The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
IN PROPOSING a special conference of American states, which as I write in August is scheduled to meet at Buenos Aires in December, President Roosevelt suggested as its general purpose the advancement of "the cause of permanent peace" in the western hemisphere. In many ways, the time seems auspicious for realizing that purpose. Seldom have relations between the twenty-one American Republics been more cordial. Many sources of discord have recently disappeared. The war in the Chaco has been brought to an end; the flare-up between Colombia and Peru over Leticia has died away; a definitive frontier has been established between the Dominican Republic and Haiti; several boundary disputes in Central America have been successfully adjusted; and progress is being made toward fixing the boundary between Ecuador and Peru.
Moreover, the "good neighbor" policy of the United States has borne important results, both tangible and intangible. It has led the United States to withdraw its armed forces from Haiti, and to negotiate new treaties with Cuba, Haiti and Panama; and in some measure it has diminished the suspicion which so often has frustrated Pan-American coöperation in the past. Just at this time, also, some of the American states are seriously disturbed about the progress of events in other parts of the world. Already in 1936, three Central American states have given notice of their intention to withdraw from the League of Nations, and it is no secret that similar action has been contemplated elsewhere. If there is reality in the much-heralded solidarity of the American Republics, the present would seem a favorable time to give it a more durable foundation and to consolidate their joint influence for the maintenance of peace.
Yet it is not easy to envisage the definite lines along which this effort might proceed. The numerous proposals for the agenda of the forthcoming Conference range all the way from the creation of an American League of Nations to measures only remotely connected with the advancement of peace, such as "the civil and political rights of women."
In view of the experience of the United States when it suggested one League of Nations, it can hardly have been the President's purpose that the Buenos Aires Conference should create another. The fear of "entangling alliances" seems to inhibit the United States only where Europe is concerned; but even if it were possible for the United States to join an American league there seems little likelihood that one could be created. Equality of states is very precious to the American Republics. Nor is the establishment of an American court of justice, which seems to be favored by no less than seven American states, likely to be achieved, for the reasons stated by Chief Justice Hughes in his lectures at Princeton several years ago. The experience of the Central American Court of Justice which existed from 1908 to 1918 has left an unhappy memory, and the rôle of the United States in the events which led to that Court's demise is still resented in some quarters. The difficulties of setting up any effective organization of the American Republics are illustrated by the history of the Pan-American Union; though every effort has been made to confine its activities to "non-political" matters, the Union, after almost fifty years, has not yet been placed on a conventional basis. As an additional reason for reluctance to launch a new organization, some of the American states may fear that such a step would weaken the international institutions which already exist, and even states which have no share in the maintenance of the League of Nations and the Permanent Court of International Justice may hesitate to take this risk.
If the Buenos Aires Conference should have to content itself with a less ambitious program, it may follow the suggestion of President Roosevelt and seek to safeguard the maintenance of peace in the Americas by some reënforcement of the "peace instruments" already in force among American states. In successive conferences since 1923, these states have been engaged in constructing a more or less schematic system of treaties for the pacific settlement of disputes. In 1889, 1902, 1906, and 1910, earlier conferences had explored the possibility of a multipartite agreement for obligatory arbitration; in 1889, it was declared to be "a principle of American international law" that disputes should be settled by arbitration, but repeated efforts to draft an arbitration treaty which would command general support met with failure. During the period of activity inspired by the Peace Conferences at The Hague, some South American states concluded very advanced bipartite treaties. It is only since the World War, however, that progress has been made toward developing a general law of pacific settlement.
II. THE SYSTEM OF INTER-AMERICAN TREATIES
Four instruments may be said to embody the distinctly American system of pacific settlement:
(1) The Treaty to Avoid or Prevent Conflicts between the American States, signed at Santiago on May 3, 1923, generally known as the "Gondra Treaty."
(2) The General Treaty of Inter-American Arbitration, signed at Washington on January 5, 1929.
(3) The General Convention of Inter-American Conciliation, also signed at Washington on January 5, 1929, to which a protocol was added by the Montevideo Conference on December 26, 1933.
(4) The Anti-War treaty, signed at Rio de Janeiro on October 10, 1933, generally known as the "Saavedra Lamas Treaty."
