Juridical world order : a symposium


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JURIDICAL WORLD ORDER

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The Role of Force in the International Juridcal Order

Pius XH’s Legacy to World Federalism

Available Legal Machinery for a Juridical World Order

American Catholic Opinion and the UN

The Right to Travel and Migrate

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Reprinted from the WINTER 1960 EDITION of THE CATHOLIC LAWYER



Digitized by the Internet Archive

in 2016

https://archive.org/details/juridicalworldorOOunse



Papers Presented at the 32nd Annual Conference

October 23-25, 1959

of

CATHOLIC ASSOCIATION FOR INTERNATIONAL PEACE

1312 Massachusetts Avenue, N. W„ Washington 5, D. C.



PIUS XII'S LEGACY TO
WORLD FEDERALISM

Rev. Robert F. Drinan, S.J.*

is-
l,

\ JS

When death called pope Pius xn at 3:52 a.m. on Thursday,October 6, 1958, the world stood still in awesome admiration of
the Pope of Peace whose ringing words and slender white-clad figure

had become a unique and beloved symbol of stability and love during

the previous two decades which had witnessed the worst upheaval in

the history of the world. On October 25, 1958 - nineteen days after

the death of the most international-minded of all modern Popes — the
Catholic Association for International Peace opened its thirty-first annual

meeting. Some twenty of CAIP’s annual gatherings had been held during

the pontificate of Pius XII and it is not an exaggeration to state that his

magnificent leadership in urging a true community of nations formed a

large part of the inspiration of those dedicated men and women who

have so developed and intensified the activities of the CAIP that it now

stands as one of the most vital Christian groups in the entire English-

speaking world.

There was occasion in last year’s gathering of the CAIP to mourn

the greatest international jurist and statesman of this century, but his

passing - so abrupt and so recent - precluded a quiet analysis of the

legacy which Pius XII left to the family of nations concerning the urgency

of their living together under a rule of love and of law. As the world

grasps to understand and apply that legacy, lest it be plunged into a

nuclear war more monstrous than imagination can portray, it is emi-

nently fitting that the members of the CAIP contemplate and analyze

that to which they are heirs. Many times, of course, the participants in

this most important of all Catholic organizations have pondered on Pius’

call to a world order, a symbiosis of free states, based on love. In this

call the late Pontiff echoed with new clarity and dynamic inspiration the

Catholic tradition of the law of nations which enriches the pages of

Aquinas, Suarez and all the moral theologians of the Church.

*A.B. (1942), M.A. ( 1947), Boston College; LL.B. ( 1949), LL.M. ( 1950), George-

town University; S.T.L. (1954), Weston College. Dean, Boston College Law
School.

6

DeacWHfed



Pius XILs Legacy 7

But now that the voice of this century’s

most respected diplomat and most beloved

servant of peace is silenced forever, it is

appropriate to consider what this gifted

jurist stated concerning the Church’s posi-

tion on the growth and development of

international juridical institutions. Aside

from the obligation of always re-examining

what the Papacy is teaching, the present

reappraisal has a special urgency in view

of the fact that American Catholics seem

to manifest a massive reluctance to endorse

any form of internationalism which requires

the smallest surrender of American sover-

eignty.

The common opinion of Catholics in
America has by instinct and tradition never

been fully in total sympathy with the world

federalism advocated by the late Holy

Father. It is indeed a tragedy that the aver-

age Catholic in the United States, blessed

with remarkable fidelity to the teachings of

the Holy See, has failed in a notable way

even to know, much less to radiate, the prin-
ciples of international brotherhood so bril-

liantly expounded to the world by Pius XII.

The Pope and the War

It seems true to state that Cardinal

Pacelli was startled by his election as Pope

on March 2, 1939 in the shortest conclave

since 1623. No Papal Secretary of State
had been so elevated since 1775. The state-

ments of Pius XII during the first few weeks

of his pontificate seem to suggest that he in

all humility felt unprepared to try to lead

the Church and to guide the nations of the

world away from the brink of disaster. The

burden of virtually all of his messages dur-

ing this time is an exhortation to Europe

and to the world to preserve the peace by

every available means. It is probably under-

standable that a Pontiff, who did not antici-

pate his election and who beheld before

his eyes the imminent renewal of world

war, did not immediately enunciate the

Church’s position on a juridical world or-

ganization for peace. But in the years to

come, from March 2, 1939 to October 6,

1958, the Pope, destined by God to lead
His Church during mankind’s greatest up-

heaval, gradually and realistically evolved

a detailed position on a world federation

of nations which stands as a challenge to

humanity and a rebuke to those all too

numerous Catholics who have not relin-

quished their false notions of exaggerated

nationalism and have thus failed to appre-

ciate the mind of the Holy See on the

most burning issue of our generation.

Let us review the evolution, year by year,

of Pius XII’s ideas on world organization.

If we see chronologically how the late Pon-

tiff reacted to events, we will then be in a

better position to summarize and evaluate

his over-all intellectual and spiritual legacy

concerning the problem upon the resolu-

tion of which depends the very survival of

the human race.

The first message of Pius XII adumbrates

the general themes which will make up the

great symphony of this teaching. The morn-

ing after his election the Pope spoke to the

world in moving terms of “the peace which

joins nations ... by friendly helping alli-

ances.”1 On June 2, 1939, the Feast of
St. Eugene, the Holy Father, speaking to

the College of Cardinals, solemnly offered

the services of the Holy See to stay the “im-

minent eruption of force.”2 Touchingly he

called for a crusade of prayer and placed

“the white legions of . . . children in the

1 Koenig, Principles For Peace 554 (1943),
hereinafter cited as Koenig.

2 Koenig 570.



8

6

Catholic Lawyer, Winter 1960

vanguard.”3 On August 24, 1939 the Shep-
herd of Nations urged upon the whole

world that “nothing is lost with peace; all

may be lost with war.”4

As the world plunged into a war which

His Holiness called “a terrible scourge of

God,”5 the Pontiff initiated a long series of

appeals to the belligerents to observe “the

laws of humanity and to act in accordance

with the stipulations of international agree-

ments”6 in connection with civilian popula-

tions, occupied territories and prisoners of

war. He pleaded that “asphyxiating and

poison gases ... be excluded.”7

The late Pope’s first encyclical, timed to

coincide with the Feast of Christ the King,

is not merely a powerful denunciation of

the omnicompetent state but suggests for

the first time that after “the cruel strifes of

the present have ceased, the new order of

the world, of national and international life,

must rest ... on the solid rock of natural

law and Divine Revelation.”8 This “solid

rock” is the very essence of the Papal plan

for peace; the nations of the world should

join together not because they will thereby

spare themselves grief but because God

intended by the law of nature that the

nations of the earth form one family. The

Holy Father therefore rejects outright that

pernicious positivism which had for so long

dominated the field of international law,

that positivism which, in a vicious circle,

would deny the status of law to interna-

tional agreements because there is no tri-

bunal to enforce them and deny jurisdic-

*ld. at 571.

4 Id. at 585.

s Id. at 589.

*Id. at 588.

7 Ibid.

8 Id. at 607.

tion to an international tribunal because the

nations of the world are not willing to con-

sent to any diminution of their sovereignty

by submitting to the authority of an inter-

national court.

The first of Pius’ nineteen Christmas

addresses looks ahead amid the chaos and

calamities of the war and urges that “in

order to avoid . . . unilateral interpreta-

tions of treaties, it is of the first importance

to erect some juridical institution which

shall guarantee the loyal and faithful ful-

fillment of the conditions agreed upon. . .

The Pope does not spell out the nature of

this needed “institution” but does insist that

it be able to “guarantee” its objectives.

During the early years of the war the

Holy Father seemed to be too anguished

over the millions of souls whose lives had

been devastated to ponder deeply on the

nature of a new international legal order.

One does not think of a new family home

while the flames still consume the home

that one loves. The Holy Father expressed

his tender concern for humanity and for

the people of Germany, among whom he
had spent so many devoted years, when he

denounced the demand for unconditional

surrender agreed to by the allied forces at

Casablanca. Pius’ tenderness for war pris-

oners, refugees and orphans found expres-

sion in addresses truly classical in their

moving compassion for the victims of war.

Many addresses assert repeatedly the need

for a new international order, but the spe-

cific nature of that order is not treated in

detail.

As the war dragged on, the Holy Father

spoke from time to time of his hopes for a

new order. On September 1, 1944, for
example, the fifth anniversary of Hitler’s

9 Id. at 637. (Emphasis added.)



Pius XII's Legacy 9

attack on defiant Poland, the Pope stated

that

An old world lies in fragments. To see ris-
ing as quickly as possible from those ruins

a new world, healthier, juridically better
organized, more in harmony with the exi-

gencies of human nature — such is the long-
ing of its tortured people. . . . Since today

. . . the desire to secure a new world-wide
peace institution ... is ever more occupying

the attention and care of statesmen and peo-

ples, We gladly express Our pleasure and
form the hope that its actual achievement

may really correspond in the largest possible
measure to the nobility of its end, which is

the maintenance of tranquility and security

in the world for the benefit of all . 10

With the famous 1944 Christmas address

on democracy, the Holy Father could be

said to have entered a new phase of out-

lining his aspirations for a new world order.

The message struck the world like a thun-

derbolt because, in the words of the docu-

ment itself, “beneath the sinister lightning

of the war ... the peoples have, as it were,

awakened from a long torpor.”11 To avoid
another war there must be, Pius XII stated,

“the possibility of censuring and correcting

the actions of public authority” and this

power must be vested “in the people.” This

democratic power calls for great “moral ma-

turity” so that from the democracies of the

world there will emerge an organization

with an authority which “must be real and

effective over the member states.” The
Pope, expressing by implication the hope

that the Dumbarton Oaks proposals would

be successful, goes on to state that

An essential point in any future interna-
tional arrangement would be the formation
of an organ for the maintenance of peace,

10 Powers, ed., Papal Pronouncements on the
Political Order 172 (1952). (Emphasis added.)
11 43 Catholic Mind 66 (1945).

of an organ invested by common consent
with supreme power to whose office it would

also pertain to smother in its germinal state

any threat of isolated or collective aggres-

sion . 12

The call- of the Pope for a “War on war”

includes a call for

The threat of judicial intervention by the
nations and of chastisement inflicted on the

aggressor by the society of states, so that

war will always be subject to the stigma of

proscription, always under surveillance and

liable to preventive measures. ... 13

The Holy Father was sterner in this mes-

sage than ever before when he outlawed

“all wars of aggression as legitimate solu-

tions of international disputes.”14

Five months after the ringing Christmas

Eve message of 1944, the Pope exulted on

V-E Day; on that day, May 9, 1945, he
spoke on the radio in the most moving

terms of the “moulders and builders of a

new and better Europe, of a new and better

universe.”15 Three weeks later the Holy

Father in an address to the College of

Cardinals returned to the theme that the

peoples of the world “claim the right to

take their destinies into their own hands.”16

With manifest deep interest the Pope stated

that the “thought of a new peace organiza-

tion is inspired ... by the most sincere and

loyal good will.” He goes on:

What a bitter disillusionment it would be if
it were to fail, if so many years of suffering
and self-sacrifice were to be made in vain,
by permitting again to prevail that spirit of

oppression from which the world hoped to

see itself at last freed once and for all . 17

12 Id. at 73.

!3 /bid.

11 Id. at 72.

15 Id. at 385.

10 Id. at 455.

17 Id. at 456.



10 6 Catholic Lawyer, Winter 1960

The Pope and the United Nations

The words just cited were enunciated by

the Holy Father as the United Nations Con-

ference met in San Francisco. Forty-six

nations participated but the Holy See was

not invited. If the Holy Father was disap-

pointed at the weaknesses inherent in the

UN Charter, signed on June 26, 1945, he
did not so indicate and in fact made no

reference to the UN until January 1946.
On November 18, 1945 the Administrative
Board of the National Catholic Welfare

Conference in the annual message of the

American hierarchy made clear the bishops’

objections:

The charter which emerged from the San
Francisco Conference, while undoubtedly

an improvement on the Dumbarton Oaks
proposals, does not provide for a sound, in-

stitutional organization of the international

society. The Security Council provisions
make it no more than a virtual alliance of
the great Powers for the maintenance of

peace. These nations are given a status

above the law. Nevertheless, our country

acted wisely in deciding to participate in

this world organization. It is better than

world chaos. . . . In time . . . we may have
a sound institutional organization of the

international community which will develop,

not through mere voluntary concessions of

the nations, but from the recognition of the

rights and duties of international society . 18

By the summer of 1947 the limitations of

the United Nations had become evident.

The smaller nations in particular were dis-

satisfied with the domination of the great

powers in the Security Council. Speaking to

the new Minister of El Salvador, one of

the world’s smallest states, Pius XII urged

the lesser nations not to “renounce the use”

of the forum of the UN but to employ it

18 Cited in Conway, Catholics and Revision of the

U.N. Charter, 88 America 230 (1952).

“to prod the conscience of the world.”19

This address along with several others ex-

horted nations to make every possible use

of the UN while at the same time urging
them to work for its strengthening.

On September 1, 1948 the Pope ex-
pressed his concern for the forthcoming

session of the Assembly of the United Na-

tions in these terms:

If any assembly of men, gathered at a criti-

cal cross-road in history, needed the help

of prayer, it is this assembly of the United

Nations.20

In his 1948 Christmas message Pius XII

returns to the UN and expresses the fol-
lowing aspirations:

May the United Nations Organization be-
come the full and faultless expression of this
international solidarity for peace, erasing

from its institutions and statutes every ves-

tige of its origin, which was of necessity a

solidarity in war!21

Although the Pope spoke almost as bluntly

as the American hierarchy about the limi-

tations of the UN, the Pontiff, like the

American bishops, has repeatedly urged

the fullest cooperation with this less than

perfect world organization. The Pope in

July 1951 stated that

We are happy to assure all the agencies and
offices of the United Nations, destined to

bring international assistance to the working

man, that the Church is ever prepared to

support their efforts with her most sympa-

thetic collaboration.22

19 Koenig, Pius XU and the U.N., 52 Catholic
Mind 143-48 (1954).
20 id. at 147.

si Ibid.

