Russia Thinks America Is Bluffing
To Deter a Ukraine Invasion, Washington’s Threats Need to Be Tougher
THE alternatives for war are at least four in number -- Arbitration, the World Court, Conciliation, and Conference. Of these the first two are juristic in character. The Permanent Court of International Justice, as defined in the statute which established it, deals primarily with questions involving treaty rights and the interpretation of international law. This is also the proper field of Arbitration, although its scope is widened to include as well those miscellaneous cases which lie outside the categories of international law but are nevertheless reducible to an accepted formula, or compromis, embodying the agreed statement of the issue to come before the arbitration tribunal.
The procedure in both the Permanent Court of International Justice and an arbitration tribunal is juridical, culminating in a judgment or award; on the other hand, Conciliation and Conference are political institutions. Conciliation is a procedure which examines the substance of a dispute but does not present conclusions in terms of a decree. It investigates and may recommend, but it does not bind. Conference is much wider in scope. It also may investigate the issues; but since its members, unlike those of Commissions of Conciliation, include the plenipotentiaries of the disputant nations, it works toward an agreement which may be just as binding as the verdict of a court, differing from it only in the fact that the agreement is self-imposed.
In recent discussions the procedure of these various institutions of international settlement has been much confused. The word arbitration, for example, has been used by advocates of international peace to cover the whole field of political as well as judicial dispute; on the other hand, almost equally comprehensive claims have been made for the function and authority of the Permanent Court of International Justice. The misconception as to the nature of arbitration arises apparently from the fact that in the preparation of the case there must be political negotiation, and this preliminary action is more a matter of current interest and is much better news than the technical debate in the arbitration proper. As for the World Court, it seems to me an open question whether it has suffered more in this country from the reservations of a reactionary Senate or from the overstatement of its function by those who have been its most ardent protagonists. Neither arbitration nor the World Court are pertinent instruments for the settlement of political disputes.
These distinctions are not mere legal quibbles. They are essential in the planning of an ordered world which is the fundamental aim of the peace movement. It is not progress to advocate the denaturing of institutions which can only function effectively within their proper sphere. The institutions of international justice have enough handicaps inherent in their pioneering nature without adding the difficulty of claiming too much for them. Their chief problem lies not in the realization of illimitable possibilities, but in making good within the narrow limits prescribed by the national States themselves. An international court, whether of law or of arbitration, must take its place in the existing system of jurisprudence. It is not a new invention, but the application of existing machinery to new needs. Any system of international justice must depend primarily upon those nations that have developed within themselves responsible systems of national justice; nations in which obligations assumed are understood and are likely to be fulfilled. But the prior existence of these national systems is also an obstacle to the growth of international jurisprudence, for nations which have realized for themselves all the implications of sovereignty are naturally reluctant to yield ground before the new and relatively untried experiment of an international tribunal. If, therefore, the instruments of international justice are to develop, we must find a way to harmonize two seemingly irreconcilable ideals: on the one hand, the demand that we maintain and strengthen the solid gains of past generations which have established the judicial institutions within each country and made provision for them in the law and constitution; and on the other hand, the demand that these developed systems of national justice make way, in part, for that international procedure in which each nation may participate but which no one controls.
In one way or another this antithesis between local interests and the interests of the Community of Nations shows itself in every proposal for the development of international arbitration. The formula of "vital interest and national honor" is giving way to that of "domestic jurisdiction," but in both cases the aim is the same; it is to safeguard that heritage of constitutional freedom which is the justification, in terms of history and of civilization, for the existence of the nations themselves. The maintenance and development of such a heritage is surely not less important than the establishment of the international judiciary.
