The Future of Civilization
RULE OF LAW IN PLACE OF RULE OF VIOLENCE
By FREDERIC R. COUDERT, Lawyer, President of the American Society of International Law
Delivered before the American Society of International Law, Washington, D. C., April 28, 1944
Vital Speeches of the Day, Vol. X, pp. 562-565.
WE are here for our thirty-eighth Annual Meeting at a time when the reign of law among the nations appears to be at the lowest ebb that it has attained through generations. International law and the future of civilization appear to be in the crucible of chaos, and no man can tell what their future may be. And yet, we have felt that it was a fitting occasion, not for black pessimism, but rather a time for considering the shaping of things to come; a time for striving through human will-power for a better world by a reasoned consideration of definite and concrete objectives. Such a world must be based upon "the rule of law" among the nations in place of that of violence.
Man precedes institutions, but man is little without institutions, and out of this chaos we believe may grow institutions which, canalizing and utilizing the best instincts in man, may make for the enforcement and growth of law among the peoples of the world. We refuse to be discouraged because we are confident that our nation and its Allies are now battling in that great cause, and we urge the peculiar duty of everyone interested in the maintenance of law among the nations to prepare for the day of victory in order that our aspirations and efforts may not, as in World War I, meet with frustration.
In 1907 the founders of this Society envisaged a future for the maintenance and development of international law, to which they dedicated our Society—but how different a future from that which came to pass! That two utterly devastating world wars should occur within twenty-five years of each other—the first within a few years after the founding of our Society—would have seemed to them a grotesque and an impossible happening, a mad dream, "a tale told by an idiot" 1 To them war seemed, indeed, a great calamity, but one which, in the future could be localized and much of its rigor alleviated by rules of law to be observed by belligerent and neutral alike. They believed war would in time tend to disappear as something too contrary to human reason and elemental morality. Rather it seemed that progress was a steady and an inevitable concomitant of history, and that the world must ever tend in increasing degree to extend the reign of law among the nations.
The Nineteenth Century had seen such great progress in the field of humanitarian endeavor, and in respect for the life of the human being, that reversion to the primitive, savage, rule of sheer might seemed impossible. The apparent progress of law, its substitution through the methods of diplomacy, arbitration and judicial settlement for war appeared to be the natural, nay, the inevitable tendency which could not be long or seriously checked or reversed.
That we were on the brink of another dark age seemed incredible to all but perhaps a few far-seeing men. It was even thought that the lawyer would displace the soldier in the final determination of international controversies. As was said by a lawyer, one who had had long experience in international relations, in an address in 1897:
"The lawyer—or as he is finely called when his client is a nation, the jurist, at the opportune moment, steps upon the scene, and the halting march of progress is resumed, the wheels of commerce continue to revolve, protocols take the place of declarations, pleadings of bulletins, and legal opinions of proclamations. No ghastly list of dead or wounded sickens the homes of the contestants. When the fight is over, no healing processes of time and taxation are needed to repair the waste, for reason has had the last word and has reached a result quite as certain to be just as though the debate had been fought out at Waterloo, Gettysburg, or Sedan. If this be one of the fruits of this so-called science, it is indeed a blessed science that deserves to live forever."
It was assumed that the discussions of the future would range about the formulation and interpretation of international law and the principles assented to by the community of nations, founded upon the common moral concepts recognized by Christian nations having a similar ethical tradition. It is true that there was also learned discussion regarding the nature of international law and acute analysis of the concept of sovereignty, but these discussions were largely academic.
The public generally, and even the lawyers, publicists and legislators, took little interest in such problems. They were engaged in the discussion of tariffs, antitrust laws, limitations upon corporate power; these seemed to be the main problems of the time.
