§ VISCOUNT CECIL OF CHELWOOD had given Notice to move, That in the opinion of this House the time has arrived when His Majesty's Government should sign the Optional Clause. The noble Viscount said: My Lords, I rise to move the Motion standing in my name. I have to admit that this is not the first time that this matter has been brought before your Lordships, but I think there are reasons why it would be desirable to discuss it once again to-day. At the same time the fact that it has been discussed previously, and that I have had, with others, an opportunity of explaining the views which I hold, will, I hope, enable me to state my case more briefly than sometimes has happened. Indeed, I think for two reasons the general case for the signature of the so-called Optional Clause need not be repeated. One I have already given—namely, that the matter has been debated, and the reasons have been already stated. But perhaps an even stronger reason is that I do not think, on the general case, there is very much dispute, that is to say, on the general case of the desirability of the signature of the Optional Clause.
I may have misinterpreted the utterances of my noble friends on this point, but as I understand them they do not dispute that it would be a good thing if this clause could be signed generally. They do not deny that at some time or another it might be desirable, or would be desirable, for us to sign it. Their only doubt is as to the time. At least, that is what I understand the attitude they take up to be. Certainly I have before me an extract from what was said by my noble friend Lord Cushendun, who, I regret, is kept by his public duties at Geneva from being present at this debate. On March 5 last year, in reference to a proposal then before one of the Committees of the League of Nations which involved a recommendation that all nations should sign the Optional Clause, he said:—
By accepting this draft—as, of course, we shall do—we are not making any practical proposal. What we are doing is to reiterate in strong terms the opinion that has been expressed before that as many States as possible should sign this Clause if they find it in their power to do so, for they will to that extent be contributing towards the security of the world.
That is the broad case for signing the Optional Clause, that it will be contributing towards maintaining the security of the world. And, after all, it is impossible to imagine a cause of greater moment and weight than that.
But my noble friends have always gone on to explain that, though generally speaking they think it would be desirable to sign the Optional Clause, yet there are some reasons why this country and this Government should not at present do so. I propose to touch briefly on some of those objections. One of the views put forward has been that this country has to consider the attitude of the Dominions in the matter. That has been put forward very often and in various forms. I find it was put forward in the 1927 Assembly by my right hon. friend the Foreign Secretary, who pointed out the peculiarity of our position, and said:—
It is not easy for an Empire so constituted [as ours] always to accept the obligations that can be readily undertaken by a State homogeneous, compact, and speaking by the voice of a single Government.
I understand that to mean—I may have misinterpreted it—that at any rate the Government were in grave doubts as to what was, generally speaking, the attitude of the Dominions on this point. Your Lordships will perhaps permit me to say that I have never myself thought that a very desirable argument to use. I think that this country must take the responsibility of recommending whatever course it thinks right, and if it be that some of our Dominions disagree with that course the best thing is that they should state it openly, and that the world should know exactly who is for it and who is against it.
Whether that be the right view or not, however, I do not think it can now be maintained that the attitude of the Dominions constitutes any difficulty in this matter. As far as Canada is concerned the question is put beyond any possibility of doubt. The Prime Minister of Canada has made it abundantly clear that Canada desires to sign the Optional Clause immediately. In a debate which took place on February 19 of this year the Prime Minister of Canada, Mr. Mackenzie King, was challenged directly on the point by a Member of the House, Mr. Woodsworth, and, being challenged, he took the course, by leave, of interrupting the speaker in
order to state in very few words exactly what the attitude of the Canadian Government was. He said this:—
My hon. friend will recall that during the last Imperial Conference a desire was expressed on the part of the Governments assembled there that no one part of the British Empire should formally accept the Optional Clause without giving to the other parts of the Empire an opportunity of discussing that particular subject. We have advised the other parts of the Empire that in our opinion Canada should sign the Optional Clause, and we are at present receiving communications from other parts of the Empire in reference thereto. We are carrying out our undertaking at the Conference not to sign formally until there has been an opportunity for discussion, but we have made known that it is our desire to sign the Optional Clause.
I should be grateful to the Government if they could a little expand the information which the Canadian Prime Minister has given in that passage; if they could tell us what was the communication in fact made to them by the Canadian Government and what reply they actually sent, and if they could tell us further what is the attitude of the other Dominions on the subject.
I find in an article in a Toronto newspaper, the Toronto Daily Star, which I believe is a paper that supports the present Canadian Government, this sentence:—
The Premier has revealed the truth that Canada and all the other Dominions, with the exception of Australia, have been ready for years to sign the Optional Clause, which would bind them to abide by the results of the Court's adjudications in such cases.
I should be very glad to know whether that statement in the Canadian newspaper is a correct one, and if so whether, if His Majesty's Government were to express the opinion that the time has now arrived when they could safely sign the Optional Clause, there is any reasonable doubt that the Australian Government would concur in that opinion. I think, therefore, we may put aside as no longer existent any difficulty that may be caused by the fact of the existence of our Dominions and the right that they have to state their own views on foreign affairs.
§ The second argument that has been commonly used by those who are opposed to the signature is that the interests of our Empire are so enormous and so complex that it would be hazardous for us to agree to arbitrate on all or any of those interests. I have never been able 291 to see that in itself the fact that we have enormous interests is any reason whatever why we should not agree to accept the judicial settlement of disputes affecting those interests in any part of the world. It certainly would be an astonishing view if a private citizen of this country or a company with enormous interests were to say that because of those enormous interests they did not wish that the Courts of Law should have jurisdiction with respect to their affairs. On the contrary, it is the people and the companies which have the largest interests who are in an orderly government most anxious that any disputes affecting their affairs should be brought for decision to the Courts of Law. And obviously so. They are anxious for the security of their rights and their property, and they desire before all things that the guarantees for those rights, and chief among them the supremacy of the law, should be fostered and increased by every means in their power. Therefore, the mere fact that we have large interests would not seem to be a good reason for excluding the judicial settlement of international disputes affecting ourselves.
As far as I can see the argument must mean really one of three things. It is possible that it means (and there have been passages in some of my noble friend's speeches which seem to indicate that) that they have not a complete—how shall I put it?—a complete confidence would be perhaps putting it too high, but a complete and absolute trust in the competence, as I am sure they have in the impartiality, of the Hague Court. I think that that possibility if it ever existed has been very much modified by the speech which the present Prime Minister delivered last autumn in the Albert Hall. He spoke then really in the strongest possible language about the admirable work which that Court was doing. I will just read a sentence or two of what he said. He said:—
There is a most important body affiliated to the League—the Permanent Court of International Justice. This Court has exceeded the hopes which were originally entertained about it. It is not quite seven years since its first meeting. It has in that time delivered seventeen awards and sixteen advisory opinions. Four of these awards related to cases in which we were a party. In three of the advisory opinions
we were directly concerned. It is impossible to do justice to the work that they have done in the short space of time at my disposal.
It is very difficult to believe that the Government, in face of that warm eulogy of the Court, can have any doubt about the competence or impartiality of this body to decide international disputes.
§ But it may be said, and this also has some support from passages in speeches delivered by my noble friend, that they do not think that in the present condition of International Law the law is sufficiently settled or certain or satisfactory for them to rely upon it. In that connection I remember that on a previous occasion the Venezuelan case was quoted and it was said how badly off we should have been if we had had the Optional Clause in force. Venezuela asked for arbitration, backed by the United States. We indeed did agree to arbitration, but only after security that certain rules should be applied which might, or might not, have been applied under the ordinary principles of International Law. My own opinion—though I do not pretend that my opinion is of any value—is that unquestionably those rules would have been applied in any case. But assuming they would not, and assuming that the Court gave a purely unjust and arbitrary decision, what would have happened? A certain portion of this territory, not itself of great value, would have been transferred from British dominion to Venezuelan dominion.
§ It may be—and this is the case that was put—that a few British settlers would have found their property subject to Venezuelan law instead of subject to British law. It may be that they would have suffered. What would have been the worst that could have happened? They would have had a case, a fairly strong case, if you like a sufficient case, for compensation to be paid by this country as the result of what, on the hypothesis I am discussing, would have been an unjust and improper and regrettable decision of the Court of Arbitration. That would have been a nuisance. It would have meant an expenditure of some thousands of pounds. But when you are dealing with this enormous question of the preservation of the peace of the world, or, to use the language of my noble friend Lord Cushendun, the main- 293 tenance of security of the world, the question of whether we may or may not in conceivable circumstances have been subject to the unjust payment of a few thousand pounds is a matter of relatively small importance.