All of the American states are not parties to any one of these instruments; but each instrument is in force today for such a large number of states that it may be said to have a place in the system.
Ratifications of the Gondra Treaty have been deposited by eighteen states; the Washington Treaty on Arbitration is now in force among thirteen states, and the Washington Convention on Conciliation among fourteen States. The Saavedra Lamas Treaty was quite recently brought into force, after a delay of two years; up to June 1, 1936, only three of the signatories -- the Argentine Republic, Chile, and Mexico -- had deposited their ratifications, but at least ten States, some of which are European, had effectively adhered to the treaty.
In 1933 the Montevideo Conference made a serious effort to secure the acceptance by all of the American Republics of these four inter-American instruments and of the Paris Treaty for the Renunciation of War. A resolution to this end was unanimously adopted, and a procès-verbal was signed by the delegates of twenty states. As no particular dissatisfaction with any of the instruments was voiced at that time, it then seemed possible to anticipate that such solemn measures would lead to prompt action by the various governments. Yet in the following three years no feverish haste has been manifest. Only the United States, Chile, Cuba, the Dominican Republic, Mexico, Nicaragua, and El Salvador are parties to all five of the instruments listed at Montevideo, while the Argentine Republic is a party to none of them except the Saavedra Lamas Treaty.
The record is not complete, however, without mention of the reservations which some states have made in becoming parties to these instruments. No analysis of these can be attempted here, for they are very numerous (particularly to the Washington Treaty on Arbitration); but we may cite a reservation made by the United States to the Saavedra Lamas Treaty, to the effect that the United States does not thereby "waive any of its rights . . . under international law." Such reservations operate in weasel fashion to take the life out of the instruments to which they are attached.
An understanding of the present situation requires some analysis of the main provisions of each of the four American treaties, and an attempt to discover their relation to more general efforts to build a law for the maintenance of peace.
III. THE GONDRA TREATY OF 1923
The essential features of the Gondra Treaty of 1923 were borrowed from the series of treaties concluded by the United States in 1913 and subsequent years, generally known as the Bryan treaties for the advancement of peace. The central formula of the Bryan treaties had, in turn, grown out of the commission of inquiry provided for by conventions adopted at The Hague in 1899 and 1907, which had proved very useful in the Dogger Bank affair in 1905. Mr. Bryan added the feature of permanent commissions to which disputes might be referred for investigation and report, and he proposed that states should give themselves a "cooling-off" period before any possibility of recourse to arms. Hence the Bryan treaties provided that pending investigation and report by a permanent commission there should be no declaration of war and no resort to any act of force. Some thirty treaties on this model were negotiated by the United States, ten of which are still in force between the United States and other American states. After an interval of twenty years, one may question whether these treaties have had much practical influence on the manner of dealing with disputes; no reference has ever been made to any of the permanent commissions which they establish, and for a good part of the time states have neglected to appoint the personnel of the commissions.
The Gondra Treaty provides for the submission to a commission of inquiry of controversies which cannot be settled through diplomatic channels and which are not submitted to arbitration in accordance with existing treaties; but important exceptions are made of disputes involving questions arising out of a national constitution, and of disputes relating to questions already settled by treaty. The competence of the commission is limited to investigation and report, and the latter is not to have the force of a judicial decision or an arbitral award. One year is allowed for the report, dating from the inauguration of the commission, with a possible extension for six months, and the parties to the dispute are to have an additional six months to attempt to reach agreement before they recover their liberty of action. During this period, and from the time steps are first taken looking toward an investigation, the disputants are "not to begin mobilization or concentration of troops" on their frontiers, nor to "engage in any hostile acts or preparations for hostilities."
Most of the Bryan treaties provided for the submission of a dispute by the two parties, but under the Gondra Treaty the submission may be effected by one party. This difference is deceptive, however, for the Gondra Treaty calls not for permanent commissions of investigation, but for commissions to be created ad hoc; hence the coöperation of the disputants is required. Elaborate provision is made for the selection of the five members of each commission from among the nationals of American states. The only permanent feature of the scheme is that two diplomatic committees are established at Washington and Montevideo, consisting of the three American diplomatic agents longest accredited in these capitals. The sole function of these diplomatic committees is to receive and to transmit requests for the establishment of ad hoc commissions of inquiry.
