A Permanent United Nations
THE PROSPECT FOR PERMANENCE
By AMOS J. PEASLEE, Lawyer
Delivered before the International Law Section of the American Bar Association, Detroit, Mich., August 25, 1942
Vital Speeches of the Day, Vol. VIII, pp. 734-736.
IT may be accepted as a major probability that an effort will be made at the conclusion of this war—more determined than at Vienna in 1815, or at Paris in 1919, or at any of the Pan American Conferences—to set up stronger permanent organs of international government.
Whether the effort should be undertaken immediately upon the conclusion of hostilities in the glow of unity and victory, or whether it should be delayed until after a "temporary relief" and "cooling off" period, is debatable; but such a prospect is forecast by declarations of leading spokesmen among the United Nations and neutrals as well.
The Common Cause
The cause which now binds the United Nations is to "defend life, liberty, independence and religious freedom, and to preserve human rights and justice in our lands as well as in other lands". It is not dissimilar to the ancient "hue and cry" against highwaymen, pirates and arbitrary monarchs.
Germany, as a government, stands before the world as the modern symbol of what Secretary Hull describes as "barbaric savagery and organized wickedness."
Frederick the so-called "Great" in his letters to Podewils started Germany on her career as a nation with this advice:
"If there is anything to be gained by it we will be honest; if deception is necessary let us be cheats."
The War Book of the German General Staff reads:
"International law is in no way opposed to the exploitation of the crimes of third parties, assassination, incendiarism, robbery and the like."
And Prof. Banse, who was granted a special Chair of Honor at Hanover in the Spring of 1935, writes:
"War is * * * the ground whereon the human soul can most richly and most strongly reveal itself, bursting forth from deeper springs and more variously than in any single achievement of learning or art."
The United Nations deny that those precepts represent either morality or the law which is to govern the modern world. They are determined to tolerate the ghastly medieval crimes born of such nonsense no longer. It may be no more possible to abolish war and war worshippers than to abolish crime and criminals, but it is possible to outlaw and to control them through permanent organs of the International Community strong enough to do that job.
We would prefer not to deny to Germany the right ofnationality. We dislike the term "criminal" as applied to a nation, or even to a corporation. But we do deprive habitual criminals of the right to citizenship. We dissolve unlawful corporations. And if Germany must be governed for a time after this war by territorial administrative organs it will be far better that it be done by the United Nations as a unit than by any concert of separate powers.
Permanent organs of World Government are needed for other purposes, too. Not only Axis Powers but many other national governments, including our own, have enlarged their peace time functions into a vast control of domestic and international economy. They have become tremendous business enterprises. No existing organs of Government have any possibility of dealing adequately or fairly with the civil controversies which are bound to increase with that expansion.
War Time Organs
During hostilities a certain amount of United Nations' machinery has already been and will further be, erected. It is in a sense "governmental" machinery, but it is designed to subdue by military force the international outlaws who are spreading terror and destruction under the cloak of national power. Such war organization is not well equipped for permanent peacetime purposes.
Written or Unwritten Constitution?
Delegates to the Post War Convention on Permanent Organization will no doubt come from neutral as well as belligerent governments. The preliminary questions will be:
(1) Shall the World Community attempt to adopt a single written constitution for future government of the inter-relations of nations and peoples of the world?
(2) If not, what further isolated organs of international government—executive, judicial or legislative—shall be erected?
I favor a written constitution. We should not envisage a federation exactly paralleling our own. The Society of Nations has a unique pattern. It requires its own peculiar organs of government.
But if we accept the Atlantic Charter principle that nationalities and national rights are to be preserved and protected, must we not face fearlessly the concept of a super-sovereignty?"
Every organ of international government—and we alreadyhave many of them—exercises in a sense "super-sovereign power." By the Pact of Paris, which Germany was the first nation to sign, the leading nations have already renounced unrestricted sovereignty—if it ever existed.
President Wilson's first draft of the League Covenant employed the word "Constitution" in its preamble. Happier results might have followed if the final document had risen to the dignity which that word imports, and if there had been less timidity then in admitting the necessity for adequate instrumentalities.
A complete written constitution for the United Nations seems desirable for several reasons:
(1) It could declare at the outset accepted sovereign rights which may not be infringed.
The American Institute of International Law made a noble first draft of possibly acceptable clauses in its "Declarations of the Rights and Duties of the Nations," adopted as part of the "Recommendations of Habana" in 1916. The American Law Institute has been working on a similar project for a draft "International Bill of Rights."
The post war World Convention will do well to study those documents. An official declaration of inviolate national rights should go far in removing hesitation to entrust more power to international governmental institutions.
(2) A written World Constitution could declare precisely what permanent organs of world government are to be sanctioned and clothed with effective powers and given adequate means of financial self support.
We do not underestimate the difficulties or the dangers of creating permanent self sustaining organs of World Government. The practical difficulties can be overcome. The dangers of not acting boldly are more serious than the dangers of doing so.
In the supreme hour of our own national power which will exist when the present hostilities cease we can make no nobler gift to humanity than to insist, as a condition of meeting the clamoring demands which will be made upon us, that the International Community shall build a political order which will enable it to share the blessings which we have enjoyed under functioning constitutional government.
(3) Written Constitutions containing bills of rights have grown apace among nations in recent years. The growth is significant in indicating public confidence in them.