§ There is a third hypothesis, of course, and this is the hypothesis freely attributed to us by foreign critics, that we know there are claims we make and positions which we maintain which are not justified by International Law and cannot be justified in any other way, and that because we are powerful and because most of those who are against us are weak we desire to have the right to enforce what we conceive to be, if not our rights, at any rate our claims in these cases. I cannot believe that any members of the present Government would hold such an opinion as that. It would expose them to very unjust reproaches if they did. A very interesting book has recently been published by a Spanish subject, Professor Salvador de Madariaga on "Disarmament." One of the theses of his book is that the nations, if they are to carry out the great experiment in favour of peace that is now progressing, must abandon this reliance on power and rely instead on the spirit of international co-operation, which he calls "world-community." I most heartily subscribe to that view, and I venture very earnestly to press upon my noble friends that you cannot treat this question merely as an isolated and abstract question. You cannot possibly say that, because there is some case in which you think that it would be convenient that the British Government should have the right to maintain claims which it could not maintain before a just and impartial tribunal, you are entitled to take this view and at the same time to hope really to establish a new system of international co-operation based on justice and on reason. It is for these reasons that I do not accept the doctrine that, because we have very large interests, this is any reason why we should not sign the Optional Clause.
§ In this connection we must have regard to what is unquestionably the current of international opinion. I ventured to put a question to my noble friends at the end of last year as to the number of countries that had signed and ratified this Clause, and they were good enough 294 to give me a reply. It appears that some seventeen countries have actually ratified this Clause. It is commonly thought that they are unimportant countries. I will read fifteen of the seventeen names in order to show your Lordships that this really is not a sound view: Austria, Belgium, Brazil, Bulgaria, Denmark, Estonia, Finland, Germany, Norway, the Netherlands, Portugal, Spain, Sweden, Switzerland and Uruguay. It is, of course, notorious that a growing number of the other South American Republics are ready and willing to sign the Clause also. I must say that I think that this list of names is a formidable one. It shows that practically all the more important secondary countries, if I may use the words without offence to them, are in favour of signature, and that at least one first-class Power, Germany, has signed and ratified, while we know now that other first-class countries are inclining in that direction. The French Government have quite recently made a declaration, the formal terms of which I am not quite sure about, which appears to be a declaration that they are in favour of signing not only a clause binding them to refer legal disputes to the decision of the Court of Justice at The Hague but even a clause binding them to settle by conciliation and arbitration of one kind or another all disputes of every character.
§ Quite recently—and this seems to me to be very significant—the United States has signed a Treaty with some fifteen or twenty South American States accepting compulsory arbitration in precisely those cases which will be covered by the signature of the Optional Clause—the construction of treaties, the settlement of damages and so on; all being what are called legal claims—accepting that compulsory jurisdiction absolutely and, as far as the United States is concerned, without any reserve, and, if the Senate approves of the main Treaty, without any further reference to that body in regard to any particular arbitration. It is possible, of course, that the Senate will not accept that view and he would be a rash man who would prophesy on a subject of that kind, but the fact that the Administration of the United States should have signed that agreement seems to me, 295 taking the history of this question into consideration, an event of the utmost significance.
I have left to the last by far the most important and significant event of all in this connection, and that is the ratification and coming into force of the Pact of Paris, which is commonly called the Kellogg Pact. We are now bound by the terms of that solemn agreement. We are bound, therefore, not to seek a solution of any international dispute by other than pacific means, we are bound not to use war or the threat of war as an instrument for enforcing our national policy, and we are bound, therefore, as it seems to me, if we carry out, as I am sure we intend to carry out to the full, our obligations, to be ready in any case of an international dispute cither not to settle it at all—surely the very worst way of dealing with any international dispute—or to settle it by pacific means. I feel that this Treaty adds immensely to the practical arguments in favour of doing something to show that when we signed it we meant, as I am sure we did mean, what we said, and that we are anxious to make it effective in every respect that we can and to fill up by practical details what is wanting or may be thought to be wanting in the general terms of that instrument. There was a sentence in the inaugural address of President Hoover which seems to me to express very clearly this point of view. He said, speaking of this Pact:—
Its full realisation implies a greater and greater perfection in the instrumentalities for the pacific settlement of controversies between the nations.
That seems to me to be a very strong reason why we should reconsider our attitude on this question and should be prepared to accept this stage forward in the pacific settlement of international disputes.
§ There is one other point to which the Government have attached importance and upon which I want to say a word, because I really think it is of a vital character. They have constantly said that those who hold the view that they are opposed to arbitration altogether mistake their attitude. They have said: "We are, as British Governments always have been, strongly in favour of arbitration, but we prefer that the arbitration should be the result of bilateral rather than multilateral agreements." Some- 296 times they say: "We prefer to leave it until the dispute has occurred before we make any agreement about arbitration." At other times they say: "We are content in certain cases to make bilateral agreements, binding ourselves to go to arbitration." Such agreements have been made. I do very respectfully ask the Government carefully to reconsider this attitude of preferring bilateral agreements to multilateral agreements. It seems to me to be at the basis of a good deal of such differences of opinion as some of us feel with regard to this part of the policy of His Majesty's Government. It is not only that a multilateral agreement is an infinitely more businesslike and rapid way of achieving our end than the multiplication of bilateral agreements. That is obvious and true, but it is not the most important point. The most important point is the recognition that no countries stand alone in this matter, that it is to the interest of all countries to see that international disputes are settled by pacific means.
§ As the Covenant itself says, disputes are a matter of concern to all nations, and therefore the preference for settling these matters between the two disputants and nobody else, keeping outside as it were all the rest of the world, is really, if I may respectfully say so, in the very teeth of one of those fundamental principles upon which the new order of things, it is hoped, will rest. We have to get away from the conception that a dispute between two countries is a matter of concern between the two countries alone. It is the concern of the whole world, because peace is one entity, and if it be broken anywhere it is broken everywhere, and the extent of that breakage may pass any computation. I beg very respectfully to press this view. I have read with some anxiety statements from Ministerial sources that the value of the Assemblies and Councils of the League is chiefly that it brings nations together and enables them to interchange ideas. That is one of the objects and advantages, no doubt, but the principal advantage, and the principal object, and the principal thing we have tried to establish by this new experiment, is the conception of what Professor de Madariaga calls world-community—the interdependence of Nations. No one has expressed it, in some connections, more strongly than the present Prime Minister, and the prefer- 297 ence for the bilateral agreemeent—the idea that it is quite right for us to settle with particular countries in particular ways, but that other countries have nothing to do with it, that idea which lies at the bottom of the bilateral agreement—is really a disastrous preference.
I have referred to Professor de Madariaga's book more than once in this connection, and I cannot resist reading a sentence from his book upon this very question of the refusal of some of the great Powers, including ourselves, to sign the Optional Clause. It is as follows:—
This deplorable example coming from the top is one of the chief causes of stagnation in the evolution of international life towards higher ethical levels. It must be considered as one of the main obstacles on the path to disarmament.
It is for that reason that I venture very strongly to press upon the Government to reconsider their attitude and to agree to my Motion. It seems to me not only a question of the actual point involved, but a test of the direction in which our policy is to move, and whether we are going to accept fully the corporate idea of international life or whether we are going to drift back to that unhappy competitive idea which has brought so much misery upon the world.
§ Moved to resolve, That in the opinion of this House the time has arrived when His Majesty's Government should sign the Optional Clause.—(Viscount Cecil of Chelwood.)
§ THE LORD CHANCELLOR (LORD HAILSHAM)
My Lords, I waited for a moment, because I had hoped that we might have heard either from the Socialist or from the Liberal Benches the views, if they have any fresh views, which they would desire to urge upon your Lordships with regard to this Motion. My noble and learned friend Lord Cecil, in moving his Motion, explained, as most of your Lordships are aware, that it is a matter which has been frequently debated in this House during recent years. He expressed regret, which I confess I fully share, at the fact that on this occasion we have not the advantage of the presence of my noble friend Lord Cushendun, who has answered for the Government on previous occasions. I observe that on the last occasion on which Lord Cushendun replied to a similar Motion, on November 15 last, he explained to your 298 Lordships that it was, I think he said, the eighth time on which he had had to make the same speech, and that he was sorely tempted to refer your Lordships to his previous answers. Taking, as I do, the responsibility of speaking for the Government on a matter which does not fall particularly within my own province, I should be very glad if I could take the line which Lord Cushendun then took, and ask you to look at those very carefully reasoned statements of the attitude of His Majesty's Government, upon which I certainly cannot improve.
