THE '* GREAT WAR" AND INTER 
 NATIONAL LAW 
 
 BY 
 
 ELIHU ROOT 
 
 JiEPRJJMTED FROM 
 
 ADVOCATE OF PEACE 
 
 JUNE, 1921 
 
 AMERICAN PEACE SOCIETY 
 
 FOUNDED 1828 
 
 613-14 COLORADO BUILDING 
 
 WASHINGTON. D. C. 
 
 1921 
 
.1 • • •! I 
 
 ^7 
 
:> >, > ', > 3 
 
 THE "GREAT WAR" AND INTERNA- 
 TIONAL LAW 
 
 By ELIHU ROOT 
 
 Presidential Address at the Fifteenth Annual Meeting of 
 
 the American Society of International 
 
 Law, April 27, 1921 
 
 THE American Society of International Laav 
 may appropriately renew its discussions of the sub- 
 ject to which it is devoted, by a review of the effects of 
 the Great War, both as to the law itself and as to the 
 international relations under which the law is to be 
 applied. 
 
 It is obvious that we cannot go on assuming that the 
 laws and customs of war on land and at sea, the rules 
 which regulate the rights and duties of neutral powers 
 and persons in case of war, retain the authority which 
 we supposed them to possess in the month of July, 1914. 
 These rules imposed their obligation upon all parties to 
 the great conflict, and, when violated by one party, they 
 could not reasonably be deemed to restrain the other 
 belligerents. So, the w^orld went on for several years 
 without much reference to them; and the question now 
 is : How far do they exist ? In many ways the con- 
 ditions which gave rise to these rules have been ma- 
 terially changed. The new modes of conducting war 
 under which practically entire peoples are mobilized 
 either for combat or supply have apparently destroyed 
 the distinction between enemy forces and non-combatant 
 citizens, so that the differences which underly the law of 
 contraband disappear. The whole people would seem 
 to be an enemy force, and all goods destined for their 
 use would appear to be contraband. The historic 
 declaration of Paris that "the neutral flag covers enemy 
 goods with the exception of contraband of war'^ and 
 that "neutral goods with the exception of contraband 
 of war are not liable to capture under the enemy's 
 flag" would seem to have been swallowed by the excep- 
 tion, and the doctrine that "free ships make free goods'' 
 
 491236 
 
and that "blockades in order to be binding must be 
 effective" appear to have become idle phrases. The 
 submarine, the Zeppelin and the airplane, wireless 
 telegraphy, the newly achieved destructive power of 
 high explosives and of poisonous gases have created con- 
 ditions affecting both belligerents and neutrals not con- 
 templated when the old rules were established, and in 
 many respects the old rules are not adapted to deal with 
 the new conditions. 
 
 The Doctrine of Kriegs Raison 
 
 More important still is a fact which threatens the 
 foundation of all international law. The doctrine of 
 kriegs raison has not been destroyed. It was asserted 
 by Bethman Hollweg at the beginning of the war 
 when he sought to justify the plain and acknowl- 
 edged violation of international law in the invasion of 
 Belgium upon the ground of military necessity. The 
 doctrine practically is that if a belligerent deems it 
 necessary for the success of its military operations to 
 violate a rule of international law, the violation is per- 
 missible. As the belligerent is to be the sole judge of 
 the necessity, the doctrine really is that a belligerent 
 may violate the law or repudiate it or ignore it whenever 
 that is deemed to be for its military advantage. The 
 alleged necessity in the case of the German invasion of 
 Belgium was simply that Belgium was deemed to be 
 the most advantageous avenue through which to attack 
 France. Of course, if that doctrine is to be maintained, 
 there is no more international law, for the doctrine can- 
 not be confined to the laws specifically relating to war 
 on land and sea. With a nation at liberty to declare 
 war, there are few rules of peaceful intercourse, the 
 violation of which- may not be alleged to have some 
 possible bearing upon a military advantage, and a law 
 which may rightfully be set aside by those whom it is 
 intended to restrain is no law at all. 
 
