BY
WILLIAM DUDLEY FOULKE
In considering the possibilities and limitations of a world tribunal an
American naturally turns his eyes to the experience of his own country
especially to the development of the Supreme Court of the United States.
The history of the development of our National Constitution and
judiciary out of the mere league organized by Articles of Confederation,
foreshadows in its general features the course which mankind is likely
to take in organizing some coming federation of the United States of
Europe or of the world. For the balance-of-power statesmanship which has
prevailed since the middle ages lead to a condition of very unstable
equilibrium which can not and will not continue forever. The civilized
world was a great empire once and it will be at some period hereafter
either a great empire, with nationalities subjugated or extinguished or
else a great federation with nationalities recognized for local and
national purposes, but subject to one general control for international
purposes. The gradual union of mankind in larger and larger units, first
the family, then the clan, the tribe, the city, the nation and finally
the empire or the great federated republic will have its final
completion in a world empire or a world federation. That will be the
only way in which war will ever become extinct and the history of our
own confederation and our subsequent federal union is pointing out the
method in which this world union can best be established.
Of course we realize that such a change cannot take place at once. Very
few stones in this gigantic structure can be laid at one time. Many
harvests will ripen and the snows of many winters will cover the earth
before the majestic fabric of a world state shall lift its dome to
heaven. But the foundation courses have already been laid in the Hague
Conferences and the panel of judges; and the one thing most practicable
to-day to further the building of this tremendous edifice is the
establishment of a permanent World Court. By making this the next stage
of development we pursue indeed, not the precise course adopted in the
making of our Federal Constitution, but we follow the line of least
resistance.
It is evident that the jurisdiction of the World Court at the beginning
will be less extensive than that of our Supreme Court to-day. It ought
perhaps to include at first only one thing, controversies between
nations, and only such controversies as may properly be submitted to a
court—only justiciable questions. But what are justiciable questions?
They have been defined as questions of law or fact relating to the
interpretation of a treaty or the obligations of international law. But
this definition is most elastic. International jurisprudence is yet in a
rudimentary condition and its principles, many of them, are yet
undetermined. No one knows yet just how far they may be extended by the
construction of a World Court. When Austria began war against Servia,
was that a breach of international law? When Russia determined to come
to the aid of a kindred people whom she had taken under her protection
and then mobilized for the invasion of Austria, was that a breach of
international law? Perhaps most jurists will say, no, these were
political questions to be handled by a Council of Conciliation or some
other body. Yet all this depends upon construction and upon the
determination of what international law really requires. Is not the
invasion of the territory of a friendly nation which has given the
invader no direct provocation, a breach of international law? Who shall
decide? If this question, too, be left to the proposed World Court, that
body may decide that anything is justiciable and may assume jurisdiction
over questions of vital national policy. Will the great nations of the
world agree to that? Will they submit what they consider their most
vital interests to any tribunal?
And now we come to the much disputed question whether nations should
agree to refer questions affecting their honor and vital interests to an
international tribunal. Here we are in this dilemma. If a treaty
agreeing to submit disputes to a court, should exclude all questions of
honor and vital interests then almost any question may be considered a
question of honor or vital interest at the will of the nation so
desiring and the treaty will mean very little. On the other hand, if
questions of honor and vital interest are included in the things to be
submitted, then if a real vital interest is affected, the probabilities
are very strong that the decree of the court will not be acquiesced in
by the losing party. Germany considered that her vital interests
demanded a passage through Belgium into France so the treaty became a
“scrap of paper.” America thinks that her vital interests require that
no new aggressive military foreign power shall obtain a foot-hold close
to our boundaries on our own continent. We feel that our national
security requires this. Would we consent to submit this question to a
World Court? International law would allow Denmark to sell St. Thomas to
Germany or Colombia to sell a strip of land adjacent to Panama for
military and naval purposes. International law would allow Mexico to
sell Lower California with Magdalena Bay to Japan. A World Court would
decide they had the right to do it. Suppose the sale were made and a
German or Japanese navy with transports and an army came to take
possession, would we submit this question to a World Court? Would we
even delay our defense long enough to refer to a Council of Conciliation
with the months or years which must elapse before decision during which
time the foreign power would go on taking possession, fortifying and
garrisoning a naval and military base right at our very doors? Such a
position reminds me of the stanza once quoted in Parliament:
“I hear a lion in the lobby roar;
Say, Mr. Speaker, shall we shut the door
And keep him out, or shall we let him in
And see if we can get him out again?”
No nation will submit a really vital question involving its national
life to a World Court and then keep the agreement if the decision is
adverse.