So far as I was able to follow my noble and learned friend, he does not suggest that there has been any radical change in the situation since the debate in this House last November, and therefore in effect we are dealing with a situation which was then very fully explored on both sides. But your Lordships, I know, will all recognise the passionate sincerity with which my noble and learned friend urges this cause, and I should not like him to think that I treat his arguments, or the matters which he has brought to the attention of this House, with any degree of discourtesy or lack of consideration. Therefore, with your Lordships' permission, I should like to state in my own language some of the considerations which, in the view of the Government, render it impossible to accept this Motion. The point of the Motion is the statement that the time has arrived for signature of the Optional Clause by this country. The question therefore is not whether arbitration in itself is desirable; not indeed whether the International Court at The Hague may ultimately prove to be the best tribunal for all forms of arbitration; still less is it the question whether the Government of this country desires the peaceful settlement of disputes. The only question is whether, in the interests of this country and of the Empire, it is right that at this moment the Government should sign the Optional Clause.
Some people—not of course my noble and learned friend—approach this question as if the signing of the Clause would be for the first time the acceptance by His Majesty's Government of the view that arbitration is the proper means of dealing with the sort of question which is referred to in that Clause. My noble and learned friend knows, and most of 299 your Lordships know very well, that that is a complete misapprehension. You will remember that in the Covenant of the League of Nations itself, Article 13, to which the Government of this country is committed, says:—The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration.The Article goes on:—Disputes as to the interpretation of a treaty, as to any question of International Law, as to the existence of any fact which if established would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration.Those matters are, as your Lordships will remember, precisely the matters which are the subject-matter of the Optional Clause. Therefore we are already committed to the view that we should submit to arbitration whatever matters are suitable for arbitration, and the matters referred to in the Optional Clause are among those which are generally so suitable. And the only question is whether we should take this further step first of all, that we should agree in advance, now, that any question of that character, even if in the particular circumstances it might be unsuitable for arbitration, should be so submitted, and that all these questions should necessarily be submitted to the International Court at The Hague.
I listened to my noble and learned friend's speech in order to ascertain whether he was suggesting that the signature of the Optional Clause should be accompanied by any reservations, and, if he did think that any reservations were necessary, what those reservations ought to be. It is quite obvious that before this House could commit itself to the view that the Government should sign an Optional Clause binding the country in advance to submit all questions falling within certain categories to the decision of the International Court, it is essential that it should make up its mind whether or not there should be any qualification or limitation in that submission. I do not want, and I do not think it is necessary, to enumerate many of the matters which would require considera- 300 tion in that relation. But let me mention just one. We and the Dominions alike are Members of the League of Nations. Is it desired that any question arising between this country and one of the Dominions, or any question arising between two of the Dominions, should be referred to the International Court at The Hague? Because I should respectfully have thought that it would be most unsuitable that questions of that kind should be referred to a foreign, rather than to a domestic, Court. I take that merely as an illustration, which I could multiply, but it is not necessary to do so, of the sort of point which has to be considered before you commit yourselves to a general submission of all questions of a particular character to arbitration. My noble friend said he did not think it mattered much whether or not the Dominions agreed with us in the acceptance of the Optional Clause.
§ VISCOUNT CECIL OF CHELWOOD
No, I did not say anything in the least like that. What I did say was that I thought it was right for us to express our opinion, not necessarily binding ourselves to what the Dominions might say, and certainly not hiding behind the Dominions, but taking full responsibility for our own decisions whatever they might be.
§ THE LORD CHANCELLOR
My noble friend's Motion is that the time has arrived when we should sign, and I understood him to say that he thinks that we ought to sign even if the Dominions did not agree in that view. If he does not think that, then obviously this House cannot commit itself to the view that we ought to sign the Optional Clause now unless and until it is able to assure itself—which it certainly is not at present—that the whole of the Dominions would take the same view. My noble friend read a passage in an answer given by the Canadian Prime Minister, I gather a month or two ago, in the Canadian Parliament, in which the Canadian Prime Minister expressed the view that Canada was generally speaking, I think—I have not the exact words—in favour of signing the Optional Clause. I do not think that the Canadian Prime Minister in the answer dealt with the point as to whether or not reservations would be necessary in such a signature.
301 My noble friend invited me to state what communications had passed between this country and Canada. Quite obviously, I could not answer that question without first obtaining the assent of the Canadian Government to the publication of any such communications, and without ascertaining from the Secretary of State for the Dominions whether there were any objections to the publication. I am not even in a position to state off-hand exactly what communications may have passed, but that the matter has been mentioned as between that Dominion and this country is, of course, the fact. That all the Dominions have expressed a desire to sign, which I understood was the suggestion of the Canadian papers, is, I know, not the fact.
§ VISCOUNT CECIL OF CHELWOOD
The statement that is made quite specifically, and the paper quotes the authority of the Prime Minister of Canada, is that all the Dominions except Australia have expressed the same view as the Canadian view—which is a good deal stronger than what my noble and learned friend has said—that they thought now, and have thought for some time past, that the British Empire ought to become parties to the Optional Clause.
§ THE LORD CHANCELLOR
Without much more careful reference I do not like to give a categorical answer, but to the best of my knowledge, without having had time to verify it, I believe that statement to be quite inaccurate. Let me remind your Lordships of what happened at the last Imperial Conference in 1926. The matter was then brought up for discussion, and a decision was reached which is embodied in the published Report of the Proceedings. It states that:—The feeling was that it was at present premature to accept the obligations under the Article in question. A general understanding was reached that none of the Governments represented at the Imperial Conference would take any action in the direction of the acceptance of the compulsory jurisdiction of the Permanent Court, without bringing up the matter for further discussion.Quite obviously, in view of that Resolution, it would be quite impossible for His Majesty's Government now to sign the Optional Clause, when certainly there has not been any agreement reached with the Dominions that that should be done.
302 As your Lordships know, there are under consideration in this country proposals which came from the United States for an arbitration treaty with that great country. Those proposals are at this moment being considered and discussed with the Dominion Governments. One of the first duties of the Government after the Election will be to take up those negotiations in the light of the discussions which are taking place with the Dominions, and to bring them, as I hope, to a satisfactory conclusion. And I think I am not stating too highly the views of the Dominions, as of this Government, when I say that it is desirable that that matter should be prosecuted to a conclusion before any question such as that which is raised by my noble and learned friend is embarked upon. Further than that, of course, to-day we are meeting within four weeks and a day of a General Election. When the General Election has taken place the Government will come back reinforced by the verdict of the constituencies, and will be able then to deal with the matter with a confidence and sureness in the support of the constituencies which no Government could pretend to have in the dying days of an old Parliament.
I have indicated these points because all of them are points which are directly relevant to the only question which is raised by the Motion—namely, that the time has now arrived for our signature. It is not a question of whether or not we are in favour of arbitration, or whether or not we are in favour of the peaceful settlement of disputes. My noble and learned friend, in a very eloquent passage in which he concluded his observations, pointed out that all countries had an interest in the pacific settlement of disputes. No one has challenged it. This Government which was one of the signatories to the Kellogg Pact, has committed itself gladly and fully to that theory. By the signature of the Covenant of the League of Nations we have expressed it, and have given expression on behalf of this country to the view that the pacific settlement of disputes is a matter of common interest. What we are discussing is not whether disputes ought to be peaceably settled, but only whether we should agree in advance that in all cases falling within Article 36 we should refer those disputes to a particular form of 303 tribunal. That, of course, is an entirely different question from the question of whether or not the peaceful settlement of disputes is desired. It may well be desirable sooner or later for an agreement to be taken that all disputes of a particular kind shall be submitted to a particular tribunal. But one of the reasons why I am a little sorry for myself that these debates should take place too often—I make no complaint of course—is that it is necessary when such a matter is raised to indicate some of the factors which render caution necessary and delay, perhaps, expedient; and it is easy to misrepresent the statement of those factors as an expression either of distrust in the tribunal or dislike of arbitration, which I know that neither I nor any of my colleagues in the Government feel at all.
But these considerations, which are familiar to those who have studied the subject, need reiteration, I think, when a Motion of this kind is brought forward. Let me indicate one or two of them; more of them will be found in the speech of my noble friend on a previous occasion. First of all, I would remind your Lordships that International Law, as it is called, and Municipal Law are radically different. International Law really only means the customs accepted as binding by civilised nations. There is the very greatest uncertainty as to what falls within the scope of International Law. By signing in advance we might find that we had submitted to the Court questions which we did not regard as justiciable at all. Your Lordships will remember—my noble and learned friend is, I am sure, well aware—that it is one of the express terms of Article 36, the Clause which we are asked to sign, that the Court is in all cases to determine whether a particular dispute falls within the category mentioned in Article 36. So that we are binding ourselves, not to the settlement of any of those questions which we regard as falling within that category, but of all those questions which the Court decides as falling within that category, and there is very great uncertainty as to what those questions will be.