 The doctrine has not been abandoned. It was for- 
 mally and authoritatively declared by the German Gov- 
 ernment and acted upon throughout the war. We can 
 find no ground to justify the conclusion that a plainly 
 unrepentant Germany does not still maintain the sound- 
 
ness of the doctrine as a part of its historic justification, 
 nor has there been any renunciation by the allies of 
 Germany. We must, therefore, face the fact that the 
 law which during the course of three centuries had 
 become apparently firmly established upon the universal 
 acceptance and consent of all the members of the com- 
 munity of civilized nations is shaken to its foundation 
 by the repudiation of its moral obligation on the part 
 of the four central powers — Germany, Austria-Hungary, 
 Turkey, and Bulgaria, which at the outbreak of the war 
 had over 144,000,000 of inhabitants. 
 
 Few more futile public performances can be found in 
 the history of international intercourse than the long 
 diplomatic discussions which accompanied the earlier 
 years of the war between neutral nations and Germany, 
 about the rules of international law and their applica- 
 tion to the conduct of Germany's military and naval 
 proceedings, while Germany had already publicly de- 
 clared that she would not deem herself bound by any 
 rules she found to be disadvantageous to herself. The 
 same will be true in the future if the same condition 
 exists. It will be impossible to maintain the restraint 
 upon national conduct afforded by the rules of inter- 
 national law so long as so great a part of the civil- 
 ized world asserts the right to disregard those rules 
 whenever it sees fit. Either the doctrine of kriegs raison 
 must be abandoned definitely and finally, or there is an 
 end of international law, and in its place will be left a 
 world without law, in which alliances of some nations 
 to the extent of their power enforce their ideas of suit- 
 able conduct upon other nations. 
 
 "Internationalism" a Peril 
 
 Another threatening obstacle to international law 
 exists in the rapid development of internationalism. 
 This is presented by the avowed purposes of the Third 
 Internationale aiming at the destruction of national 
 governments and the universal empire of the pro- 
 letariat ; by the fact that the brutal and cruel despotism 
 of Lenin and his associated group has been able to 
 maintain its ascendency over the vast territory and 
 population of Russia, calling itself a dictatorship of the 
 
proletariat but making itself a dictatorship over the 
 proletariat as well as all other classes, and ruling in 
 the name of a world revolution for the accomplishment 
 of the purposes of the Third Internationale. It is pre- 
 sented also by the universal propaganda carried on with 
 almost religious fervor in all countries and seriously 
 affecting the leadership of labor in many countries. 
 That propaganda, exceedingly subtle and ingenious, 
 throughout the world has toppled over the wits of 
 parlor Socialists from their insecure foundations of 
 education superior to their intelligence, and is making 
 them the unconscious agents of promoting political 
 principles which they would abhor if they understood 
 them, and in aiding sinister projects for profit in which 
 they personally have no part. The organization of the 
 civilized world in nations is confronted since the war 
 with a vigorous and to some degree prevailing assertion 
 that a much better organization would be that of gov- 
 ernment by class existing in all nations and superior 
 to all. 
 
 International law, of course, is based upon the ex- 
 istence of nations. There is no common ground upon 
 which one can discuss the obligations of international 
 law with the Third Internationale, and just so far as 
 the ideas of Lenin and Trotsky influence the people of 
 a civilized country just so far the government of that 
 country is weakened in the performance of its inter- 
 national obligations. 
 
 The existence of nations is not an accident of locality 
 or of language or of race. It is one phase of the strug- 
 gle of mankind for liberty. The independence of 
 nations is an assertion of the rights of different groups 
 of men having in the main different customs, traditions, 
 habits of thought and action, ideas of propriety and of 
 right, to have local self-government. This is true what- 
 ever the form of government; whether it be a monarchy 
 or an aristocracy permitted by the people of the coun- 
 try or a republic in which rulers are elected by the 
 people, the distinction is the same between government 
 in accordance with the people's own conceptions of right 
 and propriety and government by an alien force hav- 
 ing different and incongruous conceptions. There are 
 
