HUDSON, REFUTING ARGUMENTS OF YALE LAW PROFESSOR, DEFENDS WORLD COURT

Manley O. Hudson '07, Bemis Professor of international Law, has written a special article on the World Court for the Yale Daily News. The recent charges made by Professor Edwin M. Borchard of the Yale Law School are dealt with at length, and Professor Hudson emphasizes the importance of America's entrance into the World Court.

Parts of Professor Hudson's article in the Yale Daily News are herewith reprinted.

I am led to address myself to this question by an article which has recently appeared by my learned friend and colleague, Professor Edwin M. Borchard of the Yale Law School. In the CRIMSON, his article was given the caption "Question of Joining World Court is of Trivial Importance," and while he might disavow such a conclusion the general emphasis of what he wrote was certainly in that direction.

I think we would do well to go over the situation to see just how important the World Court is in the international life of our time. A second enquiry may be, how important is it that the United States should give the Court its support? Now I think we need not exaggerate in answering either question. It can only be unfortunate that some people, notably President Harding, have greatly over-stated the significance of the Court. That has been true also of the League of Nations, and I find myself frequently trying to overcome the discouragement of people to whom the League was wildly oversold in the hey-days of the war.

Court Not Substitute for War

The World Court has a distinct relation to the problem of peace, as I view it. Do not understand me to say that it has ever prevented a war, or that it ever will. That I do not know. I do not see how anyone can say, one way or another. It is perfectly true, as Mr. Borchard suggested, that the usual questions which the World Court may handle are not likely to be those which may lead to war. In the main, they will be legal questions about which nations will disagree, which may even contribute to friction, but which would seldom be inclined to lead to war. The larger political differences which occupy headlines, which give us the scares, which feed the fire-eaters, will not often be susceptible of statement in terms of a legal question. So let us agree at once, that the World Court is not a certain substitute for war.

Yet our problem of peace is not a matter of finding some cure-all for war. We do not seek a nostrum. We cannot look for a panacea. But we must develop a process of dealing with situations as they arise by some orderly method. We must do what we can, albeit our powers may be limited, to build a law and legal institutions to which nations may appeal instead of allowing their differences to fester, to smart and to drag them apart. We must do this, at any rate, if we want our international society to be orderly and peaceful.

World Court Essential to Order

Now, what is the place of the World Court in the picture? Just this--it is a clear essential of any system of international law and order. It is a necessary agency for developing international law. It is a valuable aid to the Council of the League of Nations in handling international disputes. It is an ever-ready help in time of trouble to harassed statesmen who are pressed by inflamed opinion and who desire some way out, some forum to go to, some talking point to put forward.

I am free to say that I should have far less hope for a significant product of the Court's functioning if we did not have also the League of Nations. For instance, the Court may give advisory opinions requested by the Council of the League of Nations. Senator Borah has been opposing this function, and apparently wants the United States to say that they must be abolished. Why? Because they don't work well? He does not say that. Indeed, I do not see how any informed student could say it. The fact that the United States Supreme Court does not give advisory opinions has led some people to shy at the practice.

Advisory Function Useful

What would happen to our efforts if every country insisted on making a World Court follow the practice of its own Supreme Court? Senator Borah says that this advisory function reduces the Court to the position of a legal advisor to the Council and subjects it to political influence. I have searched the record of the four years' work and the eighteen cases already handled and I have not found the slightest foundation for such a statement. The Council has its own legal advisers. I myself have served in the legal section of its Secretariat, and I know something of how its work is done. But in four years, it has asked the Court for advisory opinions only in cases of actual disputes, and in each instance the Court has acted precisely as it would have done in a contested case.

In my judgement this advisory function makes the Court far more useful than it would be without it. It is far less subject to Mr. Borchard's criticism that it only deals with things that do not matter. I think it would be robbed of fully half of its capacity for service if it were deprived of this power. I see no objection to President Coolidge's suggestion that the United States state that it will not be bound by advisory opinions. That would be true anyway. No state is bound. They are advisory. But I hope the Senate will not go beyond this.

Now for the second question: is it important that the United States give its support to the Court? First, I must say that it is less important today than when President Harding and Secretary Hughes proposed this almost three years ago. For during this interim the Court has got on its feel. It has succeeded in entrenching itself. It has won prestige and confidence among the lawyers of all countries. It has acquitted itself well. It has found itself. Its future new seems secure. It does not lack cases, it does not lack friends, it does not lack funds. Forty-eight other nations have built it, have nurtured it, have given proof of their intention to keep it going. That was not true in February, 1923, when President Harding asked the Senate's advice and consent.

