Force, Justice and Law
THE POSITION AND JURISDICTION OF THE WORLD COURT
By FREDERIC R. COUDERT, President, American Society of International Law
Delivered before the American Society of International Law, Washington, D.C., April 13, 1945
Vital Speeches of the Day, Vol. XI, pp. 432-434.
THE San Francisco Conference about to take place may well prove a momentous event in history. It will deal with the fundamental problem of the place of force, justice and law among the nations. Unless each one of these is accorded its rightful place and value in the World Charter, the difficulties of maintaining any prolonged peace are obvious.
We have learned through bitterest experience that homo sapiens possesses the brain-power to devise scientific methods for his own destruction, and can easily accomplish a reversion to a primitive barbarism through the destruction of a hard-achieved civilization. We have yet to learn whether homo sapiens has sufficient brain-power and consequent morality to save himself from such destruction through his own inventions, and so to organize the world that peace and law may become the normal state of man, and total war with its constant threat to civilization may be eliminated. We believe in the validity of human effort and we shall continue to work for that end, conscious that law must be the main instrumentality through which justice may be reached among the nations. We are now in what would appear to be the closing of the most gigantic struggle that history records. The question arises: What can be done to prevent a recurrence of conditions that under modern invention threaten the very existence of civilized peoples?
When this Society was formed, the prevailing belief was that man, through his intelligence, could devise methods by which general war would be averted, and the ever-growing recurrence of arbitration and judicial and diplomatic settlement would bring about a peaceful world. The problem then appeared to be the development and perfecting of law so that controversies among nations, like controversies among individuals, might be more wisely and easily determined.
The wisest of our statesmen and publicists, among them the Founders of this Society, could not foresee and did not foresee that in the space of a very few years the world would be in a turmoil of disorder, anarchy and war to which there has perhaps been no parallel since the Fifth Century when barbarian hordes in military migrations destroyed the unity of the Roman Empire. No one could believe that such a resurgence of bestiality and anarchy was possible in the Twentieth Century.
And yet, we have been either in the throes of total war or threatened with its imminent outbreak since the one hundred years of peace between the Battle of Waterloo and the Battle of the Marne came to an end. It is true that during the interim between the two wars an organization of the Community of Nations was attempted and seemed, at one time, in process of success. The League of Nations gave much hope of success and international law was developed through a multitude of treaties which it was not inapt to term "international legislation." It was evident that the forces that made for law and justice were reviving after a great catastrophe.
After a still more widespread disaster, those same forces exist today, but they must now be so directed that the mistakes of the past may be avoided and that the United States of America may assume its measure of responsibility in proportion to its power.
Again, has opportunity arisen for placing law upon a firmer foundation than it has ever enjoyed, and the success of the Conference at San Francisco is of cardinal importance. Unless the nations there assembled realize that international law and the peaceful processes must prevail in the world to come, the future is, indeed, dark. We cannot afford to yield to the pessimist-philosophy of history, which believes that all effort at international accord is doomed to failure because the predatory instincts of mankind must in the end bring about general war, and hence that the law of the brute struggle for survival must continue through the ages with one civilization succeeding another in perishing by foe and sword.
It is not, however, the pessimist that I fear because his dark views will not be held by the majority of mankind who, even in the darkest hours, ever hope for better things. Nor is the isolationist and the neutral a real danger; they can no longer confuse and trouble public opinion. Modern invention is a fact, and the annihilation of distance is a consequence which no sane person can ignore.
If we are to return to the foreign policy guardedly outlined in the Farewell Address of Washington, we must destroy modern knowledge and equipment, forget science and return to the method of transportation of Washington's day. The fact that you can breakfast in London and sup in New York proves that we live in another world where every nation is our potential neighbor. Pearl Harbor showed the man in the street that the wide expanse of the Pacific no cordon sanitaire to assure America's safety, but only an easy highway for a scientific and ruthless enemy to destroy our Fleet. We cannot afford to base our present policy situations that have ceased to exist.
It is the perfectionist and the legalist who are to be feared. The perfectionist or absolutist is dangerous in proportion to the respectability of his aims, the worthiness of his ideas. The legalist is to be feared because of his reliance upon a
logic which is that of the schools, but not the logic upon which the actions of men are predicated. The perfectionist, with all good men, longs for the kingdom of righteousness on earth, but is convinced that it must be brought about at once and wholly in accordance with his own views. The practical mind knows that man is afflicted with the burden of animal appetites and propensities and that these must be reckoned with. The practical mind appreciates the necessity and value of the ideal as a goal or a standard, but knows that we only defer and defeat its attainment when we ignore the actual.
