Living Age. 254: 195-207. July 27, 1907.

Hague Conference and the Practical Aspect of War.

Alfred T. Mahan.

It is not to be supposed that nations will antecedently submit themselves to a tribunal, the general principles of which have not been crystallized into a code of some sort. A Court of Arbitration, however constituted should have laid down for its guidance and governance certain established rules, or body of precedents, which by common agreement have reached the authority of law, and so may justly be styled law international; a code to which appeal may be made, and upon which decision shall rest unchallengable. Under present circumstances, when a case shall have arisen, and be pending, its characteristic features apparent, the nations concerned will know how far they can trust themselves, as a substitute for such a code, to the existing state of international law, undigested for final formal acceptance; but there is not the same assurance for an unknown incident of the future. Where an antecedent body of accepted law is wanting, arbitration becomes a matter of personal beliefs or opinions on the part of the arbitrators; just as many so-called treaties on international law express the views of the writers, frequently discordant, as to what law ought to be, rather than a definition of what it is. Such a definition in fact is impossible, because there is not a law. Law, strictly so called, presupposes a law maker; and for international law the law-maker has not yet come into existence. Particular nations have made treaties innumerable, which are laws unto the contracting parties, for they have power to frame and impose them; but not laws to other States over whom they have not power.

The Hague Tribunal has already, in its brief existence, furnished a striking illustration of the dangers which may be apprehended from submitting to it questions of right, as distinct from questions of fact, until by an agreement certain principles have been established, and their bearings in some measure defined

by applying them to specific possible cases, thus making laws; analogy from which might support action of the Court if an unforeseen case arise. The instance is none the less striking because the nations referring it did so with full knowledge of the matter and interests at stake, and of the existing condition of international law. It merely makes all the stronger the argument that it is unsafe to bind oneself beforehand to submit cases that are not yet foreseen. In the case of a delinquent State, compelled by armed force to settle the claims of its creditors, the Hague Tribunal has decided that in the subsequent payments the citizens of the States which thus resorted to arms to get back their money were entitled to be the first paid, and great has been the indignation of those whose moral sense repudiates recourse to force for such purposes. That this judgment rested technically upon the ground that the delinquent State had offered special guarantees only to the blockading nations, illustrates aptly the surprises that may await those who go to arbitration before details as well as principles are settled. In a pamphlet put forth under the auspices of a prominent Peace Association I find the following comment: "The decision has been much criticized, as appearing to encourage force in debt collecting; but, in seeking a strictly legal solution, the arbitrators may have been forced to ignore the ethical question involved." This supposed opposition between presumed ethical right and strict law had better be adjusted, before a question involving ethics is submitted to a tribunal liable to fluctuations of opinion, as the individual members composing it vary. It can scarcely be alleged that anything like an international consensus now obtains as to the ethical propriety of forcing a nation to pay its creditors. I do not pretend to say which course is right from the moral standpoint; but, as international law till now has tolerated the forcible collection of such debts, I own to thinking that the peoples who by resort to authorized methods obtained redress for all parties were entitled for their trouble and expense to have the first lien upon the security pledged. Others do not think so, and there you are. On either side of the dissent is a highly respectable body of opinion; but that of the

judges goes. There is neither settled principle nor adverse precedent, and the result is a grudging acquiescence by the last served.

In these cases, whatever be thought of the methods, the sufferers had little claim to sympathy, and the principle at stake, though novel and important, can hardly be said to touch vital interests or national honor: but how far does the experience encourage nations, antecedently to knowledge of the questions that may arise, and with a body of formulated law as yet meagre, to entrust to such a tribunal matters which may involve vital interests, such as the United States conceives to be embodied in the Monroe Doctrine? or of moral propriety, which many Americans thought violated in the particular decision? When a case has arisen, a government may know the extent to which it commits itself in accepting arbitration; but for the unforeseen future what standards are there whereby to measure what the tribunal will do, or will not? what the maximum and minimum limits of its action, which by the hypothesis we have bound ourselves antecedently to accept? Is it practical to consign vital interests or national honor to so uncertain an issue, by failing to reserve them? Indeed, would not the more prudent course be to state explicitly what character of cases would be submitted, and to reserve all others? This question much resembles that so much discussed of the powers of the General Government and of the several States in the American, Union. If the nations are to confederate, should there not first be a Constitution? It is true that healthy constitutions grow, even when so rigidly guarded as that of the United States; but through centuries of diplomacy the practice of nations has been slowly growing into a noteworthy bulk of precedents, material available for codification, after discussion.

