regarded as justiciable, and therefore may only be made the subjects of examination by courts when all parties agree.

It will be instructive to examine through an illustration the difference now developed between the attitude of national and international courts. The young law student is told early in his career of the complainant who applied to the chancellor, saying that he and the defendant had been engaged in business together on Hounslow Heath; that in the conduct of their affairs they had accumulated certain watches, purses, and other articles of value; that these were in the possession of the defendant, who had refused an accounting, for which prayer was made to the court. If memory serves, the complainant and his lawyer were both sent to jail for contempt, and taught that no accounting between thieves would be granted by a court of justice, and that it was necessary always for the complainant to come into court with clean hands.

Assume that nations A and B agree that for the benefit of their respective nationals they will, by the use of navies and judicious suggestion of the use of armies and other forms of compulsion or corruption not in private life considered legitimate, obtain from nation Ĉ (the selection of the initial is purely fortuitous and need not be considered as indicative of any particular country) business and commercial concessions of great prospective value. Assume success in the undertaking. Assume that afterward a dispute should arise between nations A and B as to the division of profits under the agreement through which these benefits were obtained. The world court as proposed would interpret the agreement and divide the profits, and then stop. International law would not have recognized anything adherently wrong in the conduct of nations A and B, and the courts would recognize their limitations against trenching upon the "vital interests" or "honor" of the disputants.

Let us therefore examine and discover, if we may, what these things are which are so incapable of judicial determination that even courts may not ordinarily examine them.

First and foremost, we meet the question of the vital interests of the State. This is not capable of exact definition. It is what a State says it is in any particular instance. It varies with the size of the State. That which is not vital to Switzerland, it being a small country and incapable of enforcing its will upon others, may become vital in the opinion of the statesmen of Japan when she knows that by force of arms she may be able to compel other governments to accept her view. In other words, the connection between might and vital interests is a close one. The weak nation possesses no vital interest which may be maintained as against the strong nation. The theory of our national courts that they enable the poor man to prevent aggression on the part of the rich finds no place in this proposed international jurisdiction. When, therefore, in this regard we entertain the idea that an international court will be a protection, we find ourselves aided by nothing more substantial than the baseless fabric of a vision born from the use of the word "court."

But more specifically, what are the vital interests of a State? We are right if we say that they refer to little else than policies of aggression, historic perhaps,

that the State desires to pursue as against other countries or policies which find their roots in a fear of damage to be inflicted from the outside. Important, too, in creating these vital interests are the influences of the economically ruling classes in a country. If they have determined upon their selfish exploitation of particular countries controlled or occupied by weaker nations, they are often able to influence their governments to protect their capital invested or to be invested, and the selfish interests of the exploiters by a jugglery of language become the vital interests of the State. Tyranny, fear, and avarice are therefore the originators of practically every "vital interest" which may be named. Again we repeat these are the very things which courts are ordinarily given jurisdiction to check in our national field of action. The formation of courts, therefore, which are forbidden their consideration appears to confirm the sanctity of these illicit considerations.

Underlying all of these phases of vital interest is the fact that the State fears injustice from others or intends to preserve its own power of committing injustice. If all nations were to pool, as it were, their "vital interests" and submit themselves without reserve, under proper conditions of international law, to impartial courts, it would speedily be discovered that, so far as the immense mass of their citizenship was concerned, more had been gained by the apparent sacrifice than had been lost. We are brought again to the conclusion that, except by resolute acceptance of right dealing as between nations, all the paraphernalia of courts as so far proposed will lead to nothing, and that this study is one to be pursued in the first instance far outside the court

room.

We have as a next reservation that of honor. Internationally this offers a curious study.

It is not dishonorable internationally for a State to kill the inhabitants of another State, possess itself of their government and its property, subject such inhabitants to the slavery of debt, take away such private property as may seem desirable, use the lands of another State or its population as the base of attack upon a third State, indulge in any petty meanness in its customhouses or its waterways or railways to hamper the development of other countries to the advantage of a few of its own citizens, or to commit a tremendous number of other offenses born of selfishness or greed. All of these acts, in the eyes of the nation committing them, are permissible or even praiseworthy and do not indicate. a defective sense of morality or retarded intellectual development or outraged decency. They are all honorable and carry with them no condemnation judged by the standards of existing international law or practice.