The Gondra Treaty is but a partial adaptation of the Bryan model. In calling for the creation of a commission ad hoc for each dispute, it presupposes a situation where all of the disputing states will seriously desire to obtain an elucidation of the facts and will be willing to abstain from resort to force during a period of possibly several years' duration. If it is thought that governments stumble into war as a result of their own hot-headed and precipitate action, then the value of the Gondra Treaty is to be rated very high; but the eleven years that the Treaty has been in force have not given occasion for testing its worth.
IV. THE ARBITRATION TREATY OF 1929
When the Conference of American States met at Havana in January of 1928 the minds of men engaged in the conduct of international affairs were preoccupied with the subject of pacific settlement. Very naturally, therefore, American statesmen turned their attention to measures which might be taken to supplement the Gondra Treaty. But the atmosphere at Havana did not prove favorable for the discussion of pacific settlement, and after affirming the loyalty of the American Republics to obligatory arbitration for differences of a juridical nature, the Conference had to content itself with providing for a later special conference to deal with arbitration and conciliation.
The special conference assembled at Washington at the close of the same year, with all the American states represented except the Argentine Republic. It labored in the fresh flush of the enthusiasm engendered by the Paris Treaty for the Renunciation of War and the Geneva General Act, and it produced a general treaty on arbitration, with an annexed protocol on progressive arbitration, and a general convention on conciliation. These instruments now constitute the central part of the inter-American system of pacific settlement.
The arbitration treaty adopts a formula which had been employed in the Franco-American treaty of February 6, 1928, and which has found place in the numerous bipartite treaties concluded by the United States since that date. The parties agree to submit to arbitration "all differences of an international character," of past or future origin, which depend upon a claim of right. Two conditions are set: the difference must be one which it has not been possible to adjust by diplomacy, and it must be juridical in its nature "by reason of being susceptible of decision by the application of the principles of law." In other words, the treaty applies only to so-called legal disputes, as distinguished from non-legal or possibly political disputes. It offers some guides for the application of this distinction, borrowing for this purpose phraseology in Article 13 of the Covenant and Article 36 of the Statute of the Permanent Court of International Justice.
Significantly, however, two categories of disputes are expressly excluded from the obligation to arbitrate: (1) those relating to domestic questions and "not controlled by international law;" and (2) those affecting the interest or referring to the action of a state which is not a party to the treaty. As no non-American state may become a party to the Washington Treaty, disputes involving the Monroe Doctrine are excluded.
With reference to the agency to conduct the arbitration, the treaty takes no account of the existence of the Permanent Court of International Justice, nor does it require employment of members of the Permanent Court of Arbitration. The tribunals provided for are to be created for each dispute after it has arisen. Failing agreement by the parties on some other course, each party is to name two arbitrators, of whom only one may be its own national but both must have the nationality of some American state. The president of the tribunal, who may be a national of a non-American state, is to be chosen by the four arbitrators, or, if this proves impossible, according to a prescribed procedure.
The statement of the question to be arbitrated is to be established by a special agreement of the parties. An artificial provision is added that if this agreement is not concluded within three months "reckoned from the date of the installation of the court," it shall be formulated by the court itself. It is rather fantastic to imagine that two states would be able to create an arbitral tribunal without having been able to agree upon the precise question to be arbitrated, and this provision can serve no other purpose than to still the apprehensions of undiscriminating laymen who may happen to read it. Unfortunately, such provisions are too frequently included in agreements for pacific settlement.
