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Court to decide questions of a legal nature arising between nations.
The second proposal of the League involves the submission to a Commission of Conciliation of all questions that cannot be settled in court on principles of law or equity. There are such questions which may lead to war, and frequently do, and there are no legal rules for decision. We have such questions giving rise to friction in our domestic life. If a lady who owns a lawn permits children of one neighbor to play upon that lawn and refuses the privilege to the children of another neighbor because she thinks the latter children are badly trained and will injure her lawn or her flowers, it requires no imagination to understand that there may arise a neighborhood issue that will lead to friction between the families. The issue is, however, a non-justiciable one. Courts cannot settle it, for the reason that the lady owning the lawn has the right to say who shall come on it and who shall be excluded from it. No justiciable issue can arise, unless one's imagination goes to the point of supposing that the husbands of the two differing ladies came together and clashed, and then the issue in court will not be as to the comparative training of the children of the families.
We have an analogous question in our foreign relations with reference to the admission of the Chinese and Japanese. We discriminate against them in our naturalization and immigration laws and extend the benefit of those laws only to whites and persons of African descent. This discrimination has caused much ill-feeling among the Japanese and Chinese. We are within our international right in excluding them; but it is easy to understand how resentment, because of such discrimination, might be fanned into a flame,
if through lawless violence or unjust State legislation the Japanese should be mistreated within the United States.
We have had instances of the successful result of commissions of conciliation where the law could not cover the differences between the two nations. Such was the case of the Bering Sea controversy. 1 We sought to prevent the
1 In an address before the National Geographic Society in Washington, D. C., Jan. 17, 1919, Mr. Taft has the following to say in regard to this arbitration :
"The United States, by a transfer from Russia, became the owner of the Pribiloff Islands, in the middle of the Bering Sea. Upon those islands was the breeding place of the largest herd of fur-bearing seals in the world. They were a valuable property and a considerable annual income was derived by the United States from the sale of the fur. Canadian schooners began what was called pelagic scaling. They shot the seals in the open Bering Sea. This indiscriminate hunting killed the females of the herd and was destroying it. Revenue cutters of the United States, hy direction of the government, sci'eil sich sealing vessels, brought them into a port of the United States, where were instituted proceedings to forfeit them. Great Britain objected on the ground that the United States had no legal jurisdiction. The case was submitted to an arbitration. The treaty contained a provision that the arbitrators, should they reach the conclusion that the United States had no legal right, might recommend a basis of compromise. The United States asserted its right, on the ground, first, that it had territorial jurisdiction over the open waters of the Bering Sea by transfer from Russia, which had asserted, maintained, and enjoyed such jurisdiction, and, second, that it owned the seals while in the sea in such a way that the Canadian schooners were despoiling its personal property. The court of arbitration held against the United States on both points, deciding that Russia never had any territorial jurisdiction over the open Bering Sea to transfer to the United States, and that when the seals left the islands and swam out into the open sea they were the property of no one and were subject to capture by any one. The judgment of the court, therefore, was against the United States and awarded damages. Pursuing, however, the recommendation of the treaty, the court made itself into a council of mediation. It said that while the killing of seals in the open sea was not a violation of the legal rights of the United States of which that country could legally
killing of female seals in the Bering Sea and asserted our territorial jurisdiction over that sea for this purpose. The question was submitted to international arbitrators and the decision was against us; but the arbitrators, in order to save to the world the only valuable and extensive herd of fur seals, recommended a compromise by treaty between the nations concerned, and accordingly treaties have been made between the United States, Great Britain, Russia and Japan which have restored the herd to its former size and value. So much, therefore, for the practical character of the first two proposals.
The third proposal is more novel than the others and gives to the whole plan a more constructive character. It looks to the use of economic means first, and military force if necessary, to enforce the obligation of every member of
complain, it was nevertheless a great injury to the common welfare of the world to destroy this greatest seal herd of the world, first, because the fur was valuable and useful for the garments of men and women, and, second, because the destruction of the herd would destroy valuable and useful industries in the preparation of the seal pelts for use. Therefore, they said it was good form and in the interest of the world that the four nations concerned should agree upon a compromise by which the United States might continue to maintain the herd and sell the seal pelts gathered on the islands and that pelagic sealing should be stopped, but that the United States, in consideration of the other three nations restricting their citizens from pelagic sealing, should divide with the other three nations some of the profits of the herd. Accordingly, Great Britain, Russia, Japan, and the United States made such a treaty, which is still in force and under which the herd has been restored to its former size and value. Here we have an example of a court passing on questions of legal right and deciding them against the United States. Then we have the court changing itself into a council of mediation and recommending a compromise, prompted by considerations of decency and good form and the public welfare of the world, which the nations appealed to have adopted and embodied in a treaty."
the League to submit any complaint it has to make against another member of the League, either to the permanent international court, or to the Commission of Conciliation, and to await final action by that tribunal before beginning hostilities. It will be observed that it is not the purpose of this program to use the economic boycott or the jointly acting armies of the League to enforce the judgment declared or the compromise recommended. These means are used only to prevent the beginning of war before there has been a complete submission, hearing of evidence, argument and decision or recommendation. We sincerely believe that in most cases, with such a delay and such a winnowing out of the issues and such an opportunity for the peoples of the different countries to understand the position of each other, war would generally not be resorted to. Our ambition is not to propose a plan, the perfect working out of which will absolutely prevent war; first, because we do not think such a plan would work; and second, because we are willing to concede that there may be governmental and international injustice which cannot be remedied except by force. If, therefore, after a full discussion and decision by impartial judges or a recommendation by earnest, sincere and equitable compromisers, a people still thinks that it must vindicate its rights by war, we do not attempt in this plan to prevent it by force.
Having thus explained what the plan is, let us consider the objections which have been made to it.
The first objection is that, in a dispute between two members of the League, it would be practically difficult to determine which one was the aggressor and which one, therefore, in fact, began actual hostilities. There may be some trouble in this, I can see; but what we are dealing with is a
working hypothesis, a very general plan. The details are not worked out. One can suggest that an International Council engaged in an attempt to mediate the differences might easily determine for the League which nation was at fault in beginning hostilities. It would doubtless be necessary where some issues arise to require a maintenance of the status quo until the issues were submitted and decided in one tribunal or the other; but it does not seem to me that these suggested difficulties are insuperable or may not be completely met by a detailed procedure that, of course, must be fixed before the plan of the League shall become operative.
The second objection is to the use of the economic boycott and the army and the navy to enforce the obligations entered into by the members of the League. I respect the views of Pacifists and those who advocate the doctrine of nonresistance as the only Christian doctrine. Such is the view of that Society of Friends which, with a courage higher than that possessed by those who advocate forcible means, are willing to subject themselves to the injustice of the wicked in order to carry out their ideal of what Christian action should be. They have been so far in advance of the general opinions of the world in their history of three hundred years, and have lived to see so many of their doctrines recognized by the world as just, that I always differ from them with reluctance. Still, it seems to me that in the necessity of preserving our civilization and saving our country's freedom and individual liberty maintained now for one hundred and twenty-five years, we have no right to assume that we have passed beyond the period in history when nations are affected by the same frailties and the same temptations to cupidity, cruelty and injustice as men. In our domestic communities we need a police force to protect the innocent and the just