22 Address of His Holiness, Pope Pius XII, to

members of the International Catholic Congress

on Rural Problems, July 2, 1951, in 49 Catholic

Mind 708, 711 (1951).



Pius XII’s Legacy 11

Pius XII and World Government

After the deficiencies of the United Na-

tions became ever more apparent the late

Holy Father began to work — cautiously
but clearly — to advance the ideas of world
government or world federalism. In several

statements His Holiness impliedly expressed

his dissatisfaction with the UN Charter and
at least by implication stated that the UN
was a series of compromises, that it ran

counter to the ideas he had enunciated

during the war and that it had been weak-

ened by the concessions made at Teheran,

Yalta and Potsdam. But the Holy Father

was never bitter; he never once called for

anything even approaching a preventive war

even though almost one-sixth of the mem-
bers of the Mystical Body were being mar-

tyred behind the Iron Curtain in the satel-

lite nations.

The Holy Father was well aware on

April 6, 1951 that the world federalists

advocated the transformation of the United

Nations by charter revision into an organ-

ization comparable to that which he himself

had called for at Christmas of 1944, a body

“with supreme authority and with power

to smother in its germinal stages any threat

of isolated or collective aggression/'23 Yet

in an historic address on that day the Holy

Father stated:

Your movement dedicates itself to realizing
an effective political organization of the

world. Nothing is more in conformity with
the traditional doctrine of the Church. . . .

It is necessary therefore to arrive at an or-

ganization of this kind, if for no other rea-

son than to put a stop to the armament
race. . . .

His Holiness added only one qualification

23 See Conway, Catholics and Revision of the
TJ.N. Charter, 88 America 230. 231 (1952).

to his endorsement of the program of the

world federalists:

You are of the opinion that this world politi-
cal organization, in order to be effective,

must be federal in form. If by this you

understand that it should not be enmeshed

in a mechanical unitarism, again you are in

harmony with the principles of social and
political life so firmly founded and sustained

by the Church.24

The one qualification of Pius XII is that

the structure of a world federation of na-

tions must not be mechanical but organic

and based on what he would later call the

“divinely-willed unification” of humanity.25

It is significant to note that in late July

of 1953 the Vatican Pro-Secretary of State,

Monsignor Giovanni B. Montini, writing

in the name of the Holy Father to the

Semaines Sociales meeting in France, in

strong terms rebuked Catholics insensible

to admonitions of the Papacy. The letter

read:

How many . . . continue to shut themselves
up within the narrow confines of a chau-

vinistic nationalism, incompatible with the

courageous effort to start a world commu-
nity demanded by recent Popes.26

On October 3, 1953, Pius, in an address
to the International Congress of Penal Law,

vigorously called for an international penal

code and for a Court with jurisdiction

reaching into individual sovereign states.

On December 6, 1953 the Holy Father,
in perhaps his most significant address on

world government, asserted that:

The setting up of a community of peoples,
which today has been partially realized, but

which is striving to be established and con-

24 Id. at 232.

25 4 The Pope Speaks 195, 196 (1959).

26 Graham, War and Peace at PA U, 89 America
497 (1953). (Emphasis added.)



12 6 Catholic Lawyer, Winter 1960

solidated on a more elevated and perfect
level, is an ascent . . . from a pluralism

of sovereign states to the greatest possible

unity , 27

One can conclude from this that Pius XII

felt that the UN had “partially realized”
the desired “supra-national juridical com-

munity” but that more was yet to be

achieved before the world would witness

“a higher community of men, [the one]
willed by the Creator and rooted in the

unity of their common origin, nature and
final destiny After a carefully balanced

definition of true sovereignty the Holy

Father enunciates a “fundamental theoreti-

cal principle for coping” with the difficul-

ties in the “establishment, maintenance and

functioning of a real community of states,

especially one which would embrace all

the peoples.”28 The principle reads:

Within the limits of the possible and the

lawful, to promote everything that facili-

tates union and makes it more effective; to
raise dykes against anything that disturbs

it; to tolerate at times that which it is im-

possible to correct, but which, on the other

hand, must not be permitted to make ship-
wreck of the community of peoples, be-

cause of the higher good that is expected

from it.29

Pius XII and European Unity

While never retreating from the ideal of

a truly juridical supra-national organization

Pius XII worked incessantly “to promote

everything that facilitates union.” He was
especially active in encouraging anything

that advanced European unity; he told mem-

bers of the NATO college on November 3,

27 Cited in Conway, Pius XII on “The Community

of Peoplesr 90 America 335, 336 (1953).
28 id. at 335.

29 Id. at 336.

1955 that their work was an indispensable

necessity in a “deeply divided world.”30 On
June 6, 1954 he inaugurated an all Euro-

pean television network with a dramatic

appeal for a “world community.”31 On No-
vember 10, 1955 the Pope told the dele-

gates of 71 nations to the Food and Agri-

cultural Organization (FAO) of the UN
that the “Holy See could not hold aloof

from so beneficial and necessary an under-

taking” and expressed gratitude that the

Holy See had been admitted in 1950 as a

permanent observer at the FAO — “a status
which it alone has up to the present.”32 In

his Easter message of 1954 the Holy Father

affirmed that he would “endeavor to bring

about, by means of international agree-

ments . . . the effective proscription and

banishment of atomic, biological and chem-

ical warfare.”33 It seems important to point

out that the Holy Father cooperated in and

encouraged all these efforts towards peace

even though they were not organized on

a religious basis following that principle

which he enunciated on another occasion*

“ [C] ooperation for the good of the com-

munity, in institutions where God is not
recognized expressly as the author and law-

giver of the universe” is not forbidden. 34

But the fearful “co-existence in terror,”

as Pius described the post-war period in

his brilliant Christmas message of 1954,

brought the attention of His Holiness back

again and again to the limitations of the

existing juridical machinery for the preser-

vation of peace. On November 10, 1956,
after witnessing a broken Hungary and an

so 2 The Pope Speaks 341-42 (1955).
31

1 The Pope Speaks 161, 164 ( 1954).
32 2 The Pope Speaks 327 (1955).

33 52 Catholic Mind 438, 439 (1954).
34 4 The Pope Speaks 195, 197 ( 1957).



Pius XII s Legacy 13

exploding Middle East, the Pope made an

unprecedented radio appeal to governments

and peoples “to bind closely in a solid pub-

lic pact all those” who seek a peace worthy

of the sons of God.35 His eighteenth Christ-

mas message spells out as never before the

inadequacies of the United Nations. In an

address on December 23, 1956, relayed by

Radio Free Europe and the Voice of Amer-

ica to all the conquered nations of Eastern

Europe, the Vicar of Christ urges that the

exercise of their rights, as members of this

organization [the United Nations] be denied

to states which refuse even the admission of

observers — thus showing that their concept
of state sovereignty threatens the very foun-

dations of the United Nations.36

After the disillusionment of Geneva and

the intervention of Suez the Holy Father

writes with unusual directness:

This organization [the UN] ought also to
have the right and power of forestalling all

military intervention of one state in another,

whatever be the pretext under which it is

effected, and also the right and power of

assuming, by means of a sufficient police

force, the safeguarding of order in the state

which is threatened.37

The Pope goes on with specific directives:

We desire to see the authority of the United
Nations strengthened, especially for affect-

ing the general disarmament which we have
so much at heart. ... In fact only in the
ambit of an institution like the United Na-

tions can the promise of individual nations

to reduce armaments ... be mutually ex-

changed under the strict obligation of inter-

national law. [0]nly the United Nations is

at present in a position to exact the observ-

3^96 America 214 (1956).
36 3 The Pope Speaks 331, 344 (1956).
37 Jd. at 344-45.

ance of this obligation by assuming effective

control of the armaments of all nations

without exception.38

Work for World Unity
on Three Levels

It can be seen from the foregoing that

Pius XII urged work for peace on three

levels — first and most important, the
untiring reaffirmation of the necessity of a

supra-national juridical world order based

on the natural law; second, the accep-

tance of the United Nations but with cease-

less efforts to strengthen it; and third, the

fullest cooperation and collaboration with

every agency that promotes international

friendship. The late Pontiff was an una-

bashed internationalist. He desired and
sought and prayed for a “future world poli-

tical organization . . . true to the spirit of

federalism.”39 At the same time he was

using the influence of the Holy See to

promote “the idea of a United Europe, the

Council of Europe and other movements

of the kind” which to Pius XII were “a

manifestation of the world’s need to break

through, . .
.

politically and economi-

cally, the old rigid lines of geographical

frontiers. . . .”
40

Conclusions

Pius XII therefore very firmly committed

the Holy See to the support of the basic

principles behind the movement for world

federalism. By asserting that the present

legal machinery to preserve the peace is

inadequate the late Pope had at least infer-

38 Id. at 345.

39 Cited in Pollock, Address to World Federalists,

April 6, 1951.

40 Address of His Holiness, Pope Pius XII, to the

First International Private Law Congress, July 15,
1950, in 48 Catholic Mind 754, 755 (1950).



14 6 Catholic Lawyer, Winter 1960

entially stated that the United Nations is a

compromise solution among nations too

jealous of their own sovereignty to form a

union of nations which would be in fact

a supra-national federation outlawing war

and giving juridical enforceability to the

unity of mankind.

How has the Catholic world responded
to the Pope’s imperious demand for a new

and “juridically better organized” world?

How have American Catholics reacted to
the challenge of Pius XII’s statement that

Catholics . . . are extraordinarily well

equipped to collaborate in the creation of

a climate without which a common action
on the international plane can have neither

substance nor prosperous growth. . . . There

is no other group of human beings so favor-
ably disposed, in breadth and in depth, for

international understanding. . . . Catholics

. . . above all . . . must realize that they

are called to overcome every vestige of na-

tionalistic narrowness. . . .41

Do not Catholics therefore have a spe-

cial mandate to continue on all three fronts

the work of Pius XII? Do not Catholics,
for example, have the obligation of insist-

ing on the ratification by America of the

Genocide pact, the repeal of America’s

reservation to the jurisdiction of the Inter-

41 Pollock, ed., The Mind of Pius XII 81-82

(1955).

national Court of Justice enacted on the

floor of the Senate in 1946 in the Connally

Amendment? And who can deny the duty
of Catholics to work for the reorganization

of the United Nations in order to make it

more consistent with that world institution

which Pius XII stated should have “su-

preme power”?

Time has not eroded but rather deepened

the urgent necessity of implementing the

commitments made by Pius XII and by the

hierarchies of the entire English-speaking

world. A distinguished body, the Catholic
Association for International Peace, has

met to explore and to analyze the greatest

legacy it has ever received, the intellectual

and spiritual teaching of the greatest jurist

of our age. May its study be fruitful and
its recommendations wise. And may its

deliberations — which are of such enormous
consequence to all mankind — be carried
on in the spirit of the inspiring words of

the late Pontiff of Peace:

The task confided to you by Providence in

this crucial hour is not to conclude a weak

and timid peace with the world but to estab-

lish for the world a peace really worthy in

the sight of God and man.42

42 Address of His Holiness, Pope Pius XII, on

Feast of St. Eugene, June 2, 1947.



AVAILABLE LEGAL
MACHINERY FOR A
JURIDICAL WORLD ORDER

Thomas H. Mahony*

// juridical” means arising by operation of law, as distinguished

from that which arises by agreement or act of the parties.

'‘Law” as defined by St. Thomas Aquinas — a definition which has
persevered — is an ordinance of reason, promulgated by a duly consti-
tuted authority, intended for the common good.

“Machinery” will be understood as the agencies whose functions relate

to the establishment or maintenance of world order.

“World order” will be regarded as world-wide ordered peace between

states.

Strictly speaking, therefore, one may well argue that there is no

available legal machinery for a juridical world order in that there is no

agency or institution with legislative, executive or judicial competency —
as we understand those terms. Certainly, there is no such agency with

supra-national, international or per-national authority (to coin a phrase),

to restrict the scope of national or state sovereignty of any major power.

Insofar as effective sanction may be the criterion of the rule of law —
the governmental authority to prevent wrongful activities and to punish

their perpetration — as urged by Austin — there is, at present, no such
authority.

Insofar as effective moral sanction may be the criterion — the authority
of the natural, moral law and the obligations imposed thereby, as urged

by St. Thomas Aquinas and the Scholastics — there is, at present, no
general or effective recognition of any such authority.

While the people in control of the governments of many states are

theistic in their religion and believe in and try to live by the principles

of the natural, moral law, nevertheless, approximately one-half of the

"Former President, Catholic Association for International Peace. Member of the
Massachusetts Bar.

15



16

population of the world lives under Com-

munist rule and its atheistic principles.

Denying God, the Communists repudiate

the existence of any such moral law and

guide their state solely by the precept of

what they think best for it at any particular

time. Morality, as we understand it, plays

no part in their human relations either be-

tween individuals or states.

Not to end this paper with that state-

ment, let us examine the international agen-

cies that do exist. These, by amendment or

other grant of greater competency, may
become legal agencies in a juridical world

order.

First in order is the World Court of

Justice.

The World Court was “established by

the Charter of the United Nations”1 and

functions “in accordance with the provi-

sions of the present Statute,” i.e., the stat-

ute or agreement organizing the Court,2 to

which all members of the United Nations

are parties. Its members are elected by the

General Assembly and Security Council of

the United Nations. 3

States only may be parties to litigation
in the World Court4 and no competency by

way of criminal jurisdiction over human
individuals is vested in it.