In 1914 came the grim awakening. The press and the public became aware of the existence of international law, mainly through its violations. Here came the beginning ofthe end of the general belief in necessary and automatic progress toward the substitution of law for force in a march toward the millennium—a millennium to be brought about through sonorous phrases and legislative reforms dictated by a public opinion, which aimed to outlaw war,, to create plenty and to inaugurate a reign of virtue by mere statutory enactment.
With the creation of the League of Nations and the Permanent Court of International Justice following victory in a war which had been termed "a war to end wars" came a new period of hope, but this period of revived optimism was short-lived, and the growing differences and bitterness among the nations soon warned men of vision that another Armageddon was in sight. It was becoming evident that agreements to refrain from war could not be accepted at their face value and that nations could not obtain peace by wishing for it and by diminishing their armament, although there were but few who realized that this was a suicidal policy to pursue while certain strong nations, contemptuous of the reign of law, were preparing for aggression and world conquest.
After thirty years of such experience, one can scarce doubt that America has learned that peace through law cannot be obtained by eloquent addresses and high-sounding phrases, even when incorporated in a treaty. Peace and the rule of law can only be obtained through the efforts of nations who not only will it, but who are resolute enough to use their might against the aggressor who would return the world to I am not of those who despair of a better world and of the possibility of creating an order in world affairs, in which the rule of law shall be the normal state, and in which a lasting peace may take the place of a mere truce; but I do, however, know that this cannot be accomplished without a great and sustained effort on the part of America—an effort to assume responsibility in full proportion to the power and resources of the United States.
In this Society, devoted as it is to the maintenance of international law, we must utilize our training as lawyers to analyze the bases on which it may be possible to establish a real peace. If, however, anything like this objective is to be attained, it must be through the creation and organization of institutions which will make international law effective as the normal system for the solution of international con-It is insisted, however, by those who view with skepticism attempts at international cooperation, that war does not actually arise from justiciable controversies, but rather from those dynamic or biological factors which cause nations to seek expansion of their territory, their power, or their economic interests. That there is truth in this view, as evidenced in history, cannot be denied. But is not that the more cogent reason for again attempting the creation of an international body which can sanction peaceful change in accordance with changing fundamental conditions among the family of nations? That the achievement will be one of utmost difficulty and that it will require soundest statesmanship does not necessarily condemn it in advance. The refusal to believe in such a possibility is the negation of an attempt at anything like a lasting peace.
We must emphatically repudiate the suggestion insisted upon by some publicists that it is necessary "to postpone the question of any larger political organization until economic cooperation is established, when nations are more likely to seek it instead of having it imposed." As well may it be urged that all criminal law be repealed until economic and social conditions in the nation become so favorable that no criminals any longer exist; nevertheless, such a view is seriously put forward by those who still believe that our country should adopt a policy of no coercion for the maintenance of peace through law. This policy of quietism and masterful inactivity is advocated on the ground that "Self-interest can be relied on to induce hesitation in embarking upon the suicidal recourse to war, if tolerable alternatives are available." lt is difficult to find anything in logic or in recent history as a basis for such an argument.
If this argument should prevail, man must resign himself to a destiny directed not by his own reasonable efforts to avert destruction but by the law of the jungle in the same fashion as that which shapes the world of the gorilla or the hyena. Such a gospel of despair is one to which most of us refuse to subscribe, and which I believe to be contrary to the soundest teachings of history and the very slow but very real growth of human institutions throughout the ages. Fortunately, our Executive and our Congress have taken the constructive view.
I am conscious of the power of phrases and slogans; I realize their danger, and their often misleading nature. I fear the "absolutist" in international politics almost as much as I fear the fanatical devotee of force and militarism. Some of the words or phrases which have been glibly used for so long seem to be fraught with dangerous fallacies.