The only one way of harmonizing the seeming conflict is through a study of procedure. This must include not merely the procedure of the tribunal itself, but also -- and more especially -- the attendant or ancillary institutions which are not strictly judicial but support the cause of international justice by providing for the initial stages of agreement and by furnishing the materials for the later formulation of law. This carries us over into the political institutions which we have referred to above, less binding than a court or arbitration tribunal. Viewed from the standpoint of arbitration and international law, they are ancillary to judicial procedure, but that is only the legal aspect of their work. They also furnish governments a medium for solving disputes that never reach the court, and cover that vast and miscellaneous field of non-justiciable dispute in which lie most of the causes of war.
Let us turn now to these two institutions of political settlement, Conciliation and Conference. Unfortunately, within this political field, there is as yet no program or agreed method of procedure such as already has been worked out for both arbitration and the Permanent Court of International Justice, a fact which has recently been called to our attention by the German Government in a memorandum to the League of Nations. There is even confusion between conferences and commissions, a confusion producing something worse than failure when one government sends plenipotentiaries and another mere agents bound by rigid instructions, as has happened more than once since the war. This matter should receive the attention of an international conference, similar to those Hague Conferences which preceded the erection of the Court of Arbitration. The fundamental contribution of those conferences has not yet been fully recognized, because it chiefly lay in the field of law and not of politics, and consequently was not effective in the dark days of 1914. But the Hague Conferences started plans for political organizations as well. The Commissions of Inquiry provided for in the Hague Conventions were ultimately given a definite form in the Bryan treaties.
These Commissions of Inquiry are not tribunals of justice or arbitration. They have no power to register a decree, and even halt on the brink of offering a suggestion or a recommendation. They simply investigate the facts at issue between nations and report their findings, leaving the disputants free to take such action as they may think best. The presence of neutrals on the Boards of Inquiry is counted upon to produce a statement of the case which may ultimately lead to an agreement through negotiation. The scheme of Commissions of Conciliation has recently been developed in the whole series of treaties which culminated in the central one of Locarno, and the network now includes nearly all of the civilized nations of the world. In these later treaties, however, the device has been carried a step further, in that the Commissions are definitely empowered to recommend terms of settlement. Recommendation is, of course, very different from the judgment of a court, but it is much more than mere fact-finding.
One weakness in these Commissions of Conciliation is that, in general, they have not been brought together by multilateral agreement; each separate treaty has called for the erection of a different Commission. The result is that few of the Commissions ever have any work to do; the machinery grows rusty; and when members of the Commission die, the governments forget to appoint their successors and even perhaps the very existence of the Commissions themselves. There has not been enough business before the ordinary Bryan Commission to keep it genuinely alive.
There is another weakness in the Bryan plan. If all the civilized nations were to make separate treaties of this kind between themselves the number of the resulting commissions would be absurdly great. There would be somewhere between two and three thousand commissions and about ten thousand commissioners. It is easy to see, therefore, that if the Bryan system of treaties were extended throughout the whole world it would become inoperative by its very intricacy and unwieldiness. If international Conciliation is to keep alive agencies capable of functioning effectively in emergencies, those agencies must be consolidated. Steps in this direction were taken in the Central American Treaty of 1923 and in the Santiago Convention of that year. But if the process is to be extended over the whole civilized world, it would necessarily involve the coöperation of the League of Nations. Conciliation is directly pertinent to the League's work. At the same time, there could be no surer way of wrecking the device of Conciliation than by over-stressing the centralizing machinery. The League has been careful not to interfere with the erection of these commissions of the Locarno type, recognizing that there is as great a need to keep local susceptibilities in mind as there is of speeding up effective action. When Conciliation has to be used, the nations involved are already so much on each other's nerves that they will not listen to advice from any but known friends, or those in whose impartiality they may repose confidence. The appointment of a Commission of Conciliation, therefore, comes back to a question of personalities. It was this question which originally blocked the organization of international justice. There was a fear of an unfair or packed court. But in the juristic field there has been steady progress, from the reluctance of the Hague Conference to accept the principle of a fixed bench down to the embodiment of that very principle in the World Court. A similar advance may ultimately take place in the sphere of Conciliation.