Certainly the Washington Treaty does not carry far along the road toward obligatory arbitration. In fact, it is only an agreement to agree to arbitrate. Each party has kept control of the reference of its disputes, for it is the master of its own rôle in the coöperation required for setting up a tribunal and effecting a submission to it. Even so, however, it was anticipated when the treaty was drafted that some states might find reservations to be necessary. And in fact reservations were made by thirteen of the twenty signatories. For the most part, these reservations relate to the application of the treaty to disputes which are thought to be within the exclusive competence of national courts; as it was phrased by the delegation of El Salvador, "pecuniary claims against the nation shall be decided by its [own] judges and courts, since they have jurisdiction thereof, and recourse shall be had to international arbitration only in . . . cases of denial of justice or unusual delay in the administration thereof." This doctrine in some form is very dear to certain states of Latin America, and allowance for it must be made in any agreement for pacific settlement to which they will be parties. The reservations also show a fear on the part of some states that previous arbitral awards might be disturbed. In one case, disputes which directly or indirectly affect the integrity of the national territory are reserved.
The United States included in its ratification of the Washington Treaty an "understanding" that no special agreement would be made on behalf of the United States except with the advice and consent of the Senate. As this refers to a distribution of governmental power within the United States itself,[i] it does not diminish the international obligation assumed; yet it may serve to render performance of the obligation difficult.
The protocol of progressive arbitration annexed to the Washington Treaty serves the sole purpose of enabling a party to the treaty to abandon any reservations it may previously have made or any of the exceptions contained in the text itself. This privilege has not been exercised, and one may doubt whether it is of much significance.
V. THE CONVENTION OF CONCILIATION OF 1929
The Washington Conference followed a tendency current at the time in drawing a sharp distinction between arbitration and conciliation. While it sought within narrow limits to make the former process obligatory for legal disputes, it envisaged a procedure of conciliation to be applicable to all disputes, legal and non-legal. The Gondra Treaty precluded an approach to the subject of conciliation de novo. Hence the Conference blessed the effort of 1923 as a "notable achievement," and sought to give it "additional prestige and strength."
To this end, the Convention which it adopted invests the commissions of inquiry provided for by the Gondra Treaty with the character of commissions of conciliation. They may attempt to conciliate the parties to a dispute at any time, during the progress of the inquiry into the facts or during the six-month period allowed by the Gondra Treaty for the parties' consideration of the report of a commission. In this latter period, a commission also has the duty of undertaking a conscientious and impartial examination of the issues of the dispute, and of proposing "the bases of a settlement for the equitable solution of the controversy." A period of time not exceeding six months is to be fixed by the commission, within which the parties are to "pass upon" the bases of settlement proposed. Thereafter the commission is to draw up a final act recording the decisions of the parties and any terms of settlement accepted by them. During this additional period, the obligation to refrain from a resort to force is to be operative.
The permanent diplomatic committees established by the Gondra Treaty at Washington and Montevideo are also invested with conciliatory functions, to be exercised either at the request of a party to a dispute, or, if it appears that peaceful relations may be disturbed, on their own motion; but such competence is limited to the interim period before the parties have created an ad hoc commission. The Convention also provides for the creation of ad hoc commissions even when the Gondra Treaty is not applicable to a dispute.
It was subsequently recognized that the system of conciliation thus organized was weak in that it depended upon the action of ad hoc bodies. In 1933, therefore, the Montevideo Conference drew up an additional protocol designed to give a more permanent character to the commissions of inquiry and conciliation. The protocol purports to be an addition to the Washington Convention on Conciliation, but it is as much an addition to the Gondra Treaty. It envisages a series of bipartite agreements, in the form of exchanges of notes, by which the parties to the Gondra Treaty would constitute permanent commissions of investigation and conciliation. Apparently each state would be represented by the same persons on its commissions with all other states. The choice of a fifth member of each of the commissions would be made by the Governing Board of the Pan-American Union. The protocol is such a tangle that it is not surprising that few states have authorized its signature.
Even with this addition, the Washington Convention on Conciliation can hardly be called satisfactory. Perhaps the difficulty is implicit in the attempt to engraft a procedure of conciliation onto that of investigation as outlined in the Gondra Treaty. Still more fundamental is the objection that reliance is placed so largely on ad hoc agencies, for meeting whose expenses no provision is made in advance.
VI. THE SAAVEDRA LAMAS TREATY OF 1933
Unlike the Gondra Treaty of 1923 and the Washington instruments of 1929, the Saavedra Lamas Treaty, signed on behalf of six American states on October 10, 1933, was designed to be universal. It was opened to accession by all states. Several European states have already acceded to it definitively, and some others have indicated intention to do so. Yet most of the parties are American states, and it is a part of the schematic American approach to the problem of pacific settlement.