few more injurious influences in international affairs 
 than the inability of the people of one country to under- 
 stand or to realize the differences between themselves 
 and the people of other countries in fundamental and 
 often unexpressed preconceptions. These differences 
 affect the understanding in the different countries of 
 every act done and every word used. They are not 
 matters of reason to be solved intellectually like a prob- 
 lem of Euclid. They are the results of long ages of 
 tradition, modes and habits of thought, inherited as- 
 sumptions regarding the conduct of life. One race of 
 men take off their shoes and keep on their hats, another 
 race take off their hats and keep on their shoes under 
 similar conditions to express similar sentiments of 
 respect. To the people of one country polyandry is the 
 natural social organization, to the people of another 
 polygamy, and to the people of others monogamy is 
 natural and appropriate. The people of some countries 
 consider that justice is best attained by applying a 
 system of excluding evidence according to rigid rules 
 of relevancy and competency, while the people of other 
 equally civilized countries consider that the same result 
 may be best attained by admitting in evidence anything 
 that anybody chooses to say on the subject. None of 
 these differences is the result of the working out of 
 problems by pure reason. They come from the fact that 
 peoples of different countries and of different races 
 do not think alike, and cannot think alike because their 
 intellectual processes are the resultants of different 
 traditional conceptions combined with the apparent 
 logical premises of each problem. 
 
 The most grinding, possible tyranny is to be found 
 in the intimate control of a people by other races or 
 rulers who do not understand the people whom they 
 rule. The vice of tyranny is so widespread, the tend- 
 ency to tyrannize over others is so universal, especially 
 among those who think themselves better than others, 
 that only the highest intelligence creates exceptions to 
 the rule of oppression in alien control. The declaration 
 of the independence of nations, large and small, is an 
 assertion of the right to be free from the oppression of 
 alien control. Internationalism would fasten that op- 
 pression upon the world without recourse. 
 
8 
 
 The fundamental ideas of international law are, first, 
 that each nation has a right to live according to its own 
 conceptions of life; second, that each national right is 
 subject to the equal identical" right of every other 
 nation. 
 
 International law is the application of these prin- 
 ciples through accepted rules of national action adapted 
 to govern the conduct of nations toward each other in 
 the contacts of modern civilization. Internationalism, 
 by destroying the authority and responsibility of nations 
 and the law which is designed to control their conduct 
 toward each other, would destroy the most necessary 
 bulwark of human liberty, the chief protection of the 
 weak against the physical force of the strong, and sub- 
 stitute the universal control which the nature of men 
 will make an inevitable tyranny. 
 
 The long, slow process of civilization with its peaceful 
 attrition between individuals and between local and 
 tribal groups tends toward the steady enlargement of 
 nations through the reconciliation of ideas and the 
 adoption of common standards, making it easy for dif- 
 ferent groups to live together under the same govern- 
 ment. Every great country shows the results of this 
 process. Burgundy, Provence and Brittany, Wessex, 
 Sussex, and Northumbria, Wales, England and Scot- 
 land, Piedmont and Naples have come to live peaceably 
 together under governments in which each has a voice 
 and in which each is understood. But that process 
 cannot be forced any more than the growth of a tree can 
 be forced. It can be promoted as the growth of a tree 
 can be promoted. The parliament of man may come 
 just as the parliaments of Britain and France and Italy 
 have come, but it must be by growth and not by force 
 nor by the false pretence of agreement where there is 
 no real agreement, nor by international majorities over- 
 bearing minority nations through majority votes. 
 
 The great force of Eussia which aims to impose 
 internationalism upon the world, therefore, halts the 
 development of international law, the very foundations 
 of which the existing government of Russia now repu- 
 diates. As the basis of international law is universal 
 acceptance, either Russia must be excluded from the 
 category of civilized nations or the law must wait upon 
 
the downfall of the present regime in Eussia. In the 
 meantime, every act which tends to support that regime, 
 whether for sentiment or for trade, is a hindrance to 
 the restoration of law and the rule of international 
 justice. 
 
 The Versailles Treaty 
 
 Under these circumstances, how are we to take up 
 the task of promoting the development of the law of 
 nations ? 
 
 The task cannot be abandoned. The process which 
 owes its impulse toward systematic development to 
 Grotius and the horrors of the Thirty Years' War can- 
 not be abandoned. Xever before was the need so great. 
 The multitudes of citizens who now control the na- 
 tional governments of modern democracies and direct 
 international policies cannot safely follow the passion 
 of the moment or the idiosyncracy of the individual 
 public officer in their international affairs, without ac- 
 cepted principles and rules of action, without declared 
 standards of conduct, without definition of rights, 
 without prescription of duties too clear to be ignored. 
 Otherwise the world reverts to chaos and savagery. 
 