Alongside International Conciliation there is another institution which at first sight may seem to be so well understood as not to call for any detailed comment -- that of Diplomatic Conference. This, like Conciliation, deals with all kinds of international issues in the field of policy, even those which may be of vital interest or involve national honor. Generally in the past such matters have rested in the hands of a diplomacy which has had the weight of armaments behind it. International Conference also cannot escape the realism of such arguments, and to a certain extent recognizes them in recognizing great and small Powers. Nevertheless a new procedure in diplomacy is developing with the evolution of the conference method.
When the secrecy of diplomacy gives place to public discussion, questions must be argued on their merits rather than according to the dictates of a single will. To be sure, when a powerful nation speaks it may force its way in conference against the opposition of the rest, but it is not likely to do so unless it can state its case in terms of a common interest. This was the characteristic of the Washington Conference. It was not a coöperative affair but followed the lead of the United States. The results may have been beneficent but the method was not a perfect precedent for the development of the institution itself.
The method of conference which is exemplified in the meetings of the Council of the League is perhaps the best example of the procedure of the new diplomacy; it is strictly political, offering the solvent for disputes in the field of national policy, withholding them from the arbitrament of either the sword or the law, and providing in their place the merely human give-and-take of a discussion on policy. In the early days of theorizing about the League of Nations, before the Covenant was signed, there were some who thought this method of conference so fundamental that they would have created a League that provided little else. Such plans were discussed both in England and here. They were not adequate for a League containing all the European powers, but they would have gone a long way toward meeting the needs of the United States and the British Empire. In any case, this method of conference is still open to us without necessarily involving us in the rest of the League structure, in which it is being most effectively developed.
Now we come to the application of this discussion to the problems of today. The proposal "to renounce war as an instrument of policy" indicates in the very formula used that the chief substitutes for the discarded instrument must be those which function in the field of politics. The other current phrase, "outlawry of war," places the emphasis upon the legal alternatives. This is perhaps why it has made so strong an appeal to the pacifists whose slogan was "law not war," although the "outlawry" movement itself is not pacifist. It has seemed to offer a way of settling all international disputes that was clear, definite and final. The anarchy of a "society based upon war" would end by common agreement, and a world court would be the accepted arbiter. The more responsible leaders of the "outlawry" movement have escaped the fallacy of those who repose all their hopes of permanent peace in such a judicial process, but, while agreeing as to the importance of conferences, they have put emphasis upon a code of international law, with war excised from its text, and a court to whose judgment the public opinion of the world would yield obedience. The apparent finality of such an operation has had a wide appeal in a country which does not have to think realistically in international matters. Yet it is this very rigidity in the procedure and judgment of a court which is the chief obstacle to the submission to it of just those issues over which wars are fought -- issues of "national honor and vital interest" under whatever name we may disguise them; and no other country emphasizes quite so strongly as we do these exceptions to international judicial action. The result is a downright contradiction. On the one hand we have the advocacy of peace policies based upon a court or arbitration, on the other hand the insistence upon reserving from these bodies the issues of war and peace. It is anomalies like this which produce the sins of futility which the unsympathetic foreigner calls national hypocrisy. Hypocrisy, it may be said in passing, is often nothing more than the assertion of great ideals without sufficient study of the obstacles in the path of their realization. The only way to escape it in this instance is to explore still further the alternatives to arbitration which lie in the field of politics. The practical proposal is "to renounce war as an instrument of policy," not, as some pro-Court proponents seem to imply, "to renounce war as an instrument of justice."