Dr. Saavedra Lamas borrowed the dominating theme of his proposal from the Paris Treaty for Renunciation of War, but he made some departures from the Briand-Kellogg text. His treaty contains not a condemnation and a renunciation, but only a condemnation; it applies not to war as an instrument of national policy, but to "wars of aggression;" it is not limited to a war of aggression with another party, but it applies to such a war with any state of the world; it prescribes for the settlement of disputes not merely "pacific means," but "pacific means which have the sanction of international law." In line with the policy adopted by many states with reference to the Manchurian dispute, and with the declaration made by nineteen American states with reference to the Chaco dispute on August 3, 1932, the treaty creates an obligation to refrain from the recognition of any territorial arrangement brought about by force of arms.
Sanctions to follow any violation of the treaty's basic provisions are adumbrated, but feebly. The signatories are to endeavor to maintain peace by adopting a common and solidary attitude "in their character as neutrals," and they are to "exercise the political, juridical and economic means authorized by international law;" they are to "bring the influence of public opinion to bear," but they agree in no case to "resort to intervention either diplomatic or armed." This self-denying ordinance is saved from actual conflict with the Covenant of the League of Nations, if not with the Treaty of Paris, only by the limitation that the obligation is "subject to the attitude that may be incumbent" on the signatories by virtue of other collective treaties.
Eleven articles of the Saavedra Lamas Treaty are devoted to the subject of conciliation, and as a contribution to the American system of pacific settlement they constitute the more interesting part of the treaty for present purposes. A procedure of conciliation is prescribed for all disputes, but at the time of signature, ratification or accession, any state may except from its obligation any or all of four listed categories of disputes. These categories throw light on the current thought of American states with respect to pacific settlement; they stress the view held in some quarters that a state's own constitution may preclude its assumption of any obligation with respect to certain kinds of disputes. It is extraordinary that the draftsmen of the treaty should have bestowed such care on the framing of provisions designed to facilitate extensive exemptions from an obligation to do no more than to submit to a procedure designed to lead to a report which would have no final or binding character.
The procedure outlined contemplates the functioning of ad hoc conciliation commissions only, and it adds little to the provisions of the Gondra Treaty and the Washington Convention. One innovation appears, however, in the very indefinite provisions for the possible substitution of one or more national supreme courts for the international conciliation commission. It may require a stretch of imagination to see how two or more parties to a serious international dispute can agree upon conciliation by the national supreme court of one of them.
The chief significance of the Saavedra Lamas Treaty is not its contribution to the inter-American system of pacific settlement. It may serve as a guide for the application of the elementary principles proclaimed in the Treaty of Paris of 1928, however, and in the event of the violation of those principles it may have influence on the conduct of states which would seek to vindicate international law and order.
VII. THE RÔLE OF THE BUENOS AIRES CONFERENCE
The forthcoming Conference must first of all shape its course after making some evaluation of the system of pacific settlement established by treaties already in force. It may content itself with a renewal of the effort made at Montevideo three years ago to secure a universal acceptance of the existing system; it may endeavor to supplement that system by the addition of still another instrument of pacific settlement; it may attempt a fresh beginning by the creation of new agencies and new methods of dealing with disputes. The considerations bearing upon the choice to be made may be weighed without any attempt to prophesy which course will be adopted.
As a means of summarizing the existing American system, let it be supposed that a dispute has arisen between two American states, both of which have signed and ratified without reservation the Gondra Treaty, the Washington Treaty on Arbitration, the Washington Convention on Conciliation and the Saavedra Lamas Treaty.[ii] Let it be supposed also that both disputants are entirely disposed to abide by the provisions of these instruments. What will be their obligations with reference to the dispute? By what method will the solution be sought?
