ADDRESSES OF THE HONORABLE FRANK B. KELLOGG, SECRETARY OF STATE

THE WAR-PREVENTION POLICY OF THE UNITED STATES1

Mr. CHAIRMAN: It has been my privilege during the past few months to conduct on behalf of the Government of the United States negotiations having for their object the promotion of the great ideal of world peace. Popular and governmental interest in the realization of this ideal has never been greater than at the present time. Ever since the World War, which spelled death to so many millions of men, spread desolation over so much of the Continent of Europe and shocked and imperiled neutral as well as belligerent nations, the minds of statesmen and of their peoples have been more and more concerned with plans for preventing the recurrence of such a calamity. Not only has the League of Nations been preoccupied with studies of security and world peace, but members of the League of Nations have concluded additional special treaties like those signed at Locarno in 1925, and recently at Habana the United States and 20 other American States, including 17 members of the League of Nations, expressed by formal declaration their unqualified condemnation of war as an instrument of national policy, and agreed to call a conference to draft appropriate treaties of compulsory arbitration.

The Government of the United States will never be a laggard in any effective movement for the advancement of world peace, and the negotiations which I have recently been carrying on have grown out of this Government's earnest desire to promote that ideal. They have had a dual character, having been concerned in part with the framing of new arbitration treaties to replace the so-called Root treaties, several of which expire by limitation this year, and in part with the antiwar treaty which M. Briand proposed to me last summer. I welcome the opportunity which you have afforded me to express before this audience my views on these questions and to explain the objects and aims of the Government of the United States with respect thereto.

In the first place it should be clearly understood that the treaty of arbitration which was signed last month with France has no

1 Address delivered before the Council on Foreign Relations, at New York City, March 15, 1928. 57

relation whatsoever to the proposal submitted by M. Briand for a treaty declaring against war and renouncing it as an instrument of national policy. It is true that the preamble to the arbitration treaty recites that France and the United States are "eager by their example not only to demonstrate their condemnation of war as an instrument of national policy in their mutual relations, but also to hasten the time when the perfection of international arrangements for the pacific settlement of international disputes shall have eliminated forever the possibility of war among any of the powers of the world," but a preamble is not a binding part of a treaty. If war is to be abolished it must be through the conclusion of a specific treaty solemnly binding the parties not to resort to war with one another. It cannot be abolished by a mere declaration in the preamble of a treaty. Even though without legal effect, however, a formal expression of the peaceful aspirations of the Governments and their common desire to perfect a mechanism for the pacific settlement of justiciable disputes, such as that found in the preamble of the arbitration treaty, is, I believe, very helpful since it publicly defines the positions of the two Governments in a matter the importance of which is hard to exaggerate.

The arbitration treaty itself I regard as a distinct advance over any of its predecessors, and I hope it can serve as a model for use in negotiations with other governments with which we have no present arbitration treaty or where the existing Root treaties shortly expire. I have already instituted negotiations with the British, German, Italian, Japanese, Norwegian, and Spanish Governments on the basis of the draft treaty which I submitted to France last December, and I have indicated to all inquiring governments that I shall be pleased to conclude with them new treaties similar to that recently signed with France. If a comprehensive series of such bilateral treaties can be put into effect between the United States and the other nations of the world, I feel that a very effective mechanism for the pacific settlement of justiciable disputes will have been established. I attach such importance to the treaty just concluded with France that I shall discuss its provisions briefly before proceeding to a discussion of the correspondence which has been exchanged with France on the subject of the so-called Briand proposal

Article 1 of the new arbitration treaty contains the language of the first paragraph of the first article of the Bryan treaty of 1914 providing for investigation and report by a permanent international commission of all disputes not settled by diplomacy or submitted to arbitration. My purpose in including this reference to the Bryan treaty was to recognize anew the efficacy of the procedure established under the Bryan treaties and to unite by reference in one document the related processes of conciliation and arbitration. The force and

effect of the Bryan treaty with France has in no sense been impaired by the new treaty, nor was it intended that it should be. This is the understanding of both Governments and notes to that effect have been exchanged. So far as the legal effect of the new treaty is concerned, Article 1 could be left out entirely and mention of the Bryan treaty made only in Article 2 where there is reference to the conciliation procedure under that treaty.

Article 2 provides that—

All differences relating to international matters in which the high contracting parties are concerned by virtue of a claim of right made by one against the other under treaty or otherwise, which it has not been possible to adjust by diplomacy, which have not been adjusted as a result of reference to the above-mentioned Permanent International Commission, and which are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity, shall be submitted to the Permanent Court of Arbitration established at The Hague by the convention of October 18, 1907, or to some other competent tribunal, as shall be decided in each case by special agreement, which special agreement shall provide for the organization of such tribunal if necessary, define its powers, state the question or questions at issue, and settle the terms of reference.

It also contains a clause providing that the special agreement must in each case be ratified with the advice and consent of the Senate. This is the usual practice in the United States and I do not know of a single case where the Senate has refused to consent to any special agreement of arbitration.