The failure on the part of another nation to salute a flag, or the breaking of the shield of a consulate by a crowd of ragamuffins, may be an infraction of honor and lead to war. It is noteworthy, however, that this will never take place unless the nation whose honor is infracted is much stronger than that the nationals of which have committed the offense. If the nation furnishing the offense, in addition to being weaker, possesses commercial possibilities, the control of which would add to the wealth of the more influential classes in the larger one, the infringement upon honor becomes more serious and less capable of adjustment and im

MOST

By Dr. DE JONK VAN BEEK EN DONK

A NOTEWORTHY arbitration and conciliation agreement has been entered into between Switzerland and Germany. It was signed on December 3, but not published until lately. While the German signatory, Dr. Gaus, of the Foreign Office, is almost unknown abroad, Switzerland was represented by a celebrity, Prof. Max Huber, one of the judges of the League of Nations' International Court of Justice. The negotiations for the treaty in question are likely to be the learned professor's last service to his government, the statute for the court forbidding that members exercise any political or administrative function. What a dignified end of his successful home position, for the draft of the SwissGerman agreement was chiefly his own work, and it is in every respect the very best arbitration and conciliation agreement ever concluded between two States.

Even the preamble is carefully edited and very promising. It clearly expresses the two contracting parties' intention and willingness to "respect each other's independence and territorial inviolability," as well as to "mutually promote the peaceful and friendly relations

that have existed for centuries between the German and the Swiss people," and to "apply the reign of law as much as possible in their mutual relations." Further, the preamble emphasizes the parties' conviction that "in the case of conflicts unsuitable for judicial decision the advice of unbiased conciliators is a guarantee of peaceful settlement."

PROVISIONS OF THE TREATY

The treaty itself starts from the principle that any and every Swiss-German conflict not lending itself to diplomatic solution is to be submitted to an international institution, be it one of arbitration (jurisdiction) or of conciliation. This principle is identical with the one occurring in the League's Covenant with regard to conflicts between member States of the League. But whereas the Covenant does not make any obligation to the much more binding form of the two means of peaceful settlement-i. e., jurisdiction and arbitrationArticle 2 of the Swiss-German Treaty contains the obligation to jurisdiction or arbitration for all conflicts concerning the interpretation of a treaty, any question of international law, the existence of any fact which if established would constitute a breach of an international obligation, and, lastly, concerning the nature and extent. of the reparation to be made for such violation. These kinds of conflicts are tantamount to those enumerated in Article 36 of the statute for the Court of International Justice as being particularly fit for obligatory jurisdiction.

AS TO "HONOR" AND "VITAL INTERESTS"

In every single case the question, if a conflict comes under Article 2, is to be decided by the judicial body itself, which has also to decide whether a party is justified or not in proclaiming that a certain conflict "concerns the independence, the territorial integrity, or any other vital interest," and is not, therefore, to be submitted to the judge, but to the permanent Council of that a certain conflict is "primarily political," and hence Conciliation (Article 4). If one of the parties says unfit for exclusively juridical treatment, the judicial body may pronounce its submission to the Conciliation Council, provided at least four of the five judges are voting in favor of this interpretation. Many former arbitration treaties became more or less illusory by the flexible clauses of "honor" or "vital interests," which enabled a party unilaterally to withdraw certain conflicts from judicial decision. The Swiss-German treaty, by placing the final interpretation in the hands of the five judges, affords the possibility of forcing a party even against its will to resort to jurisdiction with the obligation to heed the decision.

THE ARBITRATION BENCHES

Article 6 deals with the composition of the arbitration benches. The five arbiters (judges) must be chosen from among the list of members of the permanent Hague Court of Arbitration. Each of the two conflicting parties appoints one of the five judges singly, while the three remaining ones are selected by both parties jointly. Thus a considerable degree of impartiality is assured. Should the parties be unable to agree upon the choice, the permanent Conciliation Court between Switzerland and Germany is called upon to nominate the judges as far as not agreed by the parties.

Article 5 prescribes that the judges must base their decisions on the general or particular international conventions existing between the parties, on international custom as evidence of a general practice accepted as law, on the general principles of law recognized by civilized nations. Wherever these three bases do not appear to be sufficient, the decision must be in conformity with what the judges consider ought to be a rule of international law. rule of international law. If both parties agree, the judges may be led in their judgments by considerations of equity instead of by principles of law.

SIMILAR TO BRYAN TREATIES

The Swiss-German Treaty demands for every single justiciable conflict the appointment of an arbitration bench ad hoc, but it creates a permanent Council of Conciliation for conflicts unsuitable for treatment by jurisdiction. In this respect it reminds us of the prewar treaties entered into at the instance of the American Secretary of State, William Jennings Bryan, with their permanent commissions of investigation. The new agreement happily combines the most valuable features of the older arbitration treaties with the best traits of the model Bryan conventions. In it nothing is missing to make it a highly probable instrument for the peaceful settlement of all conflicts whatsoever between the two parties. It is open to one objection only: its Conciliation Council does not make binding decisions, but restricts itself to recommendations which may or

may not be adopted by the parties after the prescribed waiting term, whereas the German Draft Covenant for a League of Nations (April, 1919) excluded every possibility of "violent self-help," as a permissible means of settlement, by declaring the Council's decisions absolutely binding upon both parties.

