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action can arise. It may be conceded that in the present condition of international law such a question would be in measure at least political. If injury has actually been suffered, the offending nation could not meet the demand for redress by abrogating the treaty nunc pro tunc. But if no injury has been inflicted the whole question is still open-assuming the interpretation to be inimical to its interests, perhaps the defendant nation will claim the right to abrogate the treaty, and, therefore, a political question will be presented. But does it necessarily follow that the question is not justiciable? If all other elements of a justiciable action are present, does the fact that there is as yet no actual injury, and that the question is in a sense political, prevent an arbitral case from arising? No reason is perceived why it should, and, in answering this question, the reason for the growing recognition of cases for obligatory arbitration should be considered.

The opinion of organized society is rapidly reaching the point where it recognizes not only the wickedness, but the inadequacy, of war as a means of settling international disputes, and it is ready to accept. such principles of international law to govern international conduct as will avoid that method of settling disputes in future. There can be no question that a rule which provides that a justiciable action does not arise until after the infliction of injury would not tend toward the prevention of war, but rather the contrary. The fact that the recognition of the right to demand the submission to arbitration. of such a controversy, prior to the infliction of injury, would tend to avoid international conflict should have a controlling effect upon the settlement of this question.

In considering this matter reference should be made to the Final Acts of the Hague Conferences of 1899 and 1907. In Article 17 of the Convention for the Pacific Settlement of International Disputes, at the First Conference, which was repeated without change as the 39th Article of the same convention at the Second Conference, it is provided, referring to the submission of cases to the Permanent Court of Arbitration at The Hague:

The submission to arbitration is concluded for questions already existing or for questions which may arise eventually; it may embrace any dispute or only disputes of a certain category. This language is very broad, and the announcement that any dispute may be submitted to arbitration is an indicátion of the opinion

of the world, expressed in the form of a convention, that political disputes are suitable for such submission even though it is not yet recognized that one nation has the right to demand of the other that they should be so submitted.

The treaty between Great Britain and the United States providing for the obligatory arbitration of certain controversies also admits, and thereby impliedly approves, the arbitration of some political questions. The language of the treaty is:

Differences which may arise of a legal nature or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th of July, 1899, provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties.

The opening words of this paragraph contemplate the arbitration of differences of a legal nature, or relating to the interpretation of treaties. The expression "relating to the interpretation of treaties" is unlimited and might include cases of a political nature.

It will be instructive to discuss the pending Panama controversy as illustrative of this matter. To the request of the British Government that the dispute as to the interpretation of the treaty should be submitted to arbitration, the United States Government, through Secretary Knox, replied taking the position, inter alia, that so far as the request for arbitration was concerned a case had not yet presented itself where the United States was bound to make any direct response thereto; that no injury had been suffered by Great Britain, and that whether any injury was suffered in future would depend upon future action of the Executive, which neither nation was bound to anticipate. The Secretary continued:

Concerning this possible future injury, it is only necessary to say that in the absence of an allegation of actual or certainly impending injury there appears nothing upon which to base a sound complaint.

Although a little aside from the point now under discussion, it is proper to point out that it is not clear that no injury has as yet been

inflicted. The announcement by a solemn act of legislation of the interpretation placed upon the Hay-Pauncefote Treaty by the United States is in effect a declaration that discrimination can legally be made in favor of United States vessels. Although no vessels have yet passed through the canal and no discriminative rates have actually been imposed with consequent effect upon commerce, it cannot be said that no injury has been inflicted by this declaration of the interpretation of the treaty. Doubtless preparations are now being made in some quarters for the carrying of commerce through the canal, and the industries engaged in preparing for such commerce, either in the building of ships or in the arranging of other matters preliminary thereto, may be and probably have been unfavorably affected. It is by no means clear, therefore, that no injury has been suffered.

But passing this point and assuming that no injury has been inflicted, it is clear that a case is presented of a technical nature, relative to the interpretation of a treaty. It is possible, but scarcely reasonable, for the United States to take the position that the question may yet be settled by diplomacy, for it has acted through Congress and announced in an authoritative way the interpretation upon which it proposes to insist. The only reason, therefore, which can be urged in refusing arbitration is that the question is political, because no actual injury has been inflicted.

