and facilitate the development of the more recent forms of international cooperation, such as the periodic meetings of the Hague Conference and the formation of international unions. The basic principles of international law need to be proclaimed to all intelligent men; above all, we require the widest extension of publicity for governmental acts. Here is a programme certain to bring forth fruitful results. The panacea of a world state, on the contrary, is doomed to bitter disappointment. A political unification of the nations of the world is impossible while political questions divide mankind. Our own national unity is only possible because of the existence of rival nations, and even in own national state we have divided into two great political groups which have only recently contended for the chief control. How and when the law shall be enforced borders upon the realm of politics. Our own internal differences of opinion as to the merits of obligatory arbitration in labor disputes should given us caution in dogmatizing about compulsion of "prevention" in the more extended arena of international affairs.
© J. Fred MacDonald, 2013
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