SIXTEENTH ANNUAL MEETING OF THE AMERICAN SOCIETY OF INTERNATIONAL LAŴ APRIL 27-29, 1922 FIRST SESSION Thursday, April 27, 1922, 8.30 o'clock, p.m. The Society was called to order at 8.30 o'clock, by the Honorable ELIHU ROOT, President. The PRESIDENT. Ladies and gentlemen: During the first fifteen years of this Society it was the custom of the President to review the principal occurrences in the field of international law which had transpired during the preceding year, and to follow with a somewhat formal address. I confess myself unable to follow that process tonight. Events have been too tempestuous, and international affairs have been too largely outside of the field of international law. I shall proceed immediately, therefore, to some observations upon the part played by international law in the recent Conference for the Limitation of Armament in Washington. INTERNATIONAL LAW AT THE ARMS CONFERENCE The business of the recent Washington Conference on Limitation of Armament was to reach agreements which would bind the parties by contractural obligation, as distinguished from the obligations imposed by law. The agreements reached, whether expressed in treaties or in formal declarations, are not complicated and are easily understood. In two fields, however, the subjects treated were so far affected by rules of international law that to understand the full meaning and purpose of the provisions agreed upon, and the reasons why they received their present form, it seems desirable to consider the law in the light of which the agreements are to be read. One of these fields is covered by the treaties and resolutions relating to China and the formal declarations relating to Siberia. The other field is covered by the treaty and resolutions regarding submarines and other new agencies of warfare. In the first instance, let me state the general nature of the Conference work as a whole. The Conference was called to deal with the limitation of armament. The special occasion for it was the apparent race of competition in the building of battleships and battle-cruisers on the part of Japan and the United States, a race in which Great Britain was about to enter under the imperative necessity of maintaining her ocean-borne food supply and protecting her Far Eastern colonies and dominions. The original parties proposed were the five great naval Powers, actual or potential,-Great Britain, France, Italy, Japan and the United States. The condition of affairs in the continent of Europe made it plain very early that it would be impossible at that time and in that way to deal effectively with the subject of land armament, so that the work of the Conference was confined to its primary purpose of stopping the race of naval construction and limiting naval armament. At the outset of the Conference the United States made a very drastic proposal not only to stop competition, but to destroy about forty per cent. of the existing strength of capital ships of the principal naval Powers, in such a way as to leave the relative proportions of naval strength unchanged, and that proposal was ultimately accepted and embodied in the principal treaty resulting from the Conference. Such proposals, however, do not carry themselves. Competition in armament results from national states of mind, distrust, apprehension of attack, a widespread belief that war is imminent, so that the peoples of the respective countries think in terms of war, prepare for war and reach a condition of thought and feeling in which it is natural for war to come. That state of mind must be disposed of if competition is to be really stopped. The nations concerned must cease to think in terms of war and must come to think in terms of peace. The object of having a conference is to effect such a change by friendly negotiation, explanation, doing away with misunderstanding, creating conviction of friendly intention and good faith, with the aid on appropriate occasions of friendly advice of third parties. The success of such a process in the Washington Conference was registered in what is called the Four Power Treaty between Great Britain, France, Japan and the United States. I doubt if any formal treaty ever accomplished so much by doing so little. It provided that we should all respect rights, which we were bound to do already, and that if controversy arose about the Pacific islands (it was quite immaterial what islands), the parties should get together and talk it over, which was the very thing they were then doing in Washington. The consent of the Senate was not necessary to such an agreement. It merely arranged for following an ordinary form of diplomatic intercourse. The President had done the same thing at Algeciras and at The Hague and at the Conference of London without asking the consent of the Senate, and the Senate had ratified the conclu sions reached at those conferences. It was important, however, that the Senate should give its approval in this case because the instrument was a formal certificate to all the people of Japan and all the people of the United States and all the civilized Powers that the parties to the treaty had abandoned their mutual distrust and had ceased to think about war with each other and had resumed relations of genuine friendship. That certificate and the truth that it represents incidentally made possible the abandonment of the Anglo-Japanese Alliance and made possible the treaty for the limitation of naval armament and dispelled one war cloud upon the horizon of a troubled world. The Four Power Treaty was not enough, however, standing by itself, to make the new condition stable without some treatment of the causes of irritation which had arisen and which might be apprehended upon the continent of Asia. For the discussion of this subject, four other Powers having interests in the Far East,-Belgium, China, The Netherlands and Portugal, -also took part. These causes of irritation were incident to the contacts of western civilization with the peculiar and widely different civilization of China. The character of the Chinese people commands admiration, respect and sympathy. It was a product of the life of a self-contained agricultural community occupying a vast territory and content with the conditions of peace and industry within their own limits. It was little adapted, however, to resist the thrust of western enterprise ranging the world for trade and the development of wealth. The report to the President by the American Delegation in the Conference described this aspect of Chinese civilization in these words: The people of China are the inheritors of the oldest extant civilization of the world; but it is a civilization which has followed a course of development different from that of the West. It has almost wholly ignored the material, the mechanical, the scientific, and industrial mastery of natural resources, which has so characterized our Western civilization in its later growth, and has led among us to the creation of an intricate industrial system. The spirit of Chinese civilization