conference is made to depend. In addition, however, there are certain provisions, very innocent in appearance, which were inserted at the last moment at the instance of Japan, and have led to a good deal of heart-searching. Under Article XV of the Covenant, if any dispute is claimed by one party, and recognised by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council is so to report, and to make no recommendation as to its settlement. This principle, intended to safeguard the internal liberty of States, is re-affirmed in Article V of the Protocol. On the motion of Japan, however, the following clause was added :

If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the Assembly under Article XI of the Covenant.*

The point of this is emphasised in Article X, which, among acts of aggression, includes the disregard of a decision of the court or the Council that the matter in dispute is one solely within the jurisdiction of the other party. To this, on the motion of Japan, was added: "Nevertheless, in the last case the State shall only be presumed to be an aggressor if it has not previously submitted the question to the Council or the Assembly, in accordance with Article XI of the Covenant."

These amendments, so lightly adopted, open up an indefinite prospect of trouble. Ten years ago, in criticising the pre-war schemes for a league to enforce peace, I wrote :—

It would begin by repudiating the principle of intervention in the internal affairs of the constituent nations, only in the end to find itself compelled to intervene : for, in new forms, the old difficulty of drawing a sharp distinction between external affairs and " internal affairs having an external effect" would be sure to emerge.t

Now, it is well-known that the Japanese amendments have

*The clause of Article XI referred to runs as follows: "It is also declared to be the friendly right of each member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations on which peace depends."

+"The Confederation of Europe " (1st ed., 1914, p. 295; 2nd ed., 1919, p. 280).

especially in view the trouble that threatens from the laws of the United States and certain of the British Dominions forbidding Asiatic immigration, laws which are claimed as within the domestic jurisdiction of these States. It is suspected that the amendments are an astute diplomatic move on the part of Japan, intended to enlist the League on her side, or at least to neutralise it, in the event of an armed conflict arising out of the application of these laws. Indeed, it is hard to see how the League can be effective for peace if it be debarred from dealing with this matter. Yet, if the League interfere, even by good advice, in this, why not in other matters ?

Critics of the Covenant and its "buttresses " suffer from the fact that these instruments have been invested with something of the sacro-sanctity of Holy Writ: to doubt the inspiration of their authors is reckoned as impiety, and to dispute their maxims is to take up arms against the light. The Covenant, it is urged, is the only dyke between civilisation and a yet more devastating flood of war, and we must strip ourselves of our very principles to stuff into its cracks and crannies if we are not to be overwhelmed. To which it may be at once replied that such a panic temper is not favourable to sound constructive statesmanship, as is all too obvious in the case of the Covenant. Sound statesmanship aims at peace, and peace can only be maintained if there be between the nations a spirit of give and take and, above all, of confidence. The spirit of give and take is embodied in the treaties, and confidence grows in proportion as the nations believe in the inviolable sanctity of treaties. It follows that treaties must be so framed that there can be no question of the possibility of not honouring their terms. Their provisions should be such that not even a jurist could misinterpret them. They should not attempt to deal with contingencies remote and obscure, or bind the parties to definite action in circumstances that cannot be foreseen. In short, they should impose no obligations but such as the signatories and their successors clearly are and will be in a position to carry out.

The Covenant of the League, with its vague commitments and its ambiguities, does not fulfil these conditions, and it cannot be said that either the Covenant or the Treaty of Versailles, of which it forms a part, has tended to strengthen men's confidence in the effectiveness of treaties. In so far, then, as the Geneva

Protocol is an honest effort to clear up the ambiguities of the Covenant, and to reveal plainly the obligations thereby imposed, it is to be commended. Whether or no it merits more complete support depends on the nature of the obligations and the possibility and probability of their being met in all the circumstances contemplated.

Of the obligations imposed by the Protocol, that of submitting all justiciable disputes to the Permanent Court of International Justice may well seem the least open to objection, and it was precisely the absence of this obligation which has been urged in America as one of the chief reasons against the United States being represented on this Court. Yet, in spite of the attractiveness of the idea, and the general support given to it at the Fifth Assembly by the representatives of the Great Powers, we may agree with M. Politis, the Greek delegate, that, before committing ourselves to it, it would "be wise to sift this idea more closely.' Now "optional arbitration" is entirely consistent with the principles laid down above for sound treaty-making; for the arbitration clause of a treaty only becomes operative after a dispute has arisen, that is to say, when the Governments concerned are in a position to know the responsibilities they incur by going to law. In the case of "compulsory arbitration," on the other hand, the pledge to submit to an arbitral judgment is given in anticipation of future disputes, and in ignorance of when the dispute will arise or how serious it will be. The contracting States, that is to say, "agree to a kind of lottery "—to use M. Politis' expressive phrase and stake their whole fortunes, it may be, on the acumen, honesty, courage and impartiality of a cosmopolitan jury of lawyers, from whose decision there is no appeal.

