The Role of the Lawyer in Future World Organization
MORE POWERFUL AND CIVILIZED NATIONS MUST ACCEPT RESPONSIBILITIES
By FREDERIC R. COUDERT, President of the American Society of International Law, and Member of the Council of the Inter-American Bar Association
Delivered before Third Conference of the Inter-American Bar Association, Mexico City, July 31, 1944
Vital Speeches of the Day, Vol. X, pp. 662-665.
THE meeting of this Association representing the lawyers of the Western Hemisphere is, I am convinced, a notable event, an event which would have been long delayed perhaps had it not been for the global war threatening the destruction of the foundations upon which law and justice have been erected throughout the i ages. The role of the lawyer in the rise of civilization can scarce be exaggerated. It is of cardinal importance that such influence should be concentrated, intensified and directed so that the world to come may be saved from a recurrence of anarchy brought about by militaristic ambitions to rule by force against right and justice. As was so admirably stated by our honored President, Mr. Sanchez Mejorada, in a recent address delivered at a meeting of the Federal Bar Association in Washington:
"However, we must all recognize that law is an aspect of life itself and, therefore, is a changing, living thing. It is up to us lawyers, instead of merely becoming alarmed, to see to it that the new institutions, required by the new conditions and ways of living, develop without destroying individual liberty."
That eminent statesman and philosopher, General Smuts, recently said that if, as he hoped, this World War should successfully end in 1944, the world would then have terminated the second thirty years' war. As one looks hack over the past thirty years, one can realize the truth of this observation.
The profound shock to the public law of the world, which began with the German aggression in 1914 and which resulted in a world chaos, was the origin of a long process of disintegration. I believe that that process is near its termination and that the healing process of salvage and integration is about to recommence.
The totalitarian system means nothing more or less than military domination, and hence permanent war by certain nations that desire to subjugate, degrade and enslave others. That policy is based upon the biologic view of human nature, and omits all the ethical factors which serve to distinguish man from the animal. It is a reversion to that primitive tribalism in which tribe destroyed tribe, and where war was the natural and permanent pursuit of man.
International law governing the relations between independent nations is an instrument. Back of that law there has been, at least to some extent, and must be in the future to a far greater extent, a community of nations. Peace among men can only be maintained by one of two methods; we shall have either that imperialism which results from forces—a Roman peace which means the subjugation of the weaker nations by the stronger, where law becomes imperial fiat—or we may have a law which has the consent of the nations united in a community in which the interests of all transcend that of any one. Such a situation represents a higher form of civilization; a situation in which reason and justice are the dominant factors. The lawyer class represents the reverse of force—the policy of reason and justice. Whether we base the hopes of men upon natural law, the inherent rights of man, or upon the standards of liberty established by a free community without reference to any higher law, the result is much the same.
While the great military structure of the Roman Empire perished, the body of the civil law survived. That civil law coming down from the ages prevails as a basic system in the southern part of the American Continent; like the common law, which borrowed so much from its elder sister, it is marked primarily by an appeal to reason and to the worth and dignity of the individual. Thus the lawyers throughout the Americas possess a heritage of ideas which found society upon reason and liberty rather than upon force.
I am convinced that peoples of the Western Hemisphere will follow the policy long ago inaugurated by its leaders and will settle their differences by an appeal to justice and the methods of the lawyer rather than those of the conqueror and imperialist. It is because this movement has already so far advanced that it is particularly important to bring together in permanent organization those priests of justice and fair dealing—the judges and the lawyers. We can by common effort materially aid in maintaining a great continent on the road to progress through peace and its handmaid, the law.
By striving for a uniformity based upon the selection of the best elements in each system of law, economic intercourse throughout the continent will be widely served. By respecting the rights of man and the rights of nations, international law will be placed upon the most solid foundation, and from Canada to the Argentine a real community of free nations consenting to a regime of law will exist.
Modern international law originated in a community of Christian nations having a certain common consciousness of right and wrong. Through the generations that community grew until it embraced nations that did not have the common religious background and had not been part of the Roman Empire. This evolution was referred to by John Bassett Moore at the Annual Meeting of the American Society of International Law in 1907. He said:
"As the law of nations was originally the product of the Christian States of Europe, nations were classified with reference to its acceptance and rejection as Christian and non-Christian. With the admission of Turkey, by the Treaty of Paris, 1856, 'to participate in the advantages of the public law and concert of Europe', this classification ceased to be accurate. Lately we have witnessed a further enlargement of the circle by the formal admission of Japan. The admission of those States to the concert of those nations does not signify that the standards of international law have been altered or abandoned.
On the contrary, it denotes a more general acceptance of those standards, as the test of the advancement in law, in morals, and in civilization."