About 95% of the national sovereignties now have written constitutions. Even the British Foreign Office, in a little observed announcement in 1938, published a volume purporting to set forth the written "Constitution of the British Empire." It reproduces and cites in about 650 pages approximately 300 parliamentary statutes, orders in council, letters patent, royal instructions, and other documents as constituting the British Empire's Constitution. It is an Empire document. It omits Magna Charta, the Bill of Rights, and other documents which we usually associate with the "British Constitution." It hardly employs the term "Constitution" in the sense elsewhere used in the world, but it is probably the first time that the British Foreign Office has sanctioned the labeling of any particular documents as constituting a written Constitution of the British Empire.
If a written Constitution is to be adopted by the United Nations it should resemble in form and extent more nearly the great majority of other national Constitutions but it must necessarily deal with the peculiar problems of World Government and it will certainly take account of experimental organs which already have been tried.
Legislative Organs—International Conferences, Multilateral Treaties, a World Congress
The span of the natural lives of the delegates to the next Peace Conference will be insufficient to "settle" all of the problems which will be presented to them. If they attempt to deal with all of them they will tire and err. They will crystallize results where what is needed is constant legislative study and review.
The creation of a permanent World Congress would not be a radical departure from the procedure already experimented with in the League of Nations and in the Pan American Union, except for the present requirement that international "legislation"—which now usually takes the form of resolutions or multipartite treaties—must be approved by each government affected by it. The present system is as though a domestic law were only operative against particular citizens who vote expressly in favor of the law; or as though each act of our Congress were required to be ratified by each state affected by the Act.
If a permanent Congress is created, and if it is not confined to mere diplomatic representatives of governments, it may be an easy step to grant to such a legislative body the power to promulgate its own international statutes, freed from the necessity of national ratification.
Executive Organs—International Administrative Bodies, Sanctions, National Armaments, a World Police
The United States already participates in at least 29 international administrative agencies. It would not be particularly revolutionary to place those various organs, as wellas some others, under control of a permanent organization of the United Nations.
The chief difficulty with the Versailles Treaty was not the provisions which it contained, but the fact that they were not enforced and that no adequate organs of World Government were provided to enforce them.
The sanction provisions of the League Covenant called for the application by individual nations of their separate military establishments and economic powers. It was as though the States of Michigan and Minnesota were asked to agree to intervene as state governments in any controversy between the States of Rhode Island and Massachusetts. As coordinate political units they would properly hesitate to undertake that; and their efforts, if undertaken, would be resented. Nations, as such, should not be called upon to meddle in the disagreements of other nations, nor to put down public international brawls and breaches of the peace, nor to apprehend, confine and punish international outlaws. That function belongs to the World Community.
Our own Constitution and most federal national Constitutions, quite wisely omit any express provisions whatever upon the sensitive issue of sanctions and the question of right of withdrawal.
The United Nations, as a functioning permanent organism, should itself be provided with adequate machinery for the preservation of the public peace and the promotion of the common welfare. Let it confine itself to a few very simple delegated powers.
National armaments are not an obstacle to, nor an adequate excuse for delay in, the creation of adequate executive organs. When we founded our own Federal Government we did not abolish military establishments of the States. We did not prohibit citizens from carrying arms. On thecontrary we inserted a provision expressly guaranteeing the right to "keep and bear arms," and we approved the maintenance by States of a "well regulated militia." In so far as our Federal Constitution is concerned a state may maintain whatever military establishment it chooses. A citizen may keep a whole arsenal of firearms if he wants to do it. We find it cheaper and more effective to support a police force, but that is our legal right, though we may not use either the militia or the firearms to commit aggression against a neighbor.
Judicial Organs—World Courts, Claims Commissions, Mixed Arbitral Tribunals, Conciliation and Arbitral Procedure
Fortunately we have a hundred and fifty years of experience with international judicial procedure in the modern world. We have operated under many claims commissions, and arbitral tribunals. Indeed the torrent of conciliation, arbitration and compulsory adjudication treaties which descended during the past thirty years has confronted us with an "embarras de choix" rather than with any dearth of paper judicial machinery.
In so far as the "optional clause" of the statute creating the Permanent Court of International Justice became effective, it provided a method of procuring a judicial determination of an international controversy whether or not the defendant government chose to be sued respecting a particular issue.
The procedure for selecting the members of such a court should be simplified. Compulsory jurisdiction should be accorded to it; and a complete system of lower courts, sitting regularly or riding on circuit in various parts of the world, should be created.
Lawyers are not impressed with the objection occasionally offered that the founding of permanent International Courts must await the codification of International Law. If that theory had been followed in municipal law there would still be no domestic courts in many of the most highly civilized states and nations of the world.
The International Community, if we accept the statements of the leaders who have spoken, has again determined to endeavor to organize itself on a more permanent basis.
Even if that were a prospect to be feared—which surely it is not—the alternative is far more dangerous.
Such organization should be undertaken through a written Constitution which should define and reserve to the nations their proper inviolate national rights.
The Constitution should allot to the International Authority adequate powers and permanent organs of government to perform the functions which properly belong to it. It should vest in the Authority some means of financial self-support.
If the Post War Conference creates a self-contained World Authority and not a mere concert of powers or weak confederation, it will avoid the errors of 1815 and 1919.
The basic problems of the Post War Conference on Permanent Organization will—if that conference is happily guided—be problems of Constitutional and International Law.