INTERNATIONAL ARBITRATION
On the day that the Commission on the League of Nations held its first
meeting and before I had reason to suspect that Mr. Wilson intended to
ignore the letter which I had sent him with the suggested resolution
enclosed, I determined to appeal to him in behalf of international
arbitration. I decided to do this on the assumption that, even if the
plan for a resolution was approved, the Commission would continue its
sessions in preparation for the subsequent negotiation of an agreement
of some sort providing for world organization. The provision as to
arbitration in the President's original draft of a Covenant was so wrong
from my point of view and showed such a lack of knowledge of the
practical side of the subject that I was impelled to make an effort to
induce him to change the provision. Except for the fact that the matter
was wholly legal in character and invited an opinion based on technical
knowledge, I would have remained silent in accordance with my feeling
that it would be inadvisable for me to have anything to do with drafting
the Covenant. I felt, however, that the constitution and procedure of
international courts were subjects which did not affect the general
theory of organization and concerning which my views might influence the
President and be of aid to him in the formulation of the judicial
feature of any plan adopted.
With this object in view I wrote to him the following letter:
"_Hôtel Crillon, Paris
"February_ 3, 1919
"My Dear Mr. President:
"I am deeply interested, as you know, in the constitution and
procedure of international courts of arbitration, and having
participated in five proceedings of this sort I feel that I can speak
with a measure of authority.
"In the first place let me say that a tribunal, on which
representatives of the litigants sit as judges, has not proved
satisfactory even though the majority of the tribunal are nationals
of other countries. However well prepared from experience on the
bench to render strict justice, the litigants' arbitrators act in
fact as advocates. As a consequence the neutral arbitrators are
decidedly hampered in giving full and free expression to their views,
and there is not that frank exchange of opinion which should
characterize the conference of judges. It has generally resulted in a
compromise, in which the nation in the wrong gains a measure of
benefit and the nation in the right is deprived of a part of the
remedy to which it is entitled. In fact an arbitration award is more
of a political and diplomatic arrangement than it is a judicial
determination. I believe that this undesirable result can be in large
measure avoided by eliminating arbitrators of the litigant nations.
It is only in the case of monetary claims that these observations do
not apply.
"Another difficulty has been the method of procedure before
international tribunals. This does not apply to monetary claims, but
to disputes arising out of boundaries, interpretation of treaties,
national rights, etc. The present method of an exchange of cases and
of counter-cases is more diplomatic than judicial, since it does not
put the parties in the relation of complainant and defendant. This
relation can in every case be established, if not by mutual
agreement, then by some agency of the League of Nations charged with
that duty. Until this reform of procedure takes place there will be
no definition of issues, and arbitration will continue to be the long
and elaborate proceeding it has been in the past.
"There is another practical obstacle to international arbitration as
now conducted which ought to be considered, and that is the cost.
This obstacle does not affect wealthy nations, but it does prevent
small and poor nations from resorting to it as a means of settling
disputes. Just how this can be remedied I am not prepared to say,
although possibly the international support of all arbitral tribunals
might be provided. At any rate, I feel that something should be done
to relieve the great expense which now prevents many of the smaller
nations from resorting to arbitration.
"I would suggest, therefore, that the Peace Treaty contain a
provision directing the League of Nations to hold a conference or to
summon a conference to take up this whole matter and draft an
international treaty dealing with the constitution of arbitral
tribunals and radically revising the procedure.
"On account of the difficulties of the subject, which do not appear
on the surface, but which experience has shown to be very real, I
feel that it would be impracticable to provide in the Peace Treaty
too definitely the method of constituting arbitral tribunals. It will
require considerable thought and discussion to make arbitration
available to the poor as well as the rich, to make an award a
judicial settlement rather than a diplomatic compromise, and to
supersede the cumbersome and prolonged procedure with its duplication
of documents and maps by a simple method which will settle the issues
and materially shorten the proceedings which now unavoidably drag
along for months, if not for years.
"Faithfully yours
"ROBERT LANSING
"THE PRESIDENT
"28 _Rue de Monceau_"
At the time that I sent this letter to Mr. Wilson I had not seen the
revised draft of the Covenant which he laid before the Commission on the
League of Nations. The probability is that, if I had seen it, the letter
would not have been written, for in the revision of the original draft
the objectionable Article V, relating to arbitration and appeals from
arbitral awards, was omitted. In place of it there were substituted two
articles, 11 and 12, the first being an agreement to arbitrate under
certain conditions and the other providing that "the Executive Council
will formulate plans for the establishment of a Permanent Court of
International Justice, and this Court will be competent to hear and
determine any matter which the parties recognize as suitable for
submission to it for arbitration."