A political question differs from a purely "justiciable" question in that the interest shifts from the material issue to the way in which that issue affects the parties to it. Recently a political question arose between France and Germany over the number of military police needed for the protection of the Saar Valley. The French claimed that they needed eight hundred men; the Germans asserted that five hundred were sufficient to keep order. The material issue was merely whether three hundred men should be retained or not. But the political issue which arose from this was something of quite a different nature. The nationalist press of Berlin had as headlines, "Germany must not permit the continuance of a disguised French military occupation in the Saar Valley." The French nationalist press replied, "France must not yield to German threats the first time the German Foreign Minister presides over the Council of the League." The kernel of the dispute was only a detail of administration, a purely technical matter. What would the police have to do and how would the inhabitants of the Saar be affected? Then politics came in and it changed the nature of this local problem. The real issue ceased to be the government of the Saar Valley and became that of the good faith and "honor" of the two Powers. The local problem was enveloped in a new one and almost lost sight of.
The illustration points to at least one characteristic of political questions; they are complex, while the "justiciable" issue is simple or direct. They add to the substantive claim a further question as to the attitudes of the disputants. Indeed it is this second phase of the matter which more often contains the dangerous explosive of emotion. Court or arbitration tribunals are not likely to be accepted when matters get this far. When men and nations feel so keenly about some issue that they are prepared to sacrifice their lives for it, they do not readily accept a procedure which leads to a hard and fast judgment. In short, for political disputes there must be political institutions. I think, therefore, that in the treaties which propose to further the cause of international peace, the emphasis should be shifted from Court and Arbitration to Conciliation and Conference.
So far as the device of Conciliation goes, the Bryan Treaties, although they have not been taken very seriously, nevertheless furnish a precedent which may lead to real progress. In their most fully developed form, in the Treaties of Locarno, the Commissions of Conciliation really reconcile. What is more important still, the Conciliation of Locarno leads to further settlement and does not leave the parties with that "liberty of action," which is provided in the Bryan text -- by which is meant the right to go to war. By a very slight change in the Bryan text an entirely different setting could be given to those treaties. If, instead of granting freedom of action to the disputants at the close of the investigation, there was an engagement to carry over the findings of Conciliation into international conferences, the link could be forged between the two institutions of political settlement which really deal with matters of war and peace.
It seems to have escaped most observers that the technique of Conference has been steadily perfected in the course of these years since the war. It has been especially the work of the League of Nations to raise it from the amateur and casual aspects of the early days to an institution with a definite place in international polity. Our country has not yet learned the rather obvious lesson that international conferences dealing with matters so complicated and far-reaching as Disarmament cannot be improvised overnight, but that they must be provided with an apparatus capable of disentangling the two phases of the problem, the technical, which has to do with armaments proper, from that which has to do with national policy. While Europe has been perfecting this mechanism through some eight years of experimentation, we have made very little advance. International Conference has meant for us hardly more than an opportunity to express our views and ask the rest of the world to agree with us. In the Washington Conference this method more or less succeeded. The failure in the Disarmament Conference is known to all the world.
We come back to the point which has already been mentioned, that the chief instrument of international settlement in political questions, namely, international Conference, is an instrument which has not yet been defined for us by any document comparable to the Statute which provided the World Court with its constitution or defined its powers, or even the earlier constitution of the so-called Court of Arbitration at The Hague. Lacking this, we are at a double disadvantage as a result of our absence from Geneva where the technique is taking shape.
There are many points of difference between the procedure of a conference and that of a court, but there is one which seems to have escaped notice in most of the all-too-serious discussions of these problems. There is a solvent which can be applied in Conference but which never is permitted in Court; it is a sense of humor, which is a sense of proportion. When great nations begin to talk in terms of national honor or of vital interest over issues which in themselves have never involved more than a few individuals -- as, for instance, when the Saar Valley case was imagined to affect sixty million Germans and forty million French instead of three hundred soldiers -- the solemn farce needs only some dispassionate or penetrating remark from a cool-headed member of the Conference to reduce it to realities. If, at such a time, there pierces through the tensity of the moment some humorous remark (as happened in this very instance), it gives a chance for common sense to take the place of overwrought patriotic emotions. Business men are familiar with the way in which this purely human touch may solve the most involved situations. The business of nations calls for it equally.