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

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

Arguments Advanced for Joining

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

Fear Entanglement With League

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

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

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

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

Quotes Professor Hudson

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

Nations Not Bound by Court

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

Would Not Submit Important Questions

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