Evening star., 1928-03-16
KELLOGG BACKS ANTI-WAR PACT
BUT BARS MILITARY ALLIANCE
Multilateral Treaty Defended In Dis
cussing BRAND Stand-Calls U. S.
Firm for Arbitration.
Article 8 provides that

"All differences relating to interna-
| tional matters in which the high con-
| tracing parties are concerned by
virtue of claim Of right made by one
against the other under treaty or other
| wise. which it has not been possible to
| adjust by diplomacy, which have not
been adjusted as q result of reference
| to the aforementioned Permanent In
| ternational 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 Per-
manent Court Of Arbitration established
at The Hague by the convention Of
| October Is, 1927. or to some other
| competent tribunal, as shall be decided
| i'll 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 l do not know of a single case
where the Senate has refused to con-
sent to any special agreement of arbi-
| tration.
Article excludes from arbitration
| under the treaty disputes the subject
matter OF which is within the domestic
jurisdiction of either of the parties, in
volyes the interests of third parties. de-
pends upon or involves the maintenance
of the Monroe Doctrine. and depends
| upon or involves the observance OF the
obligations of France under the Cove
nant 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 practical matter, therefore, I do
| not feel that the general applicability
OF the new treaty is materially restrict
ed by the four clauses of exclusion. The
Root treaty which it supersedes con-
tanned 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 arbi-
tration treaty Of 1903 and represented
necessary IS 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, de-
cided to eliminate them and to specify
with particularly the questions ex-
cluded from arbitration. In this re-
spect the new treaty is a much more
satisfactory and practical instrument
for the adjustment of justiciahae inter-
national controversies. and 1t is only
justiciable questions that are suscep-
tible to arbitration.
Scope of Arbitration.
do not agree with the pronounce
nlent Of many organizations and pub
licistS engaged In the discussion of in
ternational arbitration to the effect that
every question between nations should
be arbitrated. This is very simple and
ali-incluSive formula, but it will not
stand the test of careful examination,
and never has and never can be uni
yersally adopted. Let us consider for
moment what questions are suscep-
tible of arbitration and can be submit
ted by nations to the decision Of an in
| ternational court.
4
questions as can be arbitrated between
citizens of the United States or SUBJ
mitted to the decision of a local court
under our form of government: that is
| 10 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 arbi-
| trated because there are no principles
| OF Law by which It can be decided, and
/ unless there are relevant treaty pro-
| visions requiring construction. no nation
can agree TO arb!trate purely domestic
questions like tariff, taxation. immigra-
| ton, and, it may be said, all political
questions involving the exercise of SOW
ereignty within the nations territorial
| limits There are no positive rules OF
international law applicable TO such
questions 10 guide arbitratoys In reach
| ing a decision.
| I am confident that the enthusiastic
supporters of the theory that all ques-
| tons between nations should be SUBJ