The League of Nations

Great Britain's Views on Arbitration

THE GOVERNMENT NOTES.

What is described officially as " Observations of His Majesty's Government in Great Britain on the Suggested Programme of Work of the Sub-Committee on Security of the Preparatory Commission on Disarmament " constitutes a document of considerable importance, for it embodies a full statement of the considered views of the British Govern- ment on the questions first of arbitration and secondly of security agreements.

The Arbitration and Security Committee of the League is to meet at Geneva on February 20th, and it is in pre- paration for that meeting that the Government has thus defined its views. They are, of course, controversial in the sense that large sections of opinion in this country favour another policy than that to which the Government pins its faith. For that reason it is the more necessary that the Government's views should be understood, and it is therefore worth while summarizing here the main contentions in the British Note so far as regards Arbitration under the headings adopted in the Note itself. Disputes suitable (in some cases at any rate) for arbitration may be divided into (1) justiciable and (2) non-justiciable. The Note defines the former as those in which the parties are in conflict as to their respective rights, and the latter as those in which the dispute arises because there is a divergence of view as to the political interests and aspirations of the parties. It states the Govern- ment's view regarding each class of case as follows : I. JUSTICIABLE DISPUTES.

(a)- What is important in arbitration is the acceptance and execution of the decision rendered. At present arbitration treaties have no sanction but the force of world opinion, and the time is hardly ripe for adding the only effective sanction so far suggested, namely the use of force by other States not parties to the dispute in order to compel execution in case of need.

(b) Arbitration treaties are limited by " the extent to which public opinion in any particular country can be counted on to accept and carry out loyally a decision unfavourable to its own contentions."

(c) Most existing arbitration treaties contain reservations excluding from the scope of the treaty questions affecting the vital interests, the independence, or the honour of the Contracting States or the interests of third Powers. It may well be that this formula requires re-examination.

(d) The Optional Clause of the Permanent Court (whereby States agree in all cases to refer justiciable disputes to the Court) is open to objection because " in contracting an inter- national obligation towards another State a country must take into account the nature of its relations with that State. Obligations which it may be willing to accept towards one State it may not be willing to accept towards another. More progress is likely to be achieved through bilateral agreements than through general treaties."

II. NON-JUSTICIABLE DISPUTES.

(a) " Non-justiciable disputes are less suitable for sub- mission to a tribunal invested with the power of giving a binding decision. A procedure of conciliation is in such cases all that is at present possible."

(b) It is not possible to go further than Article XV. of the Covenant (which provides for conciliation by the 'League Council and leaves the parties free to fight in the last resort, unless the League Council is unanimous in its 'recom- mendations).

(c) The fundamental distinction between justiciable and non-justiciable disputes must be, emphasized. Treaties which provide for an appeal from the Conciliation Commission to the Permanent Court [as the ItalorSwiss Treaty and various others do] should be discouraged.

(d) Finally, Dr. Nansen's proposal for a general treaty whose signatories would undertake to refer non-justiciable disputes to a small body or committee invested with the power to give a binding decision, may be useful, if there are any States prepared to sign it.

" ALL-IN " ARBITRATION.

This statement of policy must be read in its relation to disarmament on the one hand and security on the other. The doctrine gaining increasing ground on the Continent of Europe is that for disarmament to become a practical proposition it is necessary to arrange for the peaceful settlement of all inter national disputes, not merely of some. That means submitting all such disputes to some form of pacific settlement, legal or justiciable cases normally going to the Permanent Court and non-justiciable cases being settled by arbitration, if concili- ation fails. The British Memorandum, it will be observed, assents to neither part of this proposition, and Great Britain still declines to undertake to have legal disputes settled by the Court or non-legal disputes by arbitration. With regard to legal cases, Lord Phillimore has recently stated convincingly iri the Spectator the case for sending all such questions as a matter of course to the Permanent Court. Twenty-eight nations have so far signed the Optional Clause, whereby they under- take to do this, and, though ratification is still required in some cases, the clause at present binds twenty States. Germany and France both have Bills providing for ratification before their respective parliaments.

THE GOVERNMENT'S RESERVATIONS.

With regard to non-justiciable disputes, it is to be observed that Great Britain appears to have gone back on the policy she supported at Locarno, for she there applauded France and Germany in their decision " to settle by peaceful means all questions of every kind which may arise between them," whereas the British Note declares that there are some political questions, even of a justiciable nature, which a State cannot agree unreservedly in advance to submit to arbitration. Elsewhere it is stated that non-justiciable disputes are un- suitable for submission to a tribunal capable of giving a binding decision. These objections, which appear—if they have any meaning at all—to leave the door open for war in the last resort, are equally difficult to reconcile with the resolution unanimously carried with the specific approval of Great Britain at the last League Assembly, declaring " that every pacific means must be employed to settle disputes of every description which may arise between States."

R6LE OF THE INTERNATIONAL COURT.

The two points regarding which the Note suggests the possibility of some advance are :— (1) The inclusion of the " vital interest and national honour " reservation in arbitration treaties. This, it is submitted, might be " re-examined " so far as it is a question of applying it to justiciable disputes.

(2) The inclusion in future treaties (of all types) of a clause making the Permanent Court of International Justice the final arbiter on the interpretation of the treaty.

As a whole, the Note is calculated, and no doubt intended, to thwart any proposal at Geneva for general arbitration agreements. In regard to security the Government stands for " regional Locamos."

A BOLDER POLICY WANTED.

The British Empire has arbitrated more questions than any other nation, so we have a right to be heard with some- thing more than sympathy. Yet we confess to a sense of disappointment in reading the Government's views on the prospects of international peace. Certainly it is better to be " sure not sorry " in picking our way through the tangled path of national prejudices and racial peculiarities that shall one day lead to arbitration and security, but we feel that the Government have been unnecessarily timorous in shoulder ing responsibilities de jure which we have to all practical purposes already accepted de facto. We might, for instance, have consented to sign the optional clause of the- Arbitration Treaty, and have lent a more powerful support to the Inter- national Court.