Analyze such a word as "self-determination." That among civilized people the desire of historic or ethnic groups for self-government is a natural development cannot be denied. As a working rule for statesmen it is useful. To suppress sentiments of nationalism is ever fraught with a degree of danger; war may and often has resulted by reason of such undue repression. On the other hand, to inject such a general working rule into an absolute principle of international conduct is dangerous. We speak of it in absolute terms, but the United States, in 1860, had the majority of its people acquiesced in self-determination as a God-given absolute principle, would have been completely disrupted. That principle applied generally and universally would break into fragments great areas where the rule of law has long prevailed. As was said by one of the founders of this Society, and a former Secretary of State, the late Robert Lansing: "It is one of those declarations of principles which sound true, which in the abstract may be true, and which appeals strongly to man's innate sense of moral right and to bis conception of natural justice, but which, when the attempt is made to apply it in every case, becomes a source of political instability and domestic disorder, and not infrequently a cause of rebellion."
The application of self-determination after the victory of the United Nations must be a working rule dependent upon circumstances and conditions, and not as an absolute postulate everywhere and at all times applicable. As Secretary Hull says in his admirable address on the Foreign Policy of the United States, and referring to the Atlantic Charter:
"It is not a code of law from which detailed answers to every question can be distilled by painstaking analysis of its words and phrases. It points the direction in which solutions are to be sought; it does not give solutions,"
This I am sure is a dictate of common sense and of reasonable prudence. Many ardent and enthusiastic reformers will refuse to admit this limitation and will indulge in acrid and unreasonable criticism of those who do admit it. But if we are to reach a happy result at the termination of the war it will be through the use of that common sense and discrimination which grasp the necessity for applying the results of historic experience and reasoned analysis to any proposed international settlement which may have a promise of success.
We hear much of "sovereignty" as inherent in national unity and as a bar to world cooperation. This again is a vague term used without sufficient analysis. Sovereignty within a nation means the power which ultimately compels general obedience to the laws within that jurisdiction. Sovereignty external to that nation may be a very different tiling. No nation, even the greatest, can be sovereign against the combined power of the community of nations. It is only when that community is unorganized and divided that any nation may be said to be externally sovereign. Even in that event, its external sovereignty is subject to limitation by other more powerful nations or combination of nations.
International law within its sphere of international relationships must be sovereign if it is to be law at all. This sovereignty can only be exercised through the organization of the community of states. As the late Mr. Justice Holmes stated on various occasions: "Apart from theory sovereignty was a question of strength and might vary in degree." Every limitation which a nation by treaty or acquiescence imposes upon itself is pro tanto a limitation of sovereignty. True, it may be a self-limitation, but the violation of that self-limitation may well invite the use of force from other nations.
Sovereignty varies in degree and power; even in the United States itself it is not always possible for the nation to enforce its own laws. In the creation of machinery for the sanction of international law there must he a recognition that sovereignty is a mere word for preponderant power. Like jurisdiction, it simply comports that back of the rule of law there is a power capable on the whole of enforcing that rule. As Robert Lansing wrote in our Journal many years ago (1909):
"The conclusion is that no matter how real sovereignty in a state may be, when viewed from the standpoint of the state itself, it is not real in fact but artificial unless the sovereign of that particular state possesses the physical force which, if exercised, can compel obedience from all mankind throughout the world. Doubtless the sovereign of the Persian, the Macedonian, or the Roman Empire as each in itself attained the zenith of its glory and might, may have reasonably claimed real sovereignty, even in a proper sense, and maintained the claim against the united strength of all other peoples; but in later centuries the Saracens, Charlemagnes, and Bonapartes attempted and failed to establish an empire and obtain universal sovereignty."
"England has the honor to hold in her hands the balance of power, and she is careful to keep it ;n equilibrium. This had been the instinct of British statesmen since the time of William III, and their avowed policy ever since; and the insular position of England, unassailable herself, and aiming at "no conquest on the Continent, had enabled her to play with success the part of the Puissance mediatrice of Europe—to quote Montesquieu's phrase. It was this policy, aiming of course primarily at the security of Great Britain and her Empire, which inspired Pitt and his successors in their implacable struggle against French imperialism and the efforts of the British Government to reestablsh a 'just equilibrium' in Europe after the downfall of Napoleon."