By concluding this new treaty the Swiss Government has taken the first step on the road of its future arbitration policy, as indicated in its message of December, 1919, to Parliament. It remains to be seen whether Switzerland will succeed in inducing her other neighbors to enter with her into similar agreements. At any rate, the Swiss-German treaty is a model worth imitating, mutatis mutandis, even between two parties both belonging to the League of Nations. One may well agree with Hans Wehberg, the prominent German authority on international law, if he emphasizes proudly and joyfully that the treaty in question, far from being "one out of many" merely, is indeed a milestone in the history of arbitration.

He adds rightly that "it proves by a deed the German Government's new tendency toward an honest policy of right." By its conclusion, Switzerland, too, a pre-war sinner, along with Germany, in the matter of international jurisdiction, does conform her new after-war spirit a good deal toward bringing about the future reign of international justice.

HOW IT GOES WITH THE TREATIES

Early in March, President Harding said that he would not "trade, lobby, admonish, or supplicate" for the ratification by the Senate of the treaties framed by the Conference on the Limitation of Armaments. He had gone to the Senate and stated his views as to what the treaties meant and what the reasons were for their ratification. With that he was done, other than to advise with the Senate leaders from time to time.

A day or two after this statement from the President, Secretary Hughes, who had been on vacation in Bermuda, returned to Washington. There were many who thought he would take charge of the fight for the treaties and infuse into it his dynamic force. But he said he would not; that he had done his part, and the responsibility now lay with the Senate.

That calm attitude, almost an aloof "take it or leave it" attitude, upon the part of the two great figures of the Administration in foreign affairs, furnished a marked contrast to the anxiety and nervous tension of the leaders in the Senate of the fight for ratification. Senator Lodge and his lieutenants have had many anxious hours, and, on the side of Democratic responsibility for the treaties, Senator Underwood has been scarcely less troubled. Both Senator Lodge and Senator Underwood believe all of the treaties will be ratified, but they recognize very genuine obstacles in their way before the Four-Power pact is given the sanction of the Senate. Generally, it is agreed that all save that part are safe in the Senate, but there is doubt as to the Administration's enthusiasm for the others, if the Four-Power pact is beaten.

The progress of that treaty in the Senate has been uncertainly up and down. When it was first announced in the Conference on the Limitation of Armament, and before it

reached the Senate, every indication was that it would be ratified by that body with only a very small number of votes in opposition. The statement of Senator Lodge, in presenting the treaty formally in the open session of the Conference, that it provided only for conference and had no military implications, was accepted at face value. Very soon, however, arguments that Article 2 was strikingly similar to Article 10 of the League covenant appeared. That lessened enthusiasm. Then came the statement from Secretary Hughes to newspaper correspondents, that the Japanese home land was covered. Another dampening of enthusiasm resulted, which was increased when President Harding said the Japanese home land was not covered, thereby creating doubt as to the real meaning of the treaty and the real understanding that should be had of it. With the adoption by the Conference of the supplement, excluding the Japanese home land, the adverse tide was checked. Later, the agreement upon the Naval Treaty created a wave of approval of the work of the Conference that seemed to sweep the FourPower pact along with it, and when the treaties were submitted to the Senate by President Harding the chances seemed somewhat better than ever for the instrument.

But very soon the opposition revived. A number of Republican Senators generally classed as stanch Administration, but members of the group known as the "Irreconcilables" in the League of Nations fight, manifested opposition, and it was apparent that unless their objections were removed the treaty's fate was gravely endangered. That situation was met by Mr. Harding and Senator Lodge in agreeing to what is known as the Brandegee reservation, which would put into the resolution of ratification, and thereby into the treaty, the substance of the statement made by the President when he appeared before the Senate, namely, that there is no commitment to armed force. Again, the prospects of the treaty seemed to improve.

There was a short period of good cheer among the advocates of the treaty. Additional encouragement came when the ballot on the first treaty to be voted on, those dealing with American rights under the Japanese mandate over the island of Yap, showed weakness in the fight made against that agreement. That led to hope among the Administration's friends that the opposition to the Four-Power pact was largely sound and fury and could not be translated into nearly enough votes to defeat ratification.

