CERTAIN FEATURES OF THE PARIS CONSTITUTION
AN ADDRESS BY HON. THEODORE MARBURG,
M.A., LL.D., FORMERLY UNITED STATES
MINISTER TO BELGIUM.
Before the Empire Club of Canada, Toronto, April 10, 1919.
PRESIDENT STAPELLS introduced the speaker in a few wellchosen words.
DR. MARBURG: Under the old order, the moment one war was over, militaristic nations began to prepare for the next. May the new world, which now looms above the horizon as a possibility, witness the end of such madness. If we cannot entirely prevent war surely we must render it impossible for any State to make preparation for war the principal business of the body politic. This we can do only by organizing the world against the possibility of sudden and wanton aggression and by setting up institutions, both negative and positive, which will make for justice. The objections to such organization are insignificant contrasted with the awful experiences of the present war, themselves trifling when compared with the wholesale disaster which will come upon men if the scientific instruments of destruction now used should be perfected and employed against mankind in a future world-struggle.
When we contemplate such a disaster we see how petty
The Honourable Theodore Marburg is justly regarded as an outstanding authority on international affairs. He served as United States Minister to Belgium during the years 1912 and 1913. He made a special study of the League of Nations and of the Peace Conference at Paris. In addition to many other activities Doctor Marburg is Chairman of the Committee on Foreign Organization of the League to Enforce Peace.
are all the objections raised in various quarters against international organization. The inconveniences of cooperation, which always involves self-denial, are patent. Its benefits are not on the surface; they are visible only to the seeing eye. The small-minded, the jingo, and the chauvinist stress the disadvantages of world organization. The principle of the divine right o f kings having been utterly destroyed by the events of this war, they still proclaim from the house-top the divine right of States to have their way and to do their will regardless of the rights and interests of other States. This theory, too, must fall. The flood of misery that has rolled over the world has brought thinking men to the point where they insist that the time has come to do away with it. Society implies restraint-self-restraint and restraint from without. A truth which is emerging from the awful experiences of this war is that this principle has to be applied between States as it is now applied between individuals.
Men complain of the modification of sovereignty involved in this step. But this modification of sovereignty leads to true liberty between the nations just as surrender of license within the State leads to 'true liberty for individuals.
The minds of men have risen never before to the point of demanding institutions which will discourage war. We have before us a most promising plan advanced by the Peace Congress under the leadership of President Wilson, who, partly because of his very advocacy of it, has laid hold of the hearts of men and attained a dominant position in the world such as no secular teacher has ever before enjoyed. The people of all the nations have seen the light. We may confidently expect that they will not let this splendid opportunity slip from their grasp, but will do now that which men ought to have done long ago, though for the doing of which they were never before in such a position of advantage.
BASIS FOR CONFIDENCE.
The fighting still going on in Europe calls for action but need not cause anxiety. It is a case of the wood mould burning after 'the forest fire has been conquered. The same is true of the prevailing social unrest. The great fact is that we have got Germany down and intend to keep her down in the military sense. We have got her fleet and do not intend to let her build another. We have got many of her guns and shall not let her replace them. For the Entente to form a zollverein and say to Germany, "Under no conditions will you be admitted," would simply be sowing the seeds of future war. But by forming a zollverein which she will be permitted to enter by conforming to the demand for disarmament we can compel her to disarm. For she cannot exist without both food and raw material from the outside world.
The next great fact is that we have overthrown autocracy wholesale. Self-government makes for good will.
Again, we have just witnessed a wonderful 'triumph of right. The awful penalties which have been visited, and are still to be visited, upon the aggressor will make men pause when they plan similar crime.
Moreover, the outcome of the war justifies abiding confidence in the triumph, by and large, of human reason. Reason orders the universe; and when so large a part of the world is acting together, as at present, it is bound to prevail in the affairs of men. This fact justifies confidence not only in the immediate result of the labors of the Paris Peace Conference but in the successful working of the instrument which may be born there.
Under the constitution reported to the Paris Conference, the charter members of the League are to decide by a two-thirds vote whom they will admit to the privileges of membership. Presuming that they will ultimately welcome to the circle at least all the progressive Powers, big and little, we shall have a full score of nations, and mere, composing the League, and out of their deliberations and united .action justice will result even as justice is done, under the Federal Constitution, to the forty-eight States composing the American Union. All other considerations are subordinate to this: with the whole world acting together, human reason will triumph and justice will triumph.
