Data Is Power
Washington Needs to Craft New Rules for the Digital Age
IT has been my privilege during the past few months to conduct on behalf of the Government of the United States negotiations having for their object the promotion of the great ideal of world peace. Popular and governmental interest in the realization of this ideal has never been greater than at the present time. Ever since the World War, which spelled death to so many millions of men, spread desolation over so much of the Continent of Europe and shocked and imperiled neutral as well as belligerent nations, the minds of statesmen and of their peoples have been more and more concerned with plans for preventing the recurrence of such a calamity. Not only has the League of Nations been preoccupied with studies of security and world peace, but members of the League of Nations have concluded additional special treaties like those signed at Locarno in 1925; and recently at Havana the United States and 20 other American States, including 17 members of the League of Nations, expressed by formal declaration their unqualified condemnation of war as an instrument of national policy, and agreed to call a conference to draft appropriate treaties of compulsory arbitration.
The Government of the United States will never be a laggard in any effective movement for the advancement of world peace, and the negotiations which I have recently been carrying on have grown out of this Government's earnest desire to promote that ideal. They have had a dual character, having been concerned in part with the framing of new arbitration treaties to replace the so-called Root treaties, several of which expire during this year, and in part with the anti-war treaty which M. Briand proposed to me last summer. I welcome the opportunity which you have afforded me to express before this audience my views on these questions and to explain the objects and aims of the Government of the United States, not only in relation to the treaties which we have negotiated, but also the negotiations with M. Briand.
In the first place it should be clearly understood that the treaty of arbitration which was signed last month with France has no relation whatsoever to the proposal submitted by M. Briand for a treaty declaring against war and renouncing it as an instrument of national policy. It is true that the preamble to the arbitration treaty recites that France and the United States are "eager by their example not only to demonstrate their condemnation of war as an instrument of national policy in their mutual relations, but also to hasten the time when the perfection of international arrangements for the pacific settlement of disputes shall have eliminated forever the possibility of war among any of the powers of the world," but a preamble is not a binding part of a treaty. If war is to be abolished it must be through the conclusion of specific treaties solemnly binding the parties not to resort to war with one another. It cannot be achieved by a mere declaration in the preamble of a treaty. Even though without legal effect, however, a formal expression of the peaceful aspirations of the Governments and their common desire to perfect a mechanism for the pacific settlement of justiciable disputes such as that found in the preamble of the arbitration treaty is, I believe, very helpful since it publicly defines the positions of the Governments in a matter the importance of which is hard to exaggerate.
The arbitration treaty itself I regard as a distinct advance over any of its predecessors, and I hope it can serve as a model for use in negotiations with other governments with which we have no present arbitration treaty, or where the existing Root treaties shortly expire. I have already instituted negotiations with the British and Japanese Governments, and also the Spanish, Norwegian and Italian Governments, on the basis of the draft treaty which I submitted to France last December, and I have indicated to all inquiring governments that I shall be pleased to conclude with them new treaties similar to that signed with France on February 6. If a comprehensive series of such bilateral treaties can be put into effect between the United States and the other nations of the world, I feel that a very effective mechanism for the pacific settlement of justiciable disputes will have been established. I attach such importance to the treaty just concluded with France, that I shall discuss its provisions briefly before proceeding to a discussion of the correspondence which has been exchanged with France on the subject of the so-called Briand proposal.
Article 1 of the new arbitration treaty contains the language of the first paragraph of the first article of the Bryan treaty of 1914 providing for investigation and report by a permanent international commission of all disputes not settled by diplomacy or submitted to arbitration. My purpose in including this reference to the Bryan treaty was to recognize anew the efficacy of the procedure established under the Bryan treaties and to unite by reference in one document the related processes of conciliation and arbitration. The force and effect of the Bryan treaty with France has in no sense been impaired by the new treaty, nor was it intended that it should be. This is the understanding of both Governments, and notes to that effect have been exchanged. So far as the legal effect of the new treaty is concerned, Article 1 could be left out entirely and mention of the Bryan treaty made only in Article 2 where there is reference to the conciliation procedure under that treaty. I make this explanation because it has been misunderstood by some of the press.
Article 2 provides that --
All differences relating to international matters in which the high contracting parties are concerned by virtue of a claim of right made by one against the other under treaty or otherwise, which it has not been possible to adjust by diplomacy, which have not been adjusted as a result of reference to the above-mentioned Permanent International Commission, and which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity, shall be submitted to the Permanent Court of Arbitration established at The Hague by the convention of October 18, 1907, or to some other competent tribunal, as shall be decided in each case by special agreement, which special agreement shall provide for the organization of such tribunal if necessary, define its powers, state the question or questions at issue, and settle the terms of reference.