There is still greater uncertainty on a great many points as to what International Law really is. There are a great many subjects on which, international jurists are not agreed. 304 There are in regard to a great many of them two schools of thought which may be broadly described as the Anglo-American school and the Continental school. We have built up our theories of International Law largely by developing from concrete cases into more general principles. The Continent has, I think, proceeded rather upon the basis of starting with a general principle and then trying to fit concrete cases to it. I am not discussing which of those two methods is scientifically or juristically preferable; but the result is that there is a real difference on several points between the Continental rule of International Law and the Anglo-American rule of International Law, and if we submit to this Court all justiciable questions we are, in effect, abandoning the Anglo American rule and accepting the Continental rule. I say that because there are normally on this Court I think a maximum of sixteen Judges, and I think that eleven is a quorum, and there are as a rule two coming from England and America, one from each. There cannot be more than one from America and one from this country. The result is that in any dispute coming before it, the Court acting impartially and competently would be bound to apply the rule of law which was the one in which nine out of the eleven Judges had been brought up to believe, and the two English and American Judges would be bound to find themselves in a minority with the decision against them. It might be worth while, in the interests of a peaceful settlement, to agree in advance that all the points upon which the English and American jurists differ from the Continental jurists shall be treated as points in which the Continent is right and England and America are wrong. On the other hand, it is rather a serious step to ask this country to take.
Then let me give your Lordships another illustration. Even on questions which are without dispute justiciable, questions, let us say, like the interpretation of a treaty, there are no rules of procedure or of evidence to guide those whose duty it would be to advise the Government. That is a point which I think would appeal particularly to lawyers. In English law the interpretation of a treaty is determined by the language used in the treaty, read in the light of the circumstances known to both 305 parties at the time when the treaty was made, and such things as preliminary drafts and statements made in discussion throw no light and are not admissible in evidence to determine what the meaning of the treaty is. In some Continental countries drafts and preliminary statements in discussion may be looked at by the Court if the language of the treaty is ambiguous; in others, they may be looked at and control the interpretation even when there is no ambiguity.
If I might venture upon a personal reminiscence, I have myself argued a case before the International Court upon the interpretation of a clause in the Treaty of Lausanne in which my opponent was permitted to state, as throwing light on the interpretation of the Treaty, not merely what had been in previous drafts, but what some anonymous friends of his had told him was the reason why the draft had been changed from its preliminary to its final form. Luckily in that particular case I had witnesses there who had also been at Lausanne, and so I was able to state that an anonymous friend of mine had given me a reason for the change which was quite a different story. But your Lordships will see that the risk is a very real risk when we are committed in advance to the decision upon the meaning of a treaty being governed by such a consideration as that to which I have called attention.
My noble friend called your Lordships' attention to the case of the Venezuela arbitration, and said that that really was not an argument against him because in that ease the rule of law which we insisted should be applicable might have been held in any event to be the rule, and because, anyhow, it only concerned the interest of a few British settlers to whom we might have had to give a few thousand pounds. My noble friend has completely failed to appreciate the relevance of the illustration which was given by my noble friend Lord Cushendun about Venezuela. Lord Cushendun did not cite the case of Venezuela in order to prove that we were right or wrong in that particular case, or in order to prove that in that particular case the interests involved in insisting on one interpretation rather than another were or were not vital. The point we cited in the case of Venezuela was this. It was a case in which we did arrive at a pacific 306 settlement, but we insisted on inserting in the agreement of arbitration the rule of law which we thought right, that a fifty years' occupation should be regarded as giving a right. If we had bound ourselves in advance to submit the Venezuelan ease to arbitration we should have been bound to let that go without any such clause being inserted. Although I speak with diffidence if my noble and learned friend takes a different view, I think it is at any rate extremely doubtful whether by International Law we could have insisted upon that obviously equitable rule being included in the consideration. The decision might have been the other way.
Although it may be proved that in the Venezuelan case what we should have sacrificed would have only been, as my noble friend says, the interest of a few British settlers who had embarked their capital and livelihood in settling in British territory and had lived there for half a century—although that was all we should have sacrificed in that case, there may very well be cases in which the absence of what was obviously an equitable rule, which has not at present been incorporated in International Law, might involve a wrong decision against this country on a matter of vital importance, which public opinion in this country would not for a moment support. One has to remember in considering these matters that we cannot in this country implement an award without the sanction of Parliament. To agree in advance to accept all decisions of a tribunal on any matter which the tribunal might decide within Article 36 might be, in certain circumstances, to agree to something which we cannot perform.
My noble and learned friend quoted the illustration of the United States. Although it is a very relevant illustration, it is quite worth remembering that the proposed adherence of the United States to the Permanent Court is to be given on the express basis that the Court shall not even be asked for an advisory opinion in matters in which the United States conceives itself to be interested, without the prior assent of the United States. And your Lordships will remember that in the draft Arbitration Treaty which the United States has submitted for our consideration—and which is, I believe, the model that it has 307 actually signed with some European countries—all matters which affect the Monroe doctrine in which the vital interests of the United States are involved, are expressly excluded from arbitration; and, further, the Arbitration Treaty insists that the terms of submission in which specific cases are presented must first be approved by the Senate of the United States. It is no doubt for reasons such as these that the Coalition Government in 1920, on the unanimous opinion of the then Lord Chancellor and both Law Officers—both of them now most eminent Judges—refused at that time to accept the Optional Clause of compulsory arbitration. It is no doubt for considerations such as these that the Lord Chancellor in the Socialist Government, Lord Haldane, advised against the acceptance of the compulsory clause.
It is no doubt for reasons such as these that a very eminent jurist wrote some few years ago:—…if anything like a complete system for the judicial or quasi-judicial settlement of international disputes he aimed at, it will infallibly break down and throw the movement back for many years. Nothing did more harm to the cause of peace than the breakdown of the efforts after Waterloo in this direction.The same eminent authority wrote a little later:—Almost everyone thinks that only the less important disputes can really be disposed of by a tribunal of arbitration, and that I am sure is true. In any dispute between two nations involving vital national interests neither of them would be ready to accept the decision of any external tribunal…I have a kind of feeling that it would be impossible to construct, even for this purpose, a tribunal that would command sufficient confidence to do useful work in vital international disputes.Those words are the words of Lord Robert Cecil in the years 1917 and 1918. My noble friend may say that he has grown wiser, or the world has grown wiser—I care not which—in the last decade. Nobody will blame him for changing his opinion, but at any rate that was the view which he held not so very many years ago.
§ THE LORD CHANCELLOR
One can hardly criticise very much other responsible statesmen who read those words and who are disposed to take the view 308 that the time has not yet come to commit ourselves in advance to an arbitration which Lord Cecil at that time thought would not command assent. Nobody can suggest that this country is a laggard in the matter of arbitration. We repeatedly arbitrated most important questions before the War. We have accepted and loyally carried out decisions which were unpalatable, some of which we even thought to be unjust. Nor have we been backward in upholding the authority of the International Court. We have ourselves appeared before it no fewer than nine times in the seven years during which that Court has been in existence—a record which is not equalled by any other country in the world. I have myself, for what it is worth, appeared five times before that Court, and I think I can claim to have argued there more often than any advocate of any other Bar. So that our contribution at any rate towards establishing the prestige and authority of that Court can hardly be challenged.
As time goes on the Court must gain in experience and in authority. Its rules and its procedure must become settled and known. International Law itself is in the steady process of amplification and codification, and we can well hope that the time will arrive when it will be possible for the British Empire to accept the compulsory jurisdiction of the Court, with or without reservations designed to protect the special position of the British Empire. But I submit to your Lordships that at the present moment, in the dying days of an old Parliament, in the teeth of the Resolution of the Imperial Conference, when the United States Arbitration Treaty is the most urgent problem of the times with which we have to deal, when the questions of what reservations are necessary have not been discussed or agreed with the Dominions, to suggest that the time has now come for us to sign the Clause may be the dream of an idealist, but it is hardly the act of a responsible statesman.
§ THE MARQUESS OF READING
My Lords, the question before your Lordships is one of supreme importance, although by the discussions which have taken place earlier in this House and elsewhere, the issue is very considerably narrowed, and I cannot but think it is of advantage to have had the speech of 309 my noble friend Viscount Cecil and also the reply of my noble and learned friend the Lord Chancellor. In listening to them I was struck by the agreement on many points, and the division of opinion upon the one critical point now submitted by the noble Viscount, Lord Cecil. The real question before your Lordships, as I understand it, is whether there has not now been sufficient delay in considering the signature of the Optional Clause and whether, in the words of my noble friend, the time has not arrived for giving effect to its provisions.