I shall discuss here the dominant feature of this instrument which we may call, not the Magna Charta, but the Maxima Charta of human liberties. It is the greatest document of political history, not so perfect either in form or phrasing as the Constitution of the United States, but affecting vast areas and populations and fraught with limitless possibilities of good. The more closely we examine it, the more certainly do we find that its great conceptions make not only for the discouragement of war but likewise for positive up-building in governmental and social relations generally.
What is the biggest single feature of it? Surely compulsory investigation. That is the item, if taken alone, most calculated to discourage war.
The constitution provides (Article 12) that "the high contracting parties agree that, should disputes arise between them which cannot be adjusted by the ordinary processes of diplomacy, they will in no case resort to war without previously submitting the questions and matters involved either to arbitration or to inquiry by the executive council, etc." The term "arbitration" is here used presumably in the French sense, to cover all kinds of settlement before a tribunal involving positive compliance with the decision or award. That term and the term "inquiry" would therefore cover all methods of settlement other than diplomacy and war.
What are the processes? There is, first of all, the judicial process, involving the settlement by a true Court of Justice of all questions which can be resolved on the basis of law and equity-justiciable questions. In its usual acceptation, the word "Court" carries with it the double idea of obligation not only to resort to the tribunal but to abide by its decision. It was because of this attribute that the Germans objected to the use of the term, pure and simple, in connection with an international court. It was at their insistence that the new tribunal adopted in principle by the Second Hague Conference was called the Court of;' Arbitral justice instead of merely the Court of justice, ',;although the machinery devised was that of a true Court of justice, not of a tribunal of arbitration. Such a true Court of justice is now specifically demanded by Article J14 of the new Paris Constitution. The advantages of a ',, tribunal of this character are that it will presumably be;;presided over by judges by profession, learned in the law, who will lean on precedent and, by moving from precedent to precedent, build up international law precisely as the great Common Law of England was built up. Furthermore, the existence of such a court will invite the codification of certain spheres of law just as the adoption of the International Court of Prize by the Second Hague Conference led to the London Conference of 1908-9 which codified the Law of Prize. The fact that: the hostile attitude of the British House of Lords prevented the London Convention from becoming a part of the rules of war does not militate against the principle that the establishment of a Court invites the codification of law. In addition to this natural process of growth by the action of the court and by codification which the existence of the court will invite, there is in the preamble of the Paris Constitution the specific injunction "to promote international co-operation . . . by the firm establishment of the understandings of international law as the actual rule of conduct among governments." And every time we remove a question from the arena of uncertainty to place it in that of law, we remove just one more question from the category which may lead to war.
Article 14 further provides that the new court shall "be competent to hear and determine any matter which the parties recognize as suitable for submission to it for arbitration under the foregoing article." This would imply mutual consent of disputants before a case can be brought before the court. Irrespective of additional provisions, is it conceivable that self-respecting countries of which alone we hope the League will be composed would, after consenting to this mode of settlement, disregard the decisions? The fact is that, excepting one case, in which the award was set aside by mutual agreement, we had an unbroken record of nearly a century during which the awards of international arbitrations were invariably accepted. It is only within the last few years that this splendid tradition has been interrupted by the action of some of 'the Latin-American countries in throwing down international arbitrations. And these exceptions should not disturb us. In the case of the backward countries, failure to respect arbitrations should not be looked upon as a failure of principle. It is due rather to the character of the people, who ought never to have been expected to practise advanced institutions of this kind. It is therefore reasonable to look forward confidently to the faithful observance of the decisions of a court to which disputes have been referred by mutual consent.
But the Paris Convention does not stop there. Article 13 contains a specific agreement to "carry out in full good faith any award that may be rendered," and provides further that, "in the event of any failure to carry out the award the Executive Council shall propose what steps can best be taken to give effect thereto."
