First World War Centennial

CHAPTER XXVIII

SOME CONCLUDING OBSERVATIONS

INTERNATIONAL law is looked upon from two points of view: that of the com­munity of civilized states; that of the single state with its selfish interests very much in mind.

As a consequence it has been framed and interpreted when framed so as to square with the theory or plan that best suited the con­venience of those to be affected by it. That is why its historic aspect is so marvelously bewildering to the student, who finds it, when peace encourages commercial relations between nations, assuming the dignity of a science; but when the gates of Janus are open, denied by the men who teach it in the universities, except as a dead thing that has been.

In closing a discussion which has had to do not only with matters immediately affecting the United States, but with principles which underlie the well-being of human society, it is fitting to call attention to these facts in order that we may better prepare ourselves to meet further problems. In due course we have considered the doctrines of blockade and contraband, questions dealing with the freedom of the seas, and measures and conditions calculated to affect favorably or unfavorably the future of our own people. It will not be surprising if, in so doing, we have been impressed anew with the truth that neutral rights automatically receive recognition when the interests of the race are uppermost, and that neutral duties are emphasized at times when specific nations control the center of the stage; or—to put it differently—that neutrals gain ground when their point of view, which is generally that of the community of states, commands attention, and lose when it is difficult for them to secure a hearing. Should this be the case, let us hope that it will not encourage pessimism or skepticism, on the ground that the crystallized wisdom of the past, as ex­pressed in international law, is something worthless.

There is surely no adequate reason why it should do so. First, because no one has ever claimed that the law of nations had reached its ultimate form, and second, because everyone has been and is perfectly conver­sant with the fact that it is little more than a codification of various compromises. As a matter of fact a frank appreciation of condi­tions ought to have a stimulating effect and lead to constructive effort. It is a great thing to know what is the matter with past plans that have not carried, and perils that must be guarded against in future building. To the proper spirit, the consciousness of having known that some lines of past endeavor could not and ought not to succeed because of inherent weakness, can be no handicap to new effort. Failures of this nature cor­roborate the correctness of a sane judgment. Why should it be otherwise with the student of international affairs who sincerely desires the ultimate enthronement of law? He has been perfectly conscious that inter­national law was arbitrary, illogical, and founded on wrong premises; that the point of view of the individual state, rather than that of the sisterhood of nations, in normal times and relations, had shaped existing rules and customs. At the same time he has not been ignorant of that economic ethical law—the natural law of Grotius—which, recognized or unrecognized, is always dominant and con­trolling. Should he not therefore welcome an upheaval, like that which is tossing about the present generation, as a cleansing fan which will sweep away much litter, and dear the way for some honest building?

All that is now happening was strangely enough foretold by William Edward Hall (a name held in high reverence by international lawyers), August, 1889, in a preface to his work on the Law of Nations. After noting that recent centuries had indicated a resur­gence of law succeeding the apparent breaking down of restraint in great conflicts, this emi­nent observer points out that something exceptional in the matter of wars may well be anticipated by his contemporaries, in which "questions of half a century will be given all their answers at once," and adds the follow­ing impressive sentences which may well be borne in mind by those who have faith in the ultimate triumph of law:

"If the next war is unscrupulously waged it will also be followed by a reaction toward the strengthening of law:"

"It is a matter of experience that times when International Law has been disregarded have been followed by periods in which the European conscience has done penance."

We have said that international law is looked upon from two points of view. May it now be added, with the expectation that the individualist will agree, that no law of nations is of any value whatever unless the point of view of the single state is subordi­nated to that of the sisterhood of nations? To those who regard all outside of the borders of their native land as "barbarians," this statement may seem absurd, and there will be those who will feel much the same way although they are far from being exclusive, and are only properly patriotic.

However this may be, is there any way of escape? Our fathers recognized the indi­vidual man as free and the arbiter of his own fortunes, but could find no way of securing to him his rights without establishing a govern­ment of laws. It is emphatically the same way with the nations. Each constituent fac­tor in the Society of States is jealous of its independence and impatient of dictation. Notwithstanding this fact it is absolutely dependent upon a reign of law if it is to be protected from the aggression of others and to maintain those privileges which it claims. To secure such conditions it must voluntarily surrender something of its own will to the expressed dictation of its peers which are none less than sovereign states themselves.

It is because this has not been done in the past that the law of nations has proved so unsatisfactory in a crisis. Where municipal law, while protecting each citizen, has hedged him about so that the conduct of his affairs has been somewhat modified by the normal requirements of the public; international law has permitted individual states either as belligerents, or as historic nations with a record for belligerency, to dictate to all other sovereignties either through unnatural rules and customs or with the "mailed fist." One does not have to be wise in philosophy or affairs to realize how insufficient and un­reasonable is such a code—nor how impos­sible when the welfare of neutral Powers is at stake.

In so far, then, as the law of nations has heretofore contained in itself that which was flagrantly bad and unstable is there not cause for genuine rejoicing because its fallacies have been exposed and because many of its arbitrary creations have been wrecked? Such exposure and destruction will be found to have left unscorched rules founded on eternal principles, however tem­porarily flouted and mishandled by the unscrupulous. Sometimes more is accom­plished by tearing down that which is in­jurious, than in erecting that which is weakly good. Aside from the positive betterment of conditions that comes about with the correction of error, the occasion gives an opportunity for the construction of something stable and permanent.

Shall we not hope that the close of the present conflict in Europe will find the United States:

1. Reconciled to the breaking down of principles not founded upon the law of nations.

2. Insistent that a corrected and purified international law shall safeguard the normal relations of states.

3. Prepared, so that with the next great conflict it can forcefully prevent the breach of laws which directly or indirectly affect its welfare.

To Hautefeuille, whose frequent references to the primary law must be justified in these days when nations have had to fall back on fundamentals, the last duty and right—devoir et adroit—of neutrals lies in an un­flinching resistance to every belligerent aggression, and in a Preparedness that will make such resistance effective.

During the present war the United States has perhaps properly confined itself to repre­sentations and protestations. These are well enough in their place, but international law will never assume the position which belongs to it, nor non-belligerent nations secure their rights, until neutrals are themselves pre­pared single-handed or in company to join battle in vindication of principles to which they are committed.