5

Its jurisdiction comprises “all cases which

the parties refer to it and all matters spe-

cially provided for in the Charter of the

United Nations or in treaties and conven-

tions in force.”0 Such jurisdiction of “cases”

1 U. N. Charter art. 14.
2 U. N. Charter art. 1.
3 U. N. Charter arts. 3-10.

4 Ibid.

5 U. N. Charter arts. 34, 35.
6 U. N. Charter art. 36.

6 Catholic Lawyer, Winter 1960

is not compulsory but voluntary. No state
can compel another to respond to a com-

plaint filed in that Court. However, states

which are “parties” to the present Statute

may at any time declare that they recognize

as compulsory ipso facto and without spe-

cial agreement, in relation to any other

state accepting the same obligation, the

jurisdiction of the Court in all legal disputes

concerning the interpretation of treaties,

any question of international law, the exis-

tence of breaches of international obliga-

tions and reparations therefor. 7

Various states, for a period of years and

upon conditions, have accepted this compul-

sory jurisdiction. Among them the United
States accepted it on August 14, 1946, but

upon conditions, one of which is the Con-

nally Reservation. This reservation provides

that the declaration of acceptance shall not

apply to “disputes with regard to matters

which are essentially within the domestic

jurisdiction of the United States of America

as determined by the United States of

America. . . .”8 Since August 14, 1946,

various other states have attached the pro-

visions of the Connally Reservation to their

acceptance.9

The effect of this provision is to make

the acceptance almost a nullity because the

reserving state upon its mere “ipse dixit

”

can preclude the Court from taking juris-

diction.

It has another effect. It impliedly accords

to any other state which is a party to a

given dispute the same right as is reserved

to the reserving state.

The Court, as an adjunct or judicial

organ of the United Nations, has no com-

7 Ibid.

s Ibid.

» Ibid.



Legal Machinery for a World Order

petency to try issues which are within

the domestic jurisdiction of any state.

The United Nations Charter provides that

“Nothing contained in the present Charter

shall authorize the United Nations to inter-

vene in matters which are essentially within

the domestic jurisdiction of any state or

shall require members to submit such mat-

ters to settlement under the present Char-

ter.”10

The Statute of the Court provides that

“In the event of a dispute as to whether

the Court has jurisdiction, the matter shall

be settled by the decision of the Court.”11

The result is that the Court is an institu-

tion with no jurisdiction over international

disputes unless conferred by the parties to

the dispute. But, assuming that such juris-

diction is conferred, there is no provision

in the Statute or the Charter which pro-

vides effective execution or implementation

of its adjudications or decrees.

The Charter provides that each member
“undertakes to comply with the decisions”

of the Court “in any case to which it is a

party.” But, in the event of a failure to

perform obligations under “a judgment

rendered by the Court,” the prevailing

party “may have recourse to the Security

Council, which may, if it deems necessary,

make recommendations or decide upon
measures to be taken to give effect to the

judgment.”12 This function of the Security

Council concerns a matter “other than pro-

cedural” and is subject to the veto under

Article 27, Section 3.

Far from constituting a piece of cur-

rently available legal machinery for a jurid-

ical world order is concerned, it may well

10 U. N. Charter art. 2, para. 7.
11 U. N. Charter art. 36, para. 6.
12 U. N. Charter art. 94.

17

be argued that the World Court is or may

be made a nullity. However, by abandon-

ment of such reservations as the Connally

Reservation, and amendment of the Court's

Statute and of the United Nations Charter

the Court' may become a most effective

judicial arm of a juridical world order.

As such, the Court would take prece-

dence over the United Nations and the

organs thereof primarily concerned with

the maintenance of international peace and

national as well as international security

— the Security Council and the General
Assembly. The UN’s other organs, such

as the Economic and Social Council, the

Trusteeship Council and the Secretariat, are

but ancillary in character.

The Security Council consists of eleven

members, five permanent (Nationalist

China, France, United Kingdom, U.S.,

U.S.S.R.) and six elected by the General

Assembly. 13 It is charged with “primary

responsibility for the maintenance of inter-

national peace and security.”14 It is author-

ized to call upon disputant states to settle

their disputes which threaten such peace

and security “by negotiation, enquiry, me-

diation, conciliation, arbitration, judicial

settlement ... or other peaceful means.”15

It may investigate any such disputes to
determine whether they threaten such peace

and security. 16

It may determine that a threat to inter-
national peace, or a breach thereof or an

act of aggression has occurred and recom-

mend or decide what steps should be taken
by the members of the United Nations by

way of economic sanctions, interruption of

means of communications and severance of

13 U. N. Charter art. 23.
14 U. N. Charter art. 24.
15 U. N. Charter art. 33.
16 U. N. Charter art. 35.



18

diplomatic relations or military, naval or

air operations in the nature of “demon-

strations, blockade, and other operations.”17

The Security Council, however, is re-

stricted in its competency by reason of the

Charter provision that on all matters other

than procedural — which are decided by
an affirmative vote of any seven members

—the decision shall be made “by an affirma-

tive vote of seven members including the

concurring votes of the permanent mem-

bers.”18 A negative vote or veto by a perma-
nent member bars any such action. Such a

vote has been cast on some eighty occa-

sions.

This veto restriction also applies to the

question of whether the matter under dis-

cussion is procedural or other than pro-

cedural — a double veto.
The Security Council, therefore, cannot

always or ever be relied upon to solve any

disputes between major powers or their

allies or satellites where their vital interest

or national honor is thought to be at stake.

A veto of a permanent member will prevent
any unwanted suggested solution being

adopted.

The Security Council has no charter

competency to legislate and bind the mem-

bers of the United Nations or their people

thereby. It is not made competent, over a

veto, to adjudicate disputes between states

or, over a veto, to enforce any such adjudi-

cation. It has no conferred competency to

restrict in any way the absolute sovereignty

of any state or the acts of any state in the

exercise thereof over the veto of any per-

manent member.

The General Assembly consists of all

member states or nations. 19 Its functions

17 U. N. Charter arts. 39, 41, 42.
18 U. N. Charter art. 27.
19 U. N. Charter art. 9.

6 Catholic Lawyer, Winter 1960

include discussion of any matters within

the scope of the Charter, consideration of

such matters and recommendation to its

members on any such matters.20

The General Assembly makes its deci-

sions “on important questions” by a ma-

jority vote of two-thirds of the members

“present and voting.”21

The “Uniting for Peace” resolution,

adopted by the General Assembly in No-

vember, 1950, does not increase its com-

petency under the Charter. It does not and

cannot constitute an amendment to the

Charter.22 This resolution, which followed

the outbreak of the Korean war, provided

for setting up within the General Assembly

a Collective Measures Committee of four-

teen members to study and report on pos-

sible means of strengthening international

peace and security under the Charter.

While the veto power of any one member

does not apply to voting in the General

Assembly, the competency of the General

Assembly to affect its members is limited

to recommendation. It cannot compel ac-

tion by them. It has no legislative compe-

tency as we understand legislation. It has

no effective executive or judicial authority.

These recommendations may be adopted

or rejected by the member states. That is

wholly within their discretion and volition.

The fact that a member has voted in favor

of a recommendation does not mean that

the member is estopped to reject it there-

after, as was evidenced in the recommen-

dations relating to the invasion of Korea as

voted on by the People’s Republic of China.

In the exercise of its functions to initiate

studies to promote “international coopera-

20 U. N. Charter art. 11.

21 U. N. Charter art. 18.

22 U. N. Charter arts. 108, 109.



Legal Machinery for a World Order

tion in the political field” and to encourage

“the progressive development of interna-

tional law and its codification,” and to ini-

tiate similar studies in the economic, social,

cultural, educational and health fields and

to assist “in the realization of human rights

and fundamental freedoms,” much has been

accomplished and is being achieved. How-

ever, as the “political field” and that of

“human rights” more directly relate to our

subject, they only will be discussed.

The General Assembly established an In-

ternational Law Commission in 1947 which

has produced numerous reports suggesting

interpretation and codification of principles

of international law, none of which have

yet been adopted by the Assembly or ap-

proved by the member states. In some mat-

ters such as the definition of “aggression,”

the members of the Commission have not

been able to agree.

The General Assembly on December 10,

1948, without a dissenting vote, adopted

and proclaimed the “Universal Declaration

of Human Rights,” as a “common standard

of achievement for all peoples and all na-

tions, to the end that every individual and

every organ of society, keeping this Decla-

ration constantly in mind, shall strive by

teaching and education to promote respect

for these rights and freedoms and by pro-

gressive measures, national and interna-

tional, to secure their universal and effec-

tive recognition and observance. . . .”23

This Declaration contains negative provi-

sions — denying governmental authority in
certain areas — and positive provisions —
asserting governmental obligation to act in

others.

It does not constitute an enforceable Bill

of Rights against any state or the United

23 U. N. Charter (preamble).

19

Nations. 24 It does not have the force of the

Bill of Rights of the Constitution of the

United States. 25

In addition the General Assembly has

pending before it a “Draft Covenant of

Civil and Political Rights.” This Draft

Covenant provides that “if it is adopted by

the General Assembly and in turn sub-

mitted by it to the member states and

approved by any of its member states then

such states as accept it ‘agree’ upon the

provisions thereof.” Its preamble sets forth

among other inducements, the considera-

tion of “the obligation of States under the

Charter of the United Nations to promote

universal respect for, and observation of,

human rights and freedoms.”26

This Draft Covenant is limited to Civil

and Political Rights, not only of individual

human beings but of peoples gathered in

national units as well. It asserts the right

of self-determination of such peoples. It

asserts the rights of the individual against

his state in various areas. It likewise asserts

the rights of the family as a unit of society

against the state. It provides for a “Human

Rights Committee” to which complaints

may be referred by one party to the cove-

nant against another party thereto for vio-

lation of its provisions. The Committee

may “ascertain the facts” and make avail-

able its good offices to effect a friendly solu-

tion of the matter, and, in addition, shall

report the facts to the disputant parties and

to the Secretary General of the United

Nations for publication. It may recommend

that the Economic and Social Council re-

quest an advisory opinion from the World

Court upon the matter.

24 Ibid.

25 U. S. Const, amends. I-X.

26 Draft Covenant of Civil and Political Rights.



20

The Draft Covenant further provides

that if the dispute is not otherwise solved,

the parties may bring the case before the

World Court.

There is also pending before the General

Assembly a “Draft Covenant on Economic,

Social and Cultural Rights.” This likewise

contemplates an agreement between mem-

ber states which become parties to it after

it has been adopted by the General Assem-

bly and referred to the member states. This

Covenant asserts, among other rights, the

right of self-determination of peoples, the

rights of individuals to work, to receive

adequate pay therefor, to decent living for

themselves and families, to rest, reasonable

limitation of working hours, to adequate

food, clothing and housing, adequate stand-

ards of living, education, of protection for

motherhood, children and family, and the

health thereof.

In addition, the General Assembly has

been considering a proposed “Declaration

upon the Rights of the Child,” which will

probably take the same course as the “Uni-

versal Declaration of Human Rights.”

There is no authority vested in the United

Nations to compel any of its member states

to enforce any Declaration of Human
Rights. There is no such authority as is

discussed hereinbefore, to compel compli-

ance with any Multilateral Covenant of

Human Rights if the General Assembly
should adopt any such Covenant. There is

no effective sanction inherent in the United

Nations to prevent or to punish violations

of any such Declaration or Covenant. Com-
pliance depends upon the good faith of the

particular states involved.

The Specialized Agencies which articu-

late with the United Nations through its

General Assembly and Economic and So-

6 Catholic Lawyer, Winter 1960

cial Council27 are ancillary in character to

the principal organs of the United Nations

and its primary purpose of maintaining in-

ternational peace and security. Some of

them antedate the United Nations Charter

and even the League of Nations Covenant,

such as the International Telecommunica-

tion Union (1865), the Universal Postal

Union (1874), and the International Labor

Organization (1919). The others postdate

the Charter — the Food and Agriculture
Organization, the International Bank and

the International Monetary Fund (1945),

UNESCO (1946), the International Civil
Aviation Organization (1947), the World

Health Organization (1948) and the World

Meteorological Organization (1950).

The Collective Defense Pacts are not in-

cluded in this discussion for two reasons.

They came into existence because of the

uncertainty if not the inability of the United

Nations to provide a collective security.

While they may relate in part to other mat-

ters, they are primarily intended for collec-

tive self-defense against aggression and are

theoretically temporary in character in that

they only operate “until the Security Coun-

cil (United Nations) has taken the mea-

sures necessary to maintain international

peace and security.”28

Among such treaties are the Brussels
Treaty (1948), covering the Benelux States

plus France and the United Kingdom, the

International Treaty of Reciprocal Assis-

tance (1947-48), OAS — the Organization
of American States, the North Atlantic

Treaty—NATO (1949), the South East Asia
Treaty - SEATO (1954), the ANZUS
Pact (1952), covering Australia, New Zea-
land and the United States, the Baghdad

27 U. N. Charter arts. 57, 63, 64.

28 U. N. Charter art. 51.



Legal Machinery for a World Order

Pact—METO (1955), covering three Near
East or Mid-East States and the United

Kingdom, and the Warsaw Pact (1955),
signed by the Soviet Union and its Eastern

European satellites.

No space is given here to the Western
European political organizations which are

much closer to an organic integration of

states into a federation than anything exist-

ing elsewhere. The scope of their activities

is limited to Western Europe and do not

now measure up to the standard of legal

machinery for a juridical world order.

Among such organizations are the Euro-
pean Community for Coal and Steel (1952),
which includes France, West Germany and

Italy; Euro-market (1957), establishing a

common market for the same states plus
the Benelux States; Euratom (1957), es-

tablishing among the same states an atomic

energy pool; the European Common Mar-
ket (1957), including the same states; and

the Council of Europe (1949), which in-

cludes the same states as above plus Den-

mark, Greece, Ireland, Norway, Sweden,

Turkey, and the United Kingdom.

21

The outstanding agency or organization

making any effective effort toward the es-

tablishment of a juridical order is the

United Nations. As stated by Goodrich and

Simons in their study of The United Na-

tions and the Maintenance of International

Peace and Security, “The United Nations

has not imposed a new order of law and

justice, but it has provided a framework of

established organs and procedures for sub-

jecting international conduct to a judgment

based on defined purposes and principles.”29

The UN Charter, if it may properly be
called legal machinery, establishes, in the

provisions for its amendment,30 a way and

a means of equipping it with limited but

adequate supra-national, trans-national, or

per-national competency to prevent or to

punish aggression by any state, to maintain

peace, and to provide effective national

security.