Is it not then evident that the agreement of submission must itself
provide exactly what vital questions shall be excluded? In other words,
that the signatory powers (according to the suggestion made by Mr.
Roosevelt) “shall by solemn covenant agree as to their respective rights
which shall not be questioned; that they shall agree that all other
questions arising between them shall be submitted to a court.”
This agreement would provide that the territory of the contracting
powers should be inviolate and that it should be guaranteed absolutely
its sovereign rights in certain other particulars including for instance
the right to decide the terms on which immigrants should be admitted; to
regulate its domestic affairs in its own way and such other questions as
the contracting powers considered affected their vital interests or the
vital interests of any of them. These specified questions ought not to
be submitted to the court; they ought to be mutually guaranteed in
advance and all matters not so specified should be subject to the
jurisdiction of the international tribunal.
Here you have the jurisdiction of the court definitely laid down in the
treaty creating it. Wider jurisdiction can afterward be conferred as
circumstances may justify, it is to be hoped that other Hague
Conferences may gradually provide a more and more extended code of
international law which the court is to administer and that its
jurisdiction may finally extend to all the other principal questions
which are now submitted to our federal tribunals under our own
constitution. But this more extensive jurisdiction would be granted (as
in the case of our own Constitution) only after the federation becomes a
more perfect union, and when there shall be established a sufficient
sanction of its decrees.
And now we come to the most important and the most difficult branch of
the subject. How can the decrees of an international court be enforced?
By public opinion? By agreements of the signatory powers? Or by an
international police-force which of course means an international army
controlled by an international executive?
Some of us used to hope that international public opinion, while quite
insufficient to-day to enforce the judgment of a World Court, might
gradually grow to such strength and power that it could finally be
counted on alone to give force to the decisions of this tribunal. The
events of the present war have shattered to a great extent such hopes as
these. After the invasions of Belgium and Luxembourg, the wrecking of
Louvain, the attack on helpless Scarborough, the dropping of bombs from
the air on undefended towns, the destruction of the _Lusitania_, the
coercion of unoffending China, it is hard to say that public opinion
will restrain a military power from any act whatever or will compel the
performance of any duty to other nations or to mankind at large. If the
world had advanced so little in the nineteen hundred years of
Christianity, how long will it take in the future to induce all the
great nations to do justice?
The next alternative is that the power creating this court shall agree
beforehand to enforce its decrees by the joint use of their military
forces against any nation which may refuse compliance. That is probably
as far as the world can go to-day and yet how ineffective it may be is
shown both by the past experience of the American Confederation and by
the failure to observe the Hague convention and other existing treaties
during the present war. Such an agreement will have the same defect as
the Articles of Confederation. It can only act upon nations in their
corporate capacity and not upon individuals, and there will be no
central authority with either purse or sword by which to carry out its
guarantees. It will be necessarily a transitory state. The treaties
signed by the great powers did not protect Belgium. The Hague Convention
to which every great nation was a signatory has been violated in many
particulars. Our nation was a signatory to the Hague tribunal yet all
these violations have not aroused us to a single act for the maintenance
of the Hague Convention, nay, they did not bring out a single protest or
remonstrance until our own interests or the persons or property of our
citizens became involved. How far then can we trust other nations to
protect each other against violations of their mutual agreements? As in
the case of the single states in the American Confederation, some will
do it and some will not.
Yet what better can we do to-day? If the nations joining the league
would be willing now to establish an international executive council
with power to enforce such agreements and to raise an international army
for that purpose we would be taking a long step toward a really
efficient union. But at this moment the composition of such an executive
council would be beset by very great difficulties. Even if that question
could be settled, how many nations to-day would be willing to surrender
any part of their ultimate sovereignty to a federal union? Is it not
evident that the world is no more ripe for such a union now than the
thirteen colonies were ripe for our own federal constitution, while they
were still carrying on the War of Independence?
But it was during that war that our first league of American states was
formed—imperfect and inadequate—but a precursor of better things. It was
at the outbreak of the present war that an alliance was made among a
number of the great powers. It is at the conclusion of this war that we
may hope for a league among many of the most powerful nations for the
maintenance of peace;—a league, imperfect and rudimentary at the
beginning but which may well develop, when its imperfections have been
realized and the necessity of a “more perfect union,” becomes clear into
a world wide confederacy, which shall have a full dominion over the
nations that compose it as our federal union now has over the states of
the American republic.
But even then the whole work will not be done, insurrections and
rebellions, like our own civil war, may be required to consolidate that
union more and more firmly before the time shall come when nations shall
not take up arms against nation, neither shall they learn war any more.