 To determine how this Society and its members may 
 be effective in efforts to promote the development and 
 authority of international law, some further examina- 
 tion of the existing international situation will be 
 useful. 
 
 The armistice of November 11, 1918, left for the suc- 
 cessful allied powers two quite distinct and in some 
 respects incongruous tasks. 
 
 The first task was to decide upon the terms of peace 
 and to require compliance with those terms. 
 
 That was a matter of power, of force. It was the im- 
 position of the will of the conquerors upon the con- 
 quered. Only the belligerent nations were concerned in 
 it. It was a part of the war. Disarmament, reparation, 
 disposition of conquered colonies, transfers of territory, 
 were to be dictated as alternatives to further military 
 punishment by the successful armies and navies. It 
 was to be affected by the principles of reward for assist- 
 ance in winning the war, of penalty for offenses against 
 
10 
 
 civilization in beginning and carrying on the war and 
 by treaties between the belligerents. 
 
 The second task in necessary sequence was to give 
 effect to the universal desire of the civilized world by 
 bringing all civilized nations into agreement for the 
 future preservation of peace. 
 
 That was a matter, not of force, but of reason, 
 humanity, universal instinct of self-preservation. It 
 must be voluntary, not compulsory. It was the concern 
 of all neutral nations equally with all belligerent na- 
 tions. It presupposed a world at peace in which peace, 
 already attained, was to be preserved. It was to follow, 
 not to be a part of, the compulsions of conquest. 
 
 The Versailles Conference undertook to include both 
 of these separate, distinct and incongruous processes in 
 the same treaty. They framed a League of Nations for 
 the future, they invited all neutrals to join and at the 
 same time and in the same instrument they undertook 
 to impose penalties to which they required the defeated 
 belligerents to submit. 
 
 The defeated belligerents were not admitted to the 
 League and had nothing to say about it, while the 
 neutral members of the League naturally had no right 
 or authority respecting the terms of peace imposed by 
 the treaty. 
 
 The two processes were tied together, however, by 
 provisions making the League of Nations the agent of 
 the conquerors to see to the execution of the terms im- 
 posed upon the other defeated nations. Thus certain 
 powers were vested in the League including neutrals, 
 regarding the administration of occupied territory, 
 plebiscites, scrutiny of government under mandates. 
 These functions plainly. were to be in exercise of deriva- 
 tive not original authority of the League, which became 
 a mere agent of the belligerents for those purposes. 
 Spain, Holland, Norway, for example, and any organi- 
 zation which represents them can have no authority 
 regarding a plebiscite in Silesia or the government of 
 Danzig, except within the limits of a specific agency 
 created by the nations which had a right won by con- 
 quest or created by treaty between such nations and 
 Germany. 
 
11 
 
 Another peculiarity of the treaty was that, although 
 it contemplated the particination of all the belligerents, 
 it was expressly made separable, by the provision that 
 it should take effect when ratified by any three of the 
 principal powers. 
 
 Accordingly, when the other principal powers ratified 
 the treaty and the United States refused to do so, the 
 terms of peace became binding between Germany and 
 the ratifying powers, although not between Germany 
 and the United States. And the League of Nations, 
 no longer a mere project, came into being and still 
 exists, uniting for specified purposes substantially all 
 the civilized countries except the United States, Ger- 
 many, Eussia, Austria-Hungary, and Turkey. 
 
 The natural tendency of these arrangements and the 
 discussion and controversy which they engendered was 
 towards great delay and confusion. 
 
 The imposition of terms of peace was a matter calling 
 for prompt decision and compliance while the conquer- 
 ing armies were in being and able to compel compliance. 
 Under the distractions and discussions incident to the 
 formation of a League for future peace, this vital process 
 of closing the war dragged along until the Western 
 armies had mainly disappeared ; and many of the issues 
 of the war have passed into a new and prolonged stage 
 of discussion. 
 