There can be no doubt that on general questions of arbitration the Government, speaking at one time through Lord Cushendun and at another through the Foreign Secretary, and to-day through the Lord Chancellor, has expressed its full adherence to the principles of arbitration. I think that nothing could have been more satisfactory in the way of general observations than those made by the noble and learned Lord on the Woolsack in regard to arbitration. But the difficulty is that these general views scarcely help us to arrive at a decision. I am very anxious not to recapitulate arguments already advanced to your Lordships in previous debates as well as to-day. I find myself in general agreement with the observations made by my noble friend Viscount Cecil in a speech which seemed to me to be conceived with great moderation and yet to have been couched in forcible and eloquent language. We were anxious to understand what the precise difference of opinion would be and what arguments would be raised by the Government. I have listened with the greatest attention. I do not for a moment presume within the very few minutes I shall occupy the attention of your Lordships to answer every point that has been put forward by the Lord Chancellor. As I understood him he advanced certain special arguments upon which he relied. He said, in the first instance, that having regard to the number of debates which have already taken place in this House nothing of importance had occurred since then, that nothing had happened since November, 1928—the date of the last debate here—which would in any way affect the matter now under discussion. I confess I was astonished to hear that from my 310 noble and learned friend when we had had the signature of the Multilateral Pact initiated by the United States of America.
§ THE LORD CHANCELLOR
The signature of the Multilateral Pact had taken place months before November.
§ THE MARQUESS OF READING
I understand from the noble and learned Lord's interposition that it is a mere question of date as to when the actual signature or ratification took place.
§ THE MARQUESS OF READING
I do not wish to take up time, except to make this point which I am anxious to bring to your Lordships' attention, that there had been this signature or ratification of the American Treaty, the Multilateral Pact, and that that very much changed the situation. I think I am right in saying, although the exact number does not very much matter, that some sixty nations have already signed that Pact. The number has increased considerably certainly since November, 1928. I think I am justified in that observation though, of course, nothing like the importance could be attached to that Pact until it had been ratified by this country and until so many other nations had signed it.
I ask your Lordships to consider what is the situation. By that Treaty we have agreed with the other nations, with the United States of America in the first instance and with fifty-nine other nations, to renounce war as an instrument of policy. We have agreed further that all disputes are to be referred to arbitration. There is no question in the Pact of a reservation on matters affecting the honour of the country such as there has been in earlier agreements. We welcomed that Pact because it dropped all questions of that character which certainly had given rise to considerable doubt in the minds of many of us who have studied the problem. I do submit to your Lordships, now that sixty nations are agreed, with the United States of America as the initiator of that Multilateral Pact, that it can no longer be objected that the United States of America, not being a party to the 311 Covenant of the League of Nations, is not bound. The strongest argument that can be used in favour of my noble friend's Motion is the fact that we stand pledged to the renunciation of war as an instrument of policy and to the reference of all disputes to arbitration within the terms of that Pact.
Looking at the matter as I hope quite fairly, and striving so far as I can not to regard this question as a Party matter—it is very undesirable that it should be so regarded—the only question that I can find after listening to my noble and learned friend that really divides us, is as to the tribunal to which disputes are to be referred. He said, as I followed him, that we did not agree to refer them to this tribunal, that we did not know what the rules of evidence are, what the rules of procedure are, or what exactly are the points upon which everybody will be agreed in International Law. If we are to wait to settle every item of detail of that kind we shall never advance a single step. It is hopeless to expect that we can ever in advance agree on points of that character. Lawyers often disagree again and again in the Courts of our own country after centuries of procedure and judicial interpretation. How can we expect that a number of tuitions will agree on all these matters? I cannot really think that that is a serious argument.
My noble and learned friend then said that we could not do it without the Dominions. Surely he is forgetting altogether the Treaty of Locarno. That was arrived at without the Dominions being parties to it. There was a clause in that Treaty—I do not happen to have it before me, but your Lordships will recollect it—exempting them from its provisions. It did not bind them in any way. Yet we bound ourselves by the Treaty of Locarno in a far greater issue than a mere reference to arbitration. My noble and learned friend went on to say that we must not sign because questions between the Dominions ought not to be settled in this way. That hardly seems relevant to the matter we are discussing. Nobody has suggested that we should refer disputes between ourselves and our Dominions to this tribunal. Those would be matters dealt with by ourselves or referred to the Judicial Committee of the Privy Council under provisions that 312 already exist. Certainly we are not suggesting that these matters should be referred to the tribunal, and if there was such a suggestion it is open to the Government to make an exception, because the Clause could be signed subject to reciprocity of the other nations or with such reservations as it may be thought necessary to insert. Really there is no difficulty of that kind.
I waited with great eagerness to understand what were the other grounds of objection. My noble and learned friend said many could be given, but the only one given was as to the Dominions, which does not really touch the question at present under discussion. There is only one other point I wish to refer to. It was said that the proposal was premature because at the Conference of 1926 there were discussions with regard to it and a Resolution was passed. But since 1926 we have had the Multilateral Agreement with America, and there has been time since then to consider with the Dominions whether they are ready to sign. I do not know whether any steps have been taken. We do not know whether any of the Dominions has objected—I should have thought not, but at any rate we have not yet been told—and, so far as I am aware, the Government, if they have consulted the Dominions, have not laid any answer before Parliament or given any information. The only observation I desire to make upon that point is that time after time, when we come to the actual criticial point, further reasons are given for delay. There is general agreement on principle, there is a general desire to sign treaties of arbitration, but it is said that it is better to deal only with bilateral treaties. I will not undertake to say that my figures are right for I have had no opportunity of checking them, but I have read that in order to do that we should require 1,542 agreements. That may be an exaggeration, but those figures were given. We should need all those agreements in order to bring ourselves within the League of Nations and into agreement with all the various countries that have made themselves party to it.
The important point is that a bilateral treaty has to be agreed with another country. It would be necessary for us to wait and settle with each country 313 what we are to do. If we have a multilateral pact, such as America introduced, we have a very practical and sensible way of dealing with matters, and the result is, not only that we get the signatures of all the others, but—what is far more important—that we get all the various parties bound to each other. We attain agreement between a number of nations that certain matters of a particular character shall be referred to the tribunal and that the nations agree to submit to its decisions. The last point made by my noble friend was that we could not be certain that Parliament would accept such a decision. I must not detain your Lordships, but I will say on that point that I cannot believe that the Government seriously think that, if there were an agreement to refer these matters to the arbitration of a tribunal such as the International Court, then, even though we were dissatisfied with the decision. Parliament would repudiate an agreement which had been entered into and which had led to that decision merely because they did not like the result.
§ LORD PARMOOR
My Lords, the noble Marquess has travelled over a large number of the matters which may be in dispute between the noble Viscount, Lord Cecil, and the Lord Chancellor. I think it is necessary to come back to what one knows both from former discussions and from the debate this afternoon to be the real matters of difference. It is only when one appreciates what those matters are that one also realises the great importance of the points raised by the noble Viscount. If he goes to a, Division, we on this Bench shall most certainly support him. Whether he should do so or not is, of course, a question for him to decide. The noble Viscount says quite truly and without any exaggeration that we are discussing a matter which affects the whole question of world peace and security in the future. I think that he is right to put his case on those lines, and for two reasons. In making that statement he appreciates the value of the League of Nations. I think that world peace and security without the agency of the League of Nations would be impossible and, if I might refer incidentally to a statement made by the Lord Chancellor, I think that this makes the entire difference between the inter- 314 national issues of to-day and those that followed the Napoleonic Wars.
Before I say one or two words with reference to the noble Viscount's speech, let me deal with a question raised by the Lord Chancellor. The noble and learned Lord said quite frankly—I have always understood this to be the opinion of the present Government—that this country was not prepared to accept in advance an obligation to refer to the International Court all matters of legal dispute whatever they might be. There, of course, we come to the real issue. If that position is to be maintained, I think that, whether under the Kellogg Pact or under the terms of the Covenant itself, it is really hopeless to expect the creation of what has been called the peace spirit instead of maintaining the historical outlook upon war as the basis of international negotiation. That point, to my mind, goes to the very root of the matter. I hope shortly to deal with the objections which the Lord Chancellor has made, but I start from the point that in that case the real attitude of the Government is obviously opposed toto cœlo to the views expressed by the noble Viscount, Lord Cecil.
It is quite immaterial to that issue that many arbitration treaties have been entered into already. That, of course, is common ground, but it is not the question raised by this Resolution or by our position under the League of Nations. The question there is whether we will submit in advance justiciable disputes, such as those set out in Clause 36, to the decision of the International Court. The noble Marquess referred to the multilateral principle, and this consideration goes to the very root of that principle. It is the basis of the League of Nations and, from the time of Grotius, of the attitude of everyone who has been in favour of the principle that you should have, as between nations, some authority to which you may refer disputes in order to avoid war—an authority of the same character as you have in Municipal Law in the ease of disputes between citizens. It would be quite hopeless to have a procedure in Municipal Law by which you left it open whether the disputants were to go before the Courts of the country or were to proceed to fight the matter out one with another.