This brings us, therefore, to the real question underlying the whole controversy: Is there any fundamental reason why two independent nations should not submit a political dispute to the decision of an arbitral tribunal? Although, as has been stated, there are many treaties which admit of political disputes being submitted, it cannot be said that international law has as yet reached the point where the arbitral character of such disputes is generally recognized. But there is no reason why they should not be, provided at least they do not affect the honor, vital interests or the independence of nations, as the pending controversy clearly does not. Probably one reason why nations are disinclined to admit that political disputes can be settled by arbitration is because of the feeling that for a nation to be controlled in its future action is an impairment of its sovereignty, whereas a mere adjudication as to the amount which it owes for injury inflicted is not such impairment, being only a convenient method of ascertaining the amount of damage which the nation is willing to pay. However, the fact that international law now recognizes, at least

tacitly, that there are cases where arbitration is in a sense obligatory is an admission that, even in cases of a legal nature, the element of compulsion does exist, although enforced only by public opinion. If the element of compulsion exists where there is a demand for injury inflicted, why should it not exist where there is a demand that threatened injury be restrained? There is no fundamental distinction between the two cases.

Municipal law develops by the advance of public opinion, which ultimately establishes rules of action, either through acts of legislation or through precedents made by the courts in decided cases. International law develops in the same way. International public opinion has, I think it may be said, already contemplated the decision of some political questions by arbitral tribunals, as indicated by the general language of treaties admitting of the decision of such disputes in that way. The Hague Conferences, through the conventions already referred to, analogous to acts of legislatures in states, have announced that arbitration is suitable for the decision of "any dispute", which includes political disputes. The next step would naturally be a precedent, which as yet does not exist. The occasion for such precedent has arisen. By making the request which it has done, Great Britian has in effect announced its adherence to the principle that a question concerning the interpretation of a treaty, political in the sense that no injury has been inflicted, can and should be submitted to arbitration in advance of such injury. This is of little value as a precedent, because it is to the interest of Great Britain that this position be assumed, but with the United States it is quite different. If it accedes to the demand of Great Britain, where its action will be contrary to its own interests, and agrees that a case for arbitration has arisen in a matter involving a political question, a precedent will be established of the utmost value, which will mark a distinct step in advance in the development of international law, and which will go far toward establishing the rule that the settlement of international controversies should, wherever possible, precede rather than follow the doing of acts likely to cause international friction. If such a principle becomes finally established it will undoubtedly promote the cause of international peace and good will.

In view of the long and honorable history of the United States as a leader in the movement for the substitution of a system of international judicature for the present unsatisfactory methods of set

tling international disputes, it is particularly appropriate that the opportunity should have been offered it to establish such a precedent. It should go further than any other nation in yielding to any wellfounded request that a dispute should be arbitrated. It would be unworthy of the United States to rely upon what must be deemed a technical reason for declining to arbitrate, and it is to be hoped that the State Department will not persist in the attitude which has been assumed, and will embrace the opportunity of creating a precedent sustaining the proposition that it is not necessary in international law that injury actually be suffered before a justiciable action arises.

The CHAIRMAN. Professor Westlake, who died on the 17th of April, and who was the mentor of the British Government in many of these affairs, sent, before he died, to the Secretary a letter upon this particular matter, which I will ask the Secretary to read:

Secretary SCOTT. Before reading the letter I should like to say that I asked this year a number of foreign publicists to be present and participate in the discussion, among others, naturally, Professor Westlake. In a personal letter, he regretted that his advanced age and precarious state of health would not permit him to come, but he took a great interest in the program, which was enclosed in the letter that I sent to him, especially in Question 7, and promised a brief memorandum. A few days after his letter of declination, I received the memorandum, which I now have the honor to read.

Under date of March 14, 1913, the distinguished publicist said:

Dear Professor Scott:

I now sit down to send you those observations on the "proposed subjects for discussion" at the forthcoming meeting of the American Society of International Law, which I promised you in my last.

The whole series of those subjects is full of the canal, which indeed has now an overmastering interest for all who are concerned about the rectitude of international conduct and the promotion of international arbitration. The most admirable speech of Mr. Elihu Root in the Senate, which he was so kind as to send me, enables me to feel assured that under his guidance the discussions in the Association will be thorough and sound. It is therefore only as to No. 7 in the list, which steps a little out from the line of the others, that I wish to say a few words.

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