29 Goodrich & Simons, The United Nations
And The Maintenance of International Peace
And Security 65 (1955).
30 U. N. Charter arts. 108, 109.



THE ROLE OF FORCE IN
THE INTERNATIONAL
JURIDICAL ORDER

William V. O'Brien*

I

t has been said that there never was a good war or a bad peace.

If that be true, the task of true internationalists is to work for the

total elimination of war, that is to say, of all international force. In their

understandable revulsion to modern wars many internationalists have

indeed tended towards the position that to work for peace is to work

for a world in which “armed force” will play no part, a world in which

disputes will be settled peaceably and reasonably through international

law and international organization. This point of view has influenced

our thinking since the establishment of the League of Nations and

despite many disappointments we continue to hear pleas for a world

order free from the horrors of international conflict. Some of the most

respected of our professional men and scholars are joining in the cries

for “The Rule of Law in the International Community,” “World Peace
through World Law,” and the like.

Walter Lippmann and Raymond Aron, among others, have remarked

on our tendency to go to extremes with respect to questions of inter-

national relations, from total disarmament to total war, from uncondi-

tional surrender to bundles for defeated enemies. Perhaps there is an

element of this kind of zig-zagging in the desire to change abruptly

from a world of intense conflict to a world where everything will be

solved by submission to laws. To dramatize this concept, the lawyers

of the world recently gathered at Runnymede to commemorate the

Magna Charta and the triumph of the “Rule of Law.”

But what indeed was the scene at Runnymede? Did Good King John

succumb to some “unite or perish” pamphlets and joyfully declare the

Rule of Law throughout his domain? Indeed no! We are led to believe
from our histories — not to mention numerous novels, movies and TV
interpretations of the world of Robin Hood — that King John was a
scoundrel of the first order who was forced to acknowledge the rights

^Chairman, Institute of World Polity, Georgetown University.

22



Role of Force 23

of those of his subjects who had the capac-

ity and desire to fight for them. (You will

recall that the Common Man was not
greatly affected by the provisions of the

Charter.) Moreover, knowing their man,

the nobles at Runnymede made specific

provisions for the enforcement of the com-

pact in the highly likely event that the

King broke it.

On the other hand, great minds from
Pierre Dubois, Dante, Bentham, Kant,

Ladd and Baroness Von Suttner to Hutch-
ins have produced peace plans and inter-

national charters sufficient to fill volumes

— without noticeably contributing to any-
thing more than the history of ideas.

The problem of reconciling the desire

for peace within the community — whether
national or international — with the neces-
sity for fighting for justice is not new. In

our own national history we faced it at

Philadelphia in the Constitutional Conven-

tion of 1788; we faced it at Fort Sumter in

1861; we faced it when we decided that

we were not too proud to fight the “War to

end Wars”; we faced it in the spring of

1940; in Korea in 1951 and, to an extent

not entirely known, in the Berlin crisis of

the past year.

Granted the sincere desire that we all

have for an international juridical order,

what is the role of force? Has it ceased to

be relevant to our aspirations? I suggest

that force is vitally important to the con-

cept of an international juridical order in

three ways: (1) as a reality to be faced;

(2) as a legal necessity; (3) as a moral

means to attaining the ends of the inter-

national juridical order.

First, international conflict and recourse

to force continues to be characteristic of the

world in which we live, regardless of

ephemeral “thaws.” World juridical order

means the triumph of law and order over

unrestrained international force. The tri-

umph, like the triumph of fundamental

rights at Runnymede, must come about,

in the final analysis, as the result of the

triumph of force utilized on behalf of jus-

tice over force opposing justice. Unfettered

international force is a problem. To use the

term of Charles de Visscher, it is a “reality”

which we must face in order to achieve a

true international juridical order. We must
learn a great deal more about the enormous

reality of our world, unpleasant as it is,

just as the doctor and the social worker

must learn more about human diseases and

human want.

Second, the improving but still primi-

tive international juridical order requires

force to uphold it. The authors of the

United Nations Charter realistically recog-

nized this and fashioned the institutions and

procedures for mobilizing force on behalf

of the juridically organized international

community. These institutions and pro-

cedures are a central, if not the central, part

of the United Nations Organization. Let us

therefore review the provisions of the

Charter in order that we may obtain an

authoritative view of the legal status of

force.

Article 1, paragraph 1, states as one of

the purposes of the Organization the main-

tenance of peace and security, by “ . . .

taking collective measures for the preven-

tion and removal of threats to the peace,

and for the suppression of acts of aggres-

sion or other breaches of the peace” as

well as providing for the peaceful settle-

ment of disputes.

The Charter proceeds to develop a

regime which divides international force



24 6 Catholic Lawyer, Winter 1960

into three categories: (1) aggression; (2)

collective enforcement action in support of

decisions of the organization; (3) individ-

ual and collective self-defense.

The relevant provisions of the Charter

concerning aggression would appear to be

the following:

In Article 1, paragraph 1, there is as we

have seen the reference to suppression of

“aggression” and “other breaches of the

peace.”

Article 2, paragraph 13, requires that

“all Members shall settle their international

disputes by peaceful means in such a man-

ner that international peace and security,

and justice are not endangered.”

Paragraph 4 states that “all Members

shall refrain in their international relations

from the threat or use of force against the

territorial integrity or political independ-

ence of any state, or in any other manner

inconsistent with the Purposes of the

United Nations.”

In principle, therefore, the precedents of

the League Covenant, the Kellogg-Briand

Pact, and other international conventions

“outlawing” war are brought to fruition in

a flat proscription against individual re-

course to international force. In principle,

all such unilateral uses of force are out-

lawed and branded as illegal acts of aggres-

sion.

But there remain, under the Charter, two

kinds of situations in which the use of in-

ternational force is permitted, if not de-

manded.

First, it is envisaged that force may very
likely be required to enforce the provisions

of the Charter, just as force is required in

all juridically organized communities. We
have noted the allusions in Article 1 to the

suppression of aggression and the mainte-

nance of security. Article 2, paragraph 2,

places an obligation on all members to
“.

. . fulfill in good faith the obligations as-

sumed by them” and one such obligation

is to “. .
.
give the United Nations every

assistance in any action it takes in accord-

ance with the present Charter,” while re-

fraining “. . . from giving assistance to any

state against which the United Nations is

taking preventative or enforcement action.”

There follow in Chapter VII, Articles

39-50, detailed provisions for “Action with

Respect to Threats to the Peace, Breaches

of the Peace and Acts of Aggression.” Par-

ticularly noteworthy is Article 42 which

states: “Should the Security Council con-

sider that measures provided for in Article

41 [Coercive measures not involving the

use of armed forces, such as the interrup-

tion of economic relations, communications,

and severance of diplomatic relations]

would be inadequate or have proved to be

inadequate, it may take such action by air,

sea, or land forces as may be necessary to

maintain or restore international peace and

security. Such action may include demon-

strations, blockade, and other operations

by air, sea, or land forces of Members of

the United Nations.”

Articles 43-45 call upon the members to

contribute to UN Forces. Articles 46-47
envisage a Military Staff Committee to

plan and coordinate UN efforts.

Finally, spontaneous acts of legitimate

self-defense are approved by Article 51

which, as the years have gone by, has

turned out to be one of the most important

provisions of the entire Charter. Article 5

1

states

:

Nothing in the present Charter shall impair

the inherent right of individual or collective

self-defense if an armed attack occurs



Role of Force 25

against a Member of the United Nations,
until the Security Council has taken the

measures necessary to maintain international

Peace and Security. Measures taken by the

Members in the exercise of this right of self-

defense shall be immediately reported to the

Security Council and shall not in any way

affect the authority and responsibility of the

Security Council under the present Charter

to take at any time such action as it deems

necessary in order to maintain or restore

international peace and security.

An interesting question which I shall
only raise here for mature consideration is

the following: Does Article 51 in effect

grant the right of self-defense to the mem-

bers as an exception to the general pro-

scription against recourse to force, or does

it rather recognize an antecedent “inherent

right”? In any event, extreme positivists

cannot be happy over the French version

of this term, “le droit naturel de defense

legitime

”

We know, of course, that the system has
not worked as planned. The Security Coun-

cil has been rendered virtually helpless by

the rift between the Free World and the

Communist World. Since the Korean War

we have been obliged to fall back upon

the somewhat awkward arrangements of

the Uniting for Peace Resolution whereby

the General Assembly recommends (but

does not order) joint action against an ag-

gressor. But action through the Assembly

is subject to the hazards of ever-shifting

political maneuvering within the Assembly.

There is no effective Military Staff Com-
mittee, nor any plans. On the other hand,
the Suez crisis produced the United Nations

Emergency Force. But so far the UNEF
has been restricted to a kind of military

police function of supervising and enforc-

ing truce arrangements. Nevertheless, had

one of the belligerents in the Middle East

resisted the UNEF we might well have had
a war directly involving the United Nations

as such, rather than an Article 51 situa-

tion as we had essentially in Korea.

We haye said that force is, first of all,
a problem for the international order. Then

we have seen that force is a legal necessity

for the enforcement of the international

juridical order, a necessity clearly recog-

nized in the United Nations Charter. We
now turn to a third aspect of force, as a

moral means which may be used on behalf

of justice and the international common

good.

Long before the institutions of modern

international law and organization devel-

oped the distinction between legal and il-

legal recourse to force, Scholastic Doctrine

recognized a parallel distinction between

just and unjust wars. The similarities be-

tween the modern international law of

force and the Just War Doctrine are such
that some authorities have referred to the

former as a modern bellum justum. 1

Like the UN Charter, the Scholastic
Doctrine of the Just War begins with the

proposition that recourse to force is not in

general permitted as a means of settling in-

ternational disputes. St. Thomas, for ex-

ample, begins his discussion of this subject

by asking whether it is always a sin to make

war. 2 The answer is that war is permitted,

but only under certain conditions. There

must be a grave cause, a real necessity for

1 McDougal & Feliciano, Legal Regulation of Re-
sort to International Coercion: Aggression and

Self-Defense in Policy Perspective, 68 Yale LJ.
1057, 1065-68, 1071-74 (1959).

2 Aquinas, Summa Theologica, II-II, q. 40; cf.
Vanderpol, La Doctrine Scholastique der
Droit de Guerre 16-23 (1925).



26

taking up arms to remedy the injustice, the

probable consequences of the war must be

in proportion to the injuries suffered or to

be suffered, and the just belligerent must

pursue his action with “right intention.”3

There is a clear parallel between the

Just War Theory and Article 51 of the UN
Charter with respect to self-defense. What

of enforcement action on behalf of the in-

ternational community? There was nothing

comparable to the UN in the late Middle
Ages, although we could say that Christen-

dom during the centuries of the Crusades
was a relatively coherent community. But,

organization features aside, it is interesting

to note that in addition to the defensive

just war, Scholastic Doctrine also recog-

nized the institution of the war of vindic-

tive justice, fought not so much as a matter

of strict defense as on behalf of justice itself

and the international common good.4

The Theory of the Just War is familiar to
most of us but the question arises as to the

continued validity of that theory and its

relevance to modern war. A partial answer
is to be found in the pronouncements of

Pope Pius XII.

As Father Murray brought out so well, 5

the thinking of the late Holy Father on

force in the international community must

be understood against the background of

his abhorrence of war and his zeal to pro-

3 Cf. Eppstein, The Catholic Tradition of the
Law of Nations 65-123 (1935); International
Union of Social Studies, Code of Interna-
tional Ethics 106-162 (Eppstein trans. & ed.
1953); Rommen, The State in Catholic
Thought 641-71 (1947); Fenwick, Interna-
tional Law 49 (3d ed. 1948); Vanderpol, op.
cit. supra note 2.

4 Vanderpol, op. cit. supra note 2.

5 See Murray, Morality and Modern War
(1959).

6

Catholic Lawyer, Winter 1960

mote the international juridical order. In-

deed, may not these views of Pius XII
carry all the more weight precisely because

of their “tortured” and reluctant character?

Further, while the pronouncements on war

of Pius XII are eminently in accord with

the traditional Scholastic Doctrine of the

Just War, they take on a heightened impor-

tance precisely because they were enunci-

ated by the first Pope of the Atomic Era. 0

The thinking of Pius XII with respect to

recourse to force seems to come down to
the following propositions:

( 1 ) Aggressive war is a sin and, legally,

an international crime. 7

(2) But “stringent” self-defense is per-

mitted, even to the extent of ABC (Atomic-
Bacteriological-Chemical) War.8

(3) Moreover, “law and order have

need at times of the powerful arm of

force.”9

(4) When the international community
is threatened with “grave injustice” it must

be defended and, in the light of recent his-

tory (particularly the events of 1956),

Communism presents such a threat. 10

(5) Following traditional doctrine, the

conditions of a just war (either of “strin-

gent” defense or on behalf of a threatened

international juridical order) are: major

injustice, real necessity, proportionality,

6 W. at 9-10.
7 See Allocution to the World Medical Congress,

September 30, 1954, in AAS 46 (1954); cf.
Murray, op. cit. supra note 5, at 10,22.

8 Ibid.

9 Allocution to the Military Mission of the U.S.A.,

October 8, 1947; cf. Murray, op. cit. supra note

5, at 10.

10 Allocution, October 19, 1953; Christmas Mes-

sage, 1956; cf. Murray, op. cit. supra note 5,
at 11.



