Obrázky stránek


think of the controversy, no matter how we view the wisdom of a war over the cause, we are bound to go to war when and in the manner the Executive Council determines." He asserts that the power of the Executive Council is that of

recommending what effective military or naval forces each member of the League shall contribute to protect the covenants of the League, not only against League members but non-League members: that is, as a practical matter, the power to declare war."

I submit in all fairness that there never was a more palpable non sequitur than this. I venture to think that were Senator Knox charged as Secretary of State with construing the obligation of the United States under this Covenant, he would on behalf of the United States summarily reject such a construction.

By what manner of reasoning can the word mend” be converted into a word of direction or command? Yet upon this interpretation of the meaning of the words “recommend," advise" and words of like import, as they occur in many articles, depends his whole argument as to the powers of the Executive Council under the Covenant, and their super-sovereign character.

Senator Knox contends that the plan of the League will create two Leagues one of the Allies and one of the outcast nations. The Covenant provides for a protocol to invite in all nations responsible and fit for membership. Certainly Germany and the other enemy countries ought not now to be taken in, but they ought to be kept under control. The League wishes to prevent war in the world and realizes, of course, that excluded nations are quite as.likely to make war as their own members.

The Covenant therefore declares the concern of the League

in threatened war between nations whether members or not and asserts its right to take steps to prevent it. This declaration is made as the justification for Article XVII, by which a nation or nations not members of the League who threaten war are invited to become temporary members of the League in order to enable them to settle their disputes peaceably as permanent members covenant to do. These temporary members are visited with the same penalties for acts which would be, if committed by permanent members, breaches of their covenants not to begin war. Thus the scope of the League's action is extended to all nations.

This is the explanation and the purport of Articles XI and XVII. They involve the whole world in the covenants of the League not to make war. They operate to defeat the formation and warlike organization of a rival league of nations, composed of countries not admitted as permanent members to this league. They unite the rest of the world against such nations in any case of war threatened by them.

There is no supreme court to construe this Covenant and bind the members, and each nation, in determining its own obligations and action under it, must construe it for itself. Our duties under it are not to be declared and enforced against us by a hostile tribunal or by one actuated by different principles and spirit from our own. Its whole strength is to rest in an agreed interpretation by all. Its sanction must be in the good sense of the covenanting nations who know that, in order that it may hold together and serve its purpose, they must all be reasonable in their construction. What rules of interpretation should and must we therefore apply?

The President and Senate are to ratify this Covenant if it

be ratified, by virtue of their constitutional power to make treaties. This power, as the Supreme Court has held, enables them to bind the United States to a contract with another nation on any subject matter usually the subject matter of treaties between nations, subject to the limitation that the treaty may not change the form of government of the United States, and may not part with territory belonging to a State of the United States, without the consent of the State. The making of war, of embargoes, or armament, and of arbitration are frequently subject matter of treaties.

The President and Senate may not, however, confer on any body, constituted by a league of nations, the power and function to do anything for the United States which is vested by the Federal Constitution in Congress, the treaty making power or any other branch of the United States Government.

It, therefore, follows that whenever the treaty-making power binds the United States to do anything, it must be done by the branch of that Government vested by the Constitution with that function.

A treaty may bind the United States to make or not make war in any specific contingency; it may bind the United States to levy a boycott, to limit its armament to a fixed amount; it may bind the United States to submit a difference or a class of differences to arbitration. But the only way in which the United States can perform the agreement is for Congress to fulfill the promise to declare and make war; for Congress to perform the obligation to levy a boycott; for Congress to fix or reduce armament in accord with the contract; and for the President and Senate, as the treaty-making power, to formulate the issues to be arbitrated and agree with the opposing nation on the character of the court.

When the treaty provides that the obligation arises upon a breach of a covenant, and does not make the question of the breach conclusively determinable by any body or tribunal, then it is for Congress itself to decide in good faith whether or not the breach of the Covenant upon which the obligation arises, has in fact occurred, and finding that, it has to perform the obligation.

These plain limitations upon the Federal treaty-making power are known to nations of this conference, and any treaty of the United States is to be construed in the light of them. Following these necessary rules of construction, the provisions of the Covenant entirely and easily conform to the Constitution of the United States. They lose altogether that threatening and dangerous character and effect which Senator Knox and other critics would attach to them. They delegate to no body but to our own Federal constitutional agencies the duty of deciding in good faith what our obligations under the Covenant are, when they become immediate, the appropriate means and method by which they are to be performed, and the performance of them.

By the first article the action of the high contracting parties under the Covenant are to be “effected through the instrumentality of a meeting of a body of delegates representing the high contracting parties, of meetings at more frequent intervals of an Executive Council, and of a permanent international secretariat."

This means only that when the high contracting parties wish to take joint action, it is to be taken through such meetings. This does not vest these bodies with power except as it is especially described in the succeeding articles. The unusual phrase "effected through the instrumentality of meetings” means what it says. It does not confer

authority on the Body of Delegates or the Executive Council, but only designates the way in which the high contracting parties shall, through their representatives, express their joint agrement and take action.

On this head, Lord Robert Cecil, who had much to do with formulating the Covenant, made an illuminating remark in his address following the report by the Committee of the Covenant to the Conference. He said: Secondly

ndly — We have laid down (and this is the very great principle of the delegates, except in very special cases, and for very special reasons which are set out in the Covenant) that all action must be unanimously agreed to in accordance with the general rule that governs international relations. That this will to some extent, in appearance at any rate, militate against the rapidity of action of the organs of the League is undoubted. In my judgment, that defect is far more than compensated by the confidence that it will inspire that no nation, whether small or great, need fear oppression from the organs of the League.”

This interpretation by one of the most distinguished draftsmen of the League shows that all its language, reasonably contrued, delegates no power to these bodies to act for the League and its members without their unanimous concurrence unless the words used make such delegation clear.

Senator Knox asserts that, as the recommendation for a reduction of armaments will be made with the consent of our representative on the Council, we shall be in honor bound to accept the limit and bind ourselves. It is difficult to follow this reasoning. The body which is to accept the limitation is the Congress of the United States. Why should the Congress of the United States be bound by a

« PředchozíPokračovat »