It also contains a clause providing that the special agreement must in each case be ratified with the advice and consent of the Senate. This is the usual practice in the United States and I do not know of a single case where the Senate has refused to consent to any special agreement of arbitration.
Article 3 excludes from arbitration under the treaty disputes the subject matter of which is within the domestic jurisdiction of either of the parties, involves the interests of third parties, depends upon or involves the maintenance of the Monroe Doctrine, and depends upon or involves the observance of the obligations of France under the Covenant of the League of Nations. These matters are excluded from arbitration. It is difficult for me to see by what claim of right any government could properly request arbitration of disputes covered by these exceptions since few, if any, would present questions justiciable in their nature. As a practical matter, therefore, I do not feel that the general applicability of the new treaty is materially restricted by the four clauses of exclusion. The Root treaty which it supersedes contained a clause excluding from its scope questions affecting "the vital interests, the independence or the honor" of the contracting states. This clause was borrowed from the Anglo-French arbitration treaty of 1903 and represented the reservations generally regarded as necessary 25 years ago. Arbitration has repeatedly proved its worth since then, and inasmuch as such vague and all-inclusive exceptions can be construed to cover almost any substantial international dispute and might well operate to defeat the very purpose of an arbitration treaty, I decided to eliminate them and to specify with particularity the questions excluded from arbitration. In this respect the new treaty is a much more satisfactory and practical instrument for the adjustment of justiciable international controversies, and it is only justiciable questions that are susceptible to arbitration.
I do not agree with the pronouncement of many organizations and publicists engaged in the discussion of international arbitration to the effect that every question between nations should be arbitrated. This is a very simple and all-inclusive formula but it will not stand the test of careful examination, and never has and never will be universally accepted. Let us consider for a moment what questions are susceptible of arbitration and can be submitted by nations to the decision of international tribunals. They are exactly the same kind of questions as can be arbitrated between citizens of the United States or submitted to the decision of a local court under our form of government, that is to say, they are questions arising under contract or under the law of the land. Applying this analogy in international relations, we find that the questions which are susceptible of arbitration or impartial decision are those involving rights claimed under a treaty or under international law. A political question cannot be arbitrated because there are no principles of law by which it can be decided, and unless there are relevant treaty provisions requiring construction, no nation can agree to arbitrate purely domestic questions like tariff, taxation, immigration, and, it may be said, all political questions involving the exercise of sovereignty within the nation's territorial limits. There are no positive rules of international law applicable to such questions to guide arbitrators in reaching a decision.
I am confident that the enthusiastic supporters of the theory that all questions between nations should be submitted to arbitration have not realized the vital difference between justiciable and political questions. Take, for example, the question of immigration which at times arouses bitter feelings between nations. On what principle could a government arbitrate this question, and what rules could be applied to guarantee justice to the disputants? It seems to me we must realize that so long as the world is composed of separate, sovereign nations, only those questions can properly be submitted to arbitration which, being justiciable in their nature, are susceptible of determination by the application of well recognized rules of law or equity. Non-justiciable or political questions must, if they threaten to bring on hostilities, be adjusted through other means, such as conciliation, where a disinterested effort is made to reconcile conflicting points of view without finding necessarily that either party was in the wrong.
It is when arbitration cannot or will not be invoked by the parties that conciliation treaties have their greatest value for adjusting international irritations tending to inflame public opinion and imperil the peace of the world. One of the first of our treaties establishing a procedure for conciliation was the so-called Knox treaty of 1911. That treaty, which was also a treaty of arbitration, was never proclaimed by the President because of certain reservations attached by the Senate in advising and consenting thereto. These reservations, however, did not affect the conciliation provisions of the treaty and need not be discussed in this connection. Our next conciliation treaties were the Bryan treaties to which I have already referred. The first of these was signed in 1913 and there are 18 of them now in force. In 1923 we became parties to two other conciliation treaties, namely, that signed at Washington on February 7, 1923, between the United States and the 5 Central American Republics, and that signed at Santiago on May 3, 1923, between the United States and 15 Latin American countries. Both of these treaties have been ratified by the United States Senate. They are similar to the Bryan treaties, the principal point of difference being as to the manner of constituting the commissions of inquiry.
The Bryan treaties provide, you will recall, that any dispute shall, when ordinary diplomatic proceedings have failed and the parties do not have recourse to arbitration, be submitted for investigation and report to a Permanent International Commission composed of five members, two of whom, a national and a non-national, being designated by each of the two Governments, and the fifth member by agreement. The commission is bound to report within a year from the date on which it takes jurisdiction of the case, and the parties agree not to resort to any act of force prior to the commission's report, reserving, however, full liberty of action with respect to the report itself.