It is in this sense that international law, properly applied and sanctioned, must over-ride national law, if the two come into conflict. I do not see any escape from the dilemma, and it might as well be frankly admitted. I am also aware of the fact that where a nation's fundamental security is believed to be put in jeopardy, it may and often does resort to war rather than admit outside power or sovereignty as determining the question. It is, therefore, the concern of practical statesmen to compromise these seeming contradictions and to find a way in which power may be so organized that it will be combined with right and with law, and thus meet with general acceptance among the nations.
Another slogan much misunderstood is the phrase, "balance of power" It originated, I presume, in the policy oi the people of the British Isles to protect themselves against dominance by any nation of continental Europe by playing off one great power against another. It was the natural dictate of the national will for independence and security. In itself, it did not necessarily possess those evil connotations so often applied to it. As was stated by Vattel in the middle of the Eighteenth Century:
A nation frequently does and necessarily must seek its own security from foreign aggression and dominance through availing itself of this so-called balance of power, or perhaps we should say balancing of power. The problem is to transfer the preponderance of power to the nations intent upon maintaining peace and the reign of law. Power politics, so-called, is an inevitable concomitant of international relationships. Power must be used to maintain national security, and often has been employed for national aggrandizement and profit. Therefore that power should be organized so that the community of nations will use it for the purpose of sanctioning international law.
I believe in the equality of nations, but there is no such thing as the equality of power. A very few great nations will wield the power of the world. If they are divided among themselves as to the policies to be pursued on certain matters of fundamental concern to the security of other nations there can be small hope for any real peace. If the nations now j constituting the United Nations, and especially the great powers among them, can unite in a policy founded on the firm establishment of the rule of law, that rule can be realized.
I see no necessary contradiction, as has been claimed, between what is called an alliance between the great powers to maintain peace, and a general international organization of the community of nations. The latter cannot come about unless the greater nations who desire peace are willing to unite to obtain it. To make such a union effective and lasting it must be based upon a recognition of the rights of the small nations to independence and equality of treatment under the rules of international law. In other words, the sanction of law must be in strength, but that law must recognize as a fundamental postulate the rights of nations to fair treatment regardless of size or power.
It is, I think, a useful work that has been accomplished under the direction of a recognized master of international law, our honored friend, Manley O. Hudson, the American Judge of the Permanent Court, in formulating a plan for the International Law of the Future. In formulating that plan, with its principles and its postulates, there is proposed as the basis upon which the supremacy of international law rests, an institutional organization of the nations. This organization recognizes the equality of states before the law, but it also recognizes the necessity for the assumption of a major responsibility for that equality on the part of those powerful nations who alone, when united among themselves, may guarantee the rule of law. In recognizing this fact and in differentiating between equality and power, in refusing to ignore actuality, and in the realization that the smaller nations are at the physical mercy of the larger, a practical and an attainable objective has been put before us for study.
It is useless for a body of this kind to indulge in easily elaborated Utopias, which are ingeniously devised regardless of human experience and of the teachings of history. The future depends upon practical and informed statesmanship among the nations. It largely depends upon an intelligent leadership on the part of the United States, in which great problems may be viewed more dispassionately, more analytically and more fairly than by nations whose territory has suffered devastation and whose population has experienced the actual havoc of invasion.
In planning for the future, it may be helpful to study the dramatic events of the last World War—the near success of the League of Nations, which failed because the peace-loving nations were unable or unwilling to force observance of law and treaties. In intelligently utilizing those experiences, an institutional machinery may be devised that can be helpful to the peace-making forces throughout the world in bringing to success another attempt to organize might back of right and to sanction law among the nations. In studying the method by which this may be accomplished, I am confident that thinking people throughout our land will find The Future of International Law a work that is thoughtful, stimulating and helpful to clear and creative thinking.