(Letter No. 15)

ARTICLES XI, XII, XIII

Article XI proclaims the great doctrine of the 'community of interest in the universal maintenance of peace. It contains the basic principle of the League, worked out in practical form by the other articles; that peace and friendly relations among nations are the concern of all free peoples; that these peoples are justified in protecting one another and in maintaining order in the world for the common good; and that international morality, fair dealing and respect for the rights of others are duties which every country owes to mankind, and which mankind is entitled to expect and demand.

Article XII embodies the substance of the agreement made by the Bryan treaties with a score of nations. It is the culmination of principles for which the United States has long stood. With some exceptions, mostly

of small countries, the United States has concluded such treaties with all the states named in the Annex to the Covenant as admitted to the League, or has signed with them treaties which only await formal ratification; and the effect of this article is to cause them to make with one another the agreement for arbitration before war which we have negotiated with each of them.

This article, like the Bryan treaties, is based upon the idea that delay is in itself of great value, quite apart from any compulsion to abstain from war after an award has been made. It removes the opportunity for a sudden attack upon an unprepared victim, and it gives a chance for a calm consideration of the consequences of war, instead of the rush of excitement that comes when a nation is plunged into a conflict without reflection.

But the Covenant goes farther by attaching some compulsion to the award, or rather by protecting the nation which complies with its terms. By Article XII the members of the League must submit any dispute between them, likely to lead to a rupture, either

to arbitration or to inquiry by the Council. If they agree that the case is suitable for arbitration they agree further by Article XIII to carry out the award. Now by Article XXI of the Covenant it is provided that this shall not affect the Bryan treaties. But under those treaties the parties are not bound to carry out the award, and one may ask whether this article imports into them an obligation to do so. Clearly it does not, because those treaties cover controversies of all sorts, including such as the nations involved might not be willing to submit to arbitration with a duty of that kind attached; while Article XIII deals only with arbitrations voluntary in each case and accompanied by an agreement to carry out the award. Nevertheless, the provisions of this Covenant certainly prevent a nation dissatisfied with an award under the Bryan treaty from going to war without submitting the dispute to inquiry by the Council. The Bryan treaties furnish therefore an additional means of reaching an accord, but it is not intended that they should impair the guarantees of peace in the Covenant.

The second clause of Article XIII gives examples of the kind of questions deemed suitable for submission to arbitration. They are such as depend upon issues of law or fact, including the interpretation of treatiesmatters that can properly be decided by a court on strict legal principles. They have been termed justiciable questions, in contradistinction to those which are not purely legal but involve divergencies of national interests and policy. These last are political in their nature and must be adjusted or compromised on grounds of international fair dealing and expediency.

The two classes of questions had better not be confused, but each referred to the body most appropriate for its consideration; but a difficulty may arise in deciding whether a question is justiciable or not. One of the parties may well claim that an act performed or threatened by the other, while not strictly a breach of international law, is one which affects its vital interests or security, and that to submit the question to a tribunal to decide on purely legal grounds is to abandon its claim. If Turkey, for example, had pro

posed before the war to transfer to Germany a tract of land near the Suez Canal, England would have had no legal right to prevent it; but it would have been an act to which she would have been justified in objecting, and her objection would have been sustained in an international council, although not by a court of law. In Anglo-Saxon countries, where courts are in the habit of deciding questions of their own jurisdiction, it would seem natural to authorize the judicial tribunal of the League to decide whether a question is justiciable or not; but on the Continent of Europe the ordinary courts of law have, as a rule, no such power. In those countries there are habitually two classes of courts; one to decide questions of private law between citizens, and the other to decide cases in which the duties of administrative officials, or the interests of the government, are involved. When a difference of opinion on the question of jurisdiction arises between these courts, it is decided by a Court of Conflicts composed of members drawn from both. If a nation does not suffer its own courts of law to determine their jurisdiction, one can