The law emanating from this international community was of an imperfect or primitive character because of the lack of definite and coherent organization of such a community. There were no sanctions except those sanctions which emanated from self-help, that is to say, from war by any nation believing itself aggrieved through violation of its rights. There were also uncertainties in the law because of the lack of any international legislation or definite, permanent tribunal whose decisions were respected by all members of the Community of Nations. There have been notable instances since the time of the Napoleonic wars when the nations of Europe, or at least the great Powers, have acted together for a common purpose such as the concert of Europe and various international congresses since that time.
After the first World War, 1914-18, which disrupted the Community of Nations, that Community was reorganized through the League of Nations and had a much more positive and definite basis, although one great nation stood aloof. We then began to develop international legislation through multipartite treaties. This, while not a wholly novel development, was greatly augmented by the functioning of the League of Nations and the concentration of community intercourse at Geneva.
With the establishment of the Permanent Court of International Justice at The Hague, the Community of Nations finally had a tribunal which performed a useful service for some twenty years in declaring and unifying international law. Despite the fact that it did not possess obligatory jurisdiction, it marked an immense step forward in giving to the Community of Nations a definite and stable judicial organ.
The apostasy of Germany, Italy and Japan from the fundamental principles upon which international law had been founded, and which the League of Nations and the Permanent Court of International Justice had attempted to maintain, disrupted the whole structure. Doctrines such as racialism and the negation of the rights of weak nations destroyed those very bases upon which international law had grown up.
The equality of States before the law was fundamental; its denial was a reversion to the older and more primitive system of force or imperialism by which the weak had ever been the slave of the strong. Thus to restore international law to the position it occupied it becomes necessary again to organize more firmly and completely the Community of Nations and safeguard it from apostasy and aggression.
This can only be done by creating a strong organization or agency representative of the Community of Nations capable of preventing aggression. The task is one of utmost difficulty, but it must be accomplished if our Western civilization is not to be destroyed and if the body of international law, which has grown up through the generations, is not to be relegated to the limbo of oblivion.
Some attempt at this was made by the constitution of the League of Nations, but the abstention of the United States, and the unwillingness of the dominant nations to understand that their safety depended upon international law, and the exercise of force when necessary to maintain it, ultimately destroyed the League and led to the present world chaos.
Unless the peoples of the Americas are willing to accept responsibility there will be no effective security for international law, and after the hideous destruction and devastation caused by the present world conflict comes to an end, the world will be threatened with another as soon as any dissatisfied aggressor nation has sufficiently recovered to fight again.
I know that some may differ from this view and contend that we are entering into the domain of international politics rather than that of international law. To this I can only answer that the two are completely inseparable; to devise beautiful codes in a vacuum is a pleasant intellectual recreation, but it is not worth the time of the active, practical men who compose this Association of lawyers.
International law and international relations cannot be segregated in water-tight compartments. If the lawyers are to take the lead to which the traditions of their profession and their past influence entitle them, they must take a positive stand upon the problem of how to sanction international law. It is useless to discuss the reform or codification of that law until we have determined what means we shall take at the termination of the war for maintaining the regime of international law as against the totalitarian gospels and their consequent regimes based upon zoological considerations and appealing to race and force as the determinants of international relations and the bases of a so-called new order. Such an "order" involves the negation of nineteen centuries of human striving to maintain justice and morality among men and nations through the reign of law.
Since the last meeting of this Association in 1943 at Rio de Janeiro, international events of a far-reaching character affecting the organization of the Community of Nations have taken place. The Governments of the United States of America, the United Kingdom, the Soviet Union and China have agreed to the establishment of an international organization with power to prevent aggression and to preserve the peace of the world. The Senate of the United
States has passed by almost unanimous vote a resolution for the creation of such an organization.
The Secretary of State, Mr. Cordell Hull, in an address on our foreign policy, said:
"In this way we are proceeding with the matter of an international organization to maintain peace and prevent aggression. Such an organization must be based upon firm and binding obligations that the member nations will not use force against each other and against any other nation except in accordance with the arrangements made. It must provide for the maintenance of adequate forces to preserve peace and it must provide the institutions and procedures for calling this force into action to preserve peace. But it must provide more than this. It must provide for an international court for the development and application of law to the settlement of international controversies which fall within the realm of law, for the development of machinery for adjusting controversies, to which the field of law has not yet been extended, and for other institutions for the development of new rules to keep abreast of a changing world with new problems and new interests." (Radio Broadcast, April 9, 1944.)
We thus have a situation in which the four great nations, acting through their Governments and political leaders, have declared that they recognize the necessity of establishing at the earliest practicable date a general international organization based on the principle of the sovereign equality of all peace-loving states and open to membership for all such states, large and small, for the maintenance of international peace and security. They have also agreed to remain in consultation with one another and with the other members of the United Nations for joint action on behalf of the Community of Nations.
From the standpoint, therefore, of the creation of a constitutional organization for the Community of Nations, the prospect of success would seem well-nigh assured. These agreements upon the part of the four leading powers of the modern world clearly mark an epoch in international relations. They are of utmost interest to lawyers and jurists, whose special function it must be to strive for the rule of law and the peaceful settlement and adjustment of international disputes so that war as an instrument of policy may be outlawed and aggression restrained. It is for us to deal with the principles to be observed rather than with the precise machinery designed to bring about the rule of law and the maintenance of peace.