The Framers of our Constitution all realized that it was a compromise among enlightened minds seeking a common end, but having individual and differing views as to how that end would be reached. They were unable finally to resolve the question of whether a state might secede from the Union for they had the wisdom to avoid at that time an insoluble question which, if pushed to its logical conclusion, would have destroyed their work. The insistence then upon generalities about self-determination or American nationalism might have wrecked the hopes for a real Union among the former Colonies. Seventy years of debate and a long war finally solved the question of divided loyalties, which neither Congressional compromises nor the Supreme Court were able to do because the problem could not be solved by reason, but was a matter of the profound emotions of the peoples of the separate states—slowly but surely growing into a nation. It was, nevertheless, the Constitution which, in organizing an institutional life among the states, ultimately led to the triumph of the national feeling and the unity of the people of the United States.
Without the creation of institutions man can accomplish nothing. The moment has come when the theoretical Community of Nations, from which international law has been held to emanate since the days of Grotius, must have a permanent living embodiment. In no other way can humanity hope to avoid total war. In lauding democracy, we sometimes forget that total war itself was the resultant or concomitant of democracy. Once the men of the French Revolution had made up their minds that every member of the nation was endowed with political rights and was under obligation to exercise them, it was an irrefutable consequence that every individual holder of political rights was bound to defend the nation.
And hence from! the small professional armies, which had carried on European wars, we came to the great conscript forces, which meant that nation would be arrayed against nation, and that every person in each nation would be the enemy of each other when war broke out. This consequence was predicted more than half a century ago by the eminent philosopher, Mr. Taine, who said:
"Universal conscription, military service, and, with its twin brother, universal suffrage * * * have mastered all continental Europe * * * with what promise of massacre and bankruptcy for the Twentieth Century."
How true this has been history has recorded for the last one hundred years.
It peculiarly becomes our duty as Americans in the most powerful democracy in the world to contribute to the creation of an organization which, embodying the social feelings in man, may so organize the Community of Nations as to minimize conditions leading to war, and furnish an adequate method of attaining justice.
I realize that it seems impossible to believe that we are on the verge of creating something that may bring about perpetual peace, but it is possible to create an organization in which power and justice are sufficiently equated to assure
the ready application of peaceful methods rather than those of organized violence.
A few nations undoubtedly hold preponderant power in the world; this is a fact from which there is no escape. Under modern conditions of armament there is more than a difference in degree among the nations. Because of the irresistible preponderance of power it is really a difference in kind. Therefore, the task before the United Nations is to reconcile this difference in power with the according of justice to all nations through law. A better world can only be built and law developed and maintained where power and justice both exist, the one to sustain the other.
We must clearly distinguish between the juristic view of the equality of nations and the fact of the unequal distribution of power among nations. As men are equal before the law, however great their inequality by reason of nature or circumstance may be, so before the law of nations should nations stand on an equal footing as to their rights. Let us not forget that to maintain this juristic equality there must be an organization to sanction it; but such sanction cannot be operative of itself and through the mere statement of a principle. It can only be attained if those nations possessing the power are dedicated to the principle of juristic equality, and hence the rule of law. The goal to be attained is the maintenance of an enforcing power manifested through an institution pledged to juristic equality among the nations. Such an institution could canalize and make operative all the forces among men that make for peace.
The process may, indeed, be a long one and slow, but the growth of institutions is ever slow, and if this institution can now be created it may, through the gathering of evergrowing loyalty among the nations, become a great instrument for bringing about peace through law.
International law through the last four centuries has survived many wars. It is founded upon the perpetual aspirations of man for order and fair-dealing in his relations with his fellows. The outline of the pattern which it has followed is not difficult to perceive. The Roman Empire developed the jus gentium as a necessity because the jurists of Rome had to deal with peoples whose customs and laws were widely diversified, and it thus became necessary to find the common denominator. It seemed to follow from this that rules, which were common to the peoples who made up the Empire, must be based upon something inherent in man's nature. Hence, the interrelation between the concepts of jus gentium and the jus naturale.
It was upon these two ideas that Grotius and his successors developed their theory of international law. When the Empire broke down and separate nations grew up without any centralized government, the only common denominator could be the jus gentium, whether conceived as a customary law common to the nations, or as a superior law inherent in man's nature.
As such, international law grew by convention and custom. Today we witness the attempt to organize and make actual that community of nations which had always existed as an idea and an inspiration. The hope of a return to unity was never abandoned and was embodied in the theories of a universal Church and Empire throughout the Middle Ages.
