International Law After the Great War
International Law After the Great War
Abstract and Keywords
This chapter argues that Wilson's failed project — integrating the United States into the League of Nations — haunted American international lawyers for the two decades 1919-1939. To a considerable extent, the haunting continues to this day. World War I, Wilson, Lodge, and the Versailles Conference all shattered the long-standing American consensus that the law of nations was inherently a good thing. International law became and remains a divisive issue in American politics.
Wilson’s failed project—integrating the United States into the League of Nations—haunted American international lawyers for the two decades 1919–1939. To a considerable extent, the haunting continues to this day. World War I, Wilson, Lodge, and the Versailles Conference all shattered the long-standing American consensus that the law of nations was inherently a good thing. International law became and remains a divisive issue in American politics.
A. Lodge and the League
As we have seen, Woodrow Wilson sought to transform the Great War and the Versailles peace settlement into a Democratic and personal triumph. His Committee on Public Information, aimed to ‘convince the people of the world’:
1. That America could never be beaten….
2. That America was a land of freedom and democracy; and therefore that it could be trusted….
3. That, thanks to President Wilson’s vision of a new world order and his power of achieving it, victory for the Allied arms would usher in a new era of peace and hope….1
Henry Cabot Lodge (1850–1924), the key antagonist of Woodrow Wilson’s League, was born in 1850 in Boston to an old Massachusetts family. As a boy, (p.195) Lodge, embittered by England’s support for the Confederacy, referred to the Alabama arbitration saying that even ‘the payment of $15,000,000 could not wipe out the memory.’4 Lodge toured Europe with his family, graduated Harvard College and Harvard Law School, practiced law, served as a state legislator, and in 1886 narrowly won a Massachusetts seat in the US House of Representatives.5 In 1893, he was elected from Massachusetts as a senator to Washington, an office he held for thirty-one years until his death.6 In 1897 Lodge was appointed to the Senate Committee on Foreign Affairs, where he later served as Chairman.7
The battle between Lodge and Wilson over the Treaty of Versailles and the League of Nations was crucial to the transformation of the place of international law in the American tradition. That international law was generally a good thing was common ground for almost two centuries among Americans of almost every possible political and ideological persuasion: Franklin, Jefferson, Madison, Hamilton, Jay, Marshall, Story, Kent, Wheaton, Dodge, Worcester, Ladd, Burritt, Lieber, Field, Wharton, Root, Brown, Carnegie, Hill, Brace, Carnegie, and Taft. However, the post-war political conflict over the Versailles Treaty and the League of Nations remade public perceptions of international law. What began as a particular contest between Wilson and Lodge became a general contest between Americans ‘for’ internationalism and those ‘against’ it. Though individual players on the stage, of course, held their own nuanced opinions, once the basic division was made, it endured.
Lodge wrote Theodore Roosevelt on November 26, 1918:
The former President was of the same mind. Roosevelt’s final opinion of the League was published in January 1919, just after his death:
I know indeed how you are backing us up in every way, and it is of vast importance to us to have your sympathy and support. One very dangerous thing is this League for Peace. It is easy to state the name. Everybody wants peace preserved; but the details are vital, and I do not believe the United States will consent or ought to consent to join any international body which would arrange our immigration laws or our tariff laws, or control the Monroe Doctrine or our actions in our own hemisphere, or have power to order our army or navy. It is being used by Wilson as a phrase, with perhaps an ultimate idea that he will be the head of the league.8
Soon thereafter William Lawrence wrote Lodge: ‘I do not see how any true American can stand for Article 10.’10 Lodge responded:
Finally, make it perfectly clear that we do not intend to take a position of an international meddlesome Matty. The American people do not wish to go into an overseas war unless for a very good cause and where the issue is absolutely plain. Therefore, we do not wish to (p.196) undertake the responsibility of sending our gallant young men to die in obscure fights in the Balkans or in central Europe, or in a war we do not approve of.9
On February 28, 1919, with Wilson back briefly from Paris to promote his League negotiations, Lodge spoke at length in the Senate. He opposed article by article the President’s draft Covenant.12 Lodge concluded with an argument in inflammatory language that portrayed Wilson and the League as anti-American and tinged with Russian radicalism:
Your kind note has given me the greatest pleasure. It is a comfort to me to know that you feel just as you do about the League; that the first thing is to consider it thoroughly; that we ought to know, in a matter of such vital importance, just where we are going, and that the American people ought to understand it…. The attempt of President Wilson to force it through without consultation with the Senate, equally responsible with him in the making of treaties, is nothing more or less than an attempt to destroy the Constitution.11
For his part, Lawrence derided Wilson as an emotional ‘Irish-Celtic-Scotch,’ contrasting him to Lodge, a rational ‘Anglo-Saxon’:
What is it that delays the peace with Germany? Discussions over the league of nations; nothing else. Let us have peace now, in this year of grace 1919. That is the first step to the future peace of the world. The next step will be to make sure if we can that the world shall have peace in the year 1950 or 2000. Let us have the peace with Germany and bring our boys home.
This is the immediate thing to do toward establishment of the world’s peace, but there is an issue involved in the league constitution presented to us which far overshadows all others. We are asked to depart now for the first time from the foreign policies of Washington. We are invited to move away from George Washington toward the other end of the line at which stands the sinister figure of Trotsky, the champion of internationalism.
We have in this country, a Government of the people, for the people, and by the people, the freest and best Government in the world, and we are the great rampart today against anarchy and disorder which have taken possession of Russia and are trying to invade every peaceful country in the world. For Lincoln’s Government of the people, for the people, and by the people we are asked to substitute in the United States on many vital points government of, for, and by other people. Pause and consider well before you take this fateful step. I do not say that agreements may not be made among the nations which stand for ordered freedom and civilization, which will do much to secure and preserve the peace of the world; but no such agreement has yet been presented to us. We must not lose by an improvident attempt to reach eternal peace all that we have won by war and sacrifice. We must build no bridges across the chasm which now separates American freedom (p.197) and order from Russian anarchy and destruction. We must see to it that the democracy of the United States, which has prospered so mightily in the past, is not drawn by any hasty error or by any glittering delusions through specious devices of supernational government, within the toils of international socialism and anarchy. I wish nothing but good to all the races of men. I hope and pray that peace, unbroken peace, may reign everywhere on earth. But America and the American people are first in my heart now and always. I can never assent to any scheme, no matter how fair its outward seeming, which is not for the welfare and for the highest and best interest of my own beloved people of whom I am one—the American people—the people of the United States.13
Less bombastic and probably more telling were Republican complaints that Wilson’s League would undermine American sovereignty:
Has history ever recorded an instance when the Anglo-Saxon, the true Englishman, and the Scotch-Irish Presbyterian have, as the Psalmist sings, ‘Taken sweet counsel together, or have walked, even in the House of God, as friends.’
We can now grasp something of the reason, of the tragedy, and of the humor of two representatives of these two races placed in positions of high responsibility, one of them a Scotch-Irishman at the head of a great nation, founded on Anglo-Saxon law and traditions: both pledged to lead her as best they might through a great crisis of her history. ‘God moves in a mysterious way’: and seldom has His way been more mysterious.14
The problem of the deepening schism about US foreign policy was neatly put to a member of Wilson’s delegation in March 1919:
Preservation of national sovereignty is incompatible with membership in a league of nations. Sovereignty is the supreme, absolute, uncontrollable power by which any state is governed. It is an indivisible attribute of true statehood….
In order to make a league of nations potential some agency must be created clothed with power not only to write its decrees, but to enforce those decrees. The proposed league contemplates some sort of international tribunal which shall define the rights, duties, and obligations of its constituent members, determine their external policies, and be the court of last resort in all matters of dispute arising between member nations, while at the same time exercising guardianship over nations not deemed by the court itself to be eligible for admission to the league. It is suggested that nations might enter this league upon making certain reservations with respect to internal policies, but it should be remembered that all reservations become sooner or later the prey to encroachment on the part of the superior power….
If the decisions of the tribunal acting for the league, are binding on the members thereof, then the United States must be dragged into every broil in Europe, and since the league will have to see to a finish any ordeal by sword into which it enters, the resources of the greatest industrial and most peace-loving nation on earth must always be at the command of the league.