While power and responsibility must be largely commensurate, and while those nations which have predominant power must necessarily assume the greater burden, nevertheless the first principle of international justice must be the equality of all nations before the law. The right of the smallest nation to freedom from aggressive or coercive action by the stronger must be guaranteed by power. Like the individual before the municipal law, the small and the great must stand on a footing of equality before the law of nations.
In addition, however, to the rights of the nations themselves forming the Community of Nations, there should be recognized certain fundamental rights of the individual, which are necessary if civilization is to be founded upon justice. Complete disregard of these fundamental rights in any state must be detrimental to the Community of Nations and creative of a revolutionary and aggressive spirit calculated to lead to war. A general agreement among the states upon these rights which are elementary or fundamental would, at the present time, be very helpful. The Founders of the United States recognized that without the enumeration of such rights its Constitution might not be effective as a guarantee of freedom. Therefore, they provided in the Bill of Rights a category of fundamental rights which were not only declarations of principle but actual legal rights enforceable against state action in courts of law.
The necessity for the postulating of such a series of rights has been recognized of late years by lawyers and publicists of many nations and especially by the jurists of the Americas.
Of maximum importance to the Bar must be the organization of justice. The Permanent Court of International Justice was organized in 1920, and since then and for the first time there has functioned a permanent tribunal to deal with any dispute between states which is submitted to it. Fortyseven states have at various times conferred upon it compulsory jurisdiction over certain classes of legal disputes, sixty cases have been brought before the Court, thirty-two judgments and twenty-sixadvisory opinions have been rendered. It is essential that this Court be maintained. It is, however, not sufficient that the Court should be open to the nations that voluntarily wish to submit their differences to it. In principle we are convinced that all justiciable questions as defined in the existing statute of the Court, should be matters of compulsory jurisdiction and that any nation should be permitted to avail itself of the Court to maintain its legal rights. Such general compulsory jurisdiction has not yet been admitted among the nations of the world, but we are convinced that if the rule of law is to be substituted for that of force, and if international law and international judgments are to be sanctioned by power, the jurisdiction of this Court should be of a compulsory character where justiciable controversies are involved.
If the Community of Nations is to maintain international law and to prevent aggressive warfare on the part of the dissatisfied nations, there must be some organ capable of dealing with necessary changes in the rules of international law. Law is not and cannot be static. Changes and development are necessary in international law as they are in municipal law.
We cannot any longer rest under the gentle delusion that world public opinion wll compel respect for international law. Until the more powerful and civilized nations of the world are ready to assume the responsibility necessary to make good their adherence to law, neither courts, councils nor leagues can ever effectively discharge the functions for which they were intended. A world of law implies a world in which the aggressor and the apostate from law must be curbed by force when need be. International law must remain a primitive and merely customary or conventional law until aggressive warfare becomes punishable as a crime by the Community of Nations. Two world wars within one generation should have conclusively taught this simple lesson. It is evident that to accomplish this result there must be some central organization of the Community of Nations through which the community may act. As to the details of such organization there may be, and doubtless is, much room for discussion and for difference of opinion. There is, however, one principle which we feel must be observed in the creation of such an organization. That principle is a wholly realistic one corresponding to the essential necessity of combining power, responsibility and the equality of nations, great and small.
Two essential features to which I have referred are (a) An international constitutional organization which shall include a general assembly open to the representatives of all nations composing membership in the Community of Nations; and (b) A council composed of those states which,
because of their preponderant power, organization and population, must bear the heaviest share of responsibility for the maintenance of peace and the enforcement of law. It may be of interest to note that these features were approved in substance by resolutions passed at the Annual Meeting of the New York State Bar Association, and the Section of International and Comparative Law of the American Bar Association.
I, therefore, suggest the following resolutions:
I. Resolved That a permanent organization of the nations be established for the purpose of maintaining peace by preponderant power; and that such organization be empowered to consider and recommend to the nations changes in international treaties or other public relationships which may make for the maintenance of peace.
II. Resolved That the states of the Community of Nations should before the law of nations enjoy equal rights and equal representation in the general assembly of said permanent organization, and that any threat of force against any state is a matter of concern to the Community of Nations, any aggressive warfare a violation of the law of nations.
III. Resolved That the permanent organization should include a Council, membership in which will be based primarily on the capacity of states to contribute to the maintenance of peace.
IV. Resolved That certain fundamental rights of the individual should be recognized and protected. These should include as a minimum: freedom of opinion, of speech, of press, of assembly and worship; an equal protection of the laws in respect of life, liberty and property; the right of access to and fair trial by impartial tribunals; essential protection against arbitrary arrest and imprisonment, and the right to a prompt trial.
V. Resolved That the permanent organization include the Permanent Court of International Justice, and an adequate judicial system of which that Court shall be the principal element.