Role of Force 27

and limitation of the use of force . 11

It is to these last two conditions, propor-

tionality and limitation of the use of force,

that I wish to turn my attention. While a
moral imperative obliges us to develop the

institution of limited war, including limited

nuclear war, it seems to me that an impor-

tant corollary of this thesis is a correspond-

ing imperative to develop realistic prin-

ciples and rules for the regulation and

limitation of modern warfare, including

nuclear warfare. In this connection, it is

clear from the study of the historical devel-

opment of the law of war that the central

problem is that of defining “proportion-

ality” in concrete belligerent situations . 12

In the light of the foregoing, therefore,

I suggest that the problem of force in the

international community is not the total

elimination of force. Rather, the problem

is one of organizing the international juri-

dical community in such a way as to begin

to approach the goal of that relative “mon-

opoly of force” in the hands of the organ-

ized community which is characteristic of

of true juridical order . 13 I might add that

insofar as the tempo of progress towards

such an order is concerned, that I am
among the conservatives who feel that we
are just beginning and that we have a long

road ahead. Illusions as to the imminence

of an advanced international juridical order

are in fact a serious handicap to realistic

internationalists who are working towards
that goal . 14

11 See Murray, op. cit. supra note 5, at 11-15.
12 Id. at 18.

13 Kelsen, Principles of International Law
13-15 (1952).

14 Address delivered at the 31st Annual Confer-
ence of the Catholic Association for International

Peace, October 25, 1958, in Roberts, The Inter-
national Political Common Good (1958).

If it be granted that international force is

a reality which must be faced under all

three of the aspects which we have seen,

what can be done to improve the situation?

First, we must obviously strive to prevent

recourse to force. We must, obviously,
bend every effort to improve our institu-

tions for pacific settlement of international

disputes and to develop international co-

operative efforts designed to attack the

basic causes of international conflict.

But, second, given the very modest prog-

ress made to date towards a true inter-

national juridical community, given the

absence of anything like a community mon-

opoly of force and, specifically, given the

continuing threat of Communist aggression,

we must also be prepared for situations in

which our primary limitation on force has

failed. If this comes to pass we are obliged

to do our utmost to see that international

conflicts of whatever kind are carried on,

at least on our part, in accordance with the

principles of proportionality and right in-

tention. But neither proportionality nor

right intention are self-evident in practice.

It is necessary to provide more explicit

guides in the form of principles and rules

governing the conduct of war. These nor-

mative guides are necessary whether the

conflict be an old-fashioned “war,” a “police

action,” a “revolution” or any other form

of large-scale violence. The task does not

end with efforts to prevent international

conflict; the Christian tradition (which lies

at the basis of the positive laws of war) re-

quires that international law and morality

penetrate into the heat of battle.

Admittedly, this is a most difficult task.

Many have said that it is inherently hope-
less, that war and law are incompatible.

The first line of rebuttal is that rules of war



28

have been observed and to some extent

continue to be observed. Still we must

admit that the rules which are observed

have increasingly tended to be limited to

non-decisive aspects of war and that the

principal means of modern war remain

virtually unrestrained by law. This unhappy

state of affairs is in great measure explained

by the technological and ideological char-

acteristics of modern total war. But we can-

not avoid the conclusion that it is also due

in part to the neglect of the laws of war by

internationalists since the end of the First

World War.15 So it is that we are con-

fronted with a situation where we must, to

all practical purposes, begin from the be-

ginning if we are to build a realistic body

of principles and rules governing the utili-

zation of force in the international com-

munity.

In confronting this enormous task we

face a number of perplexing problems,

even before we come to grips with the sub-

stantive military, technological, political

and moral problems that are the heart of

the matter. It seems to me that the first

and in a way, overriding, problem is that

of finding an academic, professional, or

intellectual “home” for studies of the regu-

lation of international force. The laws of

war concern military matters and it is to the

credit of the United States armed forces

that they have made an outstanding record

in the development of international law.

The great tradition of Francis Lieber has

been carried on by the Army in its field
manuals and the tradition of international

law studies at the Naval War College in
Newport is justly celebrated. But the regu-

15 O’Brien, The Meaning of “Military Necessity

”

in International Law, 1 World Polity 109, 110.

6 Catholic Lawyer, Winter 1960

lation of means of warfare ultimately in-

volves policy decisions, based upon the

highest considerations of national interest

and, we trust, of morality. It is not within

the province of the military to speculate

about such matters and they do not.

The laws of war appear to be a field for

legal study, but here again we have prob-

lems. The modern lawyer is accustomed,

on the whole, to highly developed, ad-

vanced legal systems where the principal

problems have been resolved and the task

is one of applying well-established concepts

and rules to new circumstances. A typical
lawyer’s reaction to a plea for a revival of

the laws of war is to recommend a thor-

ough study of existing conventional law,

leading to a “restatement” or “codifica-

tion” of the law. Alternately he may sug-

gest that treaty proposals be drafted for

submission to the great powers. Students of

modern war try in vain to explain that there

is not much left to “restate” or “codify,”

that the old legal order governing interna-

tional force collapsed when its material and

moral foundations and assumptions col-

lapsed under the impact of total war. Fi-

nally, it is hard to get recognition of the

simple fact that we cannot draft proposals

until we know what we really want to pro-

pose and that most of the questions raised

by modern means of warfare are as far

from receiving coherent answers as they

were in 1918 or 1945.

What is needed today is not a team of

experts in legal research on loan from the

West Publishing Company to codify the

laws of war but rather imaginative legal

pioneers, possessed of a good working

knowledge of military science and interna-

tional relations, who can chart some prom-

ising courses which nations with a con-



Role of Force 29

science might follow in their international

and defense policies.

We turn next to moralists and to organ-
izations such as the CAIP itself which are

vitally concerned with the problems of

limiting international force. Here the most

frequent response is the plea of lack of ex-

pertise in either the field of military science

or of law. Moreover, those who are dedi-

cated to peace find it most difficult to turn

their thoughts to the unpleasant possibili-

ties suggested by the very idea of laws of

war.

And so it goes, with the result that
serious study of the laws of war has been

most unusual in our times. To the student

of the subject it seems that he always

speaks to the wrong audience. A military
audience is indulgent but limitation of vio-

lence is either a matter for “higher author-

ity” or for private contemplation in the post

chapel on Sunday. The legal audience

wants to restrict the discussion to strictly

legal matters such as the effects of a state

of war on contracts with an enemy alien.

Quite frequently the audience of religious

organizations finds the whole subject un-

pleasant, beyond their knowledge, and

vaguely treasonable to their aspirations for

world peace and order.

The truth of the matter, of course, is

that all of these groups have their contri-

bution to make. The military must tell us

what the strategic and technical consider-

ations are; the lawyer must help us to

formulate our principles and rules and in-

stitutions; and, above all, the moralists and

the informed lay community must help us

to find the right practical answers from the

general precepts of our moral code. No one
group, nor any individual, can be expected

to have a complete grasp of all facets of

these complex problems. But we must all

do our best, cooperating as much as possi-

ble, to create a climate of opinion, both in

high places where policy is made and

throughout the informed public, which will

promise a more efficacious attempt to con-

trol international conflict.

There are other problems involved in the

study of legal limitation of force in inter-

national relations which may be appropri-

ately raised here. The serious student of the

subject is constantly obliged to divert his

efforts from the grim problems of his field

to a kind of never-ending apologetics con-

cerning the very existence of the Law of
War. Some of the most recurring objections

are the following:

( 1 ) Efforts designed to prevent war, to

“outlaw” force, are inherently opposed to

efforts to regulate war. Why “regulate”
criminal behavior? The Laws of War be-
long to the past, when all states had the un-

limited sovereign right to go to war. Now
that that right no longer exists, there is no

need for codes of conduct in time of war.

Moreover, talk of the Law of War is sub-
versive to the efforts to eliminate war.

In a somewhat more subjective form,

this viewpoint is represented by the re-

proach which a lady from the Red Cross

directed to a professor during a seminar on

International Law at Georgetown in 1946.
“If you men,” she observed, “would only

stop talking about war so much perhaps we

would not have so many wars.”

Unfortunately there does not seem to be

any conclusive evidence that “talking about

wars” has a controlling effect on their oc-

currence. The French talked about wars in

a most excited and vehement fashion from

1871 to 1914 and if one could say that the

result was World War I, it could as well be



30 6 Catholic Lawyer, Winter 1960

argued that the result was 43 years of

peace which is not such a bad record. On
the other hand, no peoples tried so hard to

avoid war or even to give serious thought

to preparations for defense than the Eng-

lish and French between the two world

wars. Need we mention in addition to

Belgians, Dutch, Danes, Norwegians and

others?

In any event, under the United Nations

system there is still considerable room for

large-scale fighting in the world. Whether

we call it war, aggression, police actions or

whatever, all of the perennial problems of

what used to be called war arise—prisoners

of war, protection of the sick and wounded,

protection of peoples under military occu-

pation, natural rights, as well as the ulti-

mate problem of limiting the means of war

themselves. It will not do to say that the

war never should have occurred, or that it

is only a police action against misguided

war criminals and aggressors. Human be-
ings on both sides of the conflict will be

suffering and any mitigation of that suffer-

ing is urgently wanted, no matter how

modest (and, it might be added, no matter

what the motivation behind these mitiga-

tions).

It is gratifying that the vast majority

of international law authorities have recog-

nized that the question of the legality or

illegality of recourse to force does not and

ought not affect the operation of the laws

of war once combat is joined. Prisoners

have a right to protection whether they are

ordinary belligerents, policemen, aggres-

sors, or partisans. Nuclear weapons have

exactly the same characteristics whether

they are used by saints or sinners. There

are enormous problems involved in the

government of occupied areas, problems

for the occupant as well as for the occupied

peoples. All of these matters are long over-

due for serious consideration. To say that

such consideration is in competition with

and contradictory to efforts to prevent the

outbreak of international violence is to

place an almost overwhelming pressure on

our infant institutions for the preservation

of peace.

Underlying this whole misconception is

a deeper error, the idea that international

politics, so-called power politics, are ir-

revocably prejudicial to international law

and order.

Encouraged by super-realists on the one

hand and over-zealous internationalists on

the other, students of international relations

and the general public are led to believe

that power politics and world law and order

are mutually exclusive concepts. Common
sense alone refutes this all-too-prevalent

attitude. Law and order, in any community,
operate on political and other realities. If

law and organizations are out of touch with

these realities their effect will be small.

Moreover, power politics is not wrong in

itself. All societies operate as arenas of

power politics. Power politics become bad

(or as we say, “Machiavellian”) in their

employment for evil purposes. It is pre-

cisely the function of international law and

order to aid in diverting international poli-

tics and power from evil or unworthy ob-

jects and to channel these forces insofar as

possible towards the international common

good.

In order to carry out this mission, inter-

national law and order requires power poli-

tical weapons. This should not be surpris-

ing. The same thing is true in domestic so-

ciety. In a mature, successful state such as

the United States, politics and “politicking”



Role of Force 31

go on incessantly. Moreover, “power” and

“force” of all kinds are applied to the op-

eration of government, as Federalist No. 10

predicted. Finally, even in so advanced a

juridical order as the United States it is

sometimes necessary to resort to brute

force in order to uphold law and order.

International law and order have to be

enforced and enforcement means force.

Just as in the domestic order it takes

“power politics” (“politicking,” lobbying,

threatening, compromising, and sometimes

downright conflict) to make law and order

prevail, so must power politics be mastered

and harnessed on behalf of the international

juridical order.

(2) It is interesting to take note of an-

other objection which has been raised

against the thinking of Father Murray, Kis-

singer, and others with respect to limited

nuclear war and the whole idea of con-

trolled international violence. It is said that

talk about limitation and regulation of

modern nuclear war or, indeed, of any war,

is too rational, too removed from reality.

How can we discuss such a chaotic and
horrible subject as though it were a chess

problem or an exercise in pure logic? The

world is not rational, war is not rational,

the terrible forces which may be unleashed
are irrational and beyond control. It is

foolish to try to solve these problems by in-

tricate reasoning. Besides, how can you be

so dispassionate in the face of such human
suffering?

Such attitudes are understandable. We
revolt from the very discussion of modern

total war. Yet there are those who cannot
afford the luxury of revolting and throwing

up their hands. The members of the Na-

tional Security Council, who have a much
more detailed knowledge of the facts — or

ought to, must make decisions based on

those facts. Our military leaders must live

with the facts of total war every minute of

the day. Every responsible statesman and

decision-maker is in fact daily engaging in

a kind of grim “brinkmanship” (an activ-

ity publicized but hardly invented by the

late Secretary of State John Foster Dulles).

Are our moral and intellectual leaders per-

mitted to find such problems too revolting

to discuss realistically? And if there is dis-

cussion is it seriously contended that it

should not be carried on with all the ac-

curacy and clarity which language and logic

can supply, or that it should not be as free

of subjective, emotional considerations as

possible?

General U. S. Grant hated war. He par-

ticularly hated to see men killed and

wounded. He had no stomach for it. Yet he

had a job to do and he believed that the job

could best be done by the simple strategy of

attrition, so he closed his eyes to the cas-

ualty lists and kept hammering away until

Lee collapsed. Would the Army of the Po-

tomac, would the Union, have been better

served if Grant had succumbed to his

human feelings of compassion and disgust

in the sight of the carnage that he himself

was ordering?

What then can Catholic thought contrib-

ute to the problem of force in the inter-

national juridical order? In general we may

answer by saying that Catholic thought must

develop a coherent Theory of Force. Those

of us who have attempted to apply the con-

cepts of the Doctrine of the Just War and

the statements of Pope Pius XII to the prac-

tical problems of limitation of modern

international conflict have found that there

is an enormous gap between our existing

theory and the realities that confront the

statesman and the soldier. We must pro-



32

gress beyond such general concepts as

proportionality and right intention and dis-

cuss the proportionality of specific means

of warfare in an historic or hypothetical

context sufficiently concrete to permit us to

say: “This is the kind of thing which is

not proportionate, but that means in that

context would be proportionate. This bel-

ligerent did not have right intention in the

end but he would have been in consonance

with right intention if he had stopped here.”

This means that we have to rise above

our penchant for turning up our noses at

the thought of force and power politics.

Both are everyday necessities in the best of

organized communities. We must learn
more about these “realities” of interna-

tional relations and when we have mastered

them we must enrich our sound basic prin-

ciples with the practical knowledge that we

have gained about the world in which those

principles must be applied.

It is along these lines that the Institute

of World Polity at Georgetown and coop-

erating scholars are working. We are study-
ing the practical problems of prisoners of

war, guerrilla warfare, submarine warfare,

nuclear warfare in its many possible forms,

and belligerent occupation with a view to

assessing the possibilities for bringing in-

ternational ethics and international law

back into the void of modern total war.

We are well aware of the heavy odds against
us, but we do not feel that they are neces-

sarily greater than those confronting other

internationalists who take on the great

problems of international economic, social,

health, moral and intellectual reform. And
we feel that, whatever our doubts as to

our competence in such complex and

critical matters, we are laboring in an

honorable tradition that includes some of

6 Catholic Lawyer, Winter 1960

the finest products of Scholasticism, and

in more recent years, a succession of

Georgetown professors of International Law
which includes Professors James Brown

Scott and Ernst Feilchenfeld.

Yes, we must work for the improvement

of the young juridical institutions of our

international order, not only within the UN
system but also in the several regional sys-

tems, the Organization of American States

and NATO in particular. We must bend
every effort to narrow the area wherein

unfettered international conflict reigns by

expanding the scope and increasing the effi-

cacity of the institutions of international

law and international organization. But

we must realize that working for the inter-

national juridical order does not stop with

mere enthusiasm and support for inter-

national institutions. It entails the reali-

zation that there is a duty to join, if neces-

sary, in coercive measures on behalf of the

juridically organized community. The in-

ternational juridical order is not advanced

by acquiescence in brutal injustices, as

Pius XII saw so clearly. And once the pos-
sibility of recourse to force is raised we are

obliged to give much more attention to the

policies and principles which ought to gov-

ern the use of coercive measures on behalf

of the international juridical community.

This in turn requires strenuous efforts to

bring the generalities of our doctrine much

closer to the realities of modern interna-

tional conflict.

Not long ago I attended a Confirmation

ceremony for adult converts at St. Mat-

thew’s Cathedral. Appropriately, Bishop

Hannan, formerly of the Airborne Infantry,

presided. Against the background of con-

tinued headlines announcing Communist

(Continued on page 47)



AMERICAN CATHOLIC
OPINION AND THE
UNITED NATIONS

Most Reverend James H. Griffiths*

T
here would probably be no semblance of order in my turbulent
titular diocese of Gaza were it not for the presence there of the

United Nations Emergency Forces. These troops were the first uniformed

peace-preserving unit in the history of the United Nations. The situation

is still too imponderable, but it may not be too roseate an expectation

to regard this small contingent in the Gaza Strip as a possible pattern of

things which might still come about. Granted that the implementation of

such a plan would be fraught with enormous practical difficulties. The

fact does remain that with all the inexorable problems and dissatisfac-

tion, with all the sufferings and seethings of thousands of uprooted

refugees cramped into that tiny sliver of terrain, there has been avoided

wholesale bloodshed in one of the most sensitive areas in the world.

Mind you, I am not even insinuating that the basic arrangement is
ideal or tolerable, or denying that some equitable solution to it must

definitely be found. But I do think it a pity that so many persons do not

advert to the fact that, were it not for the urging of the United States

and the action of the General Assembly, this area which has been the

crossroads of history might have become, three years ago, the Sarajevo

of an horrendous World War III, and all of us might have found our-
selves long since in a silent, ghostly world such as the one envisioned

by the Australian Nevil Shute in his appalling science-prophecy On The
Beach. It seems to me that it was a Vicar of Christ Himself who warned:
“Nothing is lost by peace; all may be lost by war.”1

*S.T.D. Auxiliary Bishop of New York.
1 Koenig, ed., Principles For Peace 554, 585 (1943).

33



34

Aside from the personal relevance of the

situation which I mention, I have purposely

introduced it because it is one of those

intangible — yes, I would go further and
call it, somewhat paradoxically, one of

those negative facts which it is so difficult

to appraise. Put it this way: There is much

less difficulty in assaying or proving the

import of a thing which did happen, than

in evaluating a thing which did not happen

but might have happened. As a cleric, I

would say there is no problem about getting

a baptismal certificate but one cannot get

a non-baptismal certificate. You might get

sworn testimony regarding the lack of bap-

tism, but one simply cannot get a non-

baptismal certificate.

I think that this limping, awkward meta-

phor might often be helpful in weighing

the attitude of the general public toward

the United Nations. Many are prone to

think solely of some of the regrettable

things which have happened as a result of

weaknesses inherent in any purely human

organization — especially in one which is
tottering and stumbling in its infancy and

in one which was born in the turbulence

of war, and cradled in a world strongly

and bitterly divided along ideological lines;

in an organization composed of members

with the most fantastically diverse spiritual,

moral, cultural, political, economic, and

social backgrounds.

On the other hand, the example which

we have advanced may explain the ten-

dency or reluctance of the general public

to pause to consider the negative facts

apropos of the United Nations. By this

I mean the short memories we have for the

serious things which did not happen but

which might have happened had there been

no United Nations.

6 Catholic Lawyer, Winter 1960

I do not wish to multiply examples, but

I do think of Iran, which today might be

a Marxist satellite, save for the action of

the United Nations in 1946. The Kashmir

question still remains unsettled because of

the nations involved, but the United Nations

did succeed in effecting a truce and termi-

nating bloody warfare. Lebanon was an-

other tinder box. There are those who right-

fully will point to the American Marines

who landed, but after they withdrew at the

request of the United Nations, the peace

has been kept.

Each one of the examples cited is an in-

stance of a focus of infection wherein fright-

ful carnage might have ensued; wherein the

terrible conflict which hangs like the sword

of Damocles over our heads might have

fallen with inconceivable devastation, not

only on these restricted areas but on all

mankind. Please do not misunderstand me.

I am not suggesting that the solutions or

stopgaps, if you will, were perfect or even

nearly perfect. But I do not regard it an

exaggeration to say that thousands, pos-

sibly millions, of men and women are alive

today who might have perished — and this
because something did not happen; nega-

tive facts, if you will pardon the expression,

which so many have long since forgotten.

Those who wish to do so might very

effectively cite other instances in which

the techniques have bogged down pitifully,

and they would be substantially accurate

and correct. But let us pause and ask our-

selves whether these failures vitiate the

gains which have been achieved. Would it

have been better that more powder kegs

should have exploded? Many may regard

this as mealy-mouthed, weak argumenta-

tion. But somehow or other, I can’t seem

to ignore the warning which was ignored



Catholic Opinion and the UN 35

twenty years ago: “Nothing is lost by peace;

all may be lost by war” — a warning which
rhythmically recurs and recurs whenever

I hear well-meaning hotheads impulsively

blurt out, “Let's get it over with,” or escap-

ists from reality disgustedly crying, “Let’s

wash our hands of the whole crew.”

This, in the space age? This, when the

globe has shrunk to the size of an apple?

This, when withering weapons rocketed and

even massively retaliated can only make

the fantasy and fiction of Nevil Shute a

frightening fact?

Is this a simpering, puny appeal for

strong, righteous men to espouse the col-
lective craven mentality of a rabbit warren?

To abandon and to decline to defend their

sacred human rights and freedoms against

imperialist aggression and Marxist infiltra-

tion? By no means! But it is an appeal to

leave no stone unturned, to regard no sacri-

fice too great, to consider no demand on

patience too exorbitant to build a juridical

world order and an acceptable international

organization whereby it may be imple-
mented. It cannot be done in a day, or a

year, and probably not even in a decade.

But we must build for posterity and if we

take only one step forward at a time — and
no step backward — we still shall have
made progress and, trivial though it be, it

is worth all our sweat and tears — particu-
larly when we contemplate the alternatives.

To the impetuous who feel that this is
merciless procrastination, it would be op-

portune to recall that it took from 1776 to

1789 to mold thirteen small, former colo-

nies along the eastern seaboard — for the
most part a homogeneous, unilingual group-

ing — into the crude but solid beginning of
a great national entity. How titanic is the
task when we are dealing with the whole

world with its maddeningly multiple di-

versities?

Candidly, we have followed up till now

a rather unusual methodology. In a sense,

it resembles somewhat the technique fol-

lowed by St. Thomas in the Summa Theo-
logica. We have been raising the objections
before we have addressed ourselves to the

subject.

To the mercurial subject “American

Catholic Opinion and the United Nations”

I might address myself immediately by

using a venerable scholastic rejoinder, and

simply say, “Nego suppositum,” or “I deny

the assumption.” I have given long and

serious thought to this topic and I cannot

honestly discover any characteristically

Catholic opinion in the field which would

vary from the cross-sections of public opin-

ion of the general American citizenry.

Despite the convictions harbored by some

persons outside the Catholic fold regarding

a legendary monolithic massiveness of opin-

ion among Catholics, I find it rather diffi-

cult to get them to agree consistently on

anything more than the Apostle’s Creed.

With reference to the United Nations, I

think that they share the attitudes of their

fellow citizens. Some like chocolate, and

some prefer vanilla, and some don't give

a rap for either.

Possibly it is the third group which

should give us the greatest concern. I

mean the uninformed and the apathetic.

Whether we like it or whether we don’t,

the United Nations organization is a para-

mount factor, not only in world affairs

today, but also in the individual life of the

private citizen. Even if he looks at it only

taxwise, the private citizen cannot afford

to ignore it.

Now I know as well as you that the intri-



36

cate organization is far beyond the IQ of

millions. Of them, and the specialized fields,

I am not speaking. But I do have in mind
the Catholic of average or better than aver-

age intelligence, who should at least have

some informed opinion one way or the

other on this international instrument. And
still you know, as I do, plenty of persons

in this bracket who think of it only as a

big “palaver palace” on the Manhattan

Riviera. I dislike cliches, but I find it hard

to abandon the good old ostrich, even

though ornithologists tell us he doesn’t stick

his head in the sand as the proverb claims.

I regret to say it but there are too many

ostriches among our Catholics apropos of

foreign affairs in general and the United

Nations in particular. They seem to feel

that because they cannot see, they cannot

be seen.

Among American Catholics as among
other American citizens, there are the other

two groups who have an attitude favorable

or hostile to the United Nations and to the

concept of an international community. I

think that you will agree that in both groups

there are men and women of basic integrity
and sincerity, men and women who have
given time and study to the subject and to

the aspect which they support. Likewise, it

is well to recall that in this controversial

area, in an organization which is worldwide,

everything is not completely black and

white. There is a great deal of gray — that
gray of which St. Augustine was no doubt

thinking when he stressed “in dubiis liber-

tas” (in doubtful things, liberty). Now be-
cause of this very fact, the remainder of the

phrase of St. Augustine is particularly ap-

preciable in this situation: “sed in omnibus

caritas” (but in all things, charity). Par-

ticularly among Catholics of differing opin-

6 Catholic Lawyer, Winter 1960

ions on this subject, there is no place for

bitterness and acrimony nor for bilious

name-calling or unfounded aspersions on

loyalty, nor again, for the supercilious om-
niscience of the self-anointed prophet.

On the one hand, we have the extremist
who regards the United Nations as some
kind of a magic formula for immediate

peace which has been distilled in a polyglot

alembic and which cannot fail in dealing

with any intricate international problem.

He often forgets the warning about “artifi-
cial uniformity” or “mechanistic unitarism”

which can produce nothing unless it be pre-

ceded by true adherence to principles of

peace or to juridical order.

Both he and his adversary in the opposite

school of thought do not realize that there

actually is no such thing as the United

Nations, but rather the member nations

which make it up, with their pluralistic

points of view. On the truly great issues
which come before the United Nations there

is rarely a unanimous vote. There are nearly

always the “ayes,” the “nays,” and the

abstentions. In other words, the United

Nations merely mirrors the thinking of the

world and in the world — thinking and ten-
dencies which not infrequently have been

changed and improved precisely because of

the open debate to which the subjects have

been submitted.

It would be naive to think that we are

suggesting that power politics does not enter

into the situation or that strategic blocs do

not exist. On the other hand, it is equally
true that there are entities which are really

not committed and which can be and have

been convinced because it has been pos-

sible to thrash things out. I believe that this

too might be termed one of those negative

facts of which we have already spoken.



Catholic Opinion and the UN 37

One finds some American Catholics who

brush the whole United Nations aside casu-

ally and imperturbably with the observa-

tion that it is merely a sounding board for

communist propaganda. Who would dare
deny that the Marxists have grasped the

opportunity, oft times unashamedly, to

broadcast their viewpoint or to justify their

malfeasance? But one should recall too that

the United Nations’ debates and delibera-

tions are a “two-way street,” and that they

become a sounding board too for the effec-

tive pronouncement of the principles of the

Free World — statements which might never
reach the statesmen of dozens of nations

were it not for the meetings and discus-

sions carried on in these international

assemblages.

As a matter of fact, the very doctrine of

the Church, which is unknown to scores of

statesmen of regions not of the Christian

tradition, has been proclaimed time and

again by delegates. I think of a few very

recent examples. Only the other day in a

discussion of “apartheid,” a representative

of Ireland read into the record for the in-

formation of the large numbers of the Afro-

Asian bloc the courageous statement of the

hierarchy of South Africa regarding this

burning question. Ten days ago, in the de-

bate on the rights of the child, several dele-

gates were able to place before the body the

teachings of the natural law on the rights

of the unborn child. And in the beginning
of this month, I personally had the oppor-

tunity of speaking before representatives of

eighty-four nations in the General Assembly

hall, and of citing textually the principles

and the position of the Holy See regarding

the necessity of technical assistance to the

underdeveloped regions of the world. From
subsequent conversations I know personally

that representatives of many of those areas

were completely unaware of the position

and the sympathy and the understanding of

Pope John, as enunciated in the letter of

last July to the Semaines Sociales Fran-

coises at Angers. So, when it comes to the

charge of the sounding board, we really

would do well to pause a trifle and realize

that it is a “two-way street.”

Then again, since today we are dealing

with American Catholics, it is scarcely nec-

essary, but it is opportune to recall that the

United States admittedly enjoys a position

of pre-eminence in the councils of the

United Nations. We are now one of two
great powers of the world with all the

responsibility that goes with power. Let us

face it realistically: In the space age our

traditional policy of neutrality and isolation

is a thing of the past. Every man and
woman, and, therefore, every American

Catholic, must share in the consequences of

world happenings.

Consequently they must be keenly con-

scious of their civic responsibility which is

part and parcel of our Catholic teaching.

This civic responsibility is not limited to

the town meeting. It reaches all the way

to the federal government here in Wash-

ington. Because of the world position of the

United States, it reaches now into the sanc-

tum of the General Assembly, the councils,

the committees in which the United States

plays such a leading role. Have Catholic

Americans sufficiently made known to their

government their attitude regarding prob-

lems with which the United States delega-

tion must deal in the United Nations? I

think you will concur that they have not.

Yet it is elemental democratic procedure

that there be communication between the

people and the government. This is a deci-



38 6 Catholic Lawyer, Winter 1960

sive factor in determining the course of

action on most of the important issues

before the country.

It serves no purpose for any Americans,

and particularly Catholic Americans, to sit

back resignedly to decry and criticize the

activity of the United Nations, or especially

the position taken by the United States in

the United Nations. We may not abandon
what is our privilege and duty, that is, to

make our opinion known on any question

to the government. But it is equally impor-

tant that the opinions expressed be not

hasty, heated and haphazard. They must be

based on information and understanding of

the issues at stake. All over the nation

there are other groups which are availing

themselves of their privilege and inform-

ing themselves; groups which are constantly

making known to the government and its

deputies in the United Nations their view-

points on critical questions. Catholic Amer-

icans may do no less. Hence, it is of the

utmost necessity that they be informed and

articulate.

Of course, some have felt justified in

abstaining from active interest because they

have found the United Nations to be irre-

ligious. If there be noticeable an atmosphere

of cool secularism, this may be due to the

studied neutralism which is occasioned by

the multiplicity of religious persuasions in

the eighty-two member nations. Let us

leave aside for the moment the nations

which are officially atheist. Would or could

Catholics join in the public prayer offered

by a Buddhist monk or a Moslem imam?
All nations from vast Brazil to tiny Luxem-

bourg are present as members on an equal

footing, and each is sensitive and jealous of

its religious and cultural traditions. Let us

hasten to say that the situation is regret-

table — aye, deplorable — but that it is
one that must be faced in its practical im-

plications.

But of course it has been pointed out to

me when I have commented on this la-
mentable condition that non-Christians are

not impressed by the charge often made by

Catholic Americans that there is no men-

tion of the name of God in the Charter of
the United Nations nor in the Declaration

of Human Rights. These gentlemen have
hastened to remind me that neither is there
any mention of the name of God in the
Constitution of the United States nor in the

American Bill of Rights, although Catholic

Americans do not denounce or repudiate

them. Does this make our American instru-

ments godless? Does it make the United

Nations documents acceptable because the

American ones are similarly fashioned? Of

course it doesn’t! It merely proves that all

four documents are deplorably defective

in this regard. But I must confess that it is

somewhat difficult to explain.

Nor is that the only thing which I find

it difficult to explain. I do understand, hu-

manly speaking, the resentments of some

American Catholics who complain that they

are opposed to paying taxes to support an

organization which they personally feel has

not produced proportionate results. Like-

wise, I can appreciate the position of those

who clamor for Charter reform and who

deplore the veto — which I do — though I
must confess that I often wonder how many

of them realize that the United States was

also quite insistent on the veto at San Fran-

cisco in 1945. But at times it is difficult to

explain to foreigners the amazing attitude

of some Catholic Americans who readily

espouse political isolationism in contrast

with the sheer internationalism of their



Catholic Opinion and the UN 39

compassion for the hungry, the naked, the

homeless of any quarter of the globe — and
not for any strategy of cold war, but purely

because of the warmth of their Christian

charity.

Baffling as are these paradoxical phe-

nomena, I find most unintelligible the posi-

tion of some Catholic Americans who, liv-

ing in this air age which has annihilated

distances and perforce brings us daily into

contact with the most remote peoples,

nevertheless shy away from the mere men-

tion of the international community, as

though it were incompatible with Catholic

teaching or practice — as though it were
possible or permissible to secede from the

universal solidarity of the human race.

When we speak of the sense of the uni-
versal solidarity of the human race, we

have not in mind any mere mechanically

contrived unity of a super-organization. It

is something deeper than that. It is some-

thing which springs not solely from the

destruction of distances and differences, nor

even from greater familiarity and inter-

course with other peoples. It is rooted in

human nature, in the natural law. It will rise

to the surface and there it must be under-

stood and guided in a systematic, a jurid-

ical fashion.

Pope Pius XI, in his inaugural encycli-

cal, “Ubi Arcano,” spoke of a “code of

common laws . . . such as was possessed
in the Middle Ages by that true society of

nations which was the community of Chris-

tian peoples.”2 But that true society of na-

tions passed when nationalism, both politi-

cal and religious, first took over, to be

followed by exaggerated militarism which

in turn compounded the two into imperi-

2 Id. at 347.

alism. And yet, there has remained the
nostalgic remembrance of the lost unity of

the past.

All these natural factors, for the past

seventy-five years especially, have been

engendering a hazy, but definite, longing

and groping towards a social, political and

religious unity. Pope John unmistakably

sensed it in the years which he spent on

the shores of the Hellespont and in the

City of Light in the shadow of the Arc de

Triomphe.

Indeed, the Church of Christ for years

has watched this groping for spiritual and

political unity with unfeigned concern and

true maternal interest. She has wisely pro-

moted the wider development of the recog-

nition of the universal solidarity of the

human race, as she has also approvingly

regarded the establishment of some kind of

international community for the practical

implementation and realization of this sub-

lime ideal.

All the modern Popes have repeatedly

provided the nations with sage directions

whereby they might discharge the obliga-

tions incumbent on them, to subordinate

the claims of their nationalism to the needs

of the human community and to promote

the organization of these latter efforts.

Just sixty years ago, on April 11, 1899,

Pope Leo XIII hailed the International

Peace Conference being held at The Hague.

In his discourse, “Rivedere qui oggi,” the

great Pontiff speaks of this gathering in

the Netherlands as a ray of sunshine to

brighten the end of the century. He begged
Heaven to grant that this international as-

semblage — made up of men of varying
religious persuasions — might be the first
step leading to the experiment of resolving



40

disputes among nations by means of purely

moral and persuasive measures.

During the same year, 1899, Cardinal

Mariano Rampolla, his Secretary of State,

wrote to Count Mouraviev, Secretary of

Foreign Affairs for Russia, lamenting the

fact that there was lacking in the inter-

national consortium of nations a system of

legal and moral means proper to determine

and to make good the right of each. He
urged on the Russian diplomat the estab-

lishment of an institution of arbitration,

invested with authority, clothed with all

the necessary moral prestige, and fortified

with the indispensable moral guarantees of

compliance and impartiality. Of these ef-

forts was born the Permanent International

Court of Arbitration of The Hague, one

of the first modern steps toward the realiza-

tion of an international community.

Even St. Pius X, who held himself aloof

as much as possible from diplomacy, the

better to concentrate on the direct spiritual

apostolate to souls, in a rare instance wrote

to Archbishop Falconio, Apostolic Delegate

in the United States, in 1911 to praise the

Carnegie Endowment for International
Peace on the occasion of its founding. It is

noteworthy that St. Pius X, with his usual

peasant sagacity, remarked that the founda-

tion “might not immediately, or wholly,

accomplish its purpose,” but he praises it

and the zeal of its founders. St. Pius did

not expect immediate miracles nor did he

regard the foundation as perfect — but he
welcomed it as at least partially contributing

to the solution of the problem of peace.

When St. Pius X died of a broken heart
as war broke out in 1914, his successor,

Benedict XV, repeated the proposals of

Leo XIII for the institution of agencies of

arbitration. He went further and proposed

6 Catholic Lawyer, Winter 1960

a means of providing coercion to enforce

juridical measures which may be enacted.
Indeed, from the letter of Cardinal Gasparir

Secretary of State, to Mr. Lloyd George, it

is clear that Benedict XV expected the
nations to apply sanctions (general eco-

nomic isolation, including boycott) against

the state which would refuse to submit

international questions to arbitration or to

accept the decisions handed down in
arbitration.

As the First World War raged on, the

concept of the League of Nations came to

the fore. On May 23, 1920, when hostilities
had ended, Pope Benedict XV gave to the
world his timely encyclical, “Pacem Dei.”

In this letter he wrote: “It is much to be

desired that all states, Venerable Brethren,

putting aside mutual suspicion, should unite

in one league, or rather a sort of family of

nations, calculated both to maintain their

own independence and safeguard the order

of human society.”3 But even before that, in

1917, Pope Benedict XV, in his famous

peace proposals, had suggested an interna-

tional institution for compulsory arbitration.

The League of Nations, which the United

States repudiated, went on for many years

after Benedict XV himself had died in 1921.
Whatever else may have been the defects

of the League of Nations, certainly the

absence of an informing, unifying spirit,

fundamentally moral, has been recognized,

even by its most enthusiastic supporters, as

its greatest handicap. On the other hand,

Catholic supporters of the League of Na-

tions such as Eppstein and Gonzague de

Reynolds and many others, have argued

that the failure of Catholics to rally more

warmly to its support was in no small mea-

sure the reason why the League lacked the

3 Id. at 290.



Catholic Opinion and the UN 41

vivifying principle and acquired instead a

laic and humanitarian ethic.

If we opposed or ignored or merely ab-

stained from an organization which had

good objectives, as Pope Benedict XV him-
self admitted it had — even though it were
imperfect in many respects — we could
hardly hope to work for its improvement

or perfection; we could hardly be regarded

as without responsibility for the League’s

inglorious demise in the late thirties. We
Catholic Americans of today would do well

to ponder this accusation which is not

totally without foundation.

Shortly after he had ascended the Chair

of Peter, Pope Pius XI in his encyclical
“Studiorum Ducem,” on the seventh cen-

tenary of St. Thomas Aquinas, insisted that
in the teachings of St. Thomas there are

provided the principles of a “true society

of nations.” Again in his Christmas allocu-

tion of 1930, the same Pius XI, sickened by

some of the emotionalist appeals for peace

in that day, based solely on fear and on

revulsion against the filth and blood and lice

of war, cried out: “The peace for which

humanity longs is not to be identified with

sentimental pacifism, confused, undiscern-

ing and heedless of dangers. True peace is

the work and fruit of justice, perfected by

love.”4

If the four first pontiffs of this century at

various times and in different ways alluded

to the need of creating and evolving juri-

dical international institutions to guarantee

the fulfillment of treaties and to preserve

peace, Pope Pius XII, the great teacher, had

scarcely taken in hand the tiller of the bark

of Peter than he promulgated his masterful

encyclical “Summi Pontificatus,” in which

4 Allocution of Pius XI to the College of Cardi-
nals, Benedetto UNatale (1930).

he expounded forcefully his favorite theme

of the universal solidarity of the human
race. In doing it, Pius XII laid the basis for

an international community which, with

characteristic prophetic foresight, he saw

later coming into existence.

For thirteen and more years, from 1945

until he died in 1958, Pius XII never ceased

to drive home the Church’s teaching on an

international community. In his Christmas

Message of 1948, following the establish-

ment of the United Nations, he said: “The

Catholic doctrine on the State and civil

society has always been based on the prin-

ciple that in keeping with the will of God,

the nations form together a community with

a common aim and common duties. Even
when the proclamation of this principle and

its practical consequences gave rise to

violent reactions, the Church denied her

assent to the erroneous concept of an abso-

lutely autonomous sovereignty divested of

all social obligations.”5

Five years later, in 1953, in addressing

the Fifth Annual Congress of Italian Catho-

lic Jurists, Pope Pius XII, who during a

period of eight years had had the oppor-

tunity to observe and appraise the new

United Nations, told the jurists: “The insti-

tution of a community of nations, which

today has been partly realized but which is

striving to be established and consolidated

on a higher and more perfect level, is an

ascent from the lower to the higher, that is,

from a plurality of sovereign states to the

greatest possible unity.”6

Here we find Pius XII announcing his

realistic acceptance of the fact of the United

Nations, as a partial realization at least of

' Koenig, Pius XII and the U.N., 52 Catholic

Mind 143, 147 (1954).

6 Ibid.



42

the much desired international community.

In 1948 he had expressed the hope that the

United Nations, after eliminating the weak-

nesses stemming from its origin, which was,

of necessity, a solidarity in war, would

become “the full and faultless expression of

this international solidarity for peace.”

It is the purest kind of captious carping

to distort this and similar statements of the

great Pontiff as some Catholic Americans

have done. They assert that neither here nor

elsewhere did Pius XII even insinuate

indirectly approval of the United Nations.

They add that he merely expressed the hope

that the United Nations would improve, as

though one might hope for the expansion,

strengthening or improvement of something

which he regarded as fundamentally wrong

or basically objectionable!

Almost as though to confirm the theory

that the indifference or hostility of Catholics

was partly responsible for the failure of the

League of Nations, Pope Pius XII, in a dis-

course on “Catholics and International

Life,” declared that “Catholics are extra-

ordinarily well equipped to collaborate in

the creation of a climate without which a

common action on the international plane

can have neither substance nor prosperous

growth.”7 In the course of this same speech,

he left no doubt as to what he meant about

the responsibilities of Catholics in the mat-

ter of international life. The Pontiff de-

clared: “Catholics are saddled with a great

responsibility. They, above all . . . must

realize that they are called upon to over-

come every vestige of nationalistic narrow-

ness, and to seek a general fraternal en-

counter of nation with nation.”8

If I may, I would leave you with this

thought of the responsibility of all Catho-

7 Pollock, ed., The Mind of Pius XII 81 ( 1955).
8 Id. at 82.

6 Catholic Lawyer, Winter 1960

lies, and therefore of American Catholics,

with reference to the international com-

munity and, in this moment in history, with

reference to the United Nations. Whether

they like it or whether they don’t, it is a

historical reality which they may not ignore,

nor of which they may predicate magic

formulae for true peace nor demand sudden

miracles for lasting peace. Good Pope John,

while he was the first observer of the Holy

See at UNESCO in Paris, speaking of this
specialized agency, cautioned us not to be

precipitous or unreasonable. With his typi-

cal geniality and homespun wisdom, he

said: “I like always to remind the fearful

and the impatient that the work of the

Hexameron in the Book of Genesis took

six days to be completed and that there was

a determined task for each day. We must
learn to wait.”

Catholic Americans have been bounti-

fully blessed by God with the goods of the

earth, which fact begets a concurrent

responsibility to share them with the un-

derprivileged and economically underdevel-

oped members of the international com-

munity. They have intelligently met and

gloriously and generously satisfied this

responsibility.

In God’s providence these United States

have achieved a tremendous power in world

affairs and all citizens of this republic have

a correlative responsibility to see that their

country plays its proper role and plays it

properly in the international community as

it now exists; to correct its defects, to fur-

ther its noble objective which is, after all,

the achievement of true and lasting peace.

Catholic Americans, then, who are mem-

bers of a supra-national Church and are

uniquely equipped, must shoulder this re-

sponsibility together with their fellow citi-

zens.



THE RIGHT TO TRAVEL
AND MIGRATE

James J. Norris*

Our LATE BELOVED Holy Father, Pius XII, never lost an oppor-tunity to speak out on behalf of the men, women, and children
around the world who, living in the hopelessness of refugee camps and

hovels, kept their eyes longingly on the faraway lands that could provide

a future for them and their children’s children. No Pope in history spoke
so often and so eloquently on the needs of the refugees and those in

heavily populated countries, and their right to a decent living in another

land. He was keenly aware of the unjust restrictions on the part of coun-
tries that could provide a haven for them, but at the same time he

recognized that in the interest of the greater good, a country has the right

to prevent an unrestricted flow of immigrants who might disrupt its

economy.

In his high vantage point, Pius XII received a never ending flood of

appeals from the victims of the war and its aftermath. Touching indeed

were the letters written by those poor simple men and women whose last
recourse was to pen a letter directly to the Father of Christendom, and

even more touching was the concern of His Holiness to see that each one

received an answer, and preferably a positive one.

In addition to the letters there came to his door a stream of visitors

representing all those who sought his help to resolve their problems.

Poles, Czechs, Hungarians, Russians, Chinese, Japanese, Italians, Dutch

and many others turned to him to plead their cause.

It was only natural, therefore, that he should do everything within his

power to answer these calls for help. Firstly, he made statement after

statement on the right to migrate, as a fundamental right based on the

natural law. Secondly, through his nuncios and papal representatives

around the world he appealed to governments to open their doors to

migrants and refugees. Thirdly, working through the Most Reverend

Hierarchies, he set in motion the formation of one international agency to

concern itself with migration questions, and a number of national agencies

*President, International Catholic Migration Commission.

43



44

to occupy themselves with resettlement and

integration services. Fourthly, he strength-

ened the position of the Sacred Consisto-

rial Congregation in its mission for the

spiritual care of migrants and, lastly, he

issued the Apostolic Constitution Exsul

Familia which, after giving the history of

the Holy See’s concern through the cen-

turies for migrants, outlined the norms for

the spiritual care of migrants, refugees and

foreigners, no matter where they may be.

One of the lesser known statements of
the late Pope on the right to migrate was

made to a group of American senators in

1946, at a time when his heart was in an-

guish over the vast displacement of innocent

peoples. At that time he said:

It is not surprising that changing cir-

cumstances have brought about a certain

restriction being placed on foreign immi-

gration. For in this matter not only the

interests of the immigrant, but the welfare

of the country must also be consulted. How-
ever, it is not too much, we are sure, to
expect that in the process of restriction,

Christian charity and the sense of human
solidarity existing between all men, children

of the one eternal God and Father, will
not be forgotten. Immigration can help in

solving one of Europe’s saddest human
problems, a problem which is being aggra-

vated inhumanely by the enforced transfer

of helpless, innocent populations.

This statement is one of the best sum-

maries of the Catholic point of view on the

right to migrate and can be used as the

basis for a discussion of that natural right.

In a discussion of migration, we must

understand that we are not speaking of the

right to travel, which is at times called the

right to freedom of movement. This free-

dom of movement is a fundamental human

6 Catholic Lawyer, Winter 1960

right which is included in the Universal

Declaration of Human Rights, promulgated
in December 1948 by the UN General As-
sembly in these words: “Everyone has the

right to freedom of movement and residence

within the border of each state.” (Art. 13).

This is not a new right because it is a nat-

ural right; it has always existed. In the 15th

century, the Catholic scholar Francisco

Victoria gave fourteen reasons to justify

travel of Spaniards among the Indians, and

among these reasons he stated that “It was

permissible from the beginning of the world,

when everything was in common, for any-

one to set forth and travel wherever he

would.”

The right to migrate, as distinct from the

right to travel, has two aspects: first of all,

the right to emigrate, that is, the right of

the individual to leave his own country and,

secondly, the right to immigrate, that is, the

right to come into a country and be accepted

there. Whereas the right to emigrate involves

only the right to leave a given country, the

right to immigrate has three aspects: the

right to enter a country, the right to take up

residence there, and the right to work in

that country. It is, therefore, easy to under-

stand that countries (with the exception of

Soviet Russia and its satellites) accept

more easily the right to emigrate than the

right to immigrate, as the latter has more

far-reaching consequences. In fact, the Uni-

versal Declaration of Human Rights to
which I referred proclaims the right to emi-

grate in the following words: “Everybody

has the right to leave any country, including

his own, and to return to his country.” Of

the right to immigrate, on the other hand,

there is no word in the Declaration of

Human Rights. This means that it is left to

the regulations of the receiving country to

decide who shall settle there.



Right to Travel and Migrate 45

In the light of the foregoing, what is the

Catholic point of view on the meaning and

relation of these rights to emigrate and

immigrate?

Migration was at one time a purely pri-

vate affair touching only the individuals

concerned. The right to immigrate, in the

18th and 19th centuries, was considered as

a natural outcome of the right to travel, and

immigration countries seldom refused entry

to anyone, because of the need for hands

and heads to increase the strength of the

country.

The story of immigration to our own

country under these conditions is too well

known to bear repetition. On the other
hand, what is not so well known is that mil-

lions of immigrants fell by the wayside and

returned to their country of origin, disap-

pointed at what they found here. The 20th

century has seen a great change, with the

result that today many immigration coun-

tries refuse entry to many individuals with-

out thought for the common good of other
nations or of those people who find them-

selves in a difficult economic situation,

through no fault of their own.

The Catholic position on this question is

that whereas the right to travel is a free and

unrestricted right, the right to emigrate or

to immigrate is a natural right which in

certain special cases may be restricted by

governments.

When may these restrictions be applied?
An analysis of papal pronouncements and
other Catholic sources show that these re-

strictions must be based on the moral doc-

trine of the Church, in harmony with justice

and true Christian charity. In the Apostolic

Constitution, Exsul Familia, the Catholic

teaching on the right of individuals, and

especially of families, to migrate, and on

the right of restriction by governments of

this natural right is clearly set forth.

Restrictive Measures Morally Justified

If we analyze in detail this basic docu-

ment concerning Catholic principles on mi-

gration we find that the late Holy Father

condemned, first of all, the principles of

totalitarianism which violate the natural

right of man to emigrate. He refers to his
Christmas Message of 1945 and his address

to the College of Cardinals in 1946 in which

he made declarations on this subject.

As to restrictions on immigration, he ad-

mitted only those which are tempered with

“Christian charity and the sense of human

solidarity existing between all men, children

of the one eternal God and Father. . .
He showed that every living being should
be able to make use of the earth and that

our planet is sufficiently large to permit

the right of each family to a living space.

This judgment is especially apparent in his

letter to the American Bishops in 1948.

when he declared that the natural law itself,

no less than devotion to humanity, urges

that doors be opened to political refugees

and other needy persons who are forced to

look for work opportunities in other coun-

tries.

Restrictions on immigration, when they

are necessary, should not be arbitrary, lest

such restrictions stem from disregard of

man’s rights and from worship of power,

and not from any sound moral reason. The

pretext of a common good “falsely appre-

hended or falsely applied, yet sanctioned

and made mandatory by legal provisions or

administration,” must be condemned.

Consideration of Catholic Doctrine

Catholic scholars, in line with the above

papal declarations, have tried to answer the



46

question — what economic reasons justify
limitation of the right to immigrate? In some

countries, trade unions, and some experts,

maintain that the free right to immigrate

may endanger three aspects of a country’s

economy : 1 ) living conditions, 2 ) working

conditions, especially the unemployment sit-

uation, 3 ) the level of income and produc-

tivity. Father Antonio Perotti, an Italian

expert who has made a special study of this

problem, has arrived at the conclusion that

“it is very difficult to prove, with the means

offered at present by the science of eco-

nomics and immigration statistics, that im-

migration is a factor detrimental to the

economic standard.” He shows from both
the historical and economic point of view

that a cause and effect relationship between

immigration and economic crisis is quite

superficial. “The State is not free,” he

writes, “to act according to its will and

whim, but it is bound to justify its policy of

limitation. . . . The end of the economic

activities of human society is to insure the

maintenance of its people, not vice-versa.

Therefore, the limitation of the exercise of

a natural right may not be justified when-

ever it is dictated not ... by the real, com-

mon good, but by a predestined economic
structure.”

A report summing up the conclusions on
the right to migrate was submitted to the

International Catholic Migration Commis-

sion Congress at Breda, Holland, in 1954.

This report was the result of studies made by

the ICMC Information Center and it makes
the following points:

Taking into account reservations made
by the immigration countries and in order

not to change the present situation too

abruptly, a reasonable degree of restriction

would seem advisable, at least during the

transition period; the following suggestions

6 Catholic Lawyer, Winter 1960

may, therefore, be taken into consideration:

a) consular or administrative control on
arrival in the immigration country should

be admitted only for reasons of national

security (agitators, politically undesirable),

public safety (criminals), public health

(mentally sick or those suffering from infec-
tious diseases), and public morality (im-

moral persons)

;

b) immigration countries should avoid

those measures which aim at safeguarding,

in an exaggerated way, their spiritual, cul-

tural, and linguistic heritage, but facilitate

the integration of immigrants by their dis-

persal among communities and in surround-
ings most favorable to their adaptation;

c) immigration countries should have the

right to restrict immigration for economic

reasons only in case of mass movements

which would menace the equilibrium of in-

dustrial centers; in these cases immigrants

could be directed to rural or other regions

where new forms of industry may be
created.

The Australian Bishops, in their Social

Justice Statement of 1953, Land Without

People, arrived at the same conclusions, in

these words:

There is a natural right to immigration

and emigration which may not morally be
denied or nullified by the acts of govern-

ments. Reasonable regulation of migration

is legitimate; to use apparently reasonable

regulations in fact as a means of denying

the right is not legitimate. Consideration of

national sovereignty over unoccupied or

unused territory may not be carried so far
that free access to the earth’s bounty . . .

should be denied to needy but worthy per-

sons who have been born elsewhere.

The only conclusion that can be drawn

from all the statements of the Pope and

others is that the material goods of this

world were created for all, and not for a

select few; the human family is one — all
must have access to the earth’s abundance;

all must have a sense of responsibility for



Right to Travel and Migrate 47

the welfare, both spiritual and material, of

all our brothers on the face of the earth, be

they white, yellow, brown, or black. The

solidarity of the human family demands

that this be a matter of concern to each of

us as individuals — we may not shirk this
responsibility.

Lest there be a misunderstanding, 1

should like to make clear that I do not feel

that migration is the sole solution to the

world problems of population and refugees.

It is only one of the solutions, and not the

one that will solve the problem for the

majority of such people. Nevertheless, we

must recognize that for vast numbers of

people migration is the only answer to their

problem. What other solution is there for

the peoples of the Netherlands, Italy, and

Greece, whose economies cannot possibly

expand to the point where they will support

their annual population increase as well as

the refugees on their soil? What other pos-

sible solution can there be for the refugees

from Yugoslavia who are daily fleeing into

Italy and Austria? What of the refugees who

have been waiting for years in the camps of

Germany and Austria? These are examples

of those to whom the application of the right
to migrate has a real and vital meaning.

Must they go on looking to a future of hope-

less despair, while a near-sighted selfish con-

cern keeps doors closed to them? I say

near-sighted because these people bring

assets and ultimately riches to their new

country. One has only to look around and

see that the level of living standards is raised

and the economies prosper most in those

countries where immigration has taken

place in substantial numbers.

During World Refugee Year our hands

and hearts must go out to refugees wher-

ever they may be: 200,000 Algerians in
Morocco and Tunisia; 1,000,000 Palestine

Arabs; 1,000,000 Chinese in Hong Kong;

the aged; the tubercular, the physically

handicapped—these and all the able-bodied

who have a claim, in both charity and jus-

tice, on our help in building new lives, either

where they are now living in despair or in a

new homeland, where they can exercise

their God-given right to raise their families

in dignity and decency.

ROLE OF FORCE
(Continued from Page 32)

aggressions throughout the world, he ex-

plained to his candidates the symbolic

meaning of the slap on the cheek. He was
making those men and women soldiers of
Christ in a world where Christ and all He
stands for are under relentless attack. So

he reminded them that they might be called

upon to fight and die for their faith. This

thought must be with us always. We must
work for peace through the successful de-

velopment of a true international juridical

order but we must be willing to fight and

die for such an order and for justice, the

only true basis for peace.