Another time of gloom came, however. Almost daily there were reports of losses for the treaty among the Democratic Senators who had been counted as favoring it. Stories that Mr. Wilson was opposed spread, although no reliable information as to his views was obtainable. Little doubt was had by most observers that Senator Underwood was not so successful as he and the Administration had hoped in bringing the Democratic Senators into line. All of the reports from the Democratic side indicated either that men who had been looked upon as certain to vote for ratification had definitely changed their minds or were wavering.

When formal debate in the Senate was started, the prevailing belief was that the opposition was within three or four votes of enough to defeat ratification. Some estimates put the number of Democratic Senators opposed to the treaty as high as 28. With Senators Borah, Johnson, La Follette, and France on the Republican side bitterly antagonistic, that Democratic figure, if correct or approximately so, obviously was at the very edge of the dead line.

As this is written, while the debate is raging, the evidence is that the opposition has not gained additional strength. The advocates of the treaty seem to be ahead by a small margin, and thus far the debate has not been such as is likely to influence doubtful Senators against the treaty. Senators like Reed, of Missouri, and Robinson, of Arkansas, have conducted a campaign designed to harass Senator Lodge, and have had considerable success; but while their maneuvers have been entertaining and the spectacle of the austere and reserved Senator from Massachusetts being relentlessly baited by skillful debators has awakened keen interest, it is doubtful that the tactics employed are calculated to make converts.

More danger is feared when Senator Borah settles to his main attack on the treaty. In the meanwhile Senator Lodge and his aids are working determinedly and desperately to make the Senate, and, more important, the public opinion of the nation, see that unless concord can be reached by the big nations having interests in the Pacific, through the instrumentality of the Four-Power pact, it may be doubtful wisdom for the United States. to reduce and limit its navy. Indeed, the supporters of the treaty have gone so far as to assert that the Four-Power pact is the key of the whole of the Conference results, and that its failure will mean failure of all the major work, including the Naval Treaty, to which there is little or no opposition.

Moreover, the supporters of the treaty state publicly and privately that there is no obligation upon the United States, under the Four-Power pact, other than to confer, and the point is made that the explicit statements to that effect from the heads of the government and from the American delegation write it into the treaty as a fact, of which all the other powers must take cognizance, even though the treaty itself were ambiguous.

The vote on the Yap Treaty, the only one thus far to be acted on finally by the Senate, was:

I understand that in the course of debate in the Senate upon the Four-Power Treaty questions have been raised with respect to its authorship. It seems to be implied that in some way the American delegates have been imposed upon, or that they were induced to accept some plan cunningly contrived by others and opposed to our interests. Apart from the reflection upon the competency of the American delegates, such intimations betray a very poor and erroneous conception of the work in connection with the Conference, no part of which-whether within or outside the Conference meetings-was begun, prosecuted, or concluded in intrigue. Nothing could be farther from the fact.

It is, of course, wholly inconsistent with the amenties of international intercourse that the informal and confidential suggestions and conversations incident to negotiations should be stated, but the Senate may be assured that a full disclosure of everything said or done in the course of the negotiations would reveal nothing derogatory to the part taken by any of the American delegates or involve any consideration or acceptance of any position not entirely consistent with the traditional policies of this government.

It should be remembered that the Four-Power Treaty dealt with a subject-the Anglo-Japanese Alliance-which, as an agreement between two powers competent to make and continue it, was not, and in the nature of things could not be, appropriately placed upon the Conference agenda. Technically, it was a matter outside the Conference, although the Conference furnished an excellent opportunity for conversations regarding it.

While I cannot, of course, undertake to state what was proposed or suggested in confidence by any of the delegates, I think it entirely proper to say that the negotiations relating to the Four-Power Treaty were conducted within limitations defined by the American Government. The views of this government as to the importance of the termination of the Anglo-Japanese Alliance had been communicated long before the Conference met, and it had also been clearly stated that this government could enter into no alliance or make any commitment to the use of arms or which would impose any sort of obligation as to its decisions in future contingencies. It must deal with any exigency according to its constitutional methods. In preparation for the Conference, the American delegates reviewed the matter thoroughly, and the entire course of the negotiations in connection with the Four-Power Treaty were in accord with these principles and, as I have said, within the limits which we defined. The treaty itself is very short and simple and is perfectly clear. It requires no commentary. Its engagements are easily understood and no ingenuity in argument or hostile criticism can add to them or make them other or greater than its unequivocal language sets forth. There are no secret notes or understandings.

In view of this, the question of authorship is uuimportant. It was signed by four powers, whose delegates respectively adopted it, all having made various suggestions.

