Supra-National Law


By OWEN J. ROBERTS, Associate Justice of United States Supreme Court

Delivered at dinner of the American Society of International Law, Washington, D. C., May 1, 1943

Vital Speeches of the Day, Vol. IX, pp. 457-459.

THE development of international law in the last fifty years has been substantial. It seems fair to say that this recent development is greater than the world has witnessed in historical time.

International law, viewed as the formulation of the customs of civilized nations in the conduct of their mutual relations has become a great corpus of jurisprudence through the consensus of experts working in the field. In addition, there has recently grown a large body of consensual international law embodied in the formal agreements to which nations are parties.

The last two decades have also witnessed an encouraging advance in the resort to adjudication of international disputes. The practice of submission of questions arising between nations to the Permanent Court of International Justice has been a long step forward in the recognition of right principles in composing international differences.

In the years following the First World War there seemed reason to hope that, by a course of evolution, nations would come to adopt these methods of adjusting their mutual concerns and that the rule of reason and justice might more and more pervade the settlement of questions arising between them.

The invaluable services of the League of Nations in many fields, but particularly those of health and hygiene, economics, and industrial relations, gave hope of further progress and fuller understanding and cooperation. The many peace treaties by which nations covenanted to make their best endeavor to settle disputes arising between them, without resort to force, seemed to promise the ultimate outlawry of war. The general satisfaction with the work of the Permanent Court of International Justice foreshadowed increasing resort to that tribunal.

The League of Nations itself was far in advance of anything the world had known as an instrument of international political control of national sovereign rights.

But it became increasingly evident from 1933 that all existing instruments of international cooperation and adjudication would prove inadequate to preserve the world from resort to force. It became evident that the only existing sanction of international faith and honor, namely, the sentiment of the majority of civilized men, would prove insufficient to deter some nations from flouting both the express covenants to which they were parties and the corpus of established principles of international law which has grown with the advance of civilized living. The present war is witness to the fact that, in world crises begotten by race pride, by the lust for national aggrandizement, and by national selfishness, international law is powerless.

The international role which the United States has played has been conditioned upon the state of public opinion in the nation.

In each of the two world wars our Government, responsive to the popular will, initially attempted to play the part of a neutral. In both cases our citizens have, after serious and costly delay, discovered that the world's business is our business; that we cannot erect a wall and sit safely behind it while the flames of war rage beyond our borders; that we must act not only for the vindication of the principles to which our Government is dedicated but, from a merely selfish point of view, we must defend the personal and economic freedom of our citizens or lose it. And so, tardily and unwillingly, the people of the United States have been forced to throw the weight of their will and their resources to the support of the efforts of nations fighting to vindicate those principles for which we stand. I believe that we have come to realize that we cannot, as a nation, live in isolation; to understand that, if we are to have the essentials of our free democratic way of life we must join other nations in means and methods to perpetuate world peace through world cooperation.

Our recent experience teaches that all the expedients to which the nations have turned are insufficient to keep the peace. We have learned that leagues, treaties, agreements, voluntary submission of disputes to a world court, fall short of reaching the goal. What other recourse is there? Our own national experience as a federation of independent sovereigns seems to point to at least one avenue to be explored. Is it not plain that, so long as national sovereignty remains absolute, no means will exist for preventing the abnegation of the obligations of international good faith. Must there not be a fundamental framework of government to which the people of each constituent nation surrender such portion of their nation's sovereign prerogative as is essential to an international order; that each nation be bound by certain agreed rules so that no single nation, and no group of nations, can, for any reason, or for no reason, assert its or their unbridled will by resort to arms?

What I read, and what I hear, leads me to believe that, amongst men of your background and training, and indeed amongst the thinking laymen of the United States, the overwhelming opinion is that some such organic and fundamental law must be adopted if we are to have world order and world peace. Men differ widely as to the character of the structure and the powers to be conferred upon a supranational government and the machinery by which those powers are to be implemented. These are matters in connectionwith which experts like yourselves can be of inestimable aid. The difficulties of framing such an organization admittedly are enormous. They challenge the best ingenuity and skill of the most expert.

Naturally there will be differences as to detail. But it seems to me that there ought not to be much difference of view respecting certain fundamental requirements. Supranational law must be law affecting and binding individual citizens of the nations belonging to the supra-national Government, in the same sense that the law of the United States, consisting of the Constitution, and the statutes adopted pursuant to it, bind every citizen of the nation. The contrast between the Articles of Confederation and the Constitution in this aspect is sufficient to enforce the conclusion. The United States could never have persisted through the 150 years of its life if the laws of the nation had been addressed to, and binding upon, the states as entitles rather than upon the individual citizens of the states. The police force of any government necessarily must enforce the law of that government against its citizens,—not against the state or nation to which those citizens belong. Enforcement as against a citizen is a police function; enforcement against state or nation as an entity is war.

The psychology back of federal legislation is that the citizen's loyalty and fealty to the nation stands over against his loyalty to his particular state. That balance of loyalties, with all its obvious value, would be lost if issues between the federal government and its constituent members were closed by the mandate of the federal Government to the state instead of to its citizens.