 In the meantime, the Supreme Council of the bellig- 
 erents, in which the United States continued entitled 
 to a place which she ceased to fill, has held the center of 
 the international stage trying to bring about the state 
 of peace which the League of Nations was formed to 
 preserve, and at the same time the League has been 
 struggling with its special agency under the treaty 
 without ever having been put by its principals in the 
 position of recognized authority; and the organization 
 for future peace has remained incomplete in the face of 
 continual actual war involving a majority of the people 
 of Europe and the Near East. 
 
 In considering our course as students, lawyers, Amer- 
 ican citizens, united by common interest in the law of 
 nations, I think we must assume that the conditions 
 which I have described are temporary; that before very 
 
12 
 
 long the immediate issues of the war will be settled for 
 the time being and peace will be restored ; that republi- 
 can Germany and her associates will abandon the 
 arrogant assertion of the kriegs raison; that the brutal 
 and cruel despotism which now oppresses the people of 
 Russia will meet the fate which awaits the violation of 
 economic laws and, failing to be rescued by those friends 
 who are coming to its assistance in this and other coun- 
 tries, will fall, and the people of Russia will come to 
 their own. 
 
 Rectifying Treaty Errors 
 
 When these results have been reached, there will re- 
 main the hindrances of different forms and methods 
 favored by the nations within and the nations without 
 the existing League. But the idea that by agreeing at 
 this time to a formula the nations can forever after be 
 united in preventing war by making war seems practi- 
 cally to have been abandoned ; and the remaining differ- 
 ences are not of substance and ought not to prevent the 
 general desire of the civilized world from giving 
 permanent form to institutions to prevent further war. 
 In the long run, from the standpoint of the inter- 
 national lawyer, it does not much matter whether the 
 substance of such institutions is reached by amending 
 an existing agreement or by making a new agreement. 
 
 The necessary things are that there shall be institu- 
 tions adapted to make effective the general civilized 
 public opinion in favor of peace, and that these institu- 
 tions shall be developed naturally from the customs, the 
 habits of thought and action, and the standards of 
 conduct in which civilized nations agree, and that they 
 shall be of such a nature that the habit of recourse to 
 them will have an educational effect and be a means of 
 growth in justice and humanity. 
 
 The covenant of the League, under which so many 
 nations are now included, commits its members fully to 
 these fundamentals, and, while it undertakes to go far- 
 ther and do too much, the evident tendency of its 
 members is to reduce this excess by interpretatioM and 
 amendment and bring it down to the character of real 
 
13 
 
 representation of the common customs and common 
 opinions of civilized peoples in favor of peace. 
 
 On the other hand, the United States is certain to be 
 ready to join in some form, in seeking the same result 
 by these same essential methods. 
 
 That will follow necessarily from the traditional 
 policy of our country and the responsible declarations of 
 our government in both the legislative and the executive 
 branches. 
 
 Considering this field of preventive provisions as sepa- 
 rate and distinct from the temporary exigencies of com- 
 pulsory war settlements, if we examine both the League 
 agreement and the declared policy of the United States, 
 for information as to common purposes, we shall find 
 several different kinds of united action upon which there 
 is practically agreement in principle, with difference 
 only in degree or as to specific means. 
 
 We may pass over, as least important, although ex- 
 tremely useful, provisions for international co-operation 
 in administrative services to facilitate trade and inter- 
 course, or to apply regulations by common consent in 
 matters of common interest. The International Postal 
 Union, the control of wireless telegraphy, the ice patrol 
 of the North Atlantic for the safety of the ships of all 
 nations, are examples of this kind of co-operation. The 
 labor provisions of the Treaty Of Versailles come under 
 the same head, although they were put into the treaty 
 without the discussion and consideration necessary to 
 ascertain whether they ought to be adopted or whether 
 they met a general demand or were adapted to world 
 conditions. Much of the time of the League organiza- 
 tion has been devoted to matters of this character, which 
 are really local, affecting particular groups of countries 
 and which would be arranged, naturally and probably 
 better, between the countries concerned, without burden- 
 ing or involving the countries not concerned. 
 