Arbitration with such enlightened nations as England and France will suffice in the future as it has during the past century, to smooth out difficulties, and it will be much more effective with other nations, impressed as they have been with the horrors of war, (p.198) and with the unity of civilizing purpose possessed by England, France and the United States. But as long as any two nations, or groups of nations, are insistent on possessing an identical advantage no league on earth can absolutely prevent war, while to attempt to prevent war by force is, of course, a contravention. The stalwart manhood and courageous womanhood of America will repudiate the idea once it has been fairly pondered. They want no entangling alliances.15
No one rebutted Wilson more precisely and devastatingly than Henry Cabot Lodge. Indeed, Lodge knew Wilson’s cause at least as well as Wilson. In a speech on the Senate floor on August 12, 1919, Lodge expertly tore apart Wilson’s project.17 He began by reviewing the history of previous leagues: ‘To assure the peace of the world by a combination of nations is no new idea,’18 and described the project of the Abbé de Saint-Pierre in 1713, the treaty of Utrecht, Austria’s proposal of 1791, Russia’s of 1804, the 1815 Treaty of Paris, and the Holy Alliance of 1818.19 The Holy Alliance, Lodge argued, like Wilson’s League, was committed to maintaining the status quo; it protected existing regimes and repressed progressive change—it was ‘so hostile and dangerous to human freedom.’20 Lodge refused to accept that the United States should be legally bound to go to war without its consent to quiet internal conflict—he gave as examples of unwise possible participation, protecting Jews and other nationalities in Poland and aiding the king of Arabia —’I fancy the general knowledge about the Wahibis and Ibn Savond and Emir Abdullah is slight and the names mean but little to the American people.’21 The same went for external aggression. Why should the United States fight China if China were to attack Japan ‘to undo the great wrong of the cession of the control of Shantung.’22 In short, ‘let no American be sent into battle except by the constituted authorities of his own country and by the will of the people of the United States.’23
[A]n effective League of Nations and a policy of individual isolation are clearly incompatible. Those who favor one must surrender the other and the American people are face to face with this choice.16
As we saw above, following Lodge, the Senate rejected Wilson’s proposal in 1919. The battle over the League moved to the 1920 Presidential contest. The two politicians who had seemed most likely in 1918 to compete as Presidential candidates were out of the running by the next year. In 1919, Theodore Roosevelt (p.199) died and Woodrow Wilson suffered an incapacitating stroke. Instead the 1920 election featured Republican Warren Harding, an Ohio Senator, and Democrat James Cox, Ohio’s Governor. Neither had been national, much less international, figures. Both Roosevelt and Wilson were more convinced internationalists than either Harding or Cox.
Harding, running on an isolationist anti-League ‘return to normalcy’ platform, deemed the League ‘a definite and irredeemable failure.’24 He won in a landslide, claiming more than 60 per cent of the popular vote, the largest margin for almost a century. Irish-Americans, outraged by Wilson’s broken promise to seek Irish independence from the United Kingdom, and German-Americans, always doubtful about the United States fighting for England and France against Germany, helped the Republicans win districts normally Democratic. Only eleven Deep South states, still bitter over the Republican-led Civil War, voted for Cox and the Democrats. A bright spot for the Democratic party was Cox’s popular vice-presidential nominee, Franklin Delano Roosevelt. FDR would go on to be elected Governor of New York in 1928, and, then four times—1932, 1936, 1940, 1944—President of the United States. But, in general, the presidential election of 1920, like those of 1924 for Calvin Coolidge, and 1928 for Herbert Hoover, were successes for the Republican Party and brought ill tidings to the League of Nations and the cause of international law. Many, though not all, Republicans had become committed to a foreign policy tied up with American isolationism. As President Harding put it in his April 12, 1921 message to Congress:
As the decade wore on, Republicans refined the doctrine of isolationism. In 1924, Henry Cabot Lodge, still the leading Republican spokesman for foreign affairs, answered Democratic critics who said that the Republicans in power had no foreign policy and were doing nothing in foreign affairs, with this statement fluent in its isolationism:
In the existing League of Nations, world-governing with its superpower, this Republic will have no part. There can be no misinterpretation and there will be no betrayal of the deliberate expression of the American people in the recent election; and, settled in our decision for ourselves, it is only fair to say to the world in general, and to our associates in war in particular, that the League can have no sanction by us.25
Note the key elements of Lodge’s isolationist account. First is our old friend, American exceptionalism: ‘America and Europe are entirely different. All the conditions and situations are different.’ Second is the belief that America can be most helpful in world affairs by acting on its own: ‘if we keep our own independence and do not entangle ourselves with the difficulties and quarrels which Europe understands and which we do not understand, we can be of more service to the peace and welfare of the world, it seems to me, than in any other way.’ And third is the conclusion that the League and, implicitly, international organization and international law were not good for the United States: ‘Let the League which was made in Europe and belongs to Europe, go there and prosper. We wish it well, but let us, refraining from permanent alliances against which Washington warned us, go on in our own way.’
It seems to me that the United States can best serve the world, first, by preserving its own strength and the fabric of its civilization, which is the great bulwark at the present moment between the civilized world and anarchy, and help humanity most fully by being detached from the European system and giving and helping independently, freely and (p.200) in their own fashion. Rome was not built in a day and it will take a long time wholly to prevent wars. We must be content to advance step by step. America and Europe are entirely different. All the conditions and situations are different. The people of the United States live in a new country, that is, I mean new to western civilization. They came here to get rid of Europe, many of them; some to worship God in their own way and carry on their governments in their own way. They were freed from the long war-habit of Europe. They have a neighbor to the north, a kindred race, whose prosperity is almost as much cherished by the people of the United States as their own. Europe has the inheritance of conflict and wars—wars which have gone on for many centuries. We cannot understand the feeling that those wars and hatreds have engendered. As the generations have succeeded each other in the United States all those old feelings for good or ill which exist in Europe have passed away. We are outside Europe and for that very reason if we keep our own independence and do not entangle ourselves with the difficulties and quarrels which Europe understands and which we do not understand, we can be of more service to the peace and welfare of the world, it seems to me, than in any other way.
Let the League, which was made in Europe and belongs to Europe, go on there and prosper. We wish it well, but let us, refraining from permanent alliances against which Washington warned us, go on in our own way and try disinterestedly and without taint of foreign influences to help Europe and the affairs of Europe in every possible way, the way to be determined by us. Let us make it our policy that what we shall do and when we shall do it shall be determined by us, who sought neither land, nor money, nor reparations at the end of the war. In the diplomatic history of the United States during these past three years I think we have good and practical evidence of the soundness of this doctrine.26
B. Moore and Hughes: After Utopia
Among international law’s remaining American advocates, the slaughter of the First World War dimmed their utopian vision. The conflict served as an awful (p.201) reminder that humanity could regress as well as progress. As Charles Stockton wrote in his basic book in 1914:
By 1916, even Elihu Root was truly despondent:
The deplorable war which is being carried on at the time of this writing, extending as it does, to three of the great continents of the world, has created many complex problems and delicate situations in connection with international law. It has been said by good authority there have arisen more vexed questions in international law during the first six weeks of this war than during the entire period of the Napoleonic contests.27
A new American project for a new world order soon emerged under the guidance of traditional international law leadership, the former Republican president, William Howard Taft, and the President of Harvard, A Lawrence Lowell. Their League to Enforce Peace was established on June 17, 1915. Its platform read:
The incidents of the great war now raging affect so seriously the very foundations of international law that there is for the moment but little satisfaction to the student of that science in discussing specific rules. Whether or not Sir Edward Carson went too far in his recent assertion that the law of nations has been destroyed, it is manifest that the structure has been rudely shaken. The barriers that statesmen and jurists have been constructing laboriously for three centuries to limit and direct the conduct of nations toward each other, in conformity to the standards of modern civilization, have proved too weak to confine the tremendous forces liberated by a conflict which involves almost the whole military power of the world and in which the destinies of nearly every civilized state outside the American continents are directly at stake.28
(p.202) When we encountered the League to Enforce Peace in the ninth essay. President Wilson attacked them as ‘butters-in.’30 But in fact it was Wilson who was the ‘butter-in.’ The League to Enforce the Peace encompassed not only Taft and Lowell, but others like Theodore Marburg, all of whom were long-time international law enthusiasts.31 As we have seen, it was Wilson who was the johnny-come-lately to the cause of international law and organization. Typically, Taft showed ‘real courage’ the next year by appearing alongside Wilson at a meeting at the New York Metropolitan Opera House in March 1919. Taft spoke out as one of the few Republican leaders willing to support Wilson’s League of Nations. Speaking of his long-time commitment to international law and organization, Taft joked that his administration was one that President Wilson ‘has long forgotten.’32
It is desirable for the United States to join a league of nations binding the signatories to the following:
First: All justiciable questions arising between the signatory powers, not settled by negotiation, shall, subject to the limitations of treaties, be submitted to a judicial tribunal for hearing and judgment, both upon the merits and upon any issue as to its jurisdiction of the question.