It seems obvious that a world government must have a representative assembly to implement its delegated powers. Equally plain is the necessity for an executive to administer the laws and see to their enforcement. And under that executive there must be an independent police to effectuate the legislative policy and the executive action pursuant to it.

Lastly, there must be a judiciary to which disputes between the citizens and the supra-national government, between citizens and any nation a party to that government, and between nations, must be submitted for adjudication.

These three instrumentalities are essential if we are to avoid the weakness and inefficiencies of all prior forms of international cooperation. Treaties, league covenants, and agreements which may be repudiated at the wish or whim of any nation party to them leaves the adherents to the compact little or no power to compel recusant signatories to comply with their undertakings. And a world court whose jurisdiction can only be invoked by willing nations is helpless to prevent such violation of plighted faith.

I shall not stop to discuss the details of structure and powers of international government. As I have said, these matters challenge the ingenuity, the skill, and the imagination of those who are indoctrinated in the theory of government and who are expert in international law. Given adherence to the fundamental propositions I have stated, I have enough confidence in the intelligence of mankind to believe that a convention of delegates from the nations can overcome the difficulties presented, as the Constitutional Convention of 1787 overcame those confronting it.

I turn to some objections and caveats currently put forward. First, it is said that nations are not ready to be tied together in a complicated governmental organization wholly new and untried. I answer that the important matter is not how much but how little authority should in the first instance, be delegated to any such government. It would seem that a very simple Bill of Rights—a power to raise and support armies, a commerce power analogous to that exercised in the United States by the Congress, a power to create an international medium of exchange, and a power to create a federal postal system, would be essential, andthat little, if anything, more should initially be attempted; perhaps not so much.

It is said that any such project is but the mental concept of the amateur and the naive; that nations, other than the existing democracies, would find the scheme antithetic to their notions of government and international relations and consequently would refuse adherence to it. My answer is that, while we should make the framework broad enough to permit the ultimate entry of every nation which desired to join and was able to institute a popular form of government approximating our notions of democracy, we should not wait to organize a supra-national government until all, or a great majority of nations, were ready and willing to enter. Certainly the people of the British Commonwealth of Nations and the people of the United States would understand and readily accommodate themselves to such an organization; and in western Europe there are many more nations of which the same may be said. These, if they keep the door open to others of like mind, could, with the greatest advantage, now amalgamate in an international government. Indeed it might be better that, in the first instance, they alone should do so. This could be no affront to other nations but, on the other hand, it would have the enormous advantage of presently consolidating international policy in respect of the postwar settlement. It would obviate discrepancies and differences, confusion and delay, and the inherent weakness which follows from divided counsels.

Of a piece with the same criticism is the assertion that nothing should be done towards postwar world organization until after a long cooling-off period. In my view, no doctrine can be more dangerous. When the war ceases, great populations will be left without government, without national solidarity, in utter confusion with respect to the future. For the allied nations to endeavor, by negotiation amongst themselves, to provide a stop-gap while they jointly plan their future course with respect to other nations and other peoples will beget only discord, the emergence of the age-old national jealousies and claims and result in an ultimate settlement comparable to that at Versailles. If, when the peace comes, a strong union of democracies speaks on these matters with a united voice, and holds out even to the conquered people of Europe opportunity for ultimate partnership, under proper conditions, a very different picture will be presented.

The last and most prevailing objection is that the people of the democracies, and especially the people of the UnitedStates, will never consent to surrender any portion of the national sovereignty. If this objection be valid, that ends the discussion. We may as well then throw up our bands and let the world roll on into chaos. Unless the United States espouses, and promptly and vigorously urges, a project of world organization, none such will reach fruition.

No plan of organization however apt, however desirable, can have any chance of adoption or successful operation unless it is backed by the sentiment of the American electorate. The man in the street may not be competent to judge of the details of such a plan. But he is competent to comprehend the principles upon which a union should be built. He is competent to envisage in a broad way what it is he is willing to have his government adopt, what elements of national sovereignty he is willing to surrender and to pool with the peoples of other nations, and he is competent to say whether he wishes his government to embark upon a daring but hopeful experiment of world organization.

Unless the great majority of our people agree that their chosen leaders shall adhere to an acceptable form of world organization nothing can be accomplished. Our national way is for the leaders, students, and experts to impart to their fellow citizens their views and their reasons for holding them, and thus promote sound public opinion. Men tike yourselves who must feel that this war will be fought in vain unless we can win the peace have a high duty to enter the forum of public opinion and make your influence felt. And our nation will not take her stand for unselfish and enlightened international cooperation unless her leaders are convinced that it is the will of an overwhelming majority of our people that an appropriate organization be created to that end. Nor will our leaders speak to the leaders of other nations with authority unless the body of public sentiment in this country gives assurance that what is agreed upon will be carried out by our government. It will be as unfair as it will be fatal to leave our representatives in the equivocal position in which President Wilson stood after the proposal by him, and acceptance by our allies, of the plan for the League of Nations.

Our obligation then is to arouse and enliven public sentiment in this country in support of an integration of our own and other nations in a world organization having the purpose and the power to adjust the relations of the peoples of the earth in accordance with the dictates of justice, and to promote and, if necessary, enforce the peaceful composition of all differences and disputes which may occur.