 Resort to Conferences 
 
 Most important for dealing with immediate danger 
 to international peace is a system of international con- 
 ferences upon questions of international policy. This is 
 
14 
 
 a natural growth from experience. The Algeciras Con- 
 ference is a -type. The Conference in London, which 
 limited the effect of the Balkan wars, is another. It is 
 a general belief that if Sir Edward Grey had secured the 
 conference he sought in July, 1914, the war would have 
 been averted. Whether it be by dispelling misunder- 
 standings, allaying fears, soothing irritation, or by the 
 repressive effect of general adverse opinion, a formal 
 general conference of the principal nations ordinarily 
 leads to a situation in which it is extremely difficult for 
 any nation to begin war. 
 
 The weakness of the practice hitherto has been in the 
 fact that no one had a right to insist upon a conference ; 
 no one was under obligation to attend a conference. The 
 step in advance plainly indicated as the natural devel- 
 opment of this most useful practice, into a systematic 
 institution, is to establish an administrative agency 
 whose duty it shall be to call such a conference in time 
 of threatened danger on suitable request, and to place 
 all nations under obligation to attend the conference 
 when called. Upon the substance of this, there is no 
 disagreement. The Council of the League does this and 
 something more, and the difference is over the something 
 more. The Council of the League is a perpetual, per- 
 manent conference, as distinguished from conferences 
 ad hoc, to be called automatically whenever grave cause 
 arises. No one seems to question that in one way or an- 
 other there should be obligatory conferences. 
 
 Such conferences, however, deal with policy in par- 
 ticular exigencies, and they proceed upon motives of 
 expediency. They are not steps in the development of 
 the rule of right among nations. 
 
 In that direction, also, however, we find elements of 
 general agreement. 
 
 The Permanent Court of Justice 
 
 The covenant of the League of Nations in its pre- 
 amble states one of its objects to be "in order to promote 
 international co-operation and to achieve international 
 peace and security ... by the firm establishment of 
 the understandings of international law, as the actual 
 
15 
 
 rule of conduct among governments"; and in the 14th 
 article it provides: "The Council shall formulate and 
 submit to the members of the League for adoption plans 
 for the establishment of a permanent court of interna- 
 tional justice." 
 
 The American Congress in a statute enacted August 
 29, 1916, expressed the American view in the most 
 solemn form. The statute says: "It is hereby declared 
 to be the policy of the United States to adjust and settle 
 its international disputes through mediation or arbitra- 
 tion, to the end that, war may be honorably avoided. 
 . . . In view of the premises, the President is author- 
 ized and requested to invite, at an appropriate time, not 
 later than the close of the war in Europe, all the great 
 governments of the world to send representatives to a 
 conference which shall be charged with the duty of for- 
 mulating a plan for a court of arbitration or other 
 tribunal, to which disputed questions between nations 
 shall be referred for adjudication and peaceful settle- 
 ment." 
 
 The latest message of the President of the United 
 States to Congress on the 12th of the present month, 
 said: 
 
 "The American aspiration, indeed tlie world aspiration, 
 was an association of nations based upon tlie application of 
 justice and right, binding us in conference and co-operation 
 for the prevention of war and pointing the way to a higher 
 civilization and international fraternity in which all the 
 world might share. ... In the national referendum to 
 which I have adverted, we pledged our efforts toward such 
 an association, and the pledge will be faithfully kept." 
 
 The pledge to which the President plainly referred in 
 the paragraph just quoted, was contained in the Eepub- 
 lican platform, in these words : 
 
 "The Republican Party stands for agreement among the 
 nations to preserve the peace of the world. We believe that 
 such an international association must be based upon inter- 
 national justice, and must provide methods which shall 
 maintain the rule of public right by the development of law 
 and the decision of impartial courts, and which shall secure 
 
16 
 
 instant and general international conference whenever peace 
 shall be threatened by political action, so that the nations 
 pledged to do and insist upon what is just and fair may 
 exercise their influence and power for the prevention of 
 war." 
 
 While this pledge was in the platform of one party, 
 it was not, in fact, the subject of party controversy, and 
 the enormous majority of over seven million votes given 
 to the candidate standing by that platform justifies the 
 assertion that these words state the true attitude of the 
 American people, as that attitude is now certified in the 
 passage which I have quoted from the President's mes- 
 sage to Congress. 
 
