Prologue
President J. Reuben Clark, Jr., spent his professional career, spanning some twenty-seven years, as an international lawyer. From the time of his graduation from the Columbia Law School in 1906 and his appointment as assistant Solicitor (an assistant legal adviser in the Department of State) in the same year, to his appointment as second counselor in the First Presidency in 1933 following his resignation as Ambassador to Mexico, President Clark devoted himself almost exclusively to the problems of international law. His experience during these years developed in him a concern for particular issues which remain central to a determination of the nature of the international system.
Basic to the other major international issues upon which President Clark worked as an international lawyer was his conception of an optimum international system. He opposed any system which by alliance, intervention, balance of power, or particular international institution sought to accomplish big-power domination of smaller states, the enforcement of peace by the major powers, or the forcible perpetuation of the status quo. Upon this ground he opposed the techniques employed at earlier times in history by the “Grand Design” of Elizabeth I and Henry IV, the Congress of Vienna and the Holy Alliance, and the enforcement provisions of the Covenant of the League of Nations as well as those other provisions of the Versailles settlement which he thought maintained the position of France, and to a lesser extent those of Great Britain and Russia, at the expense of conquered Germany.
His views of the proper place for the United States in world affairs stemmed both from his perception of the ideal international system and from his understanding of the particular role this country had played and had yet to perform according to Mormon theology. He opposed interventionism, colonialism, and imperialism, and had a strikingly current recognition of the limits of this country’s ability to direct the course of world history by force of arms.
President Clark opposed war as a means of dispute resolution with a moral fervor that lasted throughout his life. He actively worked for the outlawry of war and for the development of techniques and institutions of peaceful settlement of disputes, particularly that of arbitration. He provided expert leadership for several disarmament conferences and was active in seeking development and reformation of the laws of war proscribing the use of certain weapons in war and the prohibition of military activity against civilian populations.
This essay will trace briefly the professional career of President J. Reuben Clark, Jr., as an international lawyer and will then treat, in more detail, those major international legal issues upon which he worked and wrote. Substantial quotations from his writings will be employed to permit the reader to determine for himself, apart from the interpretation and analysis which will also be offered, President Clark’s position on the leading issues of his time.
Professional Biographical Highlights
While a student at the Columbia Law School (1903–06), President Clark assisted Professor James Brown Scott in the compilation of a casebook on quasi-contracts. When Scott became Solicitor in the Department of State, he employed President Clark as a research assistant in the preparation of two volumes on the law of equity. President Clark’s relationship with Scott led to his appointment as an assistant solicitor following graduation from law school. His first substantial assignment was to work under Secretary of State Elihu Root on the Citizenship Act of 1906. President Clark prepared a monograph on citizenship which was incorporated into the final report of a special board constituted in accordance with a joint resolution of Congress to study citizenship, expatriation, and protection of citizens abroad. This report became the reference work for the Bureau of Naturalization. Perhaps more typical of his routine during this early period was his work on the Russian extradition cases.
President Taft, on the recommendation of Secretary of State Philander C. Knox, appointed President Clark Solicitor for the Department of State in July 1910. He held this position for three years. All legal questions arising in connection with the work of the Department of State, both as they affected the government of the United States and as they affected other governments, were referred to him for opinion.
Much of the work of the Solicitor’s office at this time concerned claims made by the United States against foreign states and their nationals. President Clark devoted a major portion of his efforts to this area of the law. Between 1909 and 1913 he was responsible personally for $2,330,000 in awards received by the United States from international tribunals for injuries suffered by American citizens. The most noted example of President Clark’s work on international claims was the Alsop case, which concerned a Chilean expropriation of several American-owned corporations. Secretary Knox assigned President Clark to head the diplomatic negotiations leading to the accomplishment of an agreement upon a protocol under which the matter was referred to arbitration, the King of England acting as “Royal Amiable Compositeur.” President Clark was then charged with the preparation and presentation of the case. The King of England awarded the United States $905,000—one of the largest international awards of the time.
While Solicitor, President Clark assisted in the drafting of our 1911 Treaty of Peace and Commerce with Japan; our loan treaties with Honduras and Nicaragua; and the drafting of the Knox-Bryce arbitration treaties with Great Britain and France. During this period he also drafted the influential memorandum, “The Right to Protect Citizens in Foreign Countries by Landing Forces.”
President Clark was active during this period in several assignments in addition to his duties as Solicitor. In 1911 he was appointed a member of the Committee to Report on Assistance of Red Cross Societies in Civil Warfare. In this capacity, he prepared a memorandum analyzing the role of the Red Cross in situations of civil strife and proposed a plan for Red Cross assistance to both sides in cases of insurrection, revolution, or civil warfare. In 1912, he was chosen to chair the American Preparatory Committee to represent the United States on the International Preparatory Committee for the Third Hague Conference, scheduled to be held sometime in 1915. The Conference, however, was aborted by the outbreak of hostilities in Europe in 1914. President Clark was elected a member of the American Society for Judicial Settlement of International Disputes during the same year of his earlier appointment. This concept—the peaceful resolution of international disputes, particularly through judicial techniques—was to remain a central passion for President Clark throughout his life. His interest in arbitral techniques for dispute resolution was a recurrent theme in speeches and articles throughout all those active years in Church leadership long after his formal career as an international lawyer had ended.