The disputants will be bound to refrain, each as respects the other, from a war of aggression, and to effect a settlement only by the pacific means which have the sanction of international law. If they cannot agree upon a settlement by diplomatic means, they must submit the dispute to inquiry and conciliation, but to some extent at least their collaboration will be necessary for this purpose. If they are parties to the 1933 additional protocol to the Washington Convention on Conciliation, they may have a permanent commission in existence; otherwise, they will have to create an agency ad hoc. Meanwhile, however, some initiative may be taken by one or both of the permanent diplomatic committees at Montevideo and Washington, within the narrow limits of their authority. If inquiry and conciliation do not lead to a settlement, an obligation to arbitrate may become applicable. Yet arbitration will be possible only if the dispute relates to what both parties consider a claim of right "susceptible of decision by the application of the principles of law," if it does not relate to what either party considers a "domestic question," and if it does not affect the interest or refer to the action of a non-American state. For any arbitration, the two parties must coöperate both in the creation of a tribunal ad hoc and in drawing up the statement of the issues to be arbitrated.
Several observations may be made as to the efficacy of this system. First, the treaties establishing it are confused, and it always may be possible to play off one instrument against another. Second, the system can work only with the utmost of good will and determination on the part of all the states engaged in a dispute. Third, the coöperation demanded of the disputants is so extensive that it offers abundant opportunity for disaccord which, at almost any stage, would entail a breakdown of the system. The creators of the system have neglected the primary lesson of the experience of the past fifty years, viz., that effective dealing with disputes requires the previous existence of an authoritative agency which may be seized of the difference by any interested state.
On paper, the existing American treaties leave much to be desired; in practice, they have yielded little. Yet in spite of the defects of the existing system the Conference at Buenos Aires may hesitate to undertake a fresh start. Experience both in the American conferences and in the League of Nations has shown the great difficulty of procuring numerous ratifications of multipartite international instruments, and emphasis will be placed on the advantage of ratifying the instruments on pacific settlement which have already been deposited. This may lead to renewed efforts to universalize the system by inducing all American states to become parties to all of the existing treaties. It cannot be a reason, however, for a failure to make an effort to register some further advance.
It is not easy to say what steps can be taken to supplement the existing treaties, as long as effort is confined to the establishment of a purely American system, unrelated to the more nearly universal League of Nations and Permanent Court of International Justice. Some improvement could be made in the provisions for the creation of permanent conciliation commissions. It hardly seems possible to move far along the road to really obligatory arbitration, for neither in North nor in South America is there much willingness to sacrifice special points of view to this end.
Elsewhere in the world very notable progress has been made in recent years in extending the law of pacific settlement. Numerous bipartite treaties, to some of which American states are parties, have developed standards which are much in advance of those with which the American conferences have had to be content. With the exception of the United States, all of the American states have at one time or another been parties to the Covenant of the League of Nations and to the system of permanent agencies which it creates; eighteen of them are now members of the League. Twelve American Republics share in the maintenance of the Permanent Court of International Justice, and nine of them are bound by declarations conferring on the Court a large measure of obligatory jurisdiction. Seventeen of the twenty-one -- the exceptions are the Argentine Republic, Bolivia, El Salvador and Uruguay -- are parties to the Paris Treaty for the Renunciation of War. In other words, the efforts of the American conferences have not precluded American coöperation in the building of a general law of pacific settlement. It is somewhat surprising, however, that so little account has been taken of this coöperation in the course of the efforts which have produced the American system of treaties.
The delegates who will assemble at Buenos Aires may be faced with a more fundamental question than any involved in the effort to perfect details of the existing treaties. That question goes to the raison d'être of the inter-American effort in this field. Is law and order in the twentieth-century to be safeguarded on a universal or on a continental basis? Dissatisfaction may be felt with the recent attempts to apply the system which was designed to be universal; but it cannot be outbalanced by satisfaction with what the American states have accomplished, and it should not lead to any false appraisal. The Buenos Aires Conference has a responsibility which cannot be met by a mere tinkering with existing texts. It must determine whether and how far regionalism is to be the order of the day in the extension of the reign of law.
[i] On various occasions in the past, claims against other states have been referred to arbitration by the President of the United States without the advice and consent of the Senate, e.g. the Pius Fund claim against Mexico. The "understanding" tends to limit the President's exercise of power which he unquestionably possesses.
[ii] It must be added that few if any states are in this position.