315 The multilateral principle is not only important but essential, for it is the same principle applied in international disputes as we apply in our national disputes. It is the principle of equality between the disputants and, if you have that equality, the only matter to be decided is whether the case of one or the other should be supported on the foundation of justice. Directly you get away from that and allow any other principle to supervene, it appears to me that you absolutely nullify the whole principle of a Court deciding justiciable disputes. The whole principle of the League of Nations, to my mind, is that such disputes should be and can be decided without resort to force and war. I understand the Lord Chancellor to say that that is not the opinion of the Government under existing conditions. Of course if that is so, the matter ends. There is no further common ground of argument. The common ground of argument would be whether conditions are such that, although perhaps at the moment you might not succeed in obtaining the promise of a reference of all justiciable disputes, the principle is right. I understand the Lord Chancellor to say that the principle is not right. Let me deal with the further arguments which he adduced in the course of his speech. I do not think the argument as regards the use of the words "the time has arrived" is of much value. I understand that the noble Viscount raised this discussion in order that the principle might be discussed, and although I agree with him that the time has arrived, and is indeed long overdue, at the same time it is no answer to the principle which he advocated to base the opposition merely on a term of that kind.
The second argument of the Lord Chancellor I find it very difficult to follow. He referred to Article 13 of the Covenant on the ground that at the present time these question could be referred to an impartial body—namely, arbitrators. Surely the noble and learned Lord does not forget this, that so far as Article 13 is concerned, there is no ultimate decision, unless you get the Council unanimous. On the contrary, after a period of time it is open to either party to have recourse to war. Also, whether matters are to be brought within Article 13 at all depends upon the view of the particular disputant, whoever he may be. 316 There is no obligation whatever to bring any matter under Article 13 to final determination, and whether you appeal to Article 13 or not depends upon the view of the disputant whether it is a suitable matter to bring forward under the terms of that Article. Therefore on both grounds I think the reference to that Article is quite ineffective. As the noble and learned Lord, the Lord Chancellor, has said, there are a large number of justiciable disputes which are not such as should be referred to arbitration or to any other tribunal, but are matters which the countries concerned ought to insist upon deciding in their own way, without reference to a third-party tribunal. I admit that I have difficulty in appreciating what the effect of Article 13 is, except to leave matters as they are and to leave particular countries to decide whether or not they will go to arbitration and have no final determination when they go there.
The next point which the Lord Chancellor raised was this. He said, how can we adopt the Optional Clause without considering the question of reservations? Of course not. The question we are putting, and the question involved in the noble Viscount's speech, is this: Is it not time to consider the whole question, reservations and all? I know when I was at Geneva in 1924 that it was an essential provision of the Protocol that the Optional Clause should be adopted as an obligation, and there was no difficulty whatever in foreshadowing what the reservations would be which we should consider essential at that time. There was no opposition, and the view then put forward was generally accepted, but to say that because you have to make reservations you postpone any consideration of them in order that you may not give a decision upon the major point, whether you are going to adopt the Optional Clause or not, seems to me to be an impossible position for any great country to assume, especially a country like ours, who ought to be in the van in such matters.
I am sorry to say that I differ very much in regard to what the Lord Chancellor said with regard to the relations between ourselves and our Dominions. I would like to say a word or two on the history of that, in addition to what was said by the noble Viscount. All the 317 Dominions and India were represented at Geneva in 1924, and they were not only represented but the British Delegates were constantly in communication with the Delegates from the Dominions, who on matters of difficulty referred questions to the home Government. The result was that they were unanimously in favour of the adoption of the Optional Clause, and if I may for one moment refer to a note which I have of the Resolution that they supported at Geneva, and which was carried unanimously, it was in these words. They said that the signature of the Clause was "in the interests of the progress of international justice and consistent with the expectations of the opinion of the world." That does not show an unwillingness to adopt the Optional Clause. The matter does not end there, because subsequent to that we have not only had the Imperial Conference but we have had statements made again and again from some of the most important Dominions, that they think it important that the Optional Clause should be signed, and they are in favour of signing it.
Before we had the honour of the assistance of the present Lord Chancellor I have several times asked that Papers should be laid showing the relations on this matter between the Dominions and the Government here. Whatever the reasons may be, it has always been said there were good reasons why they should not be produced, and now if I might I should like to carry a little further what was said by Lord Cecil. Ho made a reference to a well known passage published on February 26 of this year. He quoted from a Toronto newspaper, and I should like to add this one other passage:—The mystery that long surrounded Canada's failure to declare openly her readiness to have international disputes of a legal character settled by the Permanent International Court of Justice, has been cleared away by Premier King's statement in regard to the matter.Then follows the statement which the noble Viscount has already read. I do not know whether he quoted the passage which mentions the exception of Australia, but I think it can be said without any fear of contradiction that our Dominions, with the exception of Australia, are not in opposition to the signing of the Optional Clause.
§ LORD PARMOOR
I am giving it on the authority of this statement of Mr. King, the Prime Minister of Canada, the same authority as was quoted by the noble Viscount. I do not want at this stage to go through all the historical authorities, and I am afraid a great number of them are now accumulating. But, as far as we have evidence, there is no disinclination, and no disinclination has ever been shown, in any of the Dominions to accept the Optional Clause, except in the case of Australia. The noble and learned Lord on the Woolsack knows that originally it was intended that in the Statute of the International Court it should be obligatory there and then on all countries to accept the International Court as the authority to decide in matters of justiciable disputes. That was altered because Great Britain and France objected to it; but that was the original principle. Since that time a very large number of countries have assented, and a great many more are prepared to assent and ratify if Great Britain would. I recollect that at Geneva in 1924, when M. Briand signed a document including the Optional Clause, he stated that it was one of the proudest moments in his life; and the only reason why that ratification has not been proceeded with is that Great Britain up to this point has refused to accept and adopt the Optional Clause.
I do not believe that there is any mystery about these matters. No doubt at the Imperial Conference in 1926 it was said to be premature. But a great deal has passed since then, and I venture to say that if at the present time Great Britain expressed its desire to sign the Optional Clause and approached our Dominions from that standpoint there would be no difficulty on their part, or at any rate only difficulties of a very modified kind. This Government have always proposed to give to the units of our Empire the maximum of sovereign independence. I believe, and have always believed, that that is quite right; but I doubt whether it is consistent with the continued unity of diplomatic outlook. I certainly wish to think it would be, but, of course, these independent units will exercise their own power and their own rights in international as in national affairs. But on this particular point that 319 we are dealing with to-night I do not think there is any difference of opinion between the Dominions and ourselves. On the contrary I believe that we should support one another in the main—I do not want to go too far—in the direction that the noble Viscount has pointed out.
The next point which the noble Lord on the Woolsack made is, of course, an important one—I think it was dealt with by the noble and learned Marquess—and that is the question of International Law. It is perfectly true that International Law has not the same precision in rules and procedure as Municipal Law, and one of the great objects of founding an International Court is that by experience you might get the same advantage internationally as we have in case law in our own country. If you are going to take that attitude, and say we will make no advance because there may be differences in the construction of International Law and our own law then nothing can be done. And I believe that the attitude that nothing can be done is almost wholly inconsistent with a considerable majority of cultivated opinion in this country. Then the Lord Chancellor objects that the question whether a matter is a justiciable matter to be brought before the International Court has to be decided by the Court itself. How else could it be decided? If you are going to leave that to the decision of each particular country you have no procedure which ensures the obligatory settlement of these various justiciable disputes, and you defeat the whole object for which the Court was constituted.
There is one matter to which the Lord Chancellor referred which has been referred to on another occasion. It is said that if you adopt an obligation of this kind you cannot be sure that when the particular occasion arises you will have the sanction of Parliament. That is a most dangerous doctrine. If you were to follow that every single international obligation might be subjected to the same form of repudiation. I do not believe myself for a moment that Parliament would not sanction international obligations of this kind when they have to be imposed in a particular case. There is no justification for it in our history. There is no justification for it in our absolute adherence to all the international obligations which from time to time we have undertaken. If the noble 320 and learned Lord on the Woolsack is right, if he says as a principle that we cannot accept any international obligation because we cannot tell whether a subsequent Parliament will sanction it or not, I say that is a most fatal statement to make as regards the position of this country in giving its power and authority to the stability, peace and security of the world.
I think the differences between the Lord Chancellor and the noble Viscount are not mere matters of words; they go to the whole root of the matter, and those who are interested in international affairs cannot shut their eyes to that fact. Are we going to have compulsory reference of future disputes or not? At the present moment we are only speaking of justiciable disputes, but I assume that, if we cannot allow that principle as regards justiciable disputes, we cannot allow it as regards other disputes of a political and far-reaching character. That is absolutely inconsistent with the Kellogg Pact. No Government ought to have assented to the Kellogg Pact who held that view at all. The Kellogg Pact means nothing, gives no security and no peace, unless you enter into obligations to preserve peace with other countries and to protect other countries in regard to the peace which under the Kellogg Pact they have a right to expect.
