THE ROLE OF LAW IN WORLD AFFAIRS
Douglas, William O.
Alfred Tennyson wrote of the time when "the battle flags were furl'd in the Parliament of Man, the Federation of the world." There have been several times since those lines were penned when some had...
...World opinion is ready to be marshaled...
...Much of the world is illiterate...
...Today we are closer to a rule of law in the management of troublesome problems in this area...
...Walter Millis in his challenging work, A World Without War, shows that a viable world could easily exist if war were actually abolished and never again became an instrument of national power...
...But the forty odd nations approved...
...The Charter of the United Nations contains a resolve on the part of the people "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind...
...The side that won that race would have the opponent at its mercy...
...There is warrant for the op'timism that its growing achievements presage a new period of growth for effective international law...
...Now that the instruments of destruction have become so awesome that war can no longer be tolerated, the rule of law is our only alternative to mass destruction...
...What Congress grants, Congress can take away...
...The disputes with which the Court deals concern the interpretation of treaties, any question of international law, and the breach of an international obligation, together with the nature and extent of the reparation to be made for such a breach...
...The rule e>i law is versatile and creative...
...Once war broke out, a frantic race would be on to manufacture again the outlawed nuclear weapons...
...Clash and conflict are present in every community...
...Effective prevention of war means disarmament...
...One of our major errors, as we emerged from a century and a half of isolationism, was to think of the world as if it were made in our image...
...The Soviets soon denounced the United Nations police action in Korea as "war"—a "war" that the United States inspired and conducted under the cloak of the United Nations...
...She is established more firmly than a mere de facto regime...
...There is only the will to use them...
...For she stated that she was "opposed to any attempt to settle international disputes by resort to aggression...
...But the principle that the United Nations stands ready to protect a people in their right to run their own affairs and that the troops sent there are engaged in "police action" in the cause of peace rather than in "war" has promise of becoming a sturdy one in international law...
...Yet Red China, in which nearly a fourth of the people of the world live, is apparently more than a transitory government...
...On June 27, 1950, when the Security Council at the initiative of President Truman resolved to furnish such assistance "to the Republic of Korea as may be necessary to repel the armed attack" by North Korea and "to restore international peace and security in the area," world opinion stood behind it...
...Even for Communists the cult of force is'fast becoming obsolete...
...This directive of August 2, 1920, also stated: "Demonstrative legislative proposals should be regularly submitted on the instructions of the party and its central committee, not with the idea that they will be accepted by the bourgeois majority, but for purposes of propaganda, agitation, and organization...
...There are of course many tribunals of international character which apply a rule of law in a supranational manner...
...The United Nations has played an essential role there...
...The Charter of the Organization of American States, which became effective December 13, 1951, provides that all international disputes between the American States shall be submitted to certain "peaceful procedures" before being referred to the Security Council of the United Nations...
...They exist in virulent form at the world level and will continue...
...Neither alternative is attractive to those young nations...
...In ten to twenty years, how many nations will not have the secret...
...The United Nations has weathered stormy seas...
...Moreover, world opinion on the side of a "rule of law" is powerful...
...Senator Wayne Morse said: "It is, in effect, a political veto on questions of a judicial character, and it will be instantly recognized as such by all the other countries...
...The goals and ideals are many and diverse...
...The advance form of democracy which we enjoy, which Europe for the most part represents, which flourishes in Canada, Australia, and New Zealand, and which is taking sturdy hold in India and Israel, is largely unknown in the world...
...Her tactics against India have added up to calculated aggression...
...Help in assuring their security without wasteful and dangerous competition in armaments...
...The recent achievement of the International Bank of Reconstruction and Development, headed by Eugene Black, in settling the Indus River dispute between Pakistan and India is international law in operation...
...This was the theme of President Eisenhower's talk to the American Bar Association on August 29, 1960...
...Another force, though of lesser proportions, is at work bringing the nations together...
...And this will remain so, whatever happens in the Congo...
...Ethiopia is ninety-eight per cent illiterate...
...he asked...