A second form of peaceful settlement is that which is described by the word "arbitration" as employed by the English-speaking world. This process likewise carries with it the idea of obligation to respect the award. An arbitration may be conducted before the Permanent Court of International Arbitration at The Hague or by a tribunal independently instituted. Whichever method is followed, there is invariably a preliminary agreement, called by the French "compromise" which sets a limit to the arbitration and which invariably provides that the disputants will respect the award. Arbitration, in this sense, involves something of the nature of the judicial process but is not necessarily based upon law. Too often, in fact, its governing principle is compromise: mere desire to compose the dispute irrespective of where justice lies. It therefore lacks the elements of progress. On the other hand, it is often a necessary process in cases where the rules of law and equity do not apply. The Permanent Court of Arbitration set up at the Hague by the First Peace Conference (1899) has proved of the greatest value to the world. There is no desire to impair the prestige of that useful body. The Paris Constitution looks to its continuance in the provision (Article 13) that "for this purpose the court of arbitration," (used in the French sense) "to which the case is referred shall be the court agreed on by the parties or stipulated in any convention existing between them." We know that the awards of the Permanent Court of Arbitration at The Hague have been invariably accepted and that at least in one instance-the Casablanca affair-the action of the tribunal served to correct an acute situation. The point which it is desired to stress here is that the arbitral process is likewise a process which involves a binding and positive settlement of the dispute. As in the case of a court decision, I would ask again, is it conceivable that a self-respecting power will wait to have pressure brought upon it before it carries out the award of a tribunal whose pronouncements it has previously agreed to respect?
Peaceful settlement of disputes is likewise accomplished by a third method-inquiry. Ordinarily this process does not involve, the obligation to respect the recommendations of the tribunal. In fact, inquiry may be had without the tribunal proceeding to a decision. The Paris Constitution, however, departs from practice in this respect and contemplates positive recommendations by the tribunal of inquiry. It is provided (Article 15) that dangerous disputes not submitted to arbitration shall be referred to the executive council by notice of one party to the dispute. If the council fails to bring about a settlement through continuing the diplomatic process it shall investigate and report on the matter, "setting forth, with all necessary facts and explanations, the recommendation which the council thinks just and proper for the settlement of the dispute."
Now, it would seem undesirable that the executive council, supposedly composed of men of wide executive experience, should sit as a body of judges. But apparently there is, at the same time, nothing in the Constitution which would prevent the executive council from conducting such an inquiry in any way it saw fit to conduct it. If this be correct, the executive council may then institute a special tribunal for the purpose of inquiry, composed of judges by profession or of authorities in international law.
The important thing for us to consider in this connection is the fact that there will be a report arrived at in some way, and that the facts of the dispute will thus be spread before the world. The further provision is made in the same article (15) that "if the report is unanimously agreed to by the members of the council other than the parties to the dispute, the high contracting parties agree that they will not go to war with any party which complies with the recommendations, and that, if any party shall refuse so to comply, the council shall propose measures necessary to give effect to the recommendation. If no such unanimous report can be made, it shall be the duty of the majority and the privilege of the minority to issue statements indicating what they believe to be the facts and containing the reasons which they consider to be just and proper."
Now, what is the significant thing underlying the various methods contemplated by the Paris Constitution for the peaceful settlement of disputes? It is that, under all of them, we are to have compulsory investigation. If any nation of the League disregards this fundamental obligation it is deemed, ipso facto, (Article 16) "to have committed an act of war against all the other members of the league." That is to say, its sense of obligation is counted upon to hold the self-respecting nation to its agreement under the constitution, and coercion will be employed forthwith against nations which lack that sense of obligation. The big fact is that, in one way or the other, we are to have investigation before the States of the League are allowed to make war upon one another. This provision for investigation is of the first importance for the discouragement of future war. It will not prevent all wars but is sure to prevent many wars. It would have prevented this war.
Many of us found, in the circle of our acquaintances, individuals who were caught and detained in Germany or Austria at the beginning of the Great War. Numbers of these individuals came out pro-German. If, now, the Germans could succeed in giving this bent to the mind of the foreigner, how much easier was it for them to convince their own people that Germany was "more sinned against than sinning." It is that which compulsory inquiry prevents.. It serves not only to reveal the true nature of the controversy to the world, but likewise bares the facts to the people who are expected to do the fighting-lets them know what they are asked to fight about.