There is one word in conclusion I should like to say as regards President Hoover's statement. I think I followed the passage which was referred to by the noble Viscount. I believe that President Hoover will be a great factor in bringing about peace and security in the world's history. When he made his first address after his election as President he made two statements, the first in favour of the reference of justiciable disputes to the International Court. He wants to help in the direction advocated by the noble Viscount opposite. Secondly, he went into a further matter with which we are not immediately concerned—that as regards all other differences of every kind which are not justiciable there should be what he called instrumentality for pacific settlement without resort to what Kant called the barbarous arbitrament of war. I sincerely hope that the noble Viscount will press his Motion, and we on this Bench will most certainly support him.
§ THE MARQUESS OF SALISBURY
My Lords, I regret the speech to which we have just listened. I regret it very much because it was evidently designed to demonstrate to your Lordships, which is less important because your Lordships are in a position to judge, and to the world outside that there is a great difference of opinion between sections of your Lordships' House about this subject.
§ THE MARQUESS OF SALISBURY
I deny it, and I think the noble and learned Lord does nothing but a disservice to his country—
§ LORD PARMOOR
No. Let me say that to be accurate and truthful in this matter is not a disservice. If I think that there is a root difference in principle between two statements not only am I entitled but I am bound to state it.
§ THE MARQUESS OF SALISBURY
My objection to the noble and learned Lord is not that he said what he ought not to say but that his judgment has erred. There is no such difference as he thinks.
§ THE MARQUESS OF SALISBURY
But it is the important matter. The noble and learned Lord, inspired, perhaps, by a certain element of Party feeling, was rather glad to emphasise that there was a difference of opinion.
§ THE MARQUESS OF SALISBURY
In fact, it does not exist. There is no question at all—I believe I may speak for every member of your Lordships' House—as to the necessity for the gradual development of the principle of arbitration. There is nothing which has been said to-day in your Lordships' House regarding the Kellogg Pact and the obligation which has been thrown upon us and the necessity for finding an alternative to war to which the Government do not assent. Of course, the Government assent to it. We have bound ourselves over and over again in the most solemn way in that direction and, indeed, no rational being can believe that war is the proper way of settling disputes. The contrary is obvious, that right does not necessarily lie with the strongest 322 and that, therefore, the mere question of fighting it out is the most illogical and unsatisfactory way of settling a dispute that can possibly be conceived. There is no question of difference of opinion about that matter. Further than that, there has been a considerable development of opinion lately as to the actual form which these alternatives to war should take, a development upon which the Government congratulate themselves quite as much as any other member of your Lordships' House.
The point that my noble and learned friend on the Woolsack impressed upon your Lordships is this—are we now to pledge ourselves to sign at this moment the Optional Clause? That is the issue. The noble and learned Marquess just now rather belittled the position in which we stand in respect of our Dominions. He said: "At Locarno you entered into obligations. You found it very easy to do so, even without the prior consent of your Dominions. Why should you not do it in this case?" Because we promised not to. There has been a definite and specific promise in the contrary direction. I really do not think that the noble and learned Marquess, for whose opinion I have a very great respect, had in his mind the terms of the Resolution at which the Imperial Conference arrived. A general understanding was reached that none of the Governments represented at the Imperial Conference would take any action in the direction of the acceptance of the compulsory jurisdiction of the Permanent Court without bringing up the matter for further discussion. It is a continuing obligation. I apologise to the noble Marquess if I misunderstood him. That is an obligation which, of course, we have no desire to escape. But that does not mean that the matter has not been under discussion between us and the Dominions between then and now and that nothing has passed. Many things have passed between us which, of course, we are not in a position to reveal. But do not let the noble and learned Marquess or your Lordships fall into the mistake of thinking that we are doing nothing in the matter between the last Imperial Conference and the next.
As has been said in this debate, there have been expressions of opinion by the Dominions themselves. All we can say 323 is that the statement that the Dominions are at the present moment agreed to sign the Optional Clause without any conditions whatever is not the fact and is not true. I am not for a moment controverting what was said by the Prime Minister of Canada. He said that Canada takes a very favourable view of the Optional Clause. Even if he had not said so I should have known that to be the case; but the fact that he said so is quite conclusive. When he spoke of other Dominions he spoke, of course, in general terms, that in principle they were in favour of the Optional Clause. That is a statement which is subject to great limitations upon the very various matters which have been laid before your Lordships by my noble and learned friend the Lord Chancellor, in the speech he made just now.
May I say that I thought there was a certain levity, not in the manner but in the substance of the speech of the noble and learned Lord who has just sat down. He seemed to think that it did not very much matter what are the precise terms of the Resolution which we pass as long as it is generally agreed to; that was all that was necessary. That is very likely true when you are dealing with a matter of internal interest; but in recording the view of your Lordships, of this great Assembly, upon a most difficult, delicate and intricate subject of foreign external policy, the terms of the Resolution you pass require to be most accurately stated. The noble and learned Lord thought that it did not matter whether or not we said that the time had arrived for signing the Optional Clause. Supposing the time has not quite arrived. Supposing the time will arrive shortly, but has not quite arrived, then it would be madness or most unwise to sign such a statement. I do not say that the time will arrive quite shortly, but I think it is most essential that we should not commit ourselves to a phrase which would lead to every conceivable kind of misunderstanding. The same is true with regard to reservations. The noble and learned Marquess said: "Well, what do reservations matter? Of course, you can put in reservations."
§ THE MARQUESS OF READING
The noble Marquess will forgive me, but I never said that it did not matter. All I said was that it was open under the Optional Clause to make reservations.
§ THE MARQUESS OF SALISBURY
Yes, but there is no mention of reservations in the Motion before your Lordships. That is the point. The gloss, if I may respectfully use the word, which the noble and learned Marquess puts upon the Resolution really alters its meaning very largely. And it was exactly the same with the noble and learned Lord, the Leader of the Opposition. He did not think that the absence of any reference to reservations was of much importance.
§ LORD PARMOOR
I think the same as the noble and learned Marquess. When you debate the Optional Clause you include reservations. What I said was that it was no argument against the principle to say you had not considered the reservations.
§ THE MARQUESS OF SALISBURY
How accurate these noble and learned Lords are! If it had been a layman one would have understood it, but one lawyer after another gets up on the opposite side of the House and says, in effect: "It does not very much matter what the words are—it comes to very much the same thing." That is not the way to treat a great international issue. That is, if I may venture to say so, a most reckless way of dealing with it. I observe that the noble and learned Lord, the Leader of the Opposition, made a great point of the Kellogg Pact in this connection, as he was quite entitled to do, but are not the authors of the Kellogg Pact in favour of reservations? My noble and learned friend on the Woolsack has already shown that their Arbitration Treaty has two most important reservations in it—two vital reservations. Therefore to treat reservations as a subsidiary matter and as one of really no great importance is most unwise. I protest against the treatment of this great international issue as if the actual form of the words was not of much importance, and I protest against the suggestion of the noble and learned Lord opposite that on the main principle there is any difference between the various sections of opinion in your Lordships' House. That is not so. We are quite as anxious as noble Lords to substitute arbitration for war, but we do not agree that the particular words in which your Lordships' House makes that statement is a matter of indifference. I think it is one of vital importance.
325 I would most respectfully urge noble Lords sitting in different parts of the House not to be precipitate in this matter. After all, may we not all congratulate ourselves most heartily on the wonderful success of the League of Nations itself, and of this particular topic before the League of Nations, having regard to the very few years which have elapsed since its introduction? Surely this country should proceed in this matter with adequate deliberation. The declarations of the present Government and the Kellogg Pact itself are testimonies to the great progress which has been made on this question. Surely in determining on the details we ought to proceed with the greatest deliberation. What are noble Lords afraid of? Why should you not be deliberate in bringing this very difficult issue to a conclusion? Is there a lurking fear that interest in the subject will evaporate and that the time will come when people will not care about putting arbitration in the place of war? I have much more faith than they have. I am quite certain that this determination to substitute arbitration for war has come to stay. It is a permanent change in international public opinion. Noble Lords have nothing to be afraid of. The only thing is not to lose your head, and to remember that after all we are trustees for a great country, that there are certain things which must be provided for, and that we cannot ignore all the details.
