QUESTION OF JOINING WORLD COURT IS OF TRIVIAL IMPORTANCE, DECLARES BORCHARD

The CRIMSON prints today the comments of E. M. Borchard, a member of the opposition to the widespread movement for American participation in the World Court, a cause recently emphasized by the inauguration of an intercollegiate campaign among undergraduates throughout the country.

Last week an article by Professor Irving Fisher of Yale, calling upon America to "back up the President" and join the World Court was published; today are printed the critical arguments of another Yale professor. Counsel for Permanent Tacna-Africa Arbitration, and a former Assistant Solicitor in the Department of State, Professor Edwin M. Borchard of the Yale Law School analyzes the World Court and attempts to refute the arguments of the proponents of American adherence. The article, published by courtesy of the Yale news, follows.

Arguments Advanced for Joining

We are informed by the advocates of our "joining" the court that the new international court is a cherished American ideal; that is substitutes a judicial court for ephemeral and temporary arbitral tribunals; that it substitutes adjudication by law for adjudication by force, and decision by law for decision by compromise; that the issue is between those "who want to set up machinery for the settlement of international disputes according to law and those who in disdain of all effort would continue the present anarchic state, that the new international court is urgently needed if peace is to be assured, and that by staying out we are blocking the world's efforts for peace; that it is either this world court or none; that we would be under no obligation to submit to the court any dispute we desired to keep from it; that the court has no serious connection with the League of Nations; and that we would make reservations expressly entering a caveat against any association with the league.

Fear Entanglement With League

The opponents of our "joining" the court assert the court is the child of the league and the step proposed would inevitably draw us into other commitments to the league; that it is intended by some of its proponents as an entering wedge to the league; that the jurisdiction of the court is not obligatory; and that the strongest nations were the first to denounce the obligatory clause; that there is no provision for the enforcement of its decisions; that other nations can numerically outvote us in the assembly in the election of judges; and that to visualize the court as an agency for peace is an illusion.

The arguments thus advanced on both sides indicate that the issue has become political in nature. While that is neither avoidable nor to be deprecated in a democracy, it has a tendency to becloud the issue by generating waves of emotional morality which confuse rather than enlighten. It is believed that an analysis of the problem in the light of the professions of both sides may serve a useful purpose.

Underlying the arguments of the proponents of our "joining" the so-called world court runs the major assumption that the court would furnish a substitute for war, at least in part; that nations desire a court of this kind for the settlement of their disputes, and that the creation of the new court invites the nations to submit their differences for peaceful adjudication.

On the issue whether the court will furnish a substitute for war, it is well to examine the actual jurisdiction of the court, as provided in its statute. As is well known, its jurisdiction is limited exclusively to legal questions; over political questions the court has no jurisdiction. It is also well to remember that the Council of the league, when they received the report of the Committee of Jurists which recommended obligatory jurisdiction of the legal issues mentioned promptly struck out the provision for obligatory jurisdiction. The larger Powers were still unwilling to submit automatically the most legal of questions to judicial determination. The obligation to submit was left optional, and fortunately some fifteen smaller nations on condition of reciprocity, have ratified the optional clause. It may be hoped that the practice will prove contagious. Thus far the clause has not yet been invoked in a practical case.

Quotes Professor Hudson

But more important still is the fact that the issues that have led to war between nations are rarely purely legal in character. They are political and economic, of a type which law cannot yet reach, and it is precisely these questions over which the court has no jurisdiction. Professor Hudson, one of the most ardent advocates of the League and the court, admits in his recent book that "It is chiefly with reference to non-juridical questions that nations are likely to fight. For the most part, the kind of case that comes before the courts, the kind of case that has come before the Permanent Court of Arbitration, for instance, is not the kind of case which leads to war"; and again, "It is true that the larger political questions about which nations might go to war will not generally come before the court." The assertion sometimes heard that the opponents of America's "joining" the court are obstructing the "world's peace" deserves reexamination.

Nations Not Bound by Court

In view of the limited jurisdiction of the court, consisting of what have been termed justiciable or strictly legal questions, the reluctance of the larger Powers to make jurisdiction in these cases obligatory is to be regretted. It is an indication of the fact that we are still a long way from the substitution of amicable for belligerent methods in the settlement of international disputes. One of the necessary weaknesses of the court consists in the very fact that it is not likely to prove an effective agency in removing for a long time to come the bane of war from the recognized institutions of international relations. This weakness goes to the very root of international relations in what I venture to call this socially backward age. No mere addition of machinery can create that necessary will to peace which is the best guaranty of the efficacy of an international court.