U. S. Cast Away Golden Opportunity

Now in the present situation, from the point of view of world peace, it does not seem very vital that the United States should act. We shall not greatly change the situation by giving support to the Court. The Court will not be busier, immediately. It might gain something in prestige, but that can easily be over-stated. America had a golden opportunity at the end of the War to take part in establishing this Court, but we threw it away. While we were talking and voting for "an association of nations," 48 other states were building this Court on solid foundations.

While we have been making up our minds about President Harding's proposal, 14 other peoples have been using the Court. In four years, Albania, the British Empire, Bulgaria, Czechoslovakia, Danzig, Finland, France, Germany, Greece, Italy, Japan, Poland, the Serb-Croat-Slovene States, and Turkey, have had their representatives arguing before the Court. Many other states have made treaties agreeing to use it. So the situation is not that the rest of the world is hanging breathless on what the United States may do. If in previous periods the world has looked to us to set the example, that is true no longer. We have not held up the procession. It has left us behind.

But our action may have a great importance from our own point of view, nonetheless. Again, I must speak a word of caution. The United States will not be making a great sacrifice for peace when it gives the support which is being proposed. We can now go before the Court with a dispute if the other party agrees. The 48 other States, have been kind enough to arrange that for us, as they did for Germany and Russia and Turkey. But it is not being suggested that we agree to use the Court. It is suggested only that we agree to help to maintain it, that we agree to pay some $40,000 a year to help to pay its bills. We should gain the privilege of participating more fully in the choice of the judges. Our consent would be necessary for amending the Court's statute. But we should not be taking on any specific obligation except that of paying our share of the expenses. We could use the Court then precisely as we can now. We should be no more bound to use it, though we should have some greater moral responsibility to keep it going. So from our own point of view, the situation would not be greatly changed.

U. S. Must Have World Position

Yet I think it is very important to the United States that its support be given, for a wholly different reason. We need to find a place for ourselves in organized world society. We need to range ourselves on the side of law and order in international relations. We need to escape from the tendency to say that while other peoples must pay regard to what the community thinks, we shall always decide for ourselves.

I do not mean that we have today no part in international organization. For fifty years, we have played our role in a league of nations which now happily includes nearly all the peoples of the world the Universal Postal Union. We have even begun to feel our way toward some method of sharing in all the cooperation now under way at Geneva. But in the big advance since the war, we who stood out most valiantly for international law and order while we were a young, struggling nation, have not only not been able to keep our leadership, we have ceased for a time even to follow. To save our position among the states of the world, we must at least support the new Court. It is not altru- ism that I counsel. It is not helping Europe. It is not sacrifice for the general good. It is selfishness for America. It is our own national self-respect.

Practical Needs to Be Met

And there are some practical needs to be met. We have made little progress in arbitration since the war. Other countries have made much. In June, 1924, we signed an arbitration treaty with Sweden which followed the old style of reserving questions of national honor and vital interest. As M. Hymans recently told the Belgian Parliament, that formula is outworn. But we have been held back by our failure to take part in the current work of organization.

We have recently agreed to arbitrate a dispute with the Netherlands concerning an island in the Philippine archipelago; it might have gone to the new Court, but we sent it to a single arbitrator in his capacity as a member of the old Permanent Court of Arbitration, though he happens to be President of the World Court. We have recently renewed numerous old arbitration treaties, agreeing that disputes will be sent to the World Court instead of the old Permanent Court of Arbitration, if the Senate consents to President Harding's proposal. I have no doubt that when the United States gives its support to the World Court, we shall make progress in arranging our system of arbitration on a much sounder and more modern basis.

The question therefore seems so important to me that I should regard it as nothing short of tragic if President Harding's proposal should fail. I say this first of all because of my interest in the development of international law. But I say it also because of my interest in America and her having a place in the sun. For a generation we exhorted the world to build a court. Today, I think the problem is this Court or none. I cannot imagine success for a new effort. I think it comes with bad grace for us to propose it. If we would live up to our professions in the Hague Conferences and during the War, we must put our moral support behind the Court that exists, and announce to the world that we applaud the gain that has been made.

"Let Us Build on What Exists"

For three years, amendments and changes have been proposed, only to fall to the ground. If the United States alone could build a world court, we should not have to pay regard to how people in other countries think. Some of our statesmen have talked as if that were the case. Professor Brierly, who teaches international law at Oxford, recently said of the amendments in the Senate that "only the eminence of the critics saves them from the suspicion of frivolity." Let us build on what exists, and let us save America from the reproach which our delay is heaping upon us.

The generation of men who are now in college may count themselves fortunate to have an opportunity to work for the support of the World Court. Fortunately many of them will some day be able to look back on this period of struggle for world organization, and to see in perspective the fruits which will have come out of it. I entertain little doubt that they will then regard America's delay in accepting both the World Court and the League of Nations as we now regard Rhode Island's delay in accepting the Constitution of the United States