 It is apparent that the attitude of the League, and the 
 attitude of America toward this subject do not differ in 
 substance, however much they may differ as to the spe- 
 cific modes of effectuating the common purpose. 
 
 The duty imposed upon the Council of the League, 
 "to formulate and submit plans for the establishment 
 of a permanent court of international justice," has been 
 performed, and a convention establishing such a court 
 has been adopted by the League and has already been 
 ratified by many of its members. It provides for a per- 
 manent court of judges elected for fixed periods, paid 
 fixed salaries, engaging in no other occupation, and 
 bound to proceed under an oath which imposes upon 
 them judicial obligation as distinguished from a sense 
 of diplomatic obligation. To this court all nations may 
 repair for the adjudication of their differences. 
 
 So much for the nations in the League. It is also 
 true that this court is in substance, in everything essen- 
 tial to its character and function, the same court which 
 under Mr. Eoosevelt's administration was urged by the 
 United States upon the Second Conference at The 
 Hague in 1907, and which, at the instance of the United 
 States, was provided for in subsequent treaties between 
 the United States and the prii\cipal European powers, 
 negotiated under Mr. Knox as Secretary of State in Mr. 
 Taft's administration, but not finally consummated 
 when the war intervened. 
 
 Here, plainly, there is agreement in substance, and 
 the difficulties are formal. 
 
17 
 
 The technical commission, which in the summer of 
 1920 drafted the plan for a permanent court that has 
 been adopted by the League, accompanied the plan by a 
 unanimous recommendation as follows: 
 
 The Advisory Conunittee of Jurists, assembled at The 
 Hague to draft a plan for a Permanent Court of Interna- 
 tional Justice, 
 
 Convinced that the security of States and the well-being 
 of peoples urgently require the extension of the empire of 
 law and the development of all international agencies for 
 the administration of justice, 
 
 Recommends : 
 
 I. That a new conference of the nations in continuation 
 of the first two conferences at The Hague be held as soon as 
 practicable for the following purposes : 
 
 1. To restate the established rules of international law, 
 especially, and in the first instance in the fields affected by 
 the events of the recent war. 
 
 2. To formulate and agree upon the amendments and ad- 
 ditions, if any, to the rules of international law shown to be 
 necessary or useful by the events of the war and the changes 
 in the conditions of international life and intercourse which 
 have followed the war. 
 
 3. To endeavor to reconcile divergent views and secure 
 general agreement upon the rules which have been in dis- 
 pute heretofore. 
 
 4. To consider the subjects not now adequately regulated 
 by international law, but as to which the interests of inter- 
 national justice require that rules of law shall be declared 
 and accepted. 
 
 II. That the Institute of International Law, the American 
 Institute of International Law, the Union Juridique Inter- 
 nationale, the International Law Association, and the 
 Iberian Institute of Comparative Law be invited to prepare 
 with such conference or collaboration inter sese as they may 
 deem useful, projects for the work of the Conference to be 
 submitted beforehand to the several governments and laid 
 before the Conference for its consideration and such action 
 as it may find suitable. 
 
 III. That the Conference be named Conference for the 
 Advancement of International Law. 
 
18 
 
 IV. That this conference be followed by further successive 
 conferences at stated intervals to continue the work left 
 unfinished. 
 
 Plainly, these recommendations cannot receive effect 
 now, nor until the present emergencies of an misettled 
 war have been disposed of. But when the time comes, 
 they will point the way to the performance of the object 
 of the League "for the firm establishment of the under- 
 standings of international law," and the identical pur- 
 pose of the people of the United States, so often declared 
 by their representatives. 
 
 It is to be observed that these two — the establishment 
 of a permanent court and the restoration of the authority 
 of international law — are correlative parts of the same 
 world policy, upon the substance of which the civilized 
 nations are in agreement. 
 
 There can be no real court without law to control its 
 judges, and there can be no effective law without insti- 
 tutions for its application to concrete cases. This is the 
 traditional policy of the United States — to establish and 
 extend the law declaring the rules of right conduct ac- 
 cepted by the common judgment of civilization and to 
 substitute in international controversies upon conflict- 
 ing claims of right, impartial judgment under the law 
 in the place of war. 
 