Let noble Lords have confidence in this great change in public opinion, and in the ultimate triumph of the reign of law over the reign of force. Why regret that a few months or even years may elapse before you can actually draw up the instruments under which it should be done? I should be ashamed to be in such a hurry as that. I earnestly hope your Lordships will consider deeply the responsibility which rests upon you. We have to consider the deepest interests of our country. We have a very grave responsibility and we ask your Lordships not to force the Government to say to-night that now is the moment to sign the Optional Clause, but to leave the development of this question to go on as it has already proceeded, permitting us a free hand to make what arrangements we believe to be in the best interest of the country, knowing that on the main principle we are all agreed.
§ VISCOUNT CECIL OF CHELWOOD
My Lords, I trust I shall not incur the reproach of desiring to exaggerate the differences of opinion which may exist amongst us in this matter. On the other hand, everyone of us has his own responsibility, and if they think that the time has arrived at which we should sign the Optional Clause I do not think noble Lords are discharging their duty to the public and to themselves if they are not prepared to say so. The speech to which we have just listened was refreshingly different from the tone and general purport of the speech which we had from the Woolsack.
I listened very carefully to the speech from the Woolsack. I could not conceive any circumstances under which the author of that speech would be content to sign the Optional Clause. The reasons against it were all reasons which at any rate would last for a very large number of years. We were to wait until International Law was settled, till we knew exactly what, laws of evidence were to be applied, that those laws of evidence should be satisfactory to our British view even if they were not satisfactory to the Continental view, that we should under no circumstances be prepared to submit grave and serious questions to such a tribunal. I may have misunderstood the noble and learned Lord, but certainly that was the impression produced upon me by his speech. I do not say that he ever said in so many words "We never will sign the Optional Clause," but I do say that the whole of his reasoning led to the conclusion that there was no prospect of our being able to do so for very many years to come. The speech to which we have just listened was of course entirely different. I quite admit that that speech holds out great hope that at some not too distant future we may be able to sign it.
The main part of the objection raised was to the actual terms of the Resolution. I hope I shall not be regarded as impertinent if I say: "Well, if that is so, why not put down an Amendment to the Resolution?" If its terms require to be a little reconsidered, if they go rather too far, it is very easy to amend them. Are they really an expression of the opinion of this House that the time has arrived when our Government should sign the Optional Clause? If the Gov- 327 ernment are going to get up and say: "We quite agree; that is our view; we think the time has arrived; but there are difficulties, the Dominions are not ready to do it, we want a little further time, and we are prepared to-morrow to send off a circular to the Dominions recommending the signature of the Optional Clause"—then I should think it very unreasonable to press such a Motion as this, and I should certainly withdraw directly if the Government told me they were themselves in favour of the immediate signature of the Optional Clause. When I say "immediate" I mean signature with all reasonable despatch. I quite agree that they ought to be allowed time to make the necessary inquiries and the necessary provision in order to enable them to do so. But if they say they are not in favour of it, if they say they do not think the time is ripe, that they think there are grave objections and grave dangers and they give no indication of when they think the time will arrive, then it seems to me that those of us who think the time has now arrived when in principle the Government should sign the Optional Clause are entitled and indeed bound to say so and, if necessary, to vote to that effect.
I do not want to detain your Lordships, but I want to say a few words about the speech of my noble and learned friend on the Woolsack. He said a lot about the Dominions. I have dealt with that. He said that there were all sorts of possible dangers, that conceivably something might happen, that some decision which we should regret might be arrived at. But he gave us no facts. He did not point out a single case in which we had ever suffered from arbitration in general. Indeed he took credit for the fact that we had taken nine cases to this Court or had been concerned in nine cases in this Court. He did not say any serious damage had accrued to the British Empire because of the decisions. He gave one instance about Lausanne. That was decided no doubt according to Continental rules of evidence which would shock a lawyer trained in our traditions, but he did not say any evil had resulted from that. He did not say the Court was misled or took into consideration evidence that was quite improper or not worth considering. Not 328 at all. He said no harm accrued. It may be a thing we did not much like, but it was not a serious matter which should prevent our taking this step forward. He even went so far in his search for reasons as to do me the honour of quoting something I said eleven or twelve years ago. I have unfortunately a bad memory for my own speeches and I do not remember exactly when I made those observations.
§ THE LORD CHANCELLOR
I thought I said it was ten years ago. The noble Viscount will find the quotation in the papers of Colonel House, in a letter written, I think, in June, 1918.
§ VISCOUNT CECIL OF CHELWOOD
June, 1918! Before the League of Nations had come into existence, when the matter was still under discussion about a Court of International Justice. I will make him a present—
§ THE LORD CHANCELLOR
I do not think the noble Viscount noticed the quotation. The quotation was dealing with the question of what tribunal should be set up and what confidence it could have.
§ VISCOUNT CECIL OF CHELWOOD
Certainly. I will make the noble and learned Lord a present of that and I will make him a present of another quotation if he really cares to study my past utterances. It is from a speech I made, a public speech, worse even than a private letter to Colonel House, in which I said quite definitely in 1918 that I did not believe it was possible to constitute an impartial international court. I said so and I thought so then. I have been proved to be entirely wrong, but that is not the first time it has happened to me and I think it may even have happened occasionally to the noble and learned Lord on the Woolsack. The truth is we now have a Court, and that makes the whole difference.
§ VISCOUNT CECIL OF CHELWOOD
We have a Court which has been proved impartial and has acquired an immense reputation amongst the nations of the world. I wish to concentrate the propositions I desire to put before your Lordships into three. The first proposition is the one laid down by Lord Cushendun at Geneva. It is the recommendation that 329 as many nations as possible should sign this Optional Clause—that was more than a year ago mind you—because it would contribute to international security. That was the view of the Government more than a year ago. That is the first proposition. The second proposition is that if we signed it it would undoubtedly enable and encourage a great many other nations to sign it. The third proposition is that it is far more important to contribute to international security than to be afraid of what I trust my noble and learned friend on the Woolsack will not think me impertinent if I call the somewhat trivial objections which he raised to the course which I recommend.
My noble friend who leads the House urged us not to be too precipitate. I fully recognise the force and the weight and the wisdom of that warning. But are we too precipitate? What are we asking the Government to do? Merely to imitate what seventeen other nations have done—more than seventeen. Twenty-four nations have already done it and seventeen have ratified. We are asking them to do what Germany and a number of other European nations have already done. We are asking them to take a course which I am convinced will be followed by all the more important nations of the world. Too precipitate! Have we not had time enough to consider it? What are we waiting for? What is the danger of being "precipitate"
§ in this case? What is it we are afraid of? I confess I do not understand. I should agree that precipitation and hurry is dangerous in international as in national affairs, but I have always felt, and I still feel, that in this matter there is a time limit. We have to erect really satisfactory and formidable barriers against war before the realities of war have been forgotten. I am convinced that can only be done by creating in the international mind such a sense of security as will induce the acceptance of a real reduction and limitation of armaments, and I believe the acceptance of a system of arbitration, of compulsory arbitration, is a great element in the creation of that security in the international mind. I am anxious that we should set about this duty before it is too late. I do not doubt, and I have never doubted, the reality and genuineness of the desire for peace of the present advisers of His Majesty, but that is not the point. We differ, it may be, only as to when these steps should be taken. It may be so, but the difference to my mind is an important one. I think that time is in this case of the essence of the whole of our policy. It is for that reason that with the greatest regret I feel bound to press my Motion to a Division.
§ On Question, Whether the Motion shall be agreed to?
§ Their Lordships divided: Contents, 19; Not-Contents, 26.329
|Canterbury, L. Abp.||Cecil of Chelwood, V. [Teller.]||Davidson of Lambeth, L.|
|Elgin, L. (E. Elgin and Kincardine.)|
|Reading, M.||Southwark, L. Bp.|
|Muir Mackenzie, L.|
|Arnold, L.||Parmoor, L.|
|Chesterfield, E.||Ashton of Hyde, L.||Sandhurst, L.|
|De La Warr, E.||Balfour of Burleigh, L.||Stanmore, L.|
|Lytton, E.||Buckmaster, L. [Teller.]||Thomson, L.|
|Hailsham, L. (L. Chancellor.)||Stradbroke, E.||Fairfax of Cameron, L.|
|Vane, E. (M. Londonderry.)||Faringdon, L.|
|Salisbury, M. (L. Privy Seal.)||Gage, L. (V. Gage.) [Teller.]|
|Churchill, V.||Hampton, L.|
|Jellicoe, E.||FitzAlan of Derwent, V.||Howard of Glossop, L.|
|Lucan, E. [Teller.]||Peel, V.||Latymer, L.|
|Morton, E.||Mildmay of Flete, L.|
|Onslow, E.||Carnock, L.||St. Levan, L.|
|Plymouth, E.||Cottesloe, L.||Templemore, L.|
|Stanhope, E.||Danesfort, L.||Wharton, L.|
|Resolved in the negative, and Motion disagreed to accordingly.|