Would Not Submit Important Questions

Perhaps Locarno is a symbol of the realization of this fact. The unwillingness to submit to judicial settlement is conditioned by underlying factors inherent in the existing international system, which persuades nations to decline to submit what they consider important issues to the arbitration of impartial judges. Note the almost universal exception of questions of national honor, independence and vital interests, from arbitration treaties. The judicial process is weakened by a stipulation that there shall be no submission of anything important.

On the other hand, it must be said that the Permanent Court has thus far done its work well. While confined almost entirely to the interpretation of the treaties of peace and the arrangements effected under them, and while oc- cupied principally with advisory opinions, it nevertheless has demonstrated its usefulness. The advisory opinion, though not involving strictly a judicial function, has been arrived at with all the thoroughness and technique of a judicial proceeding. Though there still seems to be some support in the court for the secret opinion and the decision of cases where the defendant is absent, it is believed that the court will hardly thing of adopting these objectionable practices.

No Will for Peace

Unfortunately the common assumption that the nations seriously desire an international court for the settlement of their disputes, is not altogether well founded. Nations desire an international tribunal and have had no difficulty in establishing one ad hoc when the occasion arises, when the dispute is unimportant or would not justify the expense of war, or when political considerations dictate submission to arbitration rather than recourse of war--in short, when they feel that they have more to gain by arbitration or other forms of peaceful settlement, such as mediation, than by war. The hundreds of arbitration that have been held illustrate this fact. But when the issue is such that peaceful adjustment seems inappropriate or inadvisable, the peaceful method is not chosen, not because there is no machinery for peace, but because there is no will to peace.

Forces of Disintegration Rising

If I judge correctly the temper of the world--at least down to Locarno--there is probably less disposition to adopt the civilized methods of adjusting conflicting interests than there has been for some time. Few people realize or are willing to contemplate the fact that eleven years of devastating was and disintegrating peace have undermined the moral foundations of many densely populated areas of the world, and that there is more faith in the efficacy of force -- accompanied by a growing contempt for law--as a solution for international differences than there has been since the days of Napoleon. The forces of disintegration, unless soon checked, may ultimately overpower the forces of reconstruction, due primarily, I believe, to the shortsighted policy of the present managers of European political affairs.

Peace Argument Unreal

In the light of the fact that the so-called World Court can have but little relation to the problem of peace, the issue as to whether the United States should not "join" it or not can hardly be placed on the ground that peace will thereby either be promoted or retarded. That issue, I believe, is unreal and fanciful. Perhaps we ought to aid any movement that even looks to the judicial settlement or disputes, but when one of the announced inducements for our joining the court is that we would never have to submit a case to it, encouraging an inference that probably we never would, one may properly question the purpose that it is intended that our joining shall subserve. Is it merely to encourage others to submit to the court? Is it just a sentimental question without possibility of any tangible effect on us? Is this the cherished American ideal?

No Real Value in Adherence

Persons having a serious desire to govern their actions by intelligence rather than emotion have a right to ask such questions. Can it be that the political platform which so long dedicated a plank to the conception of an international court contemplated a court to which we would never have to submit a case? We have such a court now in the Permanent Court of Arbitration, and to it we have submitted four substantial controversies. Would we submit any more cases to a court over whose composition for years to come we would probably have no say? If this is not likely, as is believed, just what important function is our joining the court designed to subserve? If it will not bring to the court any more cases, is it intended as a friendly gesture, as an evidence of our moral support to nations having greater desire or courage to submit disputes?

A Question of Policy

Or is the charge of the more vigorous opponents of our "joining" the court sustainable, namely, that it constitutes as Mr. Hoover intimated and President Harding denied, a first step toward the League of Nations? If it does involve such a possibility at least there is here a genuine issue as to policy. Although the court is the direct creation of the league and depends upon the league budget for its support, it may be that it is so far dissociated from its organization that adhering to the protocol creating the court, as the administration spokesmen have asserted, will involve no other commitments to the league. Yet the fact that so many professional and non-professional advocates of the league are so ardently enthusiastic for our "joining" the World Court, of whose real functions some of them appear to have only vague information, may afford some ground to the opponents of the league to support that the advocates of the court are mainly concerned with its function as a door to the league.

Profound Consideration Needed

Unless it has some such significance, the issue is most unimportant; and many earnest students of foreign affairs, men like Senator Borah, have expressed the firm conviction that our adhering to the protocol creating the court can have no other purpose or effect than affording an entrance to the league. It is doubtless partly on that very account that the proposed step has had such wide support as well as opposition. If Senator Borah's view is justified in fact, the proposed policy deserves more profound consideration from American citizens than it has yet received. It is then more than a mere sentimental question, but one involving the political relations of this country to Europe. On that question men may well differ. But if that is the issue it is at least a real one, justifying the most exhaustive examination and discussion in order that the national judgment may be sound and considered