 The existing situation presents difficulties and em- 
 barrassments in arriving at a common understanding 
 regarding the precise modes in which this general world 
 policy shall receive effect; but I, for one, am not willing 
 to assume that the patience and good sense of the di- 
 plomacy of the world, including our own country, will 
 be unequal to the task of so disposing of the formal 
 difficulties as to achieve the great object upon which all 
 are agreed. 
 
 It is further to be observed that conference upon 
 matters of policy, either permanent or occasional, on 
 the one hand, and the establishment of law and judicial 
 disposal of questions of right, on the other hand, are 
 not alternative and opposing hiethods. They are 
 mutually supplemental parts of one and the same 
 scheme to prevent war. Both are methods of bringing 
 
19 
 
 the public opinion of the world to bear upon the settle- 
 ment of controversies. Neither covers the field without 
 the other. Never before has there been such evidence 
 of the power of public opinion as has been afforded by 
 the vast propaganda through which the contending 
 nations in the great war have tried their cases at the bar 
 of public judgment of the world, and have sought to 
 commend iheir conduct to the peoples of other nations. 
 
 No Peace by Compulsion 
 
 The idea that any formifla can be devised under the 
 working of which the world can be made peaceable by 
 compulsion is manifestly in course of abandonment. 
 
 The public opinion of mankind is so mighty a force 
 that it is competent to control the conduct of nations 
 as the public opinion of the community controls the 
 conduct of individuals. 
 
 But it must be an intelligent, informed, and dis- 
 ciplined opinion. The exit of autocracies leaves the 
 direction of foreign relations under the ultimate con- 
 trol of multitudinous, ill-informed, and untrained 
 democracies. In place of dynastic ambitions, the dan- 
 ger of war is now to be found in popular misunder- 
 standings and resentments. 
 
 How are these vast democracies to be justly informed 
 as to the rights and wrongs of controversies, and the 
 fairness of policies? It seldom happens that the great 
 multitude of citizens can argue out from first principles 
 the complicated and difficult questions of right and 
 wrong involved in international relations. It seldom 
 happens that the subject is not obscured by misinforma- 
 tion and misleading suggestion, and by appeals to 
 passion rather than to judgment. The only mode of 
 meeting this great and vital need, dictated by reason 
 and approved by experience, is the establishment of in- 
 stitutions, through which, when strife is not flagrant, 
 the deliberate and unbiased opinion of mankind may 
 declare and agree upon the rules of conduct which we 
 call law, by which in times of excitement judgment may 
 be guided, and by which the peoples may be informed 
 of the limits of their rights and the demands of their 
 duties ; and by the establishment of institutions through 
 
20 
 
 which disputed facts may be determined and false ap- 
 pearance and misinformation may be stripped away 
 and the truth be made known to the good and peaceful 
 peoples of the world by the judgment of impartial and 
 respected tribunals. In such institutions rests the 
 possibility of growth of development for civilization. 
 Through them may be established by usage the habit 
 of respecting law. They may create standards of con- 
 duct under which the thoughts of peoples in controversy 
 will turn habitually to the demonstration of the justice 
 of their position by proof and reason, rather than by 
 threats of violence, so that the time will come when a 
 nation will know that it is discredited by the refusal to 
 maintain the justness of its cause by the procedure of 
 justice. 
 
 This is the work of international law, applied by an 
 international court. 
 
 The process will be slow, but all advance of civiliza- 
 tion is slow. Xot what ultimate object we can attain 
 in our short lives, but what tendencies toward higher 
 standards of conduct in the world we can aid during our 
 generation is the test that determines our duty of 
 service. The conditions which will hinder and delay 
 effective action for the re-establishment of law are many 
 and serious, but we must prepare. When the time for 
 action comes, it must find the results of study, discus- 
 sion and matured thought ready, as material for au- 
 thoritative judgment by the nations, and, meantime, 
 the voice of the least of us may be of some avail, urging 
 that force be repressed and expediency by guided by the 
 public opinion of the world made effective by declared 
 and accepted rules of public right applied by competent 
 and impartial internationar tribunals. 
 
 
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