The United States has been a party to conciliation treaties for 15 years, and while there has never yet been an occasion for invoking them, I know of no reason why this country should object to an inquiry by a commission of conciliation if war is threatened. It is claimed in some quarters that purely domestic questions might be inquired into by these commissions of conciliation. While I cannot conceive that any government would feel justified in demanding an inquiry by a commission into a matter solely within the domestic jurisdiction of another government, I do not feel that the point is material. The object which is sought to be attained by conciliation treaties is the preservation of peace, and in my opinion any government can well afford to submit to inquiry any question which may threaten to involve it in the horrors of war, particularly when, as in the Bryan and other treaties I have just mentioned, the findings of the commission have no binding force and to be effective must be voluntarily accepted.
The world is more and more alive to the necessity of preventing war, and I think it is significant that the Sixth International Conference of American States which recently concluded its labors at Havana adopted two anti-war resolutions one of which contains the unqualified statement that "the American Republics desire to express that they condemn war as an instrument of national policy in their mutual relations," which, it is interesting to note, is the language of M. Briand's original proposal to me. The other resolution contains the statement that "war of aggression constitutes an international crime against the human species" and the declaration that "all aggression is considered illicit and as such is declared prohibited." It is the former resolution that I regard as of the greatest interest at this time because, of the 21 states represented at the Havana Conference, 17, while members of the League of Nations, were not prevented by such membership from joining in an unqualified declaration against war. This general resolution is also important because it endorses the principle of compulsory arbitration for justiciable disputes and provides for the calling of a conference in Washington within a year to draft appropriate treaties of arbitration and conciliation.
I have discussed at some length the provisions of the new arbitration treaty with France. I have also outlined the scope and purpose of the many conciliation treaties which the United States has concluded with other governments. I know of but one other form of treaty which can be concluded for the purpose of preventing war and that is a treaty in which the parties specifically bind themselves not to resort to war. It is this kind of treaty which people have in mind when they discuss treaties for outlawing war, and it is a novel idea in modern international relations.
As you are all aware, in a communication dated June 20, 1927, M. Briand proposed to the United States the conclusion of a bilateral treaty under the terms of which France and the United States would agree to renounce war as an instrument of their national policy towards each other. The treaty read as follows--
The high contracting powers solemnly declare, in the name of the French people and the people of the United States of America, that they condemn recourse to war and renounce it respectively as an instrument of their national policy towards each other.
The settlement or the solution of all disputes or conflicts, of whatever nature or of whatever origin they may be, which may arise between France and the United States of America, shall never be sought by either side except by pacific means.
This important and inspiring proposal was carefully and sympathetically studied by the Government of the United States. While we might well have hesitated to take the initiative in proposing such a treaty to Europe, the invitation from France afforded us an opportunity to examine anew the whole question of world peace and to determine in what practical manner we could best coöperate. We made that examination, and, in my note of December 28, 1927, after expressing the sincere appreciation of the United States for the offer which France had so impressively submitted, I warmly seconded M. Briand's proposition that war be formally renounced as an instrument of national policy, but suggested that instead of giving effect thereto in a bilateral treaty between France and the United States, an equivalent multilateral treaty be concluded among the principal powers of the world, open to adherence by any and all nations, thus extending throughout the world the benefits of a covenant originally suggested as between France and the United States alone. The powers which I suggested be invited in the first instance to join with France and the United States in such a treaty were Great Britain, Germany, Italy, and Japan.
France, I am happy to say, promptly agreed in principle to the idea of a multilateral treaty. France suggested, however, that the treaty provided only for the renunciation of wars of aggression, explaining that while France could conclude a bilateral treaty with the United States providing for the unqualified renunciation of war, the conclusion of a similar multilateral treaty presented certain difficulties in view of the obligations of France under the Covenant of the League of Nations, treaties such as those signed at Locarno in October 1925 and other international conventions relating to guaranties of neutrality. The French Government also pointed out that in September 1927 the members of the League of Nations adopted a resolution condemning aggressive war as an international crime. In these circumstances France expressed the opinion that the common object of the two Governments could best be attained by framing the proposed anti-war treaty so as to cover wars of aggression only. I have not been able to agree to that reservation.
My objection to limiting the scope of an anti-war treaty to mere wars of aggression is based partly upon a very real disinclination to see the ideal of world peace qualified in any way, and partly upon the absence of any satisfactory definition of the word " aggressor" or the phrase "wars of aggression." It is difficult for me to see how a definition could be agreed upon which would not be open to abuse. The danger inherent in every definition is recognized by the British Government which in a memorandum recently submitted to the Subcommittee on Security of the Preparatory Commission on Disarmament of the League of Nations discussed attempted definitions of this character, and quoted from a speech by the British Foreign Secretary in which Sir Austen said: "I therefore remain opposed to this attempt to define the aggressor because I believe that it will be a trap for the innocent and a signpost for the guilty." I agree with Sir Austen on this point.