Second: All other questions arising between the signatories and not settled by negotiation, shall be submitted to a Council of Conciliation for hearing, consideration and recommendation.
Third: The signatory powers shall jointly use forthwith both their economic and military forces against any one of their number that goes to war, or commits acts of hostility, against another of the signatories before any question arising shall be submitted as provided in the foregoing.
Fourth: Conferences between the signatory powers shall be held from time to time to formulate and codify rules of international law, which, unless some signatory shall signify its dissent within a stated period, shall thereafter govern in the decisions of the Judicial Tribunal mentioned in Article One.29
Unlike Wilson, a moralist drawn to grand black and white absolutes with utter faith in his own judgment, most American international lawyers had been humbled by the failure of the law of nations to do much at all when tested in the Great War. As Princeton’s Philip Marshall Brown lamented in 1917:
Brown argued that the ‘idea that International Law should regulate war is essentially paradoxical and unsound’ and proposed to refashion the discipline.34 ‘The true function of International Law is not to govern war, it is to avert war.’35 How? Rejecting Wilson’s moralism, Brown submitted that international law should be less preachy and more practical:
[I]t must be recognized that International Law has been seriously discredited in the eyes of many by the manner in which the Great War has been waged. It is held that the flagrant violations of accepted rules of law governing the conduct of war, by certain of the belligerents, show that International Law is entitled to little or no respect; it is impotent, a feeble reed, a ‘mere scrap of paper.’33
The new modesty of America’s international lawyers was reinforced by their country’s repudiation of the Versailles Treaty and Wilson’s League of Nations. Harding’s election in 1920 on a platform sharply critical of the League underscored America’s turn to isolationism. For the believers, all that seemed politically possible was US adhesion to the new World Court. As Jesse Reeves of the University of Michigan put it in 1921, though an ‘international organization has (p.203) come to be essential to the existence of international law … the need for an organization for the judicial settlement of international disputes, upon the basis of legal rights and duties by an international court of justice, is no less evident.’37
It would seem true that the law of nations, receiving its inception at the hands of Grotius, as it did, as a moral protest against the existing state of international anarchy, has ever since sought to play the role of the preacher, the teacher, the reformer, the moral idealist, rather than to serve as the jurist-consult, the law giver, the practical statesman.36
The Versailles Conference provided for the PCIJ in Article 14 of the 1919 Covenant:
In February 1920, the League’s Council appointed an Advisory Committee of Jurists to assist in fulfilling Article 14’s mandate. The Advisory Committee, which first met on June 16, 1920 at The Hague was originally composed of Japan’s Adatci, Spain’s Altamira, Brazil’s Bevilaqua, Belgium’s Deschamps, Norway’s Hagerup, France’s de Lapradelle, the Netherland’s Loder, Britain’s Phillimore, Italy’s Ricci-Busatti, and American’s Root.38 The choice of Elihu Root is noteworthy in several respects. First, Root had not been included by Woodrow Wilson as one of the American negotiators at Versailles. Second, Root, formerly Secretary of War, Secretary of State, and a Senator from New York,39 was a prominent Republican, a member of the party largely responsible for the rejection of the League Covenant by the US Senate. Third, Root was the only participant on the Advisory Committee who was not a national of a League member; indeed, he participated on behalf of a state that, as it turned out, would never ratify either the League Covenant or the PCIJ Statute.
The Council shall formulate and submit to the Members of the League for adoption plans for the establishment of a Permanent Court of International Justice. The Court shall be competent to hear and determine any dispute of an international character which the parties thereto submit to it. The Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly.
Nonetheless, Root played a significant role in the Advisory Committee. The PCIJ was even, in the words of Professor Kirgis, ‘sometimes known as “the Root Court,” because of Root’s significant role in devising and skillfully presenting a method of selecting judges by the League of Nations that would satisfy large and small states alike.’40 However, Root was not elected to the leadership of the Advisory Committee. The Committee chose Deschamps as Chairman, Loder as Vice-Chairman, and de Lapradelle as Rapporteur.41
In only six weeks the Advisory Committee prepared a draft of the organization, jurisdiction, and procedure of what was to become the PCIJ. This was submitted to the Council of the League in August 1920, which, after hearing from member states and making amendments, presented it to the first Assembly of (p.204) the League. Further amendments were made and, on December 13, 1920, the League resolved to approve the draft as the PCIJ Statute. The Statute was opened for signature on December 16, 1920.42
By September 1921, twenty-seven states had ratified the PCIJ Statute. On September 14, 1921, concurrent elections were held in the Council and the Assembly. Eleven ordinary judges were elected: Altimara of Spain, Anzilotti of Italy, Barbosa of Brazil, Bustamonte of Cuba, Finlay of the United Kingdom, Huber of Switzerland, Loder of the Netherlands, Moore of the United States, Nyholm of Denmark, Oda of Japan, and Weiss of France, along with four deputy judges: Beichmann of Norway, Negulesco of Roumania, Wang of China, and Yovanovitch of Yugoslavia. Between January and March 1922, the PCIJ met at the Peace Palace in The Hague to draft and adopt its rules of procedure.43
John Bassett Moore (1860–1947), the first American to serve on the PCIJ (1921–1928), is a good example of the new pragmatic persuasion of inter-war American international lawyers. In his early sixties when elected, Moore, born in Delaware and educated at the University of Virginia, already had had a distinguished career in international law both in academics, lecturing at Columbia since 1891, and in public service. Moore’s careful conservatism appealed to both Republican and Democratic administrations. In 1885, he joined the State Department as an assistant to Francis Wharton and helped prepare Wharton’s Digest of International Law (1886).44 Moore published his own Digest of International Law twenty years later in 1906. In 1898, he was secretary to the US delegation drafting the peace treaty with Spain. In 1913, Moore was elected to the Permanent Court of Arbitration.45
What shines out about Moore is his humble expectation for his field and, indeed, for the US role in international politics. He was instinctively cautious. In 1898, he resisted unsuccessfully America’s acquisition of the Philippines from Spain.46 As counselor to the US Department of State during Wilson’s administration, he tended to side with Secretary of State Bryan’s preference for non-intervention rather than with Wilson’s decisions to go to war, first in Mexico and then in Europe. Moore is reputed to have said: ‘The more I saw of Bryan, the more I thought of him; the more I saw of Wilson, the less I thought of him.’47 Moore distinguished between the voluntary application of international law by international tribunals, which he thoroughly endorsed, and compulsory political decisions by the League of Nations pursuant to Article 10, which he was all against: ‘The only substitute for national government is international government and of all kinds of government, this is the worst.’48
(p.205) Moore’s successor as US judge on the World Court was Charles Evans Hughes (1862–1948). Hughes was, along with Root and Taft, one of three American titans of international law in the early twentieth century. Raised in the era of great optimism about the law of nations, all three remained fervent, if humbled, supporters of the discipline after World War I, Wilson’s failed attempt to have America join his League of Nations, and the rejection by most of the Republican Party, their party, of international institutions. We looked at Root and Taft in the eighth essay. Hughes career was equally distinguished.
Born in 1862 in up-state New York, Hughes was the son of an immigrant Welsh Baptist minister. He graduated Brown and Columbia Law School, and became a successful Wall Street lawyer for more than twenty years, broken only by two years at Cornell where he taught international law. After a much-applauded stint leading an investigation of New York public utilities in 1905, he defeated the publisher, William Randolph Hearst, in 1906 in a race for Governor of New York. President Taft appointed Hughes to the US Supreme Court in 1910. He resigned from the Court in 1916 to run for President against Woodrow Wilson. Hughes lost narrowly, 277 to 254 electoral votes; a few more thousand popular votes in California would have reversed the outcome. During Wilson’s second term, Hughes returned to his lucrative New York practice, but in 1921–1924, he agreed to serve as Secretary of State, first for President Harding, then for President Coolidge. He again returned to law practice, which he carried on even when serving as the second US judge on the World Court (1928–1930). Hughes resigned from the PCIJ when he was appointed a second time to the US Supreme Court, now by President Hoover as Chief Justice to succeed William Howard Taft, another International Court enthusiast.49
It is interesting to contrast the strong international law enthusiasm of these two inter-war Republican Chief Justices—Taft and Hughes—with the two most recent Republican Chief Justices—Rehnquist and Roberts. Taft and Hughes reflected the nineteenth-century utopian vision of international law in which they were reared just as Rehnquist and Roberts were products of the twentieth-century skeptical view of the law of nations. This is, perhaps, as good an example as any of how perceptions of the discipline changed critically during and after the First World War.
Hughes, a grandee of the Republican Party, was one of international law’s true believers in the inter-war years. As Augustus Hand said at a memorial for Hughes:
On the election of President Harding, he became Secretary of State and held that office both during Harding’s short tenure and the first term of President Coolidge. He has been criticized for supporting the League of Nations in campaign speeches in 1920 and failing to give it support after the election. While I think the Republican Party had a most unenviable record on that issue, it was not the fault of men like Root, Taft, and Hughes who wished to (p.206) give the League some definite support. An overwhelming tide swept the country, drawn on by such slogans as ‘back to normalcy,’ ‘business as usual’ and ‘avoidance of foreign entanglements’. It was stupid and selfish in the extreme, but only reformers who preach ideals and ignore possibilities would lay any part of the failure of the League at Hughes’ door.50
C. America Apart
The twin blows of the awful destruction of the Great War and the disappointment over the US rejection of Wilson’s League of Nations overshadowed American international lawyers in the twenty years of the inter-war era. American advocates of the law of nations could no longer be either as optimistic or as bumptious as they had been before. In 1925 Hughes, at the time the President of the American Society of International Law, could only speak modestly at the ASIL’s annual meeting, deeming international law ‘not as an exclusive, or all-sufficient remedy, but as an important means of correcting the evils that afflict us.’51 Four years later, Hughes, still the ASIL President, was Grotian in dismissing those either too pessimistic or too optimistic about the law of nations:
That the United States was more removed from the cause of international law than before was reflected in the activities of the Académie de Droit Institutional, established by a grant from the American Carnegie Foundation. Based at the Peace Palace (another Carnegie gift), the home of the Permanent Court of International Justice, at the Hague, the Academy showed relatively little US connection. It chose to have its summer courses conducted only in French and its lectures printed in the same language. The authors of its first volume were Korff, a Russian émigré to America, only four years in the new land; Phillimore, an English law lord; Triepel, a German professor from Berlin; Wilson, an American professor from Harvard; Rolin, a Belgian professor from Ghent; Strisower, an Austrian professor from Vienna; Fischer Williams, an English barrister; Mandelstam, a former Russian (p.207) diplomat; Weiss, a French professor from Paris; De la Barra, a former President of Mexico; and Borel, a Swiss professor from Geneva. This was a decidedly European cast of characters. Wilson, the sole American, chose (or was asked) to lecture on ‘The Waters Adjacent to the Territory of States,’ not perhaps the most exciting of topics for the inaugural year of the Academy.53 The second year was just as eurocentric. Of the twenty-five lecturers, only three, Reeves of Michigan, Brown of Princeton, and Ambassador Planas-Suarez of Venezuela, came from outside of Europe. Meantimes, France alone boasted five on the Carnegie stipend. Three were from each of Germany and England. Two were from each of Russia (both emigres), Switzerland, Belgium, and Italy. There was one each from the Netherlands, Greece, and Czechoslovakia.54 Even if it was sensible to base the summer course at the Hague alongside the PCIJ, the European bias of the summer course was telling.
Proposals for a rational progress always suffer at the hands of two sorts of persons, with opposite, but equally embarrassing, points of view. The one scouts the idea of developing international law, either because it is deemed to be wholly impracticable or with the desire to leave the utmost possible play for national policy. The other is a species of that larger class, with which we are so well acquainted in the domain of municipal law, which puts its trust in legislation. In its view, to make a law is the chief end of man. In the international sphere, it is quite apparent that in building the institutions of peace we cannot be content with mere legislative processes, necessary as they are.52
American alienation also showed in the changed voice of Americans at international law conferences. In the nineteenth century, Americans like Ladd, Burritt, Field, and Hill took the lead in promoting international law and international courts in international conferences, but now Americans began to express more doubts than hopes about utopian projects. For example, look at the debate in 1924 over the International Law Association’s ‘Draft Statute for the Permanent International Court’.55
The ILA was already a little more than fifty years old in 1924 when its thirty-third Conference was held in Stockholm. As we saw in the eighth essay, the ILA had been founded in 1873, in no small measure, by Americans ambitious for third party judicial settlement of international disputes, an enthusiasm recently emboldened by the remarkably successful conclusion of the 1872 Alabama arbitration. The hope was that international law and courts, if properly fashioned and promoted, would serve as a peaceful alternative to war. Over the course of the next fifty years the ILA turned to mostly commercial matters, but political questions always remained on the organization’s platter. The horrors of war became all the more real after the terrible loss of life in the Great War. It was thus in consequence both of the ILA’s original mandate and of some very pressing present concerns that at its previous meeting, the 1922 Thirty-Second Conference in Buenos Aires, that the ILA had resolved: ‘That in the opinion of this Conference the creation of an International Criminal Court is essential in the interests of justice and that the Conference is of the opinion that the matter is one of urgency.’ Hugh Bellot, an English member, was asked to prepare a Draft Statute for such a court.56 Bellot’s Draft Statute was presented to the ILA’s 1924 Stockholm Conference and provoked a heated debate.57
(p.208) One reads the Stockholm debate in an eerie light.58 We know, as the Stockholm delegates could not, of the greater atrocities still to come in the Second World War. Here were international lawyers debating presciently, if futilely, whether or not there should be procedures for third-party international judicial proceedings to deter and punish war criminals.
Bellott’s Draft Statute proposed an International Criminal Court of twenty-five members: fifteen judges and ten deputy judges, elected for nine year terms by the Assembly and the Council of the League of Nations.59 Most remarkably at this time of state-centric high positivism, Bellott assumed that individuals were subjects of international law. Not only were individuals to be defendants before the ICC, they were to be plaintiffs: ‘The Court shall be open to the subjects or citizens of every state, whether belligerent or neutral, and whether during a war or after its conclusion.’60 They would, however, have to secure the ‘formal consent of … his own State.’ Besides individuals, ‘[e]very State shall be entitled to lodge a complaint on its own behalf, or that of its subjects or citizens.’61
Equally remarkable as its accessibility to individuals was the ICC’s adjudicatory reach. The Court was to have jurisdiction over ‘all complaints or charges in violation of the laws and customs of war generally accepted as binding or contained in International Conventions or in Treaties in force between States of which the complainants and defendants are subjects or citizens respectively.’62 Even more dramatically, the Draft Statute provided that the ‘Court shall have jurisdiction over all offenses committed contrary to the laws of humanity and the dictates of public conscience.’63 This was a broad adjudicatory jurisdiction indeed. The ICC was empowered to settle itself all questions of its jurisdiction.64 The substantive law to be applied was identical to that for the then-new Permanent Court of International Justice: (1) international conventions, (2) international custom, (3) the general principles of law recognized by civilized nations, and (4) as ‘subsidiary means,’ judicial decisions and the opinions of highly qualified publicists.65
The debate’s first speaker was Hugh Bellot (1860–1928), the author of the Draft Statute. Bellot became honorary secretary of the ILA in 1916, and after World War I, was appointed to a UK government committee investigating the treatment of prisoners of war. When his committee’s report was officially suppressed, (p.209) Bellot suffered, one account says, ‘a grievous disappointment.’ His committee’s lost work on the Great War’s breaches of the law of war made Bellot all the more keen to play an active role in preparing the ILA’s Draft ICC Statute.66
The first of four Americans to comment was Charles Henry Butler (1859–1940). Butler had attended Princeton and was the grandson of US Attorney General Benjamin Butler. Between 1902 and 1916, Butler was the Reporter of the decisions of the US Supreme Court and in 1907 had served as a US delegate to the Second Hague Peace Conference. At the time of the Stockholm Conference, Butler was in private practice in Washington, DC. He had affirmed the international legal right of the United States to intervene in Cuba against Spain in 1898, because a ‘right of intervention of a nation in the affairs of another exists on the grounds of humanity and civilization to prevent atrocities and barbarities.’67 Butler moved that the Buenos Aires principle favoring the ICC be reconsidered.68
The next American was Hollis R Bailey (1852–1934), a graduate of Harvard College and Harvard Law School, a Boston lawyer, Chairman of the Board of Commissioners for the Promotion of Uniformity of Legislation in the United States, and first president of the American Branch of the ILA.69 Bailey remarked that in the United States, lawyers’ committees often worked to draft uniform laws for the ‘forty-eight sovereign states;’ he suggested that Bellot’s Draft Statute go to a committee.70 Inelegantly, Bailey commended Bellot: ‘he has given us something concrete: we can see what the thing looks like now, not in a nebulous way, but in a concrete way; we can see things more clearly as being objectionable which perhaps did not occur to us hitherto as objectionable.’71
A little later, Butler explained he was ‘one of those who at the present time are opposed fundamentally to the establishment of such a court.’72 Butler thought ‘the principle of an International Court should be, and I think it is an American principle, that its jurisdiction should be confined to where the matter is between States, and that there should be no opportunity for individuals actually to be the complainants.’73 Just as fundamentally, Butler felt that the ‘laws of humanity and the dictates of public conscience and expressions too vague and indefinite to be the guide of any Court, no matter how constituted.’74
Butler said that he had served as a US delegate to the Second Hague Conference in 1907, and that ‘the stumbling block’ there to the proposed Prize Court was a provision giving that Court ‘authority to decide the case according to the principles of justice and equity.’ This caused the United States to refuse to ratify the Prize Court (p.210) treaty.75 As a trial court without the right of appeal, the proposed ICC, ‘instead of throwing round a person accused of crime the protection which the laws and the criminal procedure of nearly every country afford, it has rendered him less liable to be acquitted and more apt to be convicted than the laws of justice demand.’76
When it seemed there would be no more time to debate the Draft Statute, a British delegate, Lord Phillimore, moved ‘[t]hat this Conference, without expressing any further opinion upon the practicability or expediency of the creation of an International Criminal Court, refers it to a Committee to consider Dr. Bellot’s Report, and see if a scheme for such a Court can be composed.’77 A third American, Arthur Barratt, seconded the delay.78 Barratt, an expert on the law of divorce was a member of both the New York and English bars.79
A fourth American, John Hinkley, followed. Hinkley, a member of the Baltimore Bar, had been Secretary of the American Bar Association.80 Though he agreed that ‘a crime against International Law should be tried by an impartial Tribunal,’ ‘the time has not yet come, for an International Criminal Court.’81 Hinkley saw three crucial problems in establishing an ICC. First, he thought it impossible for there to be an international crime without a sovereign power as a defendant. Second, he could see no way in which a law could be made to regulate international criminal conduct. And, third, he believed no authority could be created that could be expected to execute the judgment of the court.82 His objections were greeted with ‘Applause.’83 Like all the other Americans, Hinckley, though interested enough in international law to attend the ILA Stockholm Conference, was reluctant to see an ICC established and unwelcoming to an international court that might interfere with US sovereignty.
What of the ICC? As resolved at Stockholm, Bellot’s Draft Statute for an International Criminal Court went to an ILA committee from which it emerged somewhat weakened, but much more detailed, at the next meeting of the ILA in Vienna in 1926.84 Somewhat amended, an ILA ICC Draft Statute was adopted.85 None of 1924’s Americans —Butler, Barratt, Bailey and Hinkley—and indeed no Americans at all participated in the 1926 Vienna debate, more evidence of American isolation.86
(p.211) A decade later, on the eve of World War II, Harvard Professor Manley Hudson wrote a brief six page comment summarizing the then-state-of-affairs.87 He devoted a sentence to the three ILA conferences—1922, 1924, and 1926—and footnoted the ILA Reports of each year.88 Hudson put the ILA in the circle of ‘non-official circles’ who gave the ICC idea more ‘hospitality’ in the 1920’s than did governments.89 Hudson described the emergence of greater governmental interest in an ICC after King Alexander I of Yugoslavia and the French Foreign Minister were assassinated in 1934.90 Eventually this governmental interest led to the drafting of a 1937 Convention for the Prevention and Punishment of Terrorism and an accompanying Convention for the Creation of an International Criminal Court.91 Hudson, though, was unsure if either convention would ever come into force.92 Neither did, frustrated by the onset of World War II the next year. After the Second World War, there was renewed governmental interest in an ICC. Fruition of the ICC project would take another four decades and come only after the end of the Cold War, when again the United States was skeptical and refused to join the new International Criminal Court.93
In a country as large as the United States there will always be discordant voices about international law, some expecting too much, of it, some expecting too little. Still, as one reads the Stockholm record, there seems to have been a significant shift in American opinion. In perhaps too simple a contrast, take the Americans who were international court enthusiasts from 1815 to 1914—Dodge, Worcester, Ladd, Burritt, Hill, and Brace. These utopians genuinely believed that international law could make less likely war among nations, that the courtroom could come to replace the battlefield. The nineteenth-century American utopians provided the blueprints for the international courts of the twentieth century. Now, look at their twentieth-century successors —Butler, Barratt, Bailey, and Hinkley. All were international law naysayers. All were skeptical of the utility and role of international law and international courts. By the 1920s, the Americans mood, even among those willing to go to an international law conference in Stockholm, had shifted.
Some disillusioned American international law enthusiasts ultimately rejoined the faith and took comfort in Wilsonianism and the new international institutions. The author of one of the most popular textbooks on international law, Professor Amos Hershey of Indiana, only rejoined the ranks of the believers in 1927:
Hershey had learned to make an important distinction between international law and international ethics or morality:
A thorough revision of the ‘Essentials of International Public Law,’ first published in 1912, has perhaps been expected for some time. Among the reasons for the delay have been the author’s temporarily weakened faith in the potency of International Law and the lack of convincing evidence of the stability of the New World Order slowly emerging from the wreck of old Europe.
Not until the dawn of Geneva and Locarno did the writer acquire sufficient resolution to undertake the task of this revision. He is now persuaded not only that the New World Order has secured a fairly firm footing, but that, mainly due to the agency of the League of Nations, International Law is passing through the greatest period in the history of its development. This is especially the case with respect to the pacific settlement of international disputes and the continued progress of international co-operation, legislation (through the treaty-making power), and organization.
In order to emphasize this latter development, the title of this work has been changed from ‘The Essentials of International Public Law’ to ‘The Essentials of International Public Law and Organization.’94
As to the Austinian positivist critique that international law is not real law since it lacks both a legislature and a court, Hershey was able now to turn to the League of Nations and the Permanent Court of International Justice to show more determinate international institutions.96 He was less sanguine about the absence of an international sanction and was unwilling to say that employing war as the ‘real or main sanction of the Law of Nations’ was always a good thing.97
Although the Law of Nations is based largely upon a sense of justice and equity among men, international morality is by no means identical with International Law; for the latter fails to condemn certain practices and principles (as, eg, the right of conquest) which are clearly at variance with ideals of justice and humanity, and it includes many rules which originated in interest and convenience rather than in morality.95
While serving as the American judge on the World Court, John Bassett Moore set out ‘to contribute something towards the restoration of that sanity of thinking and legal and historical perspective which the recent so-called World War has so (p.213) seriously disturbed.’98 Moore felt that the World War had challenged Grotius’ ‘distinction between combatants and non-combatants … the vital principle of the modern law of war.’99 ‘It is hard to believe that the world is prepared to concede that, in the “next war,” the first and legitimate measure of the belligerent forces will be to bomb or otherwise destroy producers of food-stuffs and other contributory classes heretofore considered as non-combatant; and yet, if the distinction between combatants and non-combatants has ceased to exist, such a measure would be legally justified and strategically correct.’100 Moore proved sadly wrong. The ‘next war’ was, in fact, much more destructive of non-combatants.
Moore, unlike Hershey, was suspicious of grand plans:
Like the old believer that he was, Moore could not resist concluding in a religious tone:
But there are those who exhort us to discard the half-way measures, the feeble expedients, of the past, by which the peaceful propensities of peoples have been tricked and thwarted. Recalling the picturesque Rooseveltian ejaculation ‘Utopia or Hell,’ but drastically discounting the significant truth that the world has always had the second alternative but never the first, the harbingers of a new dispensation of nature, rather than of doctrine, tell us that we should no longer waste time on international law, which is said to legalize war as well as to lack a sanction; on the reaffirmation and improvement of rules, which, it is ruefully remarked, surely will be broken; or on international courts, whose judgments, it is depreciatingly observed, cannot or will not be enforced; but that we must forthwith create a sanction, and, declaring war to be outlawed, be done with it.101
For the churches, the shock of the World War precipitated organizational readjustments. While nineteenth-century church establishments were by and large willing to leave to individuals the duty of promoting world peace, after the War many argued that church institutions themselves should have international responsibilities.103 There was also more cooperation among different religious denominations in efforts to promote the peaceful settlement of international disputes.104 At an interdenominational international conference in 1924 (p.214) in Birmingham, England, it was declared that the maintenance of peace was a moral obligation, a position criticized by the Times of London.105 A study in 1930 of more than two hundred church pronouncements in the previous decade found general agreement that war needed to be abolished.106 Methodists termed war inglorious, ineffective, wasteful, and unchristian.’ Baptists and Unitarians called it a ‘colossal and ruinous social sin,’ the Federal Council of Churches deemed it ‘wholesale slaughter.’107 Church pronouncements favoring the World Court were ‘too numerous to list.’108
The time is rich in opportunity, and every opportunity is a summons to duty…. We grope for an answer, day by day, in the darkness and confusion which invariably result from a great war … but the faith of Grotius and Vattel is not dead. Shall we revive it and bear it on? And shall we, as faithful apostles, resolve not simply to recover the ground that has been yielded but also to make a further advance.102
Politically, despite the sentiments of Root, Taft, and Hughes, international law remained largely a Democratic issue, just as Wilson had reset it. Most Democrats, however, were not so fervent as Wilson: ‘The World War proved conclusively that once a modern war breaks loose, it cannot be controlled, and that, once it becomes general in character, so called international laws lose their effectiveness.’109 Nonetheless, the Party stayed committed to the League in the early inter-war period. In 1924, Democrats assailed Republicans’ ‘fears of foreign entanglements, of lost sovereignty’ as ‘destroyed by time and experience. Four years of fruitful and beneficient operation have demonstrated that the League of Nations is none of those fearsome things which the enemies of Woodrow Wilson pretended to think it was.’110
Politicians, too, sometimes made international law a cause. On August 27, 1928, the United States joined with Germany, Belgium, France, Great Britain, Italy, Japan, Poland, and Czechoslovakia in concluding the Kellogg-Briand Pact.111 The parties condemned ‘recourse to war for the solution of international controversies, and renounce[d] it as an instrument of national policy in their relations with one another.’112 They agreed ‘that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.’113 Despite its public character, the Pact had private origins. Its outline had been given to Briand by Professor James T Shotwell, the Director of the Carnegie Endowments Division of History and Economics.114
Kirk described the eleven-point ‘program of peace action’ adapted by the Executive Committee of the Federal Council of the Churches. Inter alia, the Council recommended a ‘multi-lateral pact of non-aggression,’ a US embargo on aggressors, US government control of the American munitions industry, destruction of all offensive weapons, and US adhesion to the World Court.116
The Pact of Paris renouncing resort to war, however little emphasized in international affairs, continues to be the law of our own and sixty-one other nations. The churches mean to emphasize this fact. Patriotism and peacemaking may thus be regarded as synonymous. This fact is being proclaimed from thousands of pulpits.115
In retrospect, Kellogg-Briand seems, at best, merely aspirational, riddled with reservations permitting states to defend their territories and interests.117 At the time, most international lawyers were markedly guarded in their hopes. Hughes remarked about Kellogg-Briand that ‘[m]ere legislation against war cannot establish peace unless the parties were predisposed to employing international legal process.’118 Perhaps the Pact was not a legal obligation at all but only a political or moral preference. In any case, its uselessness in the 1930’s in restraining flagrant aggression by Germany, Japan, and Italy only made the law of nations look even more futile.
Rather more realistic was the inter-war effort to bring the United States into the Permanent Court of International Justice. Republican international lawyers were divided on the issue and powerful Republicans like Root, Taft, and Hughes were strong World Court supporters. The 1924 Republican Party platform backed the Court: ‘We endorse the Permanent Court of International Justice and favor the adherence of the United States to this tribunal, as endorsed by President Coolidge.’119 Root wrote in 1925: ‘the proposal that the United States take part in supporting the court should be welcomed as an opportunity by all the people who have been talking in favor of abolishing war.’120
The best-known American proponent of the PCIJ was Manley O Hudson (1886–1960), who, born and educated in Missouri, was graduated from Harvard Law School in 1910. As a law teacher, he was Secretary of the Missouri Peace Society between 1912 and 1919. In 1919, he joined the Harvard Law Faculty (p.216) where he was made Bemis Professor of International Law in 1923. Hudson remained active at Harvard until his death in 1960.121
Hudson’s advocacy for the World Court was famous:
Besides his scholarship and advocacy, Hudson himself served on the Court between 1936 and 1946, albeit largely dormant years for the institution. After World War II, though he was not elected to the new World Court, the International Court of Justice, Hudson was elected in 1948 to be the first chair of the United Nations International Law Commission.123 During the inter-war period, Hudson was optimistic that despite America’s determined rejection of the League of Nations, the United States might still be persuaded to join the PCIJ:
As was natural, if not inevitable, in these circumstances, one who dedicated himself as Hudson did to the continuous study of the World Court tended to assume also the role of a champion. In this role he showed a courage and a single-mindedness as great as the meticulous care with which he documented the activities of the Court. When United States participation in the League of Nations became a lost cause, he took up the burden of explaining to the American Government, to lawyers, and to the American people generally, the importance of participation in the work of the Court. As the hope and strategy developed for amending the Statute of the Court so as to overcome the main grounds of American resistance to acceptance, he was assidious in explaining each of the rather complicated phases involved.122
Typical of his time, Hudson did not suggest that the World Court would ensure peace. It was ‘merely one of the instruments, one of the agencies which men may try before they resort to war.’125 In this, Hudson was joined by ASIL President Hughes:
If there is one feature of American foreign policy that has remained constant during the last half-century it would seem to be over support of the idea of a permanent international court of justice.…?This new [World] Court is quite obviously in line with what our government has been standing for during the administration of Presidents McKinley, Roosevelt, Taft, and Wilson, and the all but universally favorable comment on its organization seems sufficient indication of its fulfilment of American hopes.124
(p.217) Though during the early part of the inter-war period, there was reason for American proponents of the World Court like Hudson, Hughes, Root, Scott, Taft, and Moore, to be hopeful, the road to ratification became tortuous and ultimately futile. In 1923, President Harding sought Senate approval for US adherence to the Court’s Protocol. This was given in President Coolidge’s time on January 27, 1926, subject to five controversial reservations. In 1929, new protocols for US adhesion were agreed. President Hoover sought Senate approval for these in 1930. However, only after Franklin Roosevelt’s election in 1932, did the Senate actually vote. The final tally on January 29, 1935 was 52 to 36 in favor, well short of the two-thirds required by the US Constitution for Senate advice and consent to ratification.127
The alternative to war, where agreement has been found impossible, is in some sort of arbitral settlement…. to establish under the best practicable safeguards a permanent court. Such an institution has at last been set up and it holds the promise of the security of rights. Too much should not be expected of it.126
E. The Fall of the League
If the first post-war decade was discouraging for American promotion of international law, the second decade was only worse. The Versailles Treaty establishing the League ‘had been constructed on the assumption that the United States would be not merely a contracting but an active executant party.’128 Unfortunately, or as put politely by a Frenchman ‘by a strange paradox,’129 the US Senate never consented to the ratification of the Treaty, and the United States stayed out of its own plan to keep the peace.
For a decade, from 1920 to 1930, the League, based in Geneva, operating without either the United States or the Soviet Union, nonetheless made real contributions to international law, world health, the protection of minorities, and the settlement of international disputes, eg, the pacific settlement of the dispute between Greece and Bulgaria in 1925.130 The next decade was disastrous for the League. The turning point was the Japanese invasion of Manchuria on September 18, 1931, which the League proved powerless to prevent.131 When the League finally condemned the Japanese occupation of Manchuria on February 24, 1933, Japan simply left the League the next month.132 Dedicated to the prevention of aggression, the League watched helplessly as Italy invaded Ethiopia in 1934, and Germany marched into the Rhineland, Austria, and Czechoslovakia between 1936 and 1938.133 Finally, when Germany and Russia attacked Poland in 1939, (p.218) Britain and France took action, but it was too late. Poland was lost, then France itself, and Europe descended into the twentieth century’s second world war.
By 1939, the League was, in large measure, already a forgotten institution. Poland, France, and Great Britain made no attempt to involve the League in the new world war.134 For a year, the functionaries of the League carried on in Geneva, a situation described by the Deputy Secretary-General of the League as a ‘situation of abnormal normality.’135 In the summer and autumn of 1940, the League’s officials departed Geneva, where they feared a German or Italian invasion, for safer locations. A large part of the Secretariat was based at Princeton University,136 a fitting, if ironic, twist on the origins of the League with Woodrow Wilson.
American isolationism at the end of the 1930s was in its hey-day. Witness Edwin Borchard, Hotchkiss Professor of Law at Yale Law School. In a speech given to a 1938 meeting of the American Bar Association, Borchard vigorously attacked what he called the ‘new international law.’137 Borchard criticized ‘the popular illusion that peace might be assured by bestowing seductive names such as “collective security”, “preventing war”, “international cooperation”, on contrivances like sanctions, which were hostile and warlike in character.’138 Austin-like, Borchard asserted that ‘[d]isregarded were the fundamental differences between the formulation of municipal law within a state, handed down by a recognized superior alone possessing the instruments of social coercion and the growth of the more primitive international system which develops by custom and treaty among equals, in which there is no superior legislator, no authorized enforcing agent for the group, no disarmament of the constituent members.’139 Blaming international law, Borchard pleaded fervently for American neutrality: ‘The task of [avoiding war] is now infinitely more difficult that it was before April 6, 1917, when the United States officially abandoned neutrality.’140
Borchard attacked the ‘illusion’ that international law could preserve peace:
A distinction must be made between international politics and international law. Only after politics has done its work does law enter the field. International law, for example, did not make the treaties of 1919. They were the result of politics. Law cannot control all the political action of states and statesmen, inspired as they often are by biological, historical, and psychological impulses and grievances. Nor does international law control those internal policies of states, such as the size of armies, navies, and tariff walls, which lie close to the foundation of international political relations. Much international action, therefore, has roots in primitive urges which escape compulsory or legal control. Law, moreover, must take human and national nature as it finds it, and can only regulate that part of (p.219) state conduct which by custom and treaty has proved susceptible to control by definite rule. This covers a considerable field, such as delimitation of jurisdiction among the states, their daily diplomatic intercourse in the conclusion and construction of treaties, the protection of citizens abroad, the settlement of disputes and the rules of war and neutrality.
But law cannot dictate national policy, nor does it as yet have much control over the competition for prestige and power which is inherent in the international system. In other words, the bulk of those factors which make for conflict are political. To hold international law responsible for controlling these dynamic political forces is to misunderstand the nature of the forces and the nature of law. It had been the effort of international law, operating with the admittedly sensitive sovereign nation-state, to endeavor to take ever wider areas of international action out of the domain of pure politics and bring them into the domain of law. Much success has been achieved, as in extradition, administrative unions, and arbitration. But that process, voluntary and resting on persuasion, requires trust and a cooperative spirit among the nations. What we have seen in the last generation has not been calculated to promote either trust or genuine cooperation.141
Neutrality, not a false belief in international law, was Borchard’s road to American foreign policy success:142
Borchard may not have realized how closely his critique of international law mirrored the academic views of Woodrow Wilson. And like President Wilson, Professor Borchard was painting himself into a corner by insisting upon US neutrality. American isolationism set neutrality in opposition to international law, forgetting that neutrality itself was a feature of international law, and that neutrality too needed to be protected both by force and by law. When the Germans launched unrestricted submarine warfare in 1918, Wilson’s neutrality was (p.220) shattered and he was forced unwillingly to war. Similarly, America’s isolationists could not prevent the Japanese attack on Pearl Harbor in December 1941. Once again, the promise of American neutrality proved to be a hollow dream and the United States was forced to fight a war it had hoped to avoid. Repudiating international law and international organization had proved both futile and dangerous. As the United States began to engage in an even more dangerous second world war, Americans were ready to abandon inter-war isolationism and entertain again some, if not all, of the promises of the law of nations.
The failure of the attempts of recent years to discountenance neutrality as a philosophy and a practice should have done something to restore its prestige. Those who took the long view of national evolution and international relations never had much doubt on that score. To be sure, neutrality is not a cure for war and makes no such professions. But it has done much to place non-intervention in foreign wars on a legal basis, has done much to ameliorate the duration and barbarity of war, has narrowed the area of conflict, has kept a large part of the world at peace, and has been conducive to the making of sensible treaties of peace. In a world of motley competitive nations this is no mean achievement. However much we may work upon removing the causes of conflict, upon devising methods of international cooperation and peaceful processes of settling conflicts, it would be a mistake to weaken neutrality. Especially is this true in the United States, whose entire history is associated with the growth of neutrality and advantage from its practice.143
(1) James R Mock and Cedric Larsen, Words that Won the War: The Story of the Committee on Public Information, 1917–1919 247 (1939), quoted in David M Kennedy, Over Here: The First World America and American Society 353 (2004 edn, Oxford University Press).
(4) William Lawrence, Henry Cabot Lodge: A Biographical Sketch 13 (1925, Boston, Houghton Mifflin) [hereinafter cited as Lawrence].
(8) Henry Cabot Lodge, ‘Letter to Theodore Roosevelt, November 26, 1918,’ 2 Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge: 1884–1918 546, 547 (1925, New York, Charles Scribner’s Sons).
(9) Colonel Roosevelt’s Last Public Utterance on League of Nations,’ Charlotte Observer, January 14, 1919, at 3.
(10) Lawrence, supra n 4, at 181.
(12) Henry Cabot Lodge, ‘Speech made in the Senate on February 28, 1919,’ Henry Cabot Lodge, The Senate and the League of Nations 227–61 (1925, New York, Charles Scribner’s Sons).
(14) Lawrence, supra n 4, at 167–8.
(15) Jonathan Bourne, ‘Sovereignty and a League of Nations’, Bellingham Herald (Washington), January 8, 1919, at 4.
(16) ‘Letter from John W Davis to White, March 24, 1919,’ David Hunter Miller, 1 The Drafting of the Covenant 368, 369 (1928, New York G P Putnam’s Sons).
(17) Henry Cabot Lodge, ‘Speech of August 12, 1919,’ Treaty of Peace with Germany 3–16 (1919, Washington DC, General Printing Office).
(24) ‘League of Nations is Irredeemable Failure Asserts Senator Harding,’ Olympia (Washington) Daily Recorder, August 28, 1920, at 1.
(25) Warren Harding, ‘Messages of the President of the United States to Congress, Message of April 12, 1921,’ US Department of State, 1 Papers Relating to the Foreign Policy of the United States vii, xvii–xviii (1936, Washington DC, Government Printing Office).
(26) Henry Cabot Lodge, ‘Foreign Relations of the United States, 1921–1924,’ 3 Foreign Affairs 525, 538–9 (1924).
(27) Charles H Stockton, Outlines of International Law v (1914, London, George Allen & Unwin).
(28) Elihu Root, ‘The Outlook for International Law,’ 10 American Journal of International Law 1 (1916).
(29) Martin David Durbin, ‘Elihu Root and the Advocacy of a League of Nations, 1914–1917,’ 19 Western Political Quarterly 439, 443 (1966) [hereinafter cited as Durbin].
(30) Woodrow Wilson, ‘Letter to Edward Mandell House, March 20, 1918,’ 47 The Papers of Woodrow Wilson 85–6 (Link ed, 1984, Princeton University Press).
(31) Durbin, supra n 29, at 442–3.
(32) Robert C Post, ‘Mr. Taft Becomes Chief Justice,’ 76 University of Cincinnati Law Review 761, 768–70 (2007–2008).
(33) Philip Marshall Brown, International Realities 1–2 (1917, New York, Charles Scribner’s Sons).
(37) Jesse S Reeves, ‘International Society and International Law,’ 15 American Journal of International Law 361, 374 (1921).
(38) Secretariat of the League of Nations, League of Nations: Ten Years of World Co-Operation 125–6 (1930, London, Hazell, Watson & Viney) [hereinafter cited as Secretariat].
(39) We explored Root’s role in using a treaty to ground a statute in the Constitution in the tenth essay.
(40) Frederic L Kirgis, The American Society of International Law’s First Century 1906–2006 67 (2006, Leiden, Martinus Nijhoff).
(41) Secretariat, supra n 38, at 126.
(44) We considered Wharton and his Digest in the seventh essay.
(45) Frank E Hinckley, ‘John Bassett Moore, a Member of the Permanent Court of International Justice,’ 10 California Law Review 103–10 (1922).
(46) Edwin Borchard, ‘John Bassett Moore,’ 32 American Bar Association Journal 575, 578 (1946).
(49) William G Ross, The Chief Justiceship of Charles Evans Hughes 1930–1941 1–13 (2007, University of South Carolina Press); Richard P Friedman, ‘Charles Evans Hughes as International Lawyer,’ 90 American Society of International Law Proceedings 143, 144.
(50) Augustus N Hand, In Memory of Charles Evans Hughes 128, 133 (1950, Washington, DC, US Supreme Court).
(51) Charles Evans Hughes, ‘The Development of International Law,’ 19 American Society of International Law Proceedings 1, 2 (1925).
(52) Charles Evans Hughes, ‘Institutions of Peace,’ 23 American Society of International Law Proceedings 1, 2 (1929) [hereinafter cited as Hughes].
(53) 1 Hague Recueil (1923).
(54) 2, 3, 4, 5 Hague Recueil (1924 I, II, III, IV).
(55) The International Law Association, Report of the Thirty-Third Conference Held at the Ruddarhuset and at the Riksdagshuset, Stockholm, September 8th to 13th, 1924 (1926, London, Sweet & Maxwell) [hereinafter cited as 1924 Report].
(58) The 1924 Stockholm meeting is still sometimes remembered. For example, introducing his 1983 Draft Statute for an International Criminal Court, D Thiam, the Special Rapporteur for the International Law Commission, mentions the Stockholm Conference when referring to the draft statute approved by the ILA in 1926 in Vienna. ‘First Report on the Draft Code of Offences Against the Peace and Security of Mankind,’ Yearbook of the International Law Commission, 1983, Vol II (1), at 139 & n 6.
(59) Arts 3 & 4, 1924 Report, supra n 55, at 76.
(66) W A B [Wyndham Anstis Bewes], ‘Hugh H.L. Bellot, D.C.L.,’ 14 Transactions of the Grotius Society 1928 xi–xiv (1928).
(67) ‘Right of Intervention—Charles Henry Butler Quotes Writers on International Law in Defense of It,’ New York Times, April 9, 1898.
(68) 1924 Report, supra n 55, at 92.
(69) Edwin M Bacon, The Book of Boston 419 (1916); Charles Warren, History of the Harvard Law School and Early Legal Conditions in America 353 (1908, New York, Lewis).
(70) 1924 Report, supra n 55, at 98–9.
(79) ‘Testify Regarding American Divorce: J A Barrett and R N Crane: Appear Before an English Commission,’ New York Times, June 12, 1910; J Arthur Barratt, ‘The Divorce Reports from an American Standpoint,’ 13 Journal of the Society of Comparative Legislation, No 2, at 186 (1913).
(80) John Hinkley, ‘Reminiscences of the American Bar Association,’ 21 American Bar Association Journal 452 (1935).
(81) 1924 Report, supra n 55, at 107.
(84) International Law Association, Report of the 34th International Law Association Conference held at the Imperial Palace and at the Chamber of Commerce, Vienna, August 5th to August 11th, 1926 106–225, 279–309 (1927, London, Sweet & Maxwell).
(87) Manley O Hudson, ‘The Proposed International Criminal Court,’ 32 American Journal of International Law 549 (1938).
(93) Vespasian v Della, ‘Towards an International Criminal Court,’ 44 American Journal of International Law 37 (1950); John J Parker, ‘An International Criminal Court: The Case for Its Adoption,’ 38 American Bar Association Journal 61 (1952); George A Finch, ‘An International Criminal Court: The Case Against Its Adoption,’ 38 American Bar Association Journal 644 (1952); Leila Nadya Sadat and S Richard Carden, ‘The New International Criminal Court: An Uneasy Revolution,’ 88 Georgetown Law Journal 381 (2000); William A Schabas, An Introduction to the International Criminal Court (2001, Cambridge University Press).
(94) Amos S Hershey, The Essentials of International Public Law and Organization viii (1927 rev. edn, New York, Macmillan).
(98) John Bassett Moore, International Law and Some Current Illusions and Other Essays vii (1924, New York, Macmillan).
(103) Gordon, ‘La fonction internationale du Christianisme,’ 2 L’esprit international 232 (1928) [hereinafter cited as Gordon].
(104) Church Peace Union, Record of Twenty Years: 1914–1934 (1935, New York, Union).
(105) Gordon, supra n 103, at 234.
(106) Abraham Cronbach, ‘The Peace Ideal of Churches,’ 10 Journal of Religion 232 (1930).
(109) Norman H Davis, ‘American Foreign Policy: A Democratic View,’ 3 Foreign Affairs 22, 23 (1924–1925).
(111) Treaty providing for the Renunciation of War as an Instrument of National Policy, 46 Stat. 2343, T.S. No 796, 2 Bevans 732, 94 L.N.T.S. 57 (signed at Paris August 27, 1928; entered into force July 24, 1929).
(114) John Epstein, The Catholic Tradition of the Law of Nations xiv (1935, Washington, Catholic Association for International Peace).
(115) Walter W Van Kirk, ‘The Churches and World Peace,’ International Conciliation, No 34 (November 1934), at 349, 350.
(117) J Fawcett, Law and Power in International Relations, 26–8 (1982, University of British Columbia Press).
(118) Hughes, supra n 52, at 6–7.
(119) Theodore E Burton, ‘American Foreign Policy: A Republican View,’ 3 Foreign Affairs 35, 39 (1924–1925).
(120) Elihu Root, ‘Steps Toward Preserving Peace,’ 13 Foreign Affairs 351, 355 (1925).
(121) Erwin N Griswold, ‘Manley Ottmer Hudson,’ 74 Harvard Law Review 209 (1960) [hereinafter cited as Griswold].
(122) Julius Stone, ‘Manley Hudson: Campaigner and Teacher of International Law,’ 74 Harvard Law Review 215, 217–8 (1960).
(123) Griswold, supra n 121, at 210–11.
(124) Manley O Hudson, The Permanent Court of International Justice and the Question of American Participation 182 (1925, Harvard University Press).
(126) Charles Evans Hughes, ‘Some Observations on Recent Events,’ 1–20 Proceedings of the American Society of International Law 1, 7 (1926).
(127) Manley O Hudson, ‘The United States Senate and the World Court,’ 29 American Journal of International Law 301, 301–7 (1935).
(128) Harold Nicolson, Peacemaking 1919 207 (1965 edn, New York, Grosset and Dunlap).
(129) Claude-Albert Colliard, Institutions internaionales 50 (3rd edn, 1965, Paris, Dalloz).
(130) Eric Drummond, League of Nations: Ten Years of World Co-operation (1930, London, Hazell Watson & Viney); see the biography of Drummond by James Barros, Office Without Power: Secretary-General Sir Eric Drummond 1919–1933 (1979, Oxford University Press).
(131) F P Walters, A History of the League of Nations 465–99 (1960 edn, Oxford University Press).
(137) Edwin Borchard, ‘Neutrality,’ 48 Yale Law Journal 37, 39 (1938).