...and cynics rested more secure than ever in the smugness of their brand of nationalism...
...International assistance in shaping long term African development programs...
...What is at stake now is the effect of a long stay of outside forces in a nation that cannot find its leaders, the purity of motives of all participants, and the continued faith of the majority of the nations in the United Nations' personnel...
...The illusion always was dispelled...
...The dependency of nations on each other is developing international collectivism in myriad forms...
...Some think he wants to destroy the United Nations...
...in a matter of days hostilities ceased...
...Reason, as well as fear, is propelling them to place their hopes in joint action to protect the very earth from being so poisoned by radioactive fallout that human life is jeopardized or even ended...
...Pursuit of peace at this stage means making the search for fool-proof disarmament the first item on the international agenda...
...It was broached by President Eisenhower in his address to the United Nations Assembly on September 22, 1960...
...This includes the United Nations itself, which was permitted to bring an action before the Court in 1949...
...Whenever nations work together through a common agency, they submit to a regime of international law...
...The United Nations and its various agencies, including an International Law Commission, have a variety of projects under way in an effort to put this controversial subject under a rule of law...
...What adventurer will think he may be able to pull it off so that he in truth runs the world...
...We need more commitment and less lip service...
...Disputes would continue...
...If independence is to be kept, as well as achieved, they must have a refuge, a sanctuary where they can feel secure...
...Later that month it created an international command force of the United Nations to supervise the cessation of hostilities...
...The United Nations' action in Korea was the first time the outlawry of aggression was implemented by direct, military action by the community of nations...
...Emergency aid in Congo...
...This was mediation and conciliation at a high level, procedures that have been constituent parts of our own domestic legal system for years...
...Being an outlaw may seem in logic to be a reason for barring her from the United Nations...
...Such treaties are now in effect with Germany, Greece, Ireland, Israel, Japan, and China...
...The United Nations is today the expression of world opinion that the cult or regime of force must be replaced by a measure of world law...
...The process was not adjudication or legislation, the procedures we normally identify with "law...
...We can assume she will have her own atomic warheads before long...
...and, unlike the United States Supreme Court, it has the authority to render advisory opinions...
...Much of the fabric of our law is in truth international law...
...Today there are only a few nations that have nuclear weapons...
...The danger of partial disarmament is that each side aims to keep the weapon—or weapons—that best suits its strategic position...
...Why are we not willing to take the lead in inaugurating a truly golden age for international law...
...And its early success in the Congo, in protecting the new nation from the internal machinations of foreign powers, dramatized its usefulness as nothing else at this juncture of history could do...
...The fact that courts of one nation do not sit in judgment on the validity of the acts of another nation done within its own territory is not the end but only the beginning of the problem...
...What Hitler will appear with mad dreams...
...They are so strategically important they would tempt any participant...
...When the Inner Six and Outer Seven conduct business, a rule of law that is international in character moves into operation...
...Her tactics against Tibet have exceeded in ruthlessness the actions of Russia in Hungary...
...nations or races long subjugated by outside regimes are gaining their independence...
...That means that the central problem of this day is the prevention of war...
...With the admission of Nigeria the number of members has reached 99...
...Capitalism, socialism, Communism compete for followers...
...The tools with which we can evolve a "rule of law" into a more mature system are at hand...
...They are weak, inexperienced, fragile...
...and they will expand as the peoples of the world work with their newly emerging institutions of law and gain confidence in them...
...The International Court of Justice, created by the United Nations, also has a permanent status...
...There have been several times since those lines were penned when some had the notion that we were on the edge of having a full-fledged world parliament...
...Enforcement of the decrees of the Court is entrusted to the Security Council by the Charter of the United Nations...
...It is, indeed, one of the aims of the United Nations as expressed in Article I, "to achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character...
...We stepped backwards, retreating temporarily from the principled decision that "aggressive war" called for world action against the aggressor...
...Every treaty while it lasts of course limits the freedom of action of the contracting parties...
...This was noble, principled, responsible action that gave power and force to a newly-forged tenet of international law...