It seems to me that any attempt to define the word "aggressor" and by exceptions and qualifications to stipulate when nations are justified in going to war with one another, would greatly weaken the effect of any treaty such as that under consideration and virtually destroy its positive value as a guaranty of peace. And in my last note to the French Government I stated expressly that I could not avoid the feeling that if governments should publicly acknowledge that they could only deal with this ideal of world peace in a technical spirit and must insist upon the adoption of reservations impairing if not utterly destroying the true significance of their common endeavors, they would be in effect only recording their impotence to the keen disappointment of mankind in general.
In my note of February 27, 1928, I also discussed at some length the question raised by the Government of France whether, as a member of the League of Nations and as a party to the treaties of Locarno and other treaties guaranteeing neutrality, France could agree with the United States and the other principal world powers not to resort to war in their mutual relations without ipso facto violating their present obligations under those treaties. I pointed out that if those treaty obligations could be interpreted so as to permit France to conclude with the United States alone a treaty such as that proposed by M. Briand, it was not unreasonable to suppose that they could be interpreted with equal justice so as to permit France to join with the United States in offering to conclude an equivalent multilateral treaty with the other principal powers of the world. I stated that it seemed to me that the difference between the bilateral and multilateral form of treaty having for its object the unqualified renunciation of war, was one of degree and not of substance, and that a government able to conclude such a bilateral treaty would be no less able to become a party to an identical multilateral treaty, since it could hardly be presumed that members of the League of Nations were in a position to do separately something that they could not do together.
In these circumstances I expressed the earnest hope that France, which admittedly perceives no bar to the conclusion of an unqualified anti-war treaty with the United States alone, would be able to satisfy itself that an equivalent treaty among the principal world powers would be equally consistent with membership in the League of Nations, adding that if members of the League of Nations could not, without violating the terms of the Covenant, agree among themselves and with the United States to renounce war as an instrument of their national policy, it seemed idle to discuss either bilateral or multilateral treaties unreservedly renouncing war. In that connection I call attention to the fact that 21 American States represented at the recent Havana Conference adopted a resolution unqualifiedly condemning war as an instrument of national policy in their mutual relations, and to the fact that 17 of the 21 States represented at that Conference are members of the League of Nations.
I concluded my note with the unequivocal statement that the Government of the United States desires to see the institution of war abolished and stands ready to conclude with the French, British, Italian, German, and Japanese Governments a single multilateral treaty open to subsequent adhesion by any and all other governments binding the parties thereto not to resort to war with one another. This is the position of the Government of the United States, and this is the object which we are seeking to attain.
I cannot believe that such a treaty would violate the terms of the League Covenant or conflict with the obligations of the members of the League. Even Article 10 of the Covenant has been construed to mean that League members are not inescapably bound thereby to employ their military forces. According to a recent statement by the British Government, many members of the League accept as a proper interpretation of Article 10 a resolution submitted to the Fourth Assembly but not formally adopted owing to one adverse vote. That resolution stated explicitly:
It is for the constitutional authorities of each member to decide, in reference to the obligation of preserving the independence and the integrity of the territory of members, in what degree the member is bound to assure the execution of this obligation by employment of its military forces.
I earnestly hope, therefore, that the present negotiations looking to the conclusion of an unqualified multilateral anti-war treaty may ultimately achieve success, and I have no doubt that if the principal powers of the world are united in a sincere desire to consummate such a treaty, a formula can be devised which will be acceptable to them all. Since, however, the purpose of the United States is so far as possible to eliminate war as a factor in international relations, I cannot state too emphatically that it will not become a party to any agreement which directly or indirectly, expressly or by implication, is a military alliance. The United States cannot obligate itself in advance to use its armed forces against any other nation of the world. It does not believe that the peace of the world or of Europe depends upon or can be assured by treaties of military alliance. The futility of such as guarantors of peace is repeatedly demonstrated in the pages of history.
I must not claim that treaties of arbitration and of conciliation, or even treaties explicitly renouncing war as an instrument of national policy, afford a certain guaranty against those conflicts between nations which have periodically broken out since the dawn of world history. In addition to treaties there must be an aroused public conscience against the utter horror and frightfulness of war. The peoples of the world must enjoy a peaceful mind, as it has been said, and treaties such as those I have discussed this evening, and the efforts of statesmen to advance the cause of world peace, can only be regarded as a portion of the problem. I am not so blind as to believe that the millennium has arrived, but I do believe that the world is making great strides toward the pacific adjustment of international disputes and that the common people are of one mind in their desire to see the abolition of war as an institution. Certainly the United States should not be backward in promoting this new movement for world peace, and both personally and officially as Secretary of State, I shall always support and advocate the conclusion of appropriate treaties for arbitration, for conciliation, and for the renunciation of war.