In April, 1916, Sir Edward Grey expressed to the writer the view that, if we had had in operation some such plan as this when the present war was threatening, Germany would have been forced to an inquiry and could not have proceeded with her aggressive plans.
True, Germany has actually been fighting the world. But did she know that she was going to fight the world? On July 27, 1914, the Italian statesman, San Giuliano, said to the French Ambassador at Rome: "If any power can determine Berlin in favor of peaceful action it is England." A few days earlier, Sazonof had asked that England take her stand openly by the side of Russia and France with a view to preventing the outbreak of war. Grey, San Giuliano, and Sazonof are recognized as men of penetration and wide experience. We are bound to attach importance to their view that, if England's demand for inquiry had been supported by force, the war would not have occurred.
Now, what evidence have we that inquiry into a dispute tends to effect a settlement? You recall, first the innumerable labor disputes in the United States, in England, and in France, which have been settled under arbitration boards by merely bringing the parties together and without proceeding to formal arbitration. The power to summons witnesses and compel a full disclosure of the facts has itself often inclined the disputants to accept the offices of the mediators.
In France we have had this principle applied for more than a century by the "Consells des Prud'hommes"--tribunals of employers and employees-established by the first Napoleon. Here again actual arbitration has been the exception. Conciliation has sufficed to settle the vast majority of cases coming before the tribunals. And their greatest usefulness has lain in correcting unfavorable conditions in French industry before the situation became acute.
You recall the similar institution set up for the Dominion of Canada in 1907-compulsory investigation before lockouts and strikes may occur in any -of the following services: railways and transportation lines, yard and wharf labor, telegraph, telephone, power and traction companies, and also mines. The operations of the Canadian law have not been so uniformly successful; but in connection with 212 disputes which had come before the board up to Oct. 18, 1916, we are informed that there were only 21 strikes. That is to say, ninetenths of all the disputes in these services were settled without stopping work.
Turn to the international field, and you have an excellent example of the effectiveness of inquiry in warding off strife in the well-known Dogger Bank affair. It will be recalled how, in 1904, Rojestvensky, issuing from the Baltic, fired upon English trawlers in the belief that they were Japanese cruisers, sinking one of the vessels and killing two English fishermen. In the opinion of experienced men, this incident would have been followed promptly by war between Great Britain and Russia, except for the fact that the First Hague Conference (1899) had set up an institution known as the International Commission of Inquiry. The case was referred to this tribunal, the fact was brought out that Rojestvensky, however foolishly, still honestly, thought that he saw before him Japanese cruisers, and there was no war.
In one of the best Department papers since the days of Alexander Hamilton's reports on departmental activities, James R. Garfield shows the effectiveness of this principle in the actual experience of the United States Government in connection with the abuses of monopolies and trusts. The philosophy of it is this: that mere inquiry, bringing out the facts, serves to correct not only illegal practices but likewise unjust practices not covered by the law, and does it without resort to a court or even to an arbitration. That is a result which may be looked for under the League Constitution.
Any matter "affecting the peace of the world" may be dealt with by the executive council (Article 3), and the right to bring to the attention of the council all such matters is specifically recognized (Article 11) as a "friendly" right.
The League is given the right (Article 17) to take cognizance of disputes other than those between members of the League, and to invite the disputants "to accept the obligations of membership in the league" for the purpose of settling such disputes. If the invitation be refused, the executive council shall none the less consider and make recommendations in the matter.
When the League is in full operation, we may therefore expect that the executive council and the subcommittees it will establish will watch, not only international events, but all conditions likely to lead to international complications. This means that ultimately the "sunlight of God's truth" will penetrate to the remotest places and search out abuses everywhere.
In addition to bringing out the facts of a dispute, the institutions we have been discussing provide another factor of importance. It is that of delay. Time is afforded for the subsidence of popular passion, excited, mayhap, by a single untoward incident like the Dogger Bank affair already referred to. For it is likewise provided (Article 12) that the States of the League "will in no case resort to war" . . . . "until three months after the award by the arbitrators or a recommendation by the executive council."
HON. W. D. MCPHERSON expressed the hearty thanks of the Club for the address, amid hearty applause.