Article 3 excludes from arbitration under the treaty disputes the subject matter of which is within the domestic jurisdiction of either of the parties, involves the interests of third parties, depends upon or involves the maintenance of the Monroe Doctrine, and depends upon or involves the observance of the obligations of France under the Covenant of the League of Nations. It is difficult for me to see by what claim of right any government could properly request arbitration of disputes covered by these exceptions since few, if any, would present questions justiciable in their nature. As a practical matter, therefore, I do not feel that the general applicability of the new treaty is materially restricted by the four clauses of exclusion. The Root treaty which it supersedes contained a clause excluding from its scope questions affecting "the vital interests, the independence or the honor" of the contracting states. This clause was borrowed from an Anglo-French arbitration treaty of 1903 and represented the reservations generally regarded as necessary 25 years ago. Arbitration has repeatedly proved its worth since then, and inasmuch as such vague and all-inclusive exceptions can be construed to cover almost any substantial international dispute and might well operate to defeat the very purpose of an arbitration treaty, I decided to eliminate them and to specify with particularity the questions

excluded from arbitration. In this respect the new treaty is a much more satisfactory and practical instrument for the adjustment of justiciable international controversies, and it is only justiciable questions that are susceptible to arbitration.

I do not agree with the pronouncement of many organizations and publicists engaged in the discussion of international arbitration to the effect that every question between nations should be arbitrated. This is a very simple and all-inclusive formula but it will not stand the test of careful examination, and never has and never can be universally adopted. Let us consider for a moment what questions are susceptible of arbitration and can be submitted by nations to the decision of an international court. They are exactly the same kind of questions as can be arbitrated between citizens of the United States or submitted to the decision of a local court under our form of government; that is to say, they are questions arising under contract or under the law of the land. Applying this analogy in international relations, we find that the questions which are susceptible of arbitration or impartial decision are those involving rights claimed under a treaty or under international law. A political question cannot be arbitrated because there are no principles of law by which it can be decided, and unless there are relevant treaty provisions requiring construction, no nation can agree to arbitrate purely domestic questions like tariff, taxation, immigration, and, it may be said, all political questions involving the exercise of sovereignty within the nation's territorial limits. There are no positive rules of international law applicable to such questions to guide arbitrators in reaching a decision.

I am confident that the enthusiastic supporters of the theory that all questions between nations should be submitted to arbitration have not realized the vital difference between justiciable and political questions. Take, for example, the question of immigration which at times arouses bitter feelings between nations. On what principle could a government arbitrate this question, and what rules could be applied to guarantee justice to the disputants? It seems to me we must realize that so long as the world is composed of separate, sovereign nations, only those questions can properly be submitted to arbitration which, being justiciable in their nature, are susceptible of determination by the application of recognized rules of law or equity. Non-justiciable or political questions must, if they threaten to bring on hostilities, be adjusted through other means, such as conciliation, where a disinterested effort is made to reconcile conflicting points of view without finding necessarily that either party was in the wrong.

It is when arbitration cannot or will not be invoked by the parties that conciliation treaties have their greatest value for adjusting

international irritations tending to inflame public opinion and imperil the peace of the world. One of the first of our treaties establishing a procedure for conciliation was the so-called Knox treaty of 1911. That treaty, which was also a treaty of arbitration, was never proclaimed by the President because of certain reservations attached by the Senate in advising and consenting thereto. These reservations, however, did not affect the conciliation provisions of the treaty and need not be discussed in this connection. Our next conciliation treaties were the Bryan treaties to which I have already referred. The first of these was signed in 1913 and there are 18 of them now in force. In 1923 we became parties to two other conciliation treaties, namely, that signed at Washington on February 7, 1923, between the United States and the five Central American Republics, and that signed at Santiago on May 3, 1923, between the United States and 15 Latin American countries. Both of these treaties have been ratified by the United States. They are similar to the Bryan treaties, the principal point of difference being as to the manner of constituting the commissions of inquiry.

The Bryan treaties provide, you will recall, that any dispute shall, when ordinary diplomatic proceedings have failed and the parties do not have recourse to arbitration, be submitted for investigation and report to a Permanent International Commission composed of five members, two of whom, a national and a non-national, being designated by each of the two Governments, and the fifth member by agreement. The commission is bound to report within a year from the date on which it takes jurisdiction of the case, and the parties agree not to resort to any act of force prior to the commission's report, reserving, however, full liberty of action with respect to the report itself.

The United States has been a party to conciliation treaties for 15 years, and while there has never yet been an occasion for invoking them, I know of no reason why this country should object to an inquiry by a commission of conciliation if war is threatened. It is claimed in some quarters that purely domestic questions might be inquired into by these commissions of conciliation. While I cannot conceive that any government would feel justified in demanding an inquiry by the commission into a matter solely within the domestic jurisdiction of another government, I do not feel that the point is material. The object which is sought to be attained by conciliation treaties is the prevention of war, and in my opinion any government can well afford to submit to inquiry any question which may threaten to involve it in the horrors of war, particularly when, as in the Bryan and other treaties I have just mentioned, the findings of the com