In 1913, President Clark was appointed General Counsel for the United States before the Tribunal of Arbitration created three years earlier by a special agreement between the United States and Great Britain. He was charged as Counsel with the management and presentation of legal arguments and the treatment of questions of law and evidence before the Commission.
President Clark resigned his position as Solicitor for the Department of State later that year and established a private law practice. Public service in international law nevertheless continued to consume most of his time. In 1914, he was appointed General Counsel for the United States before the American-British Claims Commission. It was at this time that he became acquainted with Mr. Dwight Morrow, later to become Ambassador to Mexico. A close friendship developed between them which later led to President clark’s serving as legal adviser to Mr. Morrow in Mexico.
President Clark was commissioned a Major in the Judge Advocate General Officers’ Reserve Corps in 1917 and was first assigned to the United States Attorney General, Thomas Watt Gregory. During this time President Clark edited a book entitled Emergency Legislation, which analyzed the relative roles of the executive and legislative branches of the federal government in time of war. Later, after appointment as Adjutant to the Provost Marshall General, President Clark was responsible for the preparation of the official legal position of that office on a varied and important list of international legal questions.
After World War I, Under Secretary Fred Morris Dearing of the Department of State asked President Clark to make a detailed analysis of the Treaty of Versailles. The result, entitled Data on the German Peace Treaty, was presented by Secretary of State Knox to the Senate Committee on Foreign Relations in August of 1919. President Clark succinctly stated his opinion of those portions of the Treaty dealing with the relationship of the Allied Powers and conquered Germany:
It would be difficult for me to find language which would sufficiently express my abhorrence. . . . This alliance idea is founded on the general principle—it seems to me—of completely crushing and actually making subject the German people. . . . To enslave this entire country is so iniquitous a thing, that modern civilization (to say nothing of the precepts of Christianity) cannot tolerate it.
President Clark maintained a private practice in New York, Washington, D.C., and Salt Lake City from 1913 through 1926. Although he was technically involved in private law practice, his influence, as has been noted, was manifest in the international arena. First, his practice per se was mainly related to private claims of American citizens against foreign countries. Furthermore, he was active in the national dialogue regarding the United States participation in the League of Nations in 1919–20. During Senatorial debate on this matter, President Clark supplied data and was an adviser to Senator Philander C. Knox of Pennsylvania, formerly Secretary of State in the Taft Administration, and Senator Borah of Idaho in their campaign against the League. It should be noted, however, that although he was “unalterably opposed to the League,” President Clark later participated in several conferences held under the auspices of the League of Nations, the most prominent of which was the 1921 Washington Conference on the Limitation of Armament.
Along with his lifelong devotion to the development of techniques of peaceful resolution of disputes and his opposition to aggressive war, two other related issues, disarmament and the modernization and implementation of the laws of war, were of paramount concern to President Clark during and after his formal professional career. Secretary of State Charles Evans Hughes called President Clark from his private practice in September 1921 to serve as special counsel to the State Department in connection with the Conference on the Limitation of Armament. He contributed not only to the preparation of the Conference itself, but influenced the State Department position relative to the various issues on disarmament under negotiation. President Clark received a further appointment as Expert Assistant to the commissioners appointed by the President to represent the government at the Conference, just prior to its inception. Secretary Hughes additionally asked President Clark to serve as his special assistant in connection with the Conference. President Clark regarded the final results of the Conference limiting naval vessels and weaponry of the United States, Japan, Great Britain, France, and Italy as one of the major accomplishments of disarmament negotiations to that time.
Secretary Hughes appointed President Clark counsel for the British-American Claims Commission soon after the Washington Conference of 1921. He served intermittently in this capacity from 1922 to 1926. It was during this period that he was consulting counsel for the United States Government in the famous Cayuga Indian case, noted, along with the Janes case, in most casebooks on international law. In 1926, President Clark was appointed Agent of the United States for the United States-Mexico General Claims Commission. He was charged as agent with general management and control of the cases and was intermediary between the tribunal and his government. He was named special counsel to the Mixed Claims Commission of the United States and Mexico, later the same year, which again brought President Clark into association with our Ambassador to Mexico, Dwight Morrow.
It was in 1927 that Mr. Morrow asked President Clark to serve as his legal adviser. One of his major accomplishments while in this position was the settlement of the Mexican oil controversy. President Clark, at the request of Secretary of State Frank B. Kellogg, prepared his famous Memorandum on the Monroe Doctrine while he was still counsel for Ambassador Morrow, shortly before Calvin Coolidge appointed him Under Secretary of State in 1928. The Clark Memorandum, one of the most powerful and influential documents against imperial, colonial, or interventionist policies ever drafted by an American in high office, denied the existence of any particular right of the United States to intervene in the affairs of Latin American states. In effect, the (Theodore) Roosevelt Corollary to the Monroe Doctrine was repudiated by the Clark Memorandum. The Memorandum was presented to Congress while President Clark was serving as Under Secretary of State.
President Clark, as Under Secretary of State, was influential in the resolution of several important international issues in addition to shaping the policy of the Department on the Monroe Doctrine. He directed the administrative arrangements and served as adviser to the Preparatory Commission for the Geneva Disarmament Conference, part of the progeny of the Washington Disarmament Conference of 1921. He performed similar functions in relationship to the Preