hardly expect that it would allow an international tribunal to do so.

Probably for this reason the Covenant, while making plans for a judicial tribunal and setting up a Council of statesmen, does not provide that all justiciable questions shall be submitted to the first and all other matters to the second, but allows any state to claim in effect that the question is not justiciable and to require its reference to the Council. This is not the best arrangement conceivable, but it is far better than having no method of settling disputes except military force.

(Letter No 16)

ARTICLES XIV and XV

The Council is directed by Article XIV to formulate plans for a permanent Court of International Justice. Those who are familiar with the debates on this subject at the Hague Conferences, and the difficulties encountered there in reconciling the claims of the large and small nations, will understand why no attempt was made to work out a complete plan and embody in it the Covenant, but the composition of the Court was left for future and more extended discussion by the Council.

Resort to this court is not made obligatory. It is to be established as a tribunal to which disputes of a justiciable character can be submitted for decision by consent of both parties. It has also another significant function, for it consists of a body of jurists whose opinion may be sought by the Council

or the Assembly in matters that come before them.

Although the members of the League do not agree to submit disputes that may arise between them to this court or to arbitrators, they must submit them to some organ of the League. They agree not only to abstain from war without such a submission, but positively also to submit any dispute likely to lead to a rupture to inquiry by the Council or Assembly, if it is not submitted by consent to arbitration; and either party to the dispute may demand the inquiry. The matter stands thus. For arbitration (compliance with the award being involved), the free consent of both parties is required; for inquiry the demand of either; but at the request of either party the case is laid before the Assembly instead of the Council. The Assembly thus stands in the position of a jury at Common Law. Neither party to the dispute can refuse the inquiry, but either can claim this form of trial.

When a dispute is referred to the Council it begins its work not in a judicial capacity, but as a mediator. It seeks, not to decide

the dispute, but to effect a settlement, which will often involve a compromise. In contradistinction to a strictly judicial procedure, which ought to be public, a mediation is more likely to be successful if the parties do not commit themselves publicly. It is often easier to bring the disputants to an accord if the negotiations are private; and if an amicable settlement is reached it is not always necessary to make public the concessions by which it was attained. In such a case, therefore, the Council is given discretion to publish what it may deem appropriate.

If the dispute is not settled by consent of the parties the function of the Council is changed. It becomes an arbiter instead of a mediator, and publishes a report with recommendations stating what it deems the just and proper action for the parties to take. If the Council is unanimous (except for the parties concerned) the recommendation has a binding effect to this extent, that while there is no obligation under the Covenant to carry it out, there is an express agreement not to go to war with any party which complies with it. Even after a unanimous

recommendation war is not absolutely prevented, for the nation against which it is made may refuse to comply with it, and there may be resort to arms. War in such a case is not, as some people have asserted, au

thorized, but it is not subjected to a penalty. Unless the nations are prepared to enforce compliance, and at present they are not, the prevention of war can hardly be carried farther. But it may be observed that after a unanimous report, which would undoubtedly be supported by the public opinion of the world, the cases in which a nation failed to comply would be very rare.

Where the recommendation is not unanimous the danger is greater. In effect no judgment has been rendered; all the states represented on the Council may publish their opinions; and the members of the League reserve the right to take such action as they think right. In short, the efforts of the League to adjust the dispute have failed. But again we must remember that even in such a case war is improbable. Time will have been given for calm consideration and the efforts of all the countries not directly