...Arbitration is not mediation or conciliation but a determination according to law...
...Fifteen new African nations plus Cyprus were admitted to the United Nations at its recent meeting...
...nations would press their claims for justice...
...This optional clause stands in the way of the United States exerting its best diplomatic efforts toward the establishment of a rule of law which we invoke so religiously...
...The United States has extended this fostering of private arbitration into the international sphere by a series of treaties entered into since 1946...
...The arrival of disarmament and the end of war would not mean the advent of peace in the sense that there would be a disappearance of conflict...
...Yet a nuclear holocaust would be destructive of all peoples, Communists included...
...Protection of a nation against aggression from without was extended to protection against any form of intervention by a foreign power...
...What leader with cold calculation may be willing to sacrifice twenty, forty, sixty, eighty, a hundred million, or even more of his own people to gain leverage on the whole world through a sudden nuclear attack...
...Since those days we have regained some of the lost ground...
...There are only limited areas where today we can rightfully say common ground can be found...
...He too called the police action in Korea a "war...
...Familial, not democratic, regimes have shaped the affairs of many Asian countries for centuries...
...That represents the African average...
...It is embodied in the Charter of the United Nations: "to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace...
...The action of the United Nations in the Congo plus the defeat of Soviet efforts to sabotage it and capitalize on the disorder and chaos have brought United Nations' prestige to a new high...
...Eisenhower in his campaign speech of September 4, 1952, gave ammunition to the Soviets...
...Yet they are important, indeed critical, ones...
...Africa apart, there are great diversities among nations...
...As Corwin says in The Constitution and World Organization, the limitations on our power in practical effect "derive their force and effect exclusively from the principles of international justice, honor, and goodwill, and from that species of political wisdom which prefers the long view to the short view...
...Those who were forced to vote against it would lose in prestige and influence...
...Now that the art of making them is known, they could be quickly manufactured even though all were destroyed...
...Khrushchev knows it, as is evident from his Bucharest speech this last June in which he concluded that war with non-Communist nations was not "inevitable...
...Turkey has great promise...
...Khrushchev employs the classical techniques which Communists have been taught to use when participating in parliamentary proceedings...
...It decides actual controversies...
...Yet only states (not individuals) may be parties before the International Court of Justice...
...Why do nations hold back...
...This is a healthy growth of collectivism of which the free world is a part...
...It is a familial, not a democratic, type of regime that governs Formosa today...
...There are of course great gulfs between the law, customs, and mores which we of the West accept as normal and which other parts of the world practice...
...Congress has reflected the growing faith in the ability of arbitrators to perform judicial functions by permitting provision for arbitration in transactions which are maritime or involve interstate commerce...
...Sovereignty may in theory be entirely in local hands, yet the very need for raw materials or food or loans or technicians from abroad creates a dependency on other nations...
...The Communist bloc was of course opposed...
...It aan devise new remedies to fit international needs as they may arise...
...Each operates under a regime of international law...
...Great antagonisms would persist...
...The more international the activities of a nation and its people, the more they weave a web of international practice, custom, and law...
...The development of supranational institutions of an administrative character will in time result in the emergency of patterns or codes of administrative procedure...
...These Tibetan and Indian ventures on the part of Red China make her an outlaw in any accurate use of the word...
...The procedures designated are "direct negotiation, good offices, mediation, investigation and conciliation, judicial settlement, arbitration, and those which the parties to the dispute may especially agree upon at any time...
...National courts have sat as prize courts in many cases, applying international law...
...There is no assembly or council before which she can be summoned...
...That is dangerous thinking...
...Many societies developed along family lines, not community lines...
...Leaders in these countries must make bricks without straws...
...This force of world opinion must be mobilized...
...Ad hoc arbitral tribunals have been commonly used...
...African tribes hold much of the land in trust for the people...
...While she was talking peace and friendship, she actually was annexing Indian territory in northern Ladakh...
...Whether Khrushchev has been doing more than making a play to the Communist galleries in the world, we do not know...
...The dictatorships of the Communist world as opposed to the democracies of the West mark only some of the differences...