I may say, however, with respect to the general course of negotiations, that after assent had been given by Great Britain and Japan that France should be a party to the agreement, I prepared a draft of the treaty based upon the various suggestions which had been exchanged between the delegates. This draft was first submitted to Senator Lodge and Mr. Root, as you were then absent on account of the death of your mother. After the approval of the American delegates who were here, the draft was submitted to the representatives of other powers and became the subject of discussion between the heads of the delegations concerned, and with a few changes, which were approved by the American delegates and which did not affect the spirit or substance of the proposed treaty, an agreement was reached. Immediately upon your return I went over the whole matter with you and the proposed agreement received your approval. I should add that, in order to avoid any misunderstanding, I prepared a memorandum to accompany the treaty with respect to its effect in relation to the mandated islands and reserving domestic questions.

At this stage, while it was not strictly a Conference matter, in order to insure publicity at the earliest possible moment, the treaty as thus agreed upon and before it had been signed was presented by Senator Lodge to the Conference in plenary session and its import and limitations stated. His statement met with the acquiescence of all.

The treaty as thus drawn and notified was deemed to embrace the main islands of Japan. Later, in view of the sentiment both in this country and Japan, it was deemed to be preferable to exclude these main islands and a supplementary treaty was prepared to this effect, which designated the islands of Japan which it was to include.

There is not the slightest mystery about the treaty or basis for suspicion regarding it. It is a straightforward document which attains one of the most important objects the American Government has had in view and is of the highest importance to the maintenance of friendly relations in the Far East upon a sound basis. As the President recently said, in his communication to the Senate, it is an essential part of the plan to create conditions in the Far East at once favorable to the maintenance of the policies we have long advocated and to an enduring peace.

In view of this, and in view of the relation of the treaty to the results of the Conference, its failure would be nothing short of a national calamity.

The nineteenth annual meeting of the American Group of the Interparliamentary Union was held Friday, February 24, 1922, at 10:30 o'clock, in the Caucus Room of the House Office Building, Washington, D. C., Senator William B. McKinley, President of the American Group, presiding.

The PRESIDENT: If the meeting will come to order, I shall ask the secretary to read the agenda and briefly to outline the work of the year just closed.

(The secretary distributed the following as the order of business for the meeting :)

Reading of the minutes. Report of the treasurer.

AGENDA

Report of the executive committee. Unfinished business.

New business:

1. Action relative to certain resolutions adopted at the Stockholm meeting.

2. Recommendations relative to the time and place of the annual conference this year.

3. Appropriation of $4,000 by the Congress.

4. Membership in our group.

5. The conference of 1923.

6. Co-operation with Canada and the other American States.

Election of officers:

President, three vice-presidents, secretary, treasurer, executive committee of nine, permanent executive secretary.

Miscellaneous business. Adjournment.

Secretary CALL: Mr. Chairman, I assume you wish me to give only the mountain peaks of the year's work.

The eighteenth annual meeting of the American Group was held February 24, 1921, at which meeting you elected officers. You also passed a minute of appreciation of the services of Dr. North, who because of illness was obliged to resign as executive secretary of the group.

There was a special meeting of the American Group on the 19th of May, 1921, at which meeting there was a special committee of five appointed to draft a reply to a communication from Lord Weardale, President of the Interparliamentary Union. At this meeting it was decided to hold another meeting of the group May 24, and to send a membership circular to all the members of the Congress.

There was a special meeting of the American Group on the 24th of May, Representative Montague presiding, in the absence of Senator McKinley. The meeting was addressed by Representative Burton. The communication drafted by the committee of five was adopted, as recommended by the committee and by the executive committee. The communication was as follows:

To The Council of the Interparliamentary Union, 14 Rue de l'Ecole Medicine, Geneva, Switzerland.

SIRS:

Please accept greetings from your fellow-members of the American Group, all of whom are pleased to know of the plans of our Council for the Nineteenth Interparliamentary Conference at Stockholm, August 17-19 of the current year. The gracious invitation of the Swedish Group, combined with the generous co-operation of the Swedish Government, leads us to feel that the resumption of our conferences will take place under circumstances as happy and propitious as could well be possible.

We have examined the "Agenda of the Conference," submitted under date of April 20, 1921, and we hasten to express our earnest hope and perfect confidence that our brethren will come again to a meeting of minds with reference to questions peculiarly within the historic province of the Union, questions relating principally to international law. The time, we believe, has not arrived when our Union can profitably discuss, much less decide upon, political or even economic questions which may give rise to disputes between States. The peaceful and judicial settlement of international controversies, so wisely and constructively discussed and advanced in the first and second Hague conferences, remains still the supreme opportunity of the Interparliamentary Union; so much so, indeed, that we of the American Group urge upon our co-workers of other nations: