The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
THE Permanent Court of International Justice has now rounded out a decade of activity. It is a brief period in the life of a permanent institution, too brief perhaps for any definitive judgment as to its usefulness, and it cannot be said to complete a cycle. Continuity is the Court's "most essential characteristic," as President Adatci recently observed, and it "forbids any arbitrary subdivision of its performances in terms of time." Yet the Court must make its way as it goes, and the record of its first ten years enables some estimate to be formed as to the value of its work, as to the rôle of a judicial agency in our current international affairs, and as to the difficulties which may be encountered in the future.
The creation of the World Court was preceded by a whole generation of effort, in the course of which many expectations were aroused. In the attempt to appraise the record of the Court to date it may be useful to inquire how far these expectations have been fulfilled. In some respects, certainly, the achievements have outstripped the hopes entertained, and surprises have come for even the more sanguine prophets. In other respects, however, the expectations have not been realized, and perhaps some of them should never have been entertained. An inquiry must proceed along both lines if the record is to be justly appraised.
It may first be said that the various states of the world have shown a surprising willingness not only to support the Court but also to confer on it extensive jurisdiction. When the Statute of the Court was being framed in 1920 it seemed doubtful whether it could be brought into force for several years to come. Ratifications of multipartite international instruments are usually slow and are often long delayed. It appeared to be a big task, in 1920, to procure the ratifications of the Court protocol by a majority of the forty-eight states then members of the League of Nations. Yet twenty-eight states deposited their ratifications within nine months, and it thus became possible to hold the first election of judges in 1921. In twelve years, forty-seven states or members of the League of Nations have ratified the protocol of signature, and ten additional states have contributed to the financial support of the Court. This record is the more notable if it is compared with that of the older Permanent Court of Arbitration, which after thirty-two years is not so widely supported.
When the Statute was being drafted, also, it was thought to be going too far to ask states to give the Court a compulsory jurisdiction over legal disputes. An "optional clause" was therefore attached to the Statute which left states free in this respect. For some years, in spite of the persistent efforts of the Assembly of the League of Nations, little progress was made in the acceptance of the jurisdiction covered by this "optional clause;" but recently such insistence has been more successful and the clause is now in force for thirty-seven states, though with far-reaching reservations by some of them. Moreover, numerous treaties have been entered into during this period which provide in some way for the Court's exercise of jurisdiction, frequently upon the initiative of one of the parties to a dispute; a recent publication of the Court lists 420 instruments relating to its jurisdiction, though not all of them are now in force. In the light of such progress in so short a period one wonders whether the framers of the Statute were not over-cautious in 1920. Clearly, one may say that states have shown themselves unexpectedly willing to keep the Court alive and to give significance to its being alive.
A second thing to be noted is that the Court has been much busier than many informed persons supposed that it would be. The writer recalls a meeting of jurists held in Geneva just after the first election of judges in 1921, where the opinion was quite general that the Court would have little or nothing to do during its earlier years. Yet in its first decade it has held twenty-five sessions, in the course of which it has been called upon to hand down seventeen judgments, twenty-four advisory opinions, and numerous orders; and several important cases are now pending. In other words, resort to the Court has been much more frequent than was generally expected, and there is now no indication that the frequency will be diminished. Some twenty-five states have been parties or have been represented before the Court; in most cases they were European states, but the number also includes Brazil, China and Japan. Nor has the use of the Court been confined to the states which have formally joined to maintain it; in several cases Turkey has been a party, though she is not a signatory of any of the Court protocols.
It had been anticipated by some observers that instead of going before the Court states might elect to submit their differences to independent arbitral tribunals composed of arbitrators ad hoc selected by the parties themselves. This was the basis of a prediction that states would create tribunals within the framework of the older Permanent Court of Arbitration in preference to the Permanent Court of International Justice with its fixed personnel. Yet in ten years (during which some forty matters have been referred to the latter Court) agreements for resort to tribunals of the Permanent Court of Arbitration have been made in only three cases, and in each of these one of the parties was the United States of America. States seem to appreciate the advantage of a permanently constituted tribunal, with a known procedure, and with a disposition to build a consistent body of jurisprudence. The use made of the Court since it was created is the best proof of the need for such an institution.
In a third respect, also, the record of ten years surpasses the expectations. The administration of the Court has proceeded with surprising ease. If it has not been altogether without friction, many of the difficulties which were foreseen in the years before the war have been proved groundless. It was the failure to agree on any method of electing the judges which defeated the effort to create an international court at the second Peace Conference at The Hague in 1907; the method of election adopted in 1920 has proved to be generally acceptable, and even if the results have not been wholly satisfactory, it may be said to have succeeded. Only the existence of the Assembly and the Council of the League of Nations has made this success possible. The fact of the hegemony of a few states had to be balanced against the dogma of the equality of all states, and a practicable balance had already been struck in the Covenant. When the scheme for electing the judges was agreed upon, the so-called Great Powers held a controlling voice in the Council, but they were deprived of this advantage when the number of members of the Council was increased from eight to fourteen. Even this shift in the balance was not fatal to the Court, however. In the six elections which have been held, the general scheme has worked. Changes may yet have to be made, but it seems improbable that the struggle of the pre-war years will have to be waged again. Nor have the details of the administration of the Court threatened an impairment of its functioning at any time. The Court has not lacked money; the judges have not found collaboration too difficult; and the procedure adopted, with two somewhat thoroughgoing revisions, has been generally satisfactory.
All of the entries in the ledger cannot be made on one side, however. The chief way in which the Court has been a disappointment, perhaps, is in the rôle which it has played and which it has shown itself capable to play in international affairs. For a whole generation hopes had been entertained that an international court would be a great bulwark of peace, that states would resort to it as an alternative to force, and that its functioning would produce a system of law which would in time afford the basis for a settlement of all international disputes. Nowhere in the world were these hopes indulged more extravagantly than in America, and frequent expression has been given to them recently in connection with the proposal that the United States should join in the support of the Court. It is beside the point, for the present purpose, to show that such a conception of the rôle of a court was born of confused thinking about the place of law in international society, or that it magnified the work of judicial agencies beyond any possible realization. The facts are that in its record to date and in the promise which it offers for the future, the Court is not primarily an agency for maintaining peace, and that much of its activity is only remotely connected with world peace. A frank recognition of these facts does not unduly minimize the Court's importance; and a failure to recognize them can only lead to misunderstanding and discouragement.
The expectation that states would be willing to compress their acute and important differences into opposing legal formulas to be debated before judges has not been borne out in the cases submitted to the Court for judgment during the first ten years. Not one of these cases threatened to become a casus belli. Some of them, to be sure, and particularly the cases between Germany and Poland, related to differences which might have festered if the Court had not been at hand -- and infection may be as dangerous in politics as in surgery. Yet the problems referred to the Court were for the most part juridical, usually depending on difficult constructions of treaty provisions which were too complicated for popular agitation. Even the territorial problem in the pending case between Denmark and Norway concerning the sovereignty over Eastern Greenland was not likely to produce an acute situation. The Free Zones Case between France and Switzerland concerning the customs régime in Gex and Savoy around Geneva, may have had serious possibilities, but it did not threaten the peace of Europe. Lawyers may delight in the nicety of the problem involved in the Lotus Case between France and Turkey with respect to jurisdiction to punish for a crime committed at sea, but politicians could not have been expected to work up much excitement about it. Indeed, not one of the cases submitted for judgment has been of outstanding political significance. The facts therefore refute many of the predictions made before the Court was established, and they must be taken into account in any estimate of the value of the optional clause.
It is not generally realized that the jurisdiction of the Court to give binding judgments has proved to be less important than its jurisdiction to give non-binding advisory opinions. This is one of the developments which no one seems to have foreseen. The project for a court drawn up at The Hague in 1907 contained no provision for advisory jurisdiction. Even the statement in Article 14 of the Covenant that "the Court may also give an advisory opinion upon any dispute or question referred to it by the Council or by the Assembly," seems to have been an afterthought to which little consideration was given by the Peace Conference at Paris. Curiously also, that provision was not deemed to be of first importance by the Commission of Jurists which drafted the Court's Statute in 1920, though an article dealing with it was suggested. As the Statute was adopted, it does not even mention advisory opinions. Yet in the first decade there has been much more frequent resort to the Court for advisory opinion than for judgment. Indeed, the contribution of the Court to the maintenance of peace has chiefly been made through the exercise of its advisory function.
Some of the advisory opinions have related to disputes which might have gone to judgment, such as the dispute between France and Great Britain about the nationality decrees issued in Tunis and Morocco; others have related to the functioning of international institutions such as the International Labor Organization, the European Commission of the Danube, and the Greco-Turkish Mixed Commission for the Exchange of Populations; but the more important opinions have assisted the Council in its handling of acute differences between states. Thus the Court has participated in the solution of boundary questions between Albania and Jugoslavia, between Czechoslovakia and Poland, and between Turkey and Iraq, and in this last case a war was actually threatened between Turkey and Great Britain as mandatory for Iraq. Similarly, the Court has played a significant rôle in maintaining some of the delicate features of the post-war settlement which might have disturbed the peace, notably in vexing situations between Danzig and Poland, and in connection with the proposed Austro-German customs régime; and a recent opinion dealt with the application of the Hoover moratorium between Bulgaria and Greece. Thus some of the twenty-four advisory opinions have related to matters more vital than any of those which have been entrusted for judgment, and it is through this arm of its jurisdiction that the Court is making its contribution to peace. Such jurisdiction is exercised, however, not on the Court's own initiative, not on the initiative of the states chiefly concerned, but on the invitation of the organs of the League of Nations which have the primary responsibility for preventing war.
This, then, is the important rôle of the Court in the international affairs of our time. The administration of law is only incidental to the task of maintaining peace in the twentieth century. The Court has not fulfilled, and it seems not likely that it will fulfill, the expectations which would have made it alone the focal center of pacific settlement. Yet it makes a contribution which had not been foreseen. By itself, it could assist but remotely in building a sense of international security; as a part of a larger world organization, it is a necessary link in the machinery for safeguarding the world's peace.
An appraisal of the record of the Court must also take account of certain consequences of its existence as distinguished from its activities. Not the least of its contributions has been its indirect influence upon the current development of the law of pacific settlement. The very fact of the existence of the Court has stimulated and facilitated the building of a new law of conciliation and arbitration. In 1914 the world was still in a stage where for most countries questions affecting vital interests and national honor had to be excepted from engagements to arbitrate. The Covenant of the League of Nations took a bold departure in 1919; yet it has needed the bolstering of a series of arbitration and conciliation treaties drafted in harmony with its purpose. In this task, the moral influence of the Court has been a dominating factor. At the end of ten years, many states are bound by inclusive treaties which provide a more or less complete system for the settlement of disputes. The system comprises provisions for conciliation by permanent commissions, as to which the Bryan model still survives; provisions for arbitration by ad hoc tribunals; provisions for adjudication of legal questions by the Court; and provisions for ultimate resort to the Council of the League of Nations. It has its best formulation in the General Act for the Pacific Settlement of International Disputes promulgated at Geneva in 1928, a global arrangement which is already in force for more than twenty states. Such a system might have been created without the aid of the Court's influence; but with the Court in existence, its development has been much less precarious and its progress has been much more rapid. The law of pacific settlement in 1932 is many generations in advance of that which prevailed two decades ago.
The Court's influence in this direction is larger because there is general confidence in the cumulating law contained in its jurisprudence. In some forty judgments and opinions there has been a steady and consistent development of legal principles, in the course of which the Court has found no embarrassment in the provision of its Statute that "the decision of the Court has no binding power except between the parties and in respect of that particular case." Its experience has shown that the Anglo-American doctrine of stare decisis is not an indispensable condition of judicial progress. Time and again, the Court has relied on precedents contained in its previous judgments or opinions, and considering the variety of the questions dealt with, its decisions hang together with striking effect. Numerous legal principles have been clarified, some new principles have been announced. This is more notable in some fields than in others; in the law of treaty interpretation, so essential in this era of international legislation, a very apparent development has taken place, giving to the work of the Court an importance which transcends that of the specific cases. If this process can be continued for half a century, international law will have a new content and cannot fail to command a greater respect. The value of the Court's jurisprudence is greatly enhanced by its excellent publications -- it is probably the best-documented public institution in the world today.
The moral influence of the Court depends very largely on its prestige, which will doubtless vary from time to time, and which will not always rest on facts seen in historical perspective. On various occasions during the past decade, features of the Court's organization have been widely criticized, and in some instances the criticism has been justified. The system of elections has not been maintained without some abuses. It was probably a wise provision in the Statute that candidates for the judgeships should be nominated by the national groups in the Permanent Court of Arbitration, for this provision gave the Court a valuable link with that older institution; but it has not always produced the promised advantage of an independent selection of candidates. In one case, the British national group consisted of one person who nominated himself as a candidate; the fact that he deserved to be and was elected did not keep the nomination from being an abuse of the system. It was certainly a wise provision in the Statute that the judges should be "elected regardless of their nationality;" yet this counsel of perfection has been generally disregarded. On each of the five occasions when vacancies have been filled, a candidate has been successful who had the same nationality as the previous incumbent. In 1930, a Latin American bloc in the Assembly of the League of Nations demanded three Latin American judges, and they were elected; this, in spite of the fact that some of the Latin American states have been very tardy in ratifying the Court protocols, and only one of them has been before the Court as a party. The election of two judges who had formerly served as legal advisers to foreign offices was much criticized in 1929, though in most cases such service would seem to be an excellent qualification; no such criticism was made in connection with the election of the three Americans who have been judges, though two of them were former Secretaries of State and the third had been a high official of the Department of State. Of course no one could contend that all of the judges elected have been the best qualified men in the world at the time. Opinions vary as to what are the best qualifications for the judges; and the best qualified men are not always available, even to serve on the most august tribunal in the world. On the whole, however, in spite of the abuses, the system of election probably works about as well as any that could be devised, and the caliber of the judges compares very favorably with that of members of the isolated arbitral tribunals which have been created during the past fifty years.
The prestige of the Court may have suffered, also, as a result of some dissatisfaction with its rules and with its methods of work. Fortunately, the Statute requires that "a session of the Court shall be held every year;" but the fixing of June 15 as the date for the beginning of the session made it seem that the judges were to be occupied chiefly during the summer months, and that date has now been changed to February 1. The Court frequently meets in extraordinary session, yet on some occasions unfortunate delays have occurred in the hearing of cases. These delays have been due in part to the fact that some of the judges have not regularly attended the sessions. In one or two instances the failure of the judges to attend has been all but scandalous. Before the number of judges was increased in 1930, it was not always possible to secure a quorum of judges quickly; in one instance, in 1928, when a bare quorum was present, the illness of one judge necessitated an adjournment. The Court has done little about the matter -- possibly there is little it can do. Early in 1931 it adopted a rule making attendance imperative; yet the record has been little better since. In 1931 the third hearing in the Free Zones Case had to be postponed for six months. For one thing, some of the judges are too old at the time of their election; one of those elected in 1921 was already 79 years old. Of eleven judges elected in 1921, only seven served out the term of nine years. Part of the difficulty, therefore, is beyond the reach of the Court itself. Now that it is out of its swaddling clothes, more attention needs to be given by the electors to providing the Court with an energetic and vigorous personnel, and continuity of service should be made a chief desideratum.
The method of work adopted by the judges has been the subject of some criticism also. The documents submitted to the Court are usually voluminous. Since it is not an appellate tribunal, there is not the previous narrowing of issues to which higher national courts are accustomed; and with few rules for the exclusion of evidence, the oral hearings are often very extended. Nor does the use of two or more languages tend to expedite the proceedings. For a time the attitude of the judges was not favorable to questions addressed to counsel from the bench, and the hearings were lifeless; recently, however, this attitude has been changed with good results. Witnesses are seldom heard, and on only a few occasions have experts been summoned to assist the Court. The deliberations of the judges at the conclusion of the hearings have become somewhat formalized, though changes in the practice are made from time to time. Judges trained in different systems of law, guided by varied experiences, do not reach agreement without some difficulty. Dissents are frequent, and in some quarters the practice of allowing dissenting opinions is strongly disapproved. On certain features of the Lotus Case, the judges were equally divided and the President cast a deciding vote; on the order given in the Free Zones Case in 1930, twelve judges were equally divided on the reasons for the Court's action; and the divisions among fifteen judges with reference to the opinion on the proposed Austro-German customs régime remind one of the divisions in the Supreme Court of the United States in the Dred Scott case. Yet when we view the record as a whole we may say that the sharp divisions in the Court have been less serious than might have been anticipated.
Possibly the work of the Court would be facilitated if it had the assistance of a trained and organized bar. States represented before the Court are entirely free in their selection of agents and counsel. There is no requirement that lawyers be chosen, nor is a state restricted to representation by its own nationals. The languages of the Court being English and French, more often French, parties usually desire to avoid the uncertainty of translations by having counsel who are entirely at home in one of those languages. This creates a practical limitation on the selection of counsel, and it explains why a few lawyers have appeared before the Court a number of times. No practical scheme has been proposed for the organization of an international bar.
It was principally the difficulties in the functioning of the Court which led to an attempt to revise its Statute in 1929. The amendments drawn up were not thoroughgoing, and few of them would have effected any improvement. No attempt was made to deal with the most patent defect in the Statute, its lack of a provision for the method of its amendment. This failure was due to a reservation offered by the United States, which has exhibited with reference to the Court a stage fright not felt by any other country in the world. Both the Covenant of the League of Nations and the constitution of the International Labor Organization provide for their amendment by something less than unanimous consent; but unanimity is needed for any amendment of the Statute of the Court. Hence, the amendments proposed in 1929 could not come into force in 1930, as planned, because Cuba withheld her consent. Cuba's reservations have now been withdrawn, but the effect of her somewhat childish performance was to require formal ratifications by the various states including the United States. The revision of the Statute has not yet become effective, therefore, and may never become so. The problem is not an urgent one, for some of the changes proposed have already been made by the Assembly of the League of Nations and by the Court itself. Perhaps a few years hence experience will dictate a fresh attempt at revision, and in that case some of the more or less moribund provisions of the present Statute, possibly those for special chambers to deal with labor and with transit and communications cases, may be sloughed off altogether.
In some respects the activities of an international court are very unlike those of a national court. In the jurisdiction possessed, in the procedure followed, and in the relief given, the two have little in common. The popular talk about an international court's acting on states as a national court acts on individuals easily leads to false appreciation. That lesson was taught in the United States by the celebrated case in which Virginia finally forced West Virginia to pay a part of the debts contracted before the Civil War; it must be clear, also, to any student of the recently decided Free Zones Case between France and Switzerland. Yet the judicial process is much the same in the two classes of courts; it is subject to the same limitations and to the same popular misconceptions.
The limitations surrounding judicial action have been scrupulously observed by the World Court. It showed a clear determination to safeguard its judicial character by refusing to give an opinion in the Eastern Carelia Case, when the Soviet Union declined to appear before it. More recently, in the Free Zones Case, it refused to undertake the function of revising a situation depending on treaties which both France and Switzerland had admitted to be "no longer consistent with present conditions."
No court, whether national or international, can apply "the law" automatically. Indeed, no system of law exists, in either sphere, to furnish clear-cut and ready-made solutions for all the problems which arise. Principles are guides not masters, and their application calls for a delicate appreciation of factors which do not range themselves into hard and fast categories. The wise judge will face this task frankly, even at the risk of incurring criticism that his judgment is "political." This was done by Judge Anzilotti in the case relating to the proposed Austro-German customs régime, but not by the minority of the Court which purported to proceed on a "purely legal" basis, without regard to "political considerations." As Judge Kellogg has insisted, an international court should not be open for the submission of "political" questions; but only the trained person can be expected to discover the shadowy line between "political" and "legal" questions, and what is "political" today may become "legal" tomorrow. Moreover, as the experience of the Supreme Court of the United States has demonstrated, the process of seeking a solution of admittedly "legal" questions cannot be pursued without attention to matters of policy. If these considerations had been more widely appreciated, it seems probable that some of the criticism of the Court's opinions, particularly the opinion on the Austro-German customs régime, would have been less severe.
With all its defects, in spite of the criticism which was to be expected and welcomed, the Court has achieved a solid prestige in ten years. Not once has its authority been flaunted, in no case has its judgment been ignored. Its usefulness is clear, though it is in some respects different from that which had been foreseen. The Court has made a beginning toward the reconstruction of international law according to twentieth-century ideas. It stands today, beside the Council of the League of Nations, as the center of a new system of pacific settlement. It is so firmly embedded in the world's treaty law that its disappearance would involve a revolution in international affairs. It is so entrenched in the public esteem that its permanence seems assured.