Whether such codification is as yet practicable may be doubted, in view of the extensive argumentation still conducted by diplomacy over the bearing of so-called principles on current questions: but could it be effected in any degree, and definitely accepted by all the great nations, it would carry so far a certain assurance of justice, and thus to a great extent

would limit the decisions of an arbitral body to a finding onthe facts, to which principles or rules already established and known beforehand would be applied. So far as a man or a nation knows the tests that will be used, he or it can afford to mortgage his conscience in advance; because adequately assured that right to which principles apply-will not suffer, although interests, which depend upon the facts, may. But, really to be known, the prinicples must not be merely general in statement, but specific in their application to the range of international relations under consideration. Such application may fail of completeness, but should be attempted. Nothing is final, but none the less finality is a proper aim. An instance of such a compilation is the series of rules to govern the practices of war by land and sea in certain defined matters, drawn up by the first Hague Conference, and by it recommended for adoption to the Governments represented.

Now, such formulation of principles and rules, as far as it may go, is a tangible and practical substitute for war; and where approved and accepted will to its extent avert war. Meanwhile, for the adjustment of unforeseen differences that continually arise, and will arise, we now have the established methods of diplomatic correspondence, and negotiations in their various orders, to which the last resort is war. War is one of the established methods of settlement. The practical aspect of war therefore is that it is a means, possibly crude and partial in operation, but for which as yet no satisfactory alternative has been devised, whereby a nation enforces a claim to what it considers essential interest or national honor. The recent collection of debts from one or more South American States was an act of war; was war, though there was no formal proclamation, little bloodshed, and no treaty of peace. What practical substitute was there for such action? As far as I understand, none, except the view formulated, but not yet accepted generally by creditor nations, that a delinquent State should not be compelled to pay. I believe there was no question that the debts were due. The facts were admitted, but the question of prinicple was raised whether a government owed to

its own citizens to collect such debt; or whether, as in blockade running they must accept the consequences of their risks, in this case of lending on doubtful security. Evidently, if States are to arbitrate, this question of principle should be determined beforehand. As it is, all we have gained from the particular example is an evidence that arbitration, to be generally satisfactory should proceed on principles formally recognized, and sufficiently developed in application to be a check upon a Court's decisions. No international method can endure unless generally satisfactory. It is a general dissatisfaction which now seeks to disestablish war; but to be successful it must present an alternative that shall be workable, and not merely alluring. I strongly suspect that as yet a tempting prospect is taken for a solid reality.

Congressional Record. 48: 2597-2605. February 29, 1912.

Arbitration treaties. George Cabot Lodge.

If these treaties, following the example of those now upon the statute books, had stopped with Article I, which enlarges and defines with a new definition the scope of arbitration, there would have been, I think, no question as to their immediate ratification, because under the terms of that article every special agreement and there can be no arbitration without a special agreement in each case was to be submitted by the President to the Senate for its advice and consent. No question, therefore, could be arbitrated under that article, if it stood alone, which had not received the approval, first, of the President and, secondly, of the Senate; that is, of the entire treaty-making power of the United States. Under Article I alone, no matter how uncertain and undetermined the words of definition and limitation might be, there could be no danger of any question being forced to arbitration which in the opinion of the President and the Senate was not properly arbitrable. But these treaties did not stop at that point. Articles II and III provide for an international commission of inquiry. These articles are