In the case of optional arbitration the parties bind themselves in honour to accept the award, which is possible because the cost of doing so has already been counted. A general treaty imposing "compulsory" arbitration is quite another matter. As M. Politis put it :

A long time may elapse between the date of an arbitration treaty and the date when an award is delivered. Very likely the same men will not be

*"The Relation of the United States to the Permanent Court of International Justice." By Prof. Manley D. Hudson, and others, Proceedings of the Academy of Political Science, New York. Vol. x. No. 3, pp. 115-174.

in power. Public opinion will have changed. There will no longer be that sense of newness which adds weight and sanctity to the pledge. The determination to abide by it weakens and wavers-and the door is opened to a refusal to carry out the award.

To these objections may be added the fact, which has been pointed out by those most friendly to the principle of arbitration, that the Permanent Court, though it has settled some fairly important cases,* has as yet not had that long and full experience that would create a complete confidence in its judgments. It is further pointed out that the jurists who compose the Court, belonging as they do to various nations, have widely differing conceptions of law, and that the rules and principles of that international law which it is their function to apply are still, to a considerable extent, a matter of dispute. For which reasons, it is argued, it would be wiser to wait until the Court has proved its quality in comparatively minor matters before imposing upon it the immense responsibilities contemplated by the Protocol.

The possibility that States might refuse to accept the judgment of the Court, according to M. Politis, justifies the providing of guarantees," that is to say, the enforcement of the judgment by the collective power of the League. The effectiveness of this would, of course, depend on the power of the State in question, and the remedy might well prove worse than the disease. Suppose, for instance, that the Covenant, as strengthened by the Protocol, had been in force in 1903. The Herrán-Hay Treaty, signed in March, 1903, with the Government of Colombia, conceded to the United States the right to construct the Panama Canal. It was, however, rejected by the Colombian Congress, which refused" to sell its birthright for a mess of pottage." Thereupon a revolution conveniently broke out in the State of Panama, openly fomentedso the Colombians affirmed-by President Roosevelt. "Before the revolutionists had time to make the least explosion they were recognised (by the United States) as an independent Government; Colombian troops were prevented by force from invading the isthmus; and the State was reinforced in its finances at the cost of the Treasury of Washington." From the point of view of

e.g., The dispute between Great Britain and France concerning the imposition of military duties on British subjects in Tunis and Morocco. †Boletin del Ministerio de Relaciones Exteriores. Tome iv, Nums. 13 à 15 (Bogotá, 1913), p. 1153, 1155.

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statesmanship it was probably the only thing to be done, if the great canal was ever to be made; from the point of view of international law it was, to say the least, doubtful, the Americans justifying their action in landing troops on the ground that, by the Treaty of 1846, they had undertaken to keep the isthmus open, and that a civil war would have closed it. The Colombian Government refused to accept the fait accompli, and proposed that the whole matter should be referred to the Hague Tribunal. This the United States "roundly refused," their reasons-which are interesting-being set forth at length in a Memorandum presented to the Colombian Government in February, 1913. The gist of this was clearly put by Mr. Du Bois, the American Minister at Bogotá, during a conference with the Colombian Minister of Foreign Affairs. "The United States," he said, "could not submit to arbitration the questions relating to the separation of Panama, considered in their political aspect, though willing to accept arbitration on questions of a judicial nature related to it, because the people of the United States would never agree to submit to a judicial tribunal such transcendent acts of international policy."*

Under the Protocol, this attitude would have constituted the United States an aggressor." On the appeal of Colombia, the United States, though not a member of the League, would have been invited" to submit, for the purpose of a pacific settlement, to the obligations" of the Protocol. On their refusal to do so, the Colombian case would have been heard by the Permanent Court without the United States being represented, and the judgment, if based on the strict application of international law, could hardly have been doubtful. The members of the League would, in all probability, have found themselves compelled by their solemn obligations to boycott and blockade the United States, in accordance with Article XVI of the Covenant. Or would the judges have “interpreted" the law in the interests of common sense?

The causes which really lead to war-the transcendent acts of international policy and, on a lower plane, the ambitions, rivalries, and jealousies of nations and races-are not in fact "justiciable." For these the Protocol seeks to provide by making the authority of the Council of the League supreme and its

Ib. p. 961.