Nations of which Léon Bourgeois is Honorary President, a 66 use of force reserved exclusively to the international society itself" used as a supreme sanction." 1 66 In discussing the Amphictyonic Council the German writer Tittman in 1812 2 raised the point made first by Montesquieu that there was an inconsistency in each member of the council agreeing not to destroy any Amphictyonic city and yet when the whole council acted together it might destroy a city which had violated the agreements of the council. Tittman answers this objection by saying that there is no inconsistency ("kein Widerspruch") in doing through the common power (“gemeinschaftliche Macht") what is forbidden to each individual; that in municipal law the State punishes the individual citizen ("Einzelnen Bürger") while self-help is denied to that individual. He points out further that the council proceeded against non-members as well as members. 66 The distinction between that which the League acting as a whole may do, and that which an individual member acting by itself may do, is fundamental. Again the actual provisions of the Covenant are in harmony with the recommendation of a great American authority. Assuming," he said, "that our goal is the establishment among nations of a reign of law in such sense that each nation is subject to the law, the fundamental object which it is essential to accomplish is to limit the present unrestricted right of the individual nation to declare war and incidentally to acquire the right of conquest." 1 World Court, Nov., 1918, pp. 670–671. 2 Tittman, F. W., Bund der Amphiktyonen, p. 226. (Berlin, 1812.) De l'esprit des lois, Liv. XXIX, ch. 5. ♦ Moore, John Bassett, "International Coöperation," World Court, Jan., 1916, p. 273; italics mine. CHAPTER VII SETTLEMENT OF DISPUTES "THE League of Nations," said Premier Lloyd George, "represents the greatest attempt which ever has been made to substitute reason and justice for force and intrigue as the governing principle of international relations." 1 The Permanent Court of International Justice. — In accordance with Article XIV of the Covenant the Council of the League of Nations has appointed a group of distinguished jurists and authorities on international law," to formulate plans for the establishment of a Permanent Court of International Justice. This court shall be competent to hear any dispute of an international character that the disputants submit to it. It may also give an advisory opinion upon any question or dispute referred to it by the Council or by the Assembly. The name of the court is significant. It is not a court of arbitration similar to that established at The Hague in 1899 and continued in 1907. Nor is it a Judicial Arbitration Court which was contemplated by the draft convention annexed to the first voeu of the second Hague Conference, although that project may well be used as a basis for the new court. The proposed court is to be a true court of international 1 Manchester Guardian, Dec., 29, 1918. * Announced at meeting of the Council held at London, Feb. 13, 1920. Among the group are: Elihu Root; Baron Phillimore, formerly lord justice of appeal, Great Britain: Henri Fromageot, prominent advocate, France; Baron Deschamps, member of permanent court of arbitration at The Hague, Belgium; Professor Gran, University of Christiania, Norway; Professor Fadda, University of Naples, Italy; and Clovis Bevilacqua, authority on international law, Brazil. (League of Nations Journal, March, 1920.) Scott, J. B., The Hague Conventions and Declarations of 1899 and 1907, p. 31. justice which means that it ought to decide questions according to international law rather than on grounds of compromise or expediency as may properly be done by a tribunal of arbitration. The Permanent Court of International Justice will serve as a court of appeal (Article 418) from the report of the commission of inquiry constituted according to Article 412 of the Versailles Treaty, to deal with disputes relating to labor. It may vary, affirm or reverse any of the findings or recommendations of the commission of inquiry, if any, and in its decision indicate what measures, if any, of an economic character which it considers to be appropriate, and which other Governments would be justified in adopting against a defaulting Government (Article 418). But if a member fails to abide by the recommendation of the commission of inquiry or the decision of the court, the use of the economic sanction recommended by the court is to be optional for the other members (Article 419). When the defaulting Government considers that it has met the conditions of the decision of the court, it may apply to the Secretary-General of the League to constitute a new commission of inquiry to determine whether or not the conditions have been met, and if so, the economic measures against the defaulting Government cease (Article 420). Such measures likewise cease if the court finds that its decision has been satisfactorily followed. It is thus seen that the Permanent Court of International Justice is empowered to advise the use by the members of the League of economic sanctions to enforce its decisions; military and naval force is not contemplated. This is true only of its labor decisions, however. If a decision is rendered according to the provisions of Article XIII of the Covenant, all of the sanctions of Article XVI, including military, naval and air forces, will be applicable as against a recalcitrant member, provided the Council so recommends, and the other disputant accepts the decision of the court. Justiciable and Political Questions. The Covenant does not distinguish between arbitration and adjudication. It has been generally understood that these processes, in the strict sense, are, and ought to be distinguished. To submit a matter to arbitration has generally conveyed the idea that the board or tribunal of arbitration would determine the question, if necessary, by compromise or on grounds of expediency. This does not mean, however, that the law is not considered; it may be regarded by the board or tribunal, and the award may be made entirely or largely according to strict principles of law. When, however, the dispute is one susceptible of adjudication by a court of justice which applies only legal principles, a distinction should be made between such adjudication, and arbitration which may involve the element of compromise. The term "conciliation" is often applied to the method of settling disputes which are of a purely political nature. It is true that the Permanent Court of Arbitration set up at The Hague in 1899 and continued in 1907 has settled disputes which were susceptible of determination according to strict principles of law, as for example, the Pious Fund case,1 and the Japanese House Tax case.2 It has also decided cases on grounds of compromise and expediency, as, for example, the case of the Deserters at Casablanca.3 It is presumed that this court will be continued. Boards of arbitration for the settlement of industrial questions have become so common that it seems essential to reserve 1 Wilson, G. G., The Hague Arbitration Cases, pp. 1-11. 2 Ibid., pp. 40-63. the term "adjudication" for that process of settling disputes according to strict legal principles which are principles of justice not susceptible of compromise. The difference between justiciable and political questions has been pointed out repeatedly by the Supreme Court of the United States. Among the questions decided by that court to be political are: the relation of an Indian tribe to a State, Cherokee Nation v. Georgia (1831), 5 Peters, 1; the President of the United States is sole judge as to when the militia should be called out, Martin v. Mott (1827), 12 Wheaton, 19; the recognition of the belligerency or independence of a foreign community, The Three Friends (1897), 166 U. S., 1; and whether a treaty with another nation has been properly ratified by that nation, Doe v. Braden (1854), 16 Howard, 635. These questions the court has called political, and has studiously avoided passing upon them. The following distinction between political and judicial questions was made by the court in Rhode Island v. Massachusetts (1838), 12 Peters, 737, Mr. Justice Baldwin delivering the opinion: "These considerations lead to a definition of political and judicial power and questions; the former is that which a sovereign or State exerts by his or its own authority, as reprisal and confiscation; . . . the latter is that which is granted to a court or judicial tribunal. So of controversies between States; they are in their nature political, when the sovereign or State reserves to itself the right of deciding on it; makes it the subject of a treaty to be settled as between States independent,' or 'the foundation of representation from State to State.' This is political equity, 1 Other cases in which judicial and political questions are differentiated are: Foster v. Neilson (1892), 2 Peters 253; Luther v. Borden (1849), 7 Howard 1; and Mississippi v. Johnson (1866), 4 Wall. 475. |