Unadvised as to this change, which promised a careful consideration of
the method of applying legal principles of justice to international
disputes, I did not feel that I could let pass without challenge the
unsatisfactory provisions of the President's original draft. Knowing the
contempt which Mr. Wilson felt for The Hague Tribunal and his general
suspicion of the justice of decisions which it might render, it seemed
to me inexpedient to suggest that it should form the basis of a newly
constituted judiciary, a suggestion which I should have made had I been
dealing with any one other than President Wilson. In view of the
intensity of the President's prejudices and of the uselessness of
attempting to remove them, my letter was intended to induce him to
postpone a determination of the subject until the problems which it
presented could be thoroughly studied and a judicial system developed by
an international body of representatives more expert in juridical
matters than the Commission on the League of Nations, the American
members of which were incompetent by training, knowledge, and practical
experience to consider the subject.
No acknowledgment, either written or oral, was ever made of my letter of
February 3. Possibly President Wilson considered it unnecessary to do so
in view of the provision in his revised Covenant postponing discussion
of the subject. At the time, however, I naturally assumed that my
voluntary advice was unwelcome to him. His silence as to my
communications, which seemed to be intended to discourage a continuance
of them, gave the impression that he considered an uninvited opinion on
any subject connected with the League of Nations an unwarranted
interference with a phase of the negotiations which he looked upon as
his own special province, and that comment or suggestion, which did not
conform wholly to his views, was interpreted into opposition and
possibly into criticism of him personally.
This judgment of the President's mental attitude, which was formed at
the time, may have been too harsh. It is possible that the shortness of
time in which to complete the drafting of the report of the Commission
on the League of Nations, upon which he had set his heart, caused him to
be impatient of any criticism or suggestion which tended to interrupt
his work or that of the Commission. It may have been that pressure for
time prevented him from answering letters of the character of the one of
February 3. Whatever the real reason was, the fact remains that the
letter went unnoticed and the impression was made that it was futile to
attempt to divert the President from the single purpose which he had in
mind. His fidelity to his own convictions and his unswerving
determination to attain what he sought are characteristics of Mr. Wilson
which are sources of weakness as well as of strength. Through them
success has generally crowned his efforts, success which in some
instances has been more disastrous than failure would have been.
By what means the change of Article V of the original draft of the
Covenant took place, I cannot say. In the memorandum of Messrs. Miller
and Auchincloss no suggestion of a Court of International Justice
appears, which seems to indicate that the provision in the revised draft
did not originate with them or with Colonel House. In fact on more than
one occasion I had mentioned arbitration to the Colonel and found his
views on the subject extremely vague, though I concluded that he had
almost as poor an opinion of The Hague Tribunal as did the President.
The probability is that the change was suggested to Mr. Wilson by one of
the foreign statesmen in a personal interview during January and that
upon sounding others he found that they were practically unanimous in
favor of a Permanent Court of Justice. As a matter of policy it seemed
wise to forestall amendment by providing for its future establishment.
If this is the true explanation, Article 12 was not of American origin,
though it appears in the President's revised draft.
To be entirely frank in stating my views in regard to Mr. Wilson's
attitude toward international arbitration and its importance in a plan
of world organization, I have always been and still am skeptical of the
sincerity of the apparent willingness of the President to accept the
change which was inserted in his revised draft. It is difficult to avoid
the belief that Article V of the original draft indicated his true
opinion of the application of legal principles to controversies between
nations. That article, by depriving an arbitral award of finality and
conferring the power of review on a political body with authority to
order a rehearing, shows that the President believed that more complete
justice would be rendered if the precepts and rules of international law
were in a measure subordinated to political expediency and if the judges
were not permitted to view the questions solely from the standpoint of
legal justice. There is nothing that occurred, to my knowledge, between
the printing of the original draft of the Covenant and the printing of
the revised draft, which indicated a change of opinion by the President.
It may be that this is a misinterpretation of Mr. Wilson's attitude, and
that the change toward international arbitration was due to conviction
rather than to expediency; but my belief is that expediency was the
sole cause.