...Many at least remember the old African proverb, "When the bull elephant fights, the grass is trampled down...
...In 1946 by adoption of the Connally Amendment, we accepted compulsory jurisdiction except as to "matters which are essentially within the domestic jurisdiction of the United States of America as determined by the United States of America...
...about forty million Africans have left their tribes and sought new lives in villages and cities...
...In our support of the United Nations, we are committing ourselves to a very large degree to the principle that it is better to entrust these international questions to responsible international institutions...
...None is an isolated, insulated unit...
...Professor Tuzo Wilson of Toronto University in One Chinese Moon (1959) makes startling disclosures as to her progress in science...
...The question is not, will democracy be saved...
...On August 2, 1920, the Second Comintern Congress sent instructions to Communist party members on how to destroy parliamentarianism by using as an "auxiliary centre" of the "mass struggle" the "rostrum of the bourgeois parliament...
...If history teaches us anything, it is that if States are left to decide these questions on the basis of immediate political expediency, the result is power politics and ultimately war...
...One handicap of the United Nations today is that it excludes groups that should be included...
...An even broader advance in international law is needed...
...Pounding a lectern with one's shoe at the United Nations is in the same category as maintaining a chant in the manner of Communists in the French Assembly...
...Aggressive war had become too dangerous to the world community to be allowed...
...But in The Role of Law in World Affairs by WILLIAM O. DOUGLAS This article by William O. Douglas, Associate Justice of the United States Supreme Court, is adapted from a paper prepared for the Center for the Study of Democratic Institutions...
...Meanwhile, she is an obstreperous, aggressive nation...
...The vast gulfs that exist between various world cultures mean that the common ground for world law will be narrow and selective...
...The specialized agencies of the United Nations alone make a formidable list...
...Pakistan is making modest advances toward a democratic society...
...The comunity (for the most part)," says John Gunther, "takes care of the indigent, and everybody belongs to somebody...
...The Editors reality how can an outlaw be kept outside the United Nations and yet disciplined by it...
...Though the United States has not joined it, the Convention became effective on June 7, 1959, Israel, Morocco, and the United Arab Republic having ratified it...
...In at least one African nation which is a member of the United Nations, trial by fire—which India practiced long centuries ago and which was practiced in England until 1262 A.D.—is still practiced among the tribes...
...Tribal government controls the lives of men and women in some African nations...
...United Nations aid for education...
...We now have special procedures prescribed for the settlement of controversies between states in this hemisphere...
...The activity recommended was "chiefly in revolutionary agitation from the parliamentary tribune, in exposing enemies, in the ideological mobilization of the masses...
...and it proceeds from there to all the stuff which treaties, contracts, commercial engagements, investments, travel, communication, and the like shape up into controversies...
...so it was denounced, and joint action was taken to bring forceful sanctions against it...
...The world is filled with such a sense of insecurity that for the first time in history solid foundations for a "rule of law" can be laid...
...Moreover, none wants to become either a puppet of an imperialistic regime or a Communist satellite...
...As the world is evolving, there are few, if any, nations that can go it alone...
...Arbitration clauses in investment agreements have been urged...
...Liberia—which we often think of an an American stepchild—has a literacy rate no higher than ten per cent...
...Yet the world has made greater progress than we are prone to think in developing important parts of the framework of a world system of law...
...The aim is to have such a Court "that in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the world should be assured...
...Most nations give only qualified acceptances to its jurisdiction...
...Conflicts between one nation and foreign investors are recurring ones...
...Rational people the world over are disturbed by these thoughts...
...When atomic bombs, as a result of new discoveries, get into "the ten dollar" class, what international gangster will be without one...
...India's views represented perhaps the common denominator of thinking in all capitals...
...We know now that nuclear war risks all life on each continent that is involved, and perhaps all other life as well...
...Centuries of colonialism have ended...
...We witness in this half of the century a great emergence of new nations...
