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Hon. DAVID JAYNE HILL, LL.D.
Former Ambassador to Germany
The Corporate Character of the League of Nations
The Treaty-making Power under the Constitution of the
GEORGE WASHINGTON UNIVERSITY
In Memorial Continental Hall, Washington, D. C.
April 28th and 29th, 1919
THE REVISED COVENANT
LEAGUE OF NATIONS*
THE CORPORATE CHARACTER OF THE LEAGUE
If language is to have any exact meaning, it cannot be pretended that a League of Nations can be identified with the entire Society of States. Sovereign States, under the Law of Nations as it exists, are equal before the law, regardless of their military power, physical magnitude, or economic importance. They are to be treated under International Law as legal persons, possessing rights inherent in their sovereignty, which all civilized nations are bound to respect.
The work in which the Conference at Paris has been engaged is not, properly speaking, the formation of a universal Society of States, such as that contemplated by International Law, but the creation of a predominant group within this more general association.
In the minds of those who are the most active in commending this League, there is apparently no very precise conception of its real nature. They have spoken alternately of a “Treaty,” of a "Covenant,” and of a “Constitution,” without making any distinction between them, or seeming to realize that this is a matter of the least importance. To them it is an agreement to end war; and they appeal for support on this ground, with little regard to the obligations involved or the ultimate consequences which may follow from accepting them.
*These two lectures with other relevant articles are to appear in a book by Dr. Hill to be issued immediately by D. Appleton & Company of New York City, under the title: "Present Problems in Foreign Policy."
When it is pointed out that participation in this League, in the form proposed, might prove disadvantageous to the United States, some of its advocates reply, “After all, it is only a treaty, and a treaty can be abrogated at any time.”
This assumption is based on the statement in the Constitution of the United States, that "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” Being a law, it is contended, a treaty may be nullified by any subsequent law which contradicts its provisions or prevents the execution of them; and such a law it is always within the power of Congress to enact.
If this were the nature of treaties made by the United States of America with other nations, it would be difficult to find any others that would care to enter into treaty relations with the United States. By asserting it, we should put ourselves on a lower level of ignominy and dishonor than that which Germany has occupied, and which we have denounced with bitter scorn; for we should be, in effect, declaring that we regard a solemn compact as “a scrap of paper," not because of changed circumstances or national necessities, but because it was intended that it might be nullified even before it was signed.
A treaty, even the least important, is something more than a law; it is a contract. However the legal effect of such a document might be changed, as a contract it is not affected by a change in the law; and it cannot be denounced, except by its own specified termination or the consent of the other contractants, without incurring the hostility of those who insist upon the fulfilment of its obligations. The only remedy for this default is war, and the non-performance of the obligations of the contract is a legitimate casus belli.
It may, indeed, be said that there have been instances of failure to keep treaty engagements, which have been nullified either by the refusal to pass the laws necessary to the execution of the treaty, or by the enactment of legislation forbidding the acts which it requires. But the United States has never done this in the case of any Great Power able to enforce the obligation thus repudiated. It would have been a simple matter, for example, to pass the necessary legislation and proceed to the building of an isthmian canal, regardless of the famous Clayton-Bulwer treaty with
Great Britain. It was, however, never claimed that an act of legislation by the Congress of the United States could absolve this country from the embarrassing obligations of that treaty; although it could have been argued that it was already invalidated by acts performed by Great Britain. But so long as those arguments were not accepted by the other contractant, it was necessary to admit that a denunciation of the treaty would have been a breach of faith and even a casus belli had Great Britain chosen to consider it in that sense. It is futile, therefore, to maintain that treaties may be abrogated by a unilateral legislative act.
It may be said of the proposed League of Nations, although the word Constitution is now omitted, that it is much more than a mere treaty involving mutual obligations. It is spoken of as a "Covenant," but it is much more than an assemblage of reciprocal promises. If the League were a mere pledge to do or not to do certain things, it would never have seemed to require a "Constitution,” which implies the creation of a new entity, something which can perform certain actions by itself; and, beyond all possible contradiction, this League is such an entity, and is endowed with powers of immense consequence which prior to its creation have never had a legalized existence.
Perhaps the most important of all the considerations thus far emphasized by those who have discussed this project of a League is the legal interpretation of the original form of this document made by Mr. Justice Stafford, of the Supreme Court of the District of Columbia, in his discriminating analysis. He finds it to be not merely a treaty of alliance or agreement to preserve peace, but the creation of a corporate entity possessing not only advisory but strictly governmental powers. He considers that these powers may come into conflict with those of the separate governments that enter into the League. That is a question which I shall not discuss at this time; but I shall undertake to show that the League, even in its revised form, as a distinct corporate entity, exercising a will not identical with that of all the separate members, is organized with power to coerce other States not belonging to it, to act under its own rules and by its own judgment, and even to dictate the form of government and degree of authority to be exercised over wide areas and great populations subjected to its control. Whatever ambiguities this document may contain-and they are many—upon these subjects it is unequivocal.
If the League were based merely on a "Covenant,” the mutual agreements would be the whole substance of the docu