THE SANCTITY OF A TREATY.
WE promised last week that we would attempt on another occasion to say where our hopes for peace lay, and we shall take the opportunity of Mr. Wilson's speech to set forth our plan. We believe that the most hopeful thing that can be done, and though it seems a small thing it may turn out a very great thing, is to induce all the Powers to agree to observe the sanctity of treaties. We desire next that they should each and all promise not to go to war with any offend- ing Power, but to black-list it. They should agree to hold no converse of any Lind, either by commerce, the exchange of mails, or in any other way, with a Power that had broken the provisions of a treaty. An agreement of this kind would no doubt mean the setting up of a Tribunal to decide whether a treaty had been broken or not, but that is unavoidable. Under any system of enforcing peace something in the nature of an inquiry would have to be held before action could be taken. The 'vomit State would always declare that it did not attack its neighbour, and somebody would have to ascertain whether it had done so in fact or only in appearance. For example, Saturn might complain that one of Jupiter's eight Moons had invaded parts of his Ring, and the Senate of Jupiter might reply that their nationals were only putting down brigands whom the Saturnian could not or would not deal with. In such a case there must be an inquiry before the Solar System proceeded to use force to oblige the people of Jupiter's Sixth Moon to keep the peace. But to resume our argument in favour of the sanctity of treaties. When the Tribunal had declared a treaty broken, no doubt it might encounter a good many difficulties in deciding, but after all an unequal number of Judges bound by a majority must ultimately come to a decision, yes or no. When therefore it was decided that a treaty had been broken, a non-intercourse policy must be effective—unless of course some of the Powers, acting in bad faith, secretly favoured the condemned Power, and really allowed intercourse while pretending to prevent it. We must, however, assume that such acts of bad faith would not arise.
A more serious objection which will be made to our con- tention that the only practical way to avoid war is to pre- serve the sanctity of treaties must next be considered. How, it will be said, can nations be bound by musty old treaties f There must be development in human affairs, and development means that nations will grow out of the strait-waistcoats devised by their forefathers. We agree, and therefore we suggest that one of the rules to be universally adopted under a League to Preserve the Sanctity Of Treaties is that, no matter what the terms of the treaty, any Power shall have the right to free itself from the obligations of that treaty by giving a year's notice. For example, fifty years hence the United States may feel that circumstances have altered so greatly in Panama that she would like to be free of her treaty with us in respect of the Isthmus. In that case she would give us a year's notice, and we should then have to consider what steps were necessary to protect our rights. The year's grace would be all on the side of peace. Wo could not be rushed into war. Take for example the present war. If the Prussians had been obliged to denounce the treaty guaranteeing the neutrality of Belgium, the world would have been forewarned as to what was going to happen.
Perhaps it will be said that that would have been no good, because when war has been planned on the scale which was con- templated and prepared for by Germany, even a boycott by the whole world would matter very little. We arc not converted. We believe that if at the beginning of the present war the United States had said that she should pass a Non-Intercourse Act with the treaty-breakers, grcund of the utmost im- portance would have been gained. European neutrals would have done the same thing, and Germany and Austria would have hesitated before placing themselves under the ban of the civilized world. If nations could only be brought to believe that the violation of " scraps of paper " would not be tolerated, we are certain that there would be great hesitation in regard to treaty-breaking. And here we cannot refrain from saying that it was the greatest misfortune of the war that President Wilson did not see his way to make an effective protest against German action towards Belgium by organizing a League of Neutrals to outlaw Germany and Austria as treaty-breakers. If President Wilson had proposed this at the early stage of the war to the neutral Powers—Spain, Sweden, Norway, Denmark, Holland, Switzerland, and the South American States—we believe that he would have obtained a ready response. _Even if they had not been prepared at the moment to go to the length of a Non-Intercourse Act, we believe that they would have signed a protest, and very possibly would have withdrawn from diplomatic relations. In any case the protest would have prevented the appallingly bad situation which now exists. That situation can be expressed in very few words. The neutral world, headed by America, is treating Germany, the treaty-breaker, not merely as regards Belgium, but as regards half the clauses of the Hague Conventions, in just as friendly a way as if she had been the most scrupulous observer of the rules of war.
Take for example the appalling fact that President Wilson thought it expedient in his Note to all the world to express the view—his diplomatic view we feel sure, and not his real view— that the Germans have quite as good a case as their enemies, that they are struggling for quite as high ideals as we are, and so forth. We admit, granted the need for a Note, that it was difficult for him to say anything else. Having refused to take the line that there was anything which called for action, first when the neutrality of Belgium was violated, next when the rules laid down at the Hague were broken during the harrying of Belgium, and finally when the United States' naval policy was defied by the sinking of the Lusitania ' and other vessels, he was estopped from the assumption that the Germans were morally in a different position from that of their enemies. His former acquiescence could have been quoted against him.
But though this most unfortunate triumph for the treaty- breakers has given a terrible blow to the sanctity of treaties, we still hold it possible to retrieve the situation, and once more to build up the rule that treaties must not be broken, and that, quite apart from the merits, the Powers as a whole will look upon the violators of formal agreements between States as outlaws unfit for the comity of nations. Therefore we would implore President Wilson and the Americans not to neglect this view of the situation, but to make a real effort towards creating a League for Preserving the Sanctity of Public Treaties, and thus establishing a true contractual system of international law. Nothing could be more appro- priate than for America to take the lead in this matter. America, as all lawyers know, is tho Power which above all others has in civil life maintained the sanctity of contracts. Under the American Constitution, and the decisions of the Supreme Court explaining that Constitution, no contract can be set aside by the Legislature, by administrative act, or by the Courts of the sovereign States that make up the Union. Under the Dartmouth College decision contracts became for America sacred things.
In the region of international law America has always stood for treaty rights and for the strict carrying out of treaties. She led our fathers on this point; why will she not lead us now ? Why should she leave her wel tried line of public policy for one which, we venture to say once again, must either come to nothing, or else be fraught with dangers and pitfalls innumerable, must either provoke new wars or else shelter the evildoers—a system which will pledge the United States, and indeed all who take part in it, to possibilities in the matter of action from which we are certain her people would shrink in horror and disgust if they understood them fully.
The machinery for carrying out the course we have suggested would be simple enough. All that would be necessary would be for the Powers, jointly and severally, to declare that if they entered into any treaty, they would either let that treaty run for the full time specified in the instru- ment, or else give a year's notice of its denunciation. The Hague Tribunal would perform the necessary judicial functions. It would decide whether or not a treaty had been broken. The enforcement of a Non-Intercourse Act by the Powers would not really be difficult. It would be war no doubt, but war without its horrors, or at any rate without its worst horrors. Who will assert that the application of the ban of thi civilized world would be lightly risked, or would fail to be effective if put is operation ?
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