It would be difficult to find a better illustration of the dependence of politics upon law than in America’s Japanese problem. Our attitude toward the Oriental has been crystallized in legislation. And much of the popular prejudice against the Japanese arises out of a conflict of legal principles over which they as individuals have no control. This article does not propose to discuss the policy which should be followed in regard to Japanese immigration or to the treatment of Japanese residents already here. But it merely attempts to set forth the legal aspects of the problem which must be considered before it can really be solved.

Several of the treaties concluded after the World War contain clauses dealing with the protection of minorities. This protection is placed under the guarantee of the League of Nations. By minorities are meant groups of persons who differ in race, religion or language from the majority of the inhabitants of the country. But such persons may be further subdivided into two quite distinct classes: (a) nationals of a foreign Power; (b) nationals of the country concerned. The protection of minorities may also be regarded from two points of view: (1) it may be granted by the laws of the country and therefore be guaranteed by the state; (2) it may be dependent on treaties and be guaranteed by foreign Powers.

Traffic and trade among peoples are the prerequisites to any international law. Essentially distinct from them, however, are the right of peoples to traffic and trade with each other and the rules of law governing such international traffic. The aggregate of these rules constitutes the international traffic law.

For a hundred years or longer there have been legal rules regulating international traffic, but in no case was any attempt made to cover more than specific questions as they presented themselves for solution, no need being felt as yet among the peoples for a systematic regulation of the law as a whole.

During the progress of the world war there came to thoughtful men everywhere the deepening conviction that fundamental among the causes of modern warfare are the policies that lead to colonial rivalry and the imperialistic exploitation of undeveloped regions and backward peoples.

All belligerent parties looked forward to the peace settlement as an occasion for the satisfaction of territorial ambitions and the settlement of war damage claims in terms of colonial acquisitions. To humanitarians in all nations the peace settlement seemed to offer a precarious but possible occasion for the settlement of colonial claims upon terms of justice and in the interest of the hitherto little regarded native peoples.

Slow, but very steady, was the advance of Russia into Siberia. For centuries did the Russians move onward, gradually driving back, conquering or assimilating the Mongolian aborigines. For a very long time Siberia seemed only a vast wilderness and a happy hunting ground for the fur trader and trapper. Later, and mainly on account of its great distance from European Russia, the Siberian country was used by the Tsars for purposes of penal colonization. Thus, there grew up that sad reputation, which clung to Siberia for many generations, of a bleak land of exile, where human suffering attained its very limit. The famous book of George Kennan, Siberia and the Exile System, helped much to popularize these ideas, bringing home to the outside world the worst sides of the former autocratic régime of Russia.

Regardless of what we may think of the Treaty of Versailles, we must admit that it contains indications of farsightedness and broad vision. Among these I include the Covenant of the League of Nations and the clauses relating to international rivers and international labor laws. But even apart from these groups of laws and regulations, the provisions of the treaty which aim to submit disputes arising out of an especially important part of the treaty to international arbitration constitute, from the point of view of international law and considered in an abstract way—that is, only with reference to their creation and their significance for the development of international law and international arbitration—a real accomplishment, the fulfilment of wishes expressed even before the war by such scholars as von Bar, Meurer, Wehberg and Ludwig Wertheimer. At the same time the creation of the arbitral courts in the sense of Part X, Section VI, confirms the fact that the tendency toward arbitral settlement of such disputes even as arise from treaties of peace, to which I already called attention before the war, has not been abandoned on account of the war. This was proved by the German treaties with the Eastern countries and is now again indicated by the Treaty of Versailles.

“The mandatory system,” said M. Rappard, director of the mandates section of the Secretariat of the League of Nations to the mandates commission at its first session, “formed a kind of compromise between the proposition advanced by the advocates of annexation, and the proposition put forward by those who wished to entrust the colonial territories to an international administration.” Compromises are apt to raise knotty problems for the lawyer and the present instance is no exception. From the practical point of view perhaps it is unnecessary to solve these problems. The United States Government was able to function successfully for years with the divided sovereignty devised by Madison and Hamilton in spite of the insistence of legal purists that divided sovereignty is impossible. The British Commonwealth of Nations seems able to do business in spite of the doubt as to whether sovereignty has or has not passed to the self-governing dominions. So the mandatory system may work without ascertaining whether sovereignty resides in the mandatory, the mandated community, the League of Nations, or elsewhere.

When different races of people, possessed of different religions, moral standards and civilizations, come into contact a certain amount of friction will inevitably result. This is well illustrated by the sometimes troublous experience of western traders and missionaries in China. The part of our own diplomatic correspondence concerned with the protection of Americans in that country is voluminous and full of interest, and illustrates our distinctive diplomacy in the Far East.

In the April number of this Journal for 1921, Prof. Philip Marshall Brown discussed in a most interesting way “The Aaland Islands Question”.

He dealt with the claim of the islanders to determine by a plebiscite whether they should remain incorporated with the Republic of Finland or be transferred to the Kingdom of Sweden, a transfer apparently desired by almost their entire number, and with the advisory report of the Committee of Jurists thereon. This was, however, a mere step in extended transactions. Now they have been carried through, and not only the issue decided, but a precedent established as to the right of the Council of the League of Nations to intervene for the settlement of international disputes. Moreover, the practice and procedure which may be adopted therefor have been indicated. A review of the whole accomplishment and of the new methods employed seems, therefore, appropriate.