has, moreover, been pacific, and lacking in the consciousness of nationality as we understand that term. In its political aspects, the ideal of that civilization was to follow the principle of self-government by the family or guild to an extreme. The throne had imposed upon the people virtually no authority and exercised virtually no functions save to preserve order and to collect taxes for the maintenance of the throne as a symbol of national or racial unity. * China, with its age-long devotion to a political ideal which scarcely involved the concept of a state, and which had afforded its people no experience of coordinated action for political ends, was slower to adapt itself to conditions arising out of what it regarded as the intrusion of the West. Even after it had ceased actually to oppose this intrusion, it still sought to hold itself aloof and to carry on a passive resistance to the new influences which were at work. Against powerful, well-knit governments of the European type, strongly nationalistic, and in some instances availing themselves of military force, China could oppose only the will of a weak and loose-knit government, lacking even the support of a national self-consciousness on the part of its people. Against the organized industrial and commercial enterprises of the West, China had no similar organization to oppose, and no means of exploiting on any adequate scale the coveted latent wealth of the country. We should recall the fact that international law was originally a system of rules dictated by reason and convenience and accepted by the Christian nations of Europe for the regulation of their relations with each other, and that these nations, and these alone, constituted the community of nations created by the assumption of such obligations toward each other; that this community or family of nations was first enlarged to include Christian states which had grown up outside of Europe, consisting chiefly of the American states which had their origin in European colonization; that it was not until the Treaty of Paris of 1856 that any non-Christian state was admitted to the international family by the agreement of the great European Powers admitting Turkey "to participate in the advantages of public law and of the European concert." The criterion of inclusion or exclusion was not at any time in reality religious. It rested upon the question whether a given state had the degree or character of civilization necessary to enable its government and its people in every respect to understand and comply with the rules of international law as those rules had been developed in the family of Christian nations. It is plain that inability in this respect might result either from a low degree of civilization or from a different kind of civilization with different modes of thought and conceptions of right conduct. Accordingly Japan, for about forty years after she was open to intercourse with the western peoples, was not admitted to the family of nations, but the amazing facility with which she acquired an understanding of western ideas and adapted herself to the methods of what we, in the West, consider progress, led to her admission to full companionship under the law about twenty-five years ago, and she then became bound to obey and entitled to assert the rules of international law, to control her intercourse with other members of the family. It is difficult to determine just how far China, Persia, Siam and some other states, having a civilization quite different from that of Europe and America, have been admitted to the family of the nations who are entitled to the benefits and subject to the obligations of international law. Certainly China was not admitted to that circle during the early years when the conditions were created out of which the present difficulties have arisen. She was not then in a condition to comply with and probably her people were in many respects wholly unable to understand the rules of international law. The reciprocal obligation which those rules involved could not exist and China, being unable to comply with the obligations of that law on her own part, had no right to insist upon the obligation against others. Her right was the moral right to be treated fairly and decently and her obligation was a moral obligation to treat others in the same way. It is also clear that a continuance of the same inability to perform international obligations has down to the present time prevented the full admission of China to the circle of states governed by international law, notwithstanding her inclusion in international conferences and regular diplomatic intercourse. The customary method for regulating intercourse between the peoples who are subject to international law and the peoples who are not subject to that law has long been to provide conventionally for such regulations as are absolutely necessary. The most striking of these arrangements is the establishment of extraterritorial jurisdiction under which the citizens of the outside Power are withdrawn from the jurisdiction of local tribunals and are entitled to have their rights tried by officials of their own country, primarily by the consuls of their own country. This was the case in Turkey and it continued under the capitulations until the war of 1914. That kind of jurisdiction was provided for by our treaty of 1854 with Japan and generally in the treaties between Japan and the other civilized Powers, and it continued until the year 1894. It was provided for by our treaty of 1844 with China and still continues. We have created for the exercise of that jurisdiction in place of the consuls, the American court in China, a great and excellent court, which performs its duties most creditably. Similar treaties were made with China by the other western Powers. As a natural corollary to this assent to the right of the foreign nation to protect its own nationals by the action of its own officers, there is a general recognition of the special applicability to the country in which the extraterritorial jurisdiction is exercised of the rule under which outside countries may land troops in disturbed regions for the protection of their own nationals. That rule cannot be stated better than it was by Mr. Hill, in a letter by him as the Assistant Secretary of State, September 11, 1900. He says: Although in this reply it was convenient to limit the memorandum to the occasion of landing at a treaty port, it was not designed to forego the right, which this government has always held and which on occasion it has exercised in China and in other countries, to land forces and adopt all necessary measures to protect the life and property of our citizens whenever menaced by lawless acts which the general or local authority is unwilling or impotent to prevent. The most striking illustration of the application of this rule to China was in the Pekin expedition for the rescue of the legations from the Boxers in the year 1900. A third subject which has been customarily regulated by treaty in such |