The Optional Clause I T was generally assumed that if a
Labour Government came into power they would sign without delay the Optional Clause in the Statutes of the Permanent Court of International Justice. Labour is in power, and, strangely enough, there seems to be some doubt whether the clause will be signed without considerable delay.
A certain amount of tune is, no doubt, required for the elastic process which is called " consulting the Dominions." Of course, the Dominions must be con- sulted ; the signature of Great Britain would be meaningless unless it were accompanied by the signatures of all the Dominions. But we cannot help thinking that the approval of the clause which has already been expressed by Canada would quickly be forthcoming from all the other Dominions if the Govern- ment pointed out strongly that the general peace greatly depends upon the exaltation of the functions of the Permanent Court. The promotion of the dignity and usefulness of the Court means the reign of law, and the reign of law means the diminishing of war in the exact degree in which law really does reign. We cannot under- stand how it is that those who may have had genuine doubts about the wisdom of signing the Optional Clause before the Peace Pact was accepted have not found their doubts dissipated, now that the Peace Pact is the moral rule of the world.
At present the Permanent Court is without full powers. It is like what a Court of Law in this country would be if litigants came to it only when they agreed to do so.
We should all have a poor opinion of the value of our Courts if a man who had assaulted another, or who had interfered with his neighbour's water supply, could not be brought to justice unless he consented to come. But it may be said, " Are you not comparing totally dis- similar things ? What, after all, is international law ?
Is there such a thing at all ? " The answer to such objections is, we think, that every kind of law, including international law, has within it the capacity for growth and adaptation. If we treat international law as a fixed thing with doubtful or non-existing " sanctions "- that is to say, without any certain power of enforcement behind it—we shall never advance towards making law prevail over war.
The " Optional Clause " is a cloudy phrase for most people. They know little more about it than that it has been said to involve many " risks " for the Empire. They may even be confused by the apparent paradox that what is called voluntary really conunits the signa- tories to compulsion. A little retrospection and explana- tion are, therefore, desirable. The Commission appointed by the Council of the League to frame a scheme for the Court tried to give the Court control over such matters as a judge would decide in an ordinary national court.
When, however, the draft scheme was brought before the League at Geneva, several States, including Great Britain, watered down the jurisdiction of the Court till it applied only to cases which parties agreed to refer to it. It is necessary to add, however, that the not unimportant addition was made that the Court should have jurisdic- tion over " all matters specially provided for in treaties and conventions in force." In other words, if two States had agreed by treaty to refer their disputes to the Per- manent Court one State could have the other State cited. In no other cases was the Court to have juris- diction properly so called.
The inventors of the Optional Clause came to the rescue of the Court thus mutilated. The Optional Clause reads as follows :— " The undersigned, being duly authorized thereto, further declare, on behalf of their Government, that from this date they accept as compulsory, ipso facto, and without special Convention, the jurisdiction of the Court in conformity with article 36, paragraph 2, of the Statute of the Court, under the following conditions . . • The word " conditions " leaves room for reservations, several of which are possible, and, in our opinion, desirable, without in any way wrecking the usefulness of the Court. Every nation has peculiar aspects of its Constitution which it is right to protect. For instance, in the case of the British Empire no one in this country would desire that disputes between any of the Dominions and Great Britain should be brought before an international Court. Such disputes would be a family matter, to be settled by the private means that are open to friends and rela- tions. Again, it might be thought necessary for Great Britain to safeguard herself against interference with the Prize Courts. Lord Phillimore came to the conclusion that fears for the Prize Courts were groundless and that no reservation was necessary. " On principle," he said, " the Court must recognize the decisions of Prize Courts."
When all reasonable reservations had been made, the extension of functions which the Permaneat Court would derive from a general signing of the provisional Clause would be enormous. States which had not signed the Optional Clause could not be brought before the Court, but for the signatories there would be jurisdiction as valid as that in an ordinary national Court of law.
We have not much patience with the argument that we should be risking too much in signing the Clause. It is true that the Anglo-American school of legal thought might find itself in conflict with, and in danger of being swamped by, the Continental school of thought. We rate so high the character of English law and its deriva- tive, American law, that we admit that this danger looks formidable, but a consideration of it only brings us back to the reflection that, unless risks are accepted, International Law will not grow and become definite. There will be no progress. There must always be a choice of risks. We have to choose between lesser tech- nical risks and the enormous risk that if we do not lend ourselves to the promotion of the prestige and the duties of the Permanent Court, we shall be regarded with permanent and universal suspicion by smaller States. They will go on saying that we are not really in earnest when we declare that we have abandoned war as an instru- ment of policy, because we are not willing to accept as a matter of course the only practical alternative to war. Hesitation to sign the Optional Clause is particularly misplaced because, as a matter of fact, under the Covenant a unilateral application to the Council of the League by a disputant can bring the whole machinery of the League into action against an offending State. In the last resort, therefore, all precautions against the so-called risks would be useless.
It was a great pleasure to read in the Times of Monday a letter in support of the Optional Clause, by Sir Frederick Pollock, who, in his eighty-fourth year, is able to write with unabated vigour and wit. He said :- "Absolute law is a figment of lay people, who do not know, what any lawyer can tell them, that a law-book 20 years old is largely out of date even without counting statutory innovations. Construc- tive interpretation is the life of the law, certainly of our own Common Law, and a legal system no longer capable of growth is dead. So we come round to the question that really matters. Can the Permanent Court be trusted to develop its law on sound lines in a course of ministering justice truly and indifferently ? Its performance, in my humble opinion, is already good warrant that it can."
Previous page
