[13] I am greatly indebted to Professor A. A. Young for some of my economic information; but he is in no way responsible for any of my conclusions.
[14] Of course this is an over-statement. Germany produces about one-tenth of her consumption of copper.
[15] Or a period due to war, such as 1919-1920.
[16] See Hall, International Law (Seventh Edition), Chapter VIII, for an illuminating discussion.
[17] Such as the right of State A to cede territory to State B, notwithstanding the objection of State C to such a cession.
[18] See Moore"s Digest, Vol. VI, pp. 2-367.
[19] Such as the intervention in Greece in 1827 by Great Britain, France and Russia. See Hertslet"s Map of Europe by Treaty, Vol. I, p.
769.
[20] See the Message of President McKinley, April 11, 1898, Foreign Relations, 1898, p. 750 at p. 757.
[21] The Ethics of the Panama Question, Sen. Doc. 471, 63rd Congress, 2nd Session, p. 39.
[22] There is a reference to the _status quo_ in the General Report (Annex C, p. 181), which uses this language:
"There is a third cla.s.s of disputes to which the new system of pacific settlement can also not be applied. These are disputes which aim at revising treaties and international acts in force, or which seek to jeopardise the existing territorial integrity of signatory States. The proposal was made to include these exceptions in the Protocol, but the two Committees were unanimous in considering that, both from the legal and from the political point of view, the impossibility of applying compulsory arbitration to such cases was so obvious that it was quite superfluous to make them the subject of a special provision.
It was thought sufficient to mention them in this report."
[23] For the view that this includes acts of force, even in the absence of a state of war, see _infra_, p. 55.
[24] The other exception "when acting in agreement with the Council,"
etc., is not here material. It is discussed _infra_, p. 50.
{46}
CHAPTER VIII.
DOMESTIC QUESTIONS.
The treatment in the Protocol of so-called domestic questions aroused a great deal of discussion not only at the a.s.sembly, last September, but since the adoption there of the text.
It may be remembered that there was a similar public discussion at the time of the drafting of the Covenant; in that doc.u.ment[1] a domestic question is defined as "a matter which by international law is solely within the domestic jurisdiction" of a State.
Among instances of domestic questions which have been mentioned from time to time, perhaps the two most commonly referred to in this country are the tariff and immigration. Of course it has been pointed out very often that even such questions as these, however inherently domestic, may become international as soon as they are made the subject of a treaty, as they so frequently are. It should be added that almost any question, no matter how "domestic" in its nature originally, _may_ become the subject of international cognizance by virtue of a treaty.
There are many treaties of the United States which have related to such questions as the inheritance of land, the right to administer the estates of decedents, etc.; a very recent instance is a treaty between this country and Canada regarding the protection of migratory birds, a treaty which has been upheld as valid by the Supreme Court.[2]
None the less, the absolute right of a country to regulate these matters in its own discretion must be recognized as a matter of strict law. Any country, in the absence of treaty, may, at its pleasure, exclude foreigners from entering into its territory, for example. I think no one questions this.[3]
However, as a matter of fact and as a result of the development of the world"s commerce, there is hardly any such question which remains exclusively domestic. For example, even in our {47} drastic Immigration Law of 1924,[4] there are various treaty rights of entry into the country for the purposes of commerce and so on which are expressly and in terms saved by the statute. Furthermore, there is, I suppose, hardly a country in the world which does not have various most-favored-nation treaties which directly affect tariffs.
Again, modern developments necessitate the extension of international discussions and agreements to matters previously undreamed of; the erection of wireless stations near frontiers is a very practical instance; there must be some kind of agreement to prevent jamming in the air. The negotiations about the opium traffic have gone to the length of discussions as to what areas in certain regions should be planted with the poppy; a more essentially domestic question than the crops to be grown within a country could hardly be imagined.
In my opinion, the Protocol follows the Covenant in its treatment of these domestic questions and goes no farther. The Covenant provides that if, upon reference to the Council, it is found that a dispute arises "out of a matter which by international law is solely within the domestic jurisdiction," the Council shall report to that effect and shall not even make a recommendation as to its settlement (Article 15, paragraph 8). In practice the Council will doubtless refer this question of law to the Permanent Court for an advisory opinion.[5]
The Protocol (Article 5, paragraphs 1 and 2) continues this provision and applies it also to any arbitration which takes place by its terms.
It is provided that if one of the parties to the dispute claims that the dispute "or part thereof" arises out of a domestic question, the arbitrators must take the advice of the Permanent Court on the point.
The opinion of the Permanent Court is binding on the arbitrators and if the Court holds that the matter is "domestic," the power of the arbitrators to decide {48} the question is at an end and they are confined merely to recording the Court"s opinion.
The further provision of Article 5 on this question is the last paragraph of that Article, which reads as follows:[6]
"If the question is held by the Court or by the Council to be a matter solely within the domestic jurisdiction of the State, this decision shall not prevent consideration of the situation by the Council or by the a.s.sembly under Article 11 of the Covenant."
So far as this provision goes, I do not think that it adds anything to the effect of Article 11 of the Covenant. The matter would stand precisely where it does now, even if this last paragraph of Article 5 of the Protocol had been omitted.
Under Article 11 of the Covenant, both the Council and the a.s.sembly have the right to consider any circ.u.mstance which threatens to disturb international peace. This does not mean any right of decision or even recommendation in any binding sense. What it does is to give to the Council or to the a.s.sembly the privilege of attempting, by friendly offices, to avert war.
To my mind there is nothing very new in this; indeed, it is rather inherent in the idea of any international a.s.sociation for the prevention of war. After all, there is no doubt that these so-called domestic questions have their international repercussions. The case that was put by way of argument at Geneva was the control of the quinine of the world by the Dutch, which is said to be practically absolute. What would happen if the Dutch put an embargo upon the exportation of this drug? It would be idle to say that such an act, legal as it would be in the strict sense, would not have a profound effect upon civilization generally. Under Article 11,[7] such an act could be discussed before the Council with a representative of the Dutch Government present, in an effort to obtain some adjustment, some change in what had been done; but that would be all.
In 1898, the United States went to war with Spain over what {49} was, technically at least, from the point of view of Spain, a domestic question, namely, the internal situation in Cuba. Shortly before hostilities broke out, the six then Great Powers of Europe addressed to the United States a friendly note in the matter, to which this Government replied.[8] In principle, I cannot see any difference between such diplomatic correspondence and the discussion of the matter by the Council of the League, a discussion to which presumably Spain and not the United States would have been the party to object, for the question was a Spanish domestic question of which we were complaining.
There are other aspects of the treatment by the Protocol of domestic questions, in connection with the Covenants against War, and with Aggression, under which headings it will be discussed.[9]
[1] Article 15, paragraph 8.
[2] Missouri _v._ Holland, 252 U. S., 416.
[3] See Moore"s Digest, Vol. IV, p. 67, _et seq._, also p. 151, _et seq._
[4] Act of May 26, 1924.
[5] As in the case of the Tunis and Morocco nationality decrees, Advisory Opinion No. 4, February 7, 1923.
[6] This is one part of the so-called j.a.panese Amendment, as to which see _infra_, p. 64, _et seq._
[7] of the Covenant.
[8] Foreign Relations (U. S.), 1898, pp. 740-741.
[9] See _infra_, p. 50 and p. 54. Also "The j.a.panese Amendment," p. 64.
{50}
CHAPTER IX.
COVENANTS AGAINST WAR.