...When the Republic of the Congo asked for help from the United Nations to maintain its government from the machinations of a foreign power, and when, in response, the Security Council on July 13, 1960, resolved to extend that aid, the principle of the independence of nations was strengthened...
...The United Nations satisfies that craving for security...
...Cold practicalities make admission of Red China necessary, accompanied, of course, by a settlement of the many tangled but pressing problems between this country and Red China...
...Russia, for example, would gladly trade atomic bombs for tanks, since with tanks she could still dominate the land mass of which she is the center...
...Referring to the African situation in particular he emphasized five points: "Non-interference in the African countries' internal affairs...
...Are we seeking a world of law or are we seeking to find ways in which we can cater to our own views and ideas in the legal field...
...Yet a willingness on the part of all to limit their freedom is the only way we can have a world where orderly procedures take the place of the anarchy of self-help and where we are saved from the fate of having each continent turned into an incinerator...
...The amendment was attacked as a dangerous precedent to a country seeking to sponsor the rule of law...
...There is today no tribunal to which Red China can be made to account...
...Some have the lingering notion that wars without nuclear weapons can be fought—if only nuclear weapons are abolished...
...Low as this number is, it is the highest number the court has had before it in any one year in a decade...
...Yet tribal life is breaking up...
...We are told that there will be at least fifteen nations producing nuclear weapons in the 1960's, including Red China...
...And the contracts, engagements, assignments, and undertakings that they assume set precedents and practices that may in time become firmly imbedded in international law...
...There are not many examples of self-sufficiency, as our own economy illustrates...
...Across the Middle East and in Asia illiteracy is the rule...
...but it has a different kind of jurisdiction from that of the European Court of Human Rights...
...On November 2, 1956, the General Assembly voted sixty-four to five for a ceasefire on the actions undertaken against Egypt...
...Now that it is obsolete, the rule of law remains as the only alternative...
...These transitions promise turmoil and unrest...
...on the basis of reciprocity a state which the United States wants to sue can claim in return that the International Court has no jurisdiction...
...That indeed was a new principle of international law which had been forged by experience...
...Indonesia is holding most political experiments in abeyance...
...Sending the Marines to the Caribbean or Central America was once the solution...
...If democracy emerges in the hinterland, it will be in the distant future...
...There are absolute monarchies, dictatorships that have been long and enduring, military regimes that may be short interregnums, and democracies at various stages of development...
...Red China is still excluded...
...Small nations quiver on the sidelines as they watch giant rivals spar, threaten, and shake their nuclear fists...
...Typically, such a treaty provides that both agreements to arbitrate and arbitration awards will be "accorded full faith and credit...
...It is, will democracy ever be born...
...Partial disarmament is a sham except insofar as it leads to the establishment of procedures which can be extended to full disarmament...
...We have in truth the sturdy roots of a rule of law, including a few of the procedures which human ingenuity has devised for resolving disputes, including conciliation and mediation, arbitration, administrative settlement, and judicial determination...
...Then, too, this "political veto" cuts both ways: the United States can accept or reject any decision against it...
...at times we even thought that the non-conformists should be remade in our image...
...They came into their inheritances at a time when world forces are aligned into powerful blocs that might make these new countries pawns in the old game of power politics...
...The list of agencies through which cooperative or collective action is taken by a group of nations is constantly increasing...
...We could, I think, do it, if we asserted the moral leadership of which we so often boast...
...The United Nations in 1958 proposed a Convention on the Recognition and Enforcement of Foreign Arbitral Awards...
...The European countries and the South American countries which have established common markets work conspicuously in the role of supranational groups...
...War from time out of mind has been one of the remedies for real or fancied wrongs...
...The Court of Justice of the European Coal and Steel Community is one of many...
...The expediency of American politics caused the vital distinction between United Nations' "police action" and "war" to become blurred and confused...
...Yet in spite of the easy availability of the International Court and its eminent qualifications, it had last year only six cases to adjudicate...
...This is not an expression of hope alone...
...The rule of law has at long last become indispensable for men as well as for nations...
...It starts with the rule against aggressive war...
Vol. 25 • April 1961 • No. 4