The new unity among the nations, if it is to be long-lived, must depend upon the consent of nations rather than upon mere might, as did older empires; yet, the element of might must be present if peace is to be preserved and the problem—vital and unescapable—confronting mankind must be the reconciliation and cooperation of might and right. That the process is necessarily slow, difficult and ofttimes discourag-
ing must not be a deterrent to the necessity for ever continuing that effort. History clearly shows that underlying all changes and struggles has been the story of the striving for law.
There appears today to be an opportunity to give that desired unity a reality which it has not possessed since the medieval world passed away. The struggle for unity is the continuance of the process that began with the growth of the jus gentium, a process continued in ever varying degree through the checkered history of man in his striving so to organize the nations that the rule of law should prevail among men and that the content of that law should ever more nearly approach the idea of justice.
No friend of peace, and I assume that includes the great majority if not the unanimity of American citizens, can fail to be gratified at the result of the Dumbarton Oaks Conference. The fact that the great powers, who in population, productive capacity and material resources possess, when united, overwhelming strength, have come to so much agreement is a long step forward in the substitution of law for force. In reaching this agreement some compromise was necessary, but the essentials are there. More could scarce be expected.
Let us, however, rid ourselves of illusion. The cause of peace is endangered by those who cherish the belief that any blueprint, even in the form of a solemnly signed treaty, can assure permanent peace. Surely experience has shown the lack of foundation for such a belief.
Let us face the matter in its blunt and stark reality, the great powers can continue to agree on a permanent peace policy, the world will be saved from any major war. In the face of such agreement small nations cannot indulge themselves in war because the joint police force can easily suppress them, and with this fact in mind they would naturally have recourse to the pacific methods of settlement provided in the Charter.
I am perfectly aware that this view will be attacked as creating an imperialism of the great powers, but by whatever name you call it the fact remains that the great powers working in concert can police the world and compel peace; on the other hand, if they disagree to the extent that any one of them is willing to wage war, then another world conflict becomes inevitable.
I do not conclude from this, however, that an agreement among the great powers, which includes a pledge to keep the peace among themselves and to substitute legal methods for force, is of little value. This at least recognizes law as the main solvent for international controversy, and if some criterion is thereby furnished as to the fact of aggression, any great power tempted to violate that criterion will feel that it is braving a large section of what may be world opinion.
The smaller nations are also protected by the agreement for a World Court and for an organization able to mediate and consult in the event that differences between the nations are not of a justiciable character. Small wars often lead to large wars, and the assumption by the great powers, whether there be four, or six or seven, of the responsibility for preventing these wars is an important element in bringing about a lasting peace. We have here more than a mere "Concert of the Powers". We have a complete institution with all the necessary organs for reconciling differences and for effecting necessary changes in law.
While the Dumbarton Oaks Proposals leave the matter of the Permanent Court and its Statute largely open, they evidently envisage the retention of that Court under a substantially similar statute. I think that we lawyers will agree that the jurisdiction of the Court over justiciable questions, as they are defined by the present Statute of the Court, should be compulsory. As such jurisdiction was voluntarily conferred upon the Court by many nations, under the so-called Optional Clause, I cannot see any reason for not making that jurisdiction an essential element in the world Charter.
The problem of the position and jurisdiction of the Court is one of the most urgent to be dealt with at the coming Conference at San Francisco. It cannot be resolved by minor amendments to the existing Statute because the muter is one of substance affecting all nations and especially the less powerful ones, who must be assured of a forum if their "sovereign equality" is to have any real significance.
The agreement already reached between the great powers is of utmost importance. It is not perfect and it necessarily involves compromise, but it is an advance over anything yet attained. If realized, it would create a world federation and one recognizing the necessity of substituting just settlement for war. To attempt to do more at the present time than to elaborate detail and to affirm and strengthen the Permanent Court might well wreck the last hard-won opportunity to save the world from a continuance of anarchy and endless catastrophe.
International Police Power
AN ELEMENT OF EFFECTIVE WORLD GOVERNMENT
By FRANK G. TYRRELL, Judge, Los Angeles Municipal Court Delivered before the Center for International Understanding, Los Angeles. Cal., April 7, 1945
Vital Speeches of the Day, Vol. XI, pp. 434-436.
WHILE most people are familiar with the word, "police," its use has been confined to the domestic affairs of the various nation-states. Now that we are at long last beginning to think of it in relation to international affairs, we should be sure that we understand it. No matter what is done at San Francisco, it is a subject for study and experiment.
It has been repeatedly defined by our courts of last resort; a synthesis of these judicial definitions gives us this description: "The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the
state seeks not only to preserve the public order, and to prevent offenses against the state, but also to establish for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as it is reasonably consistent with a like enjoyment of rights by others. Whatever affects the peace, good order, morals and health of the community comes within its sweep."
It is necessary only to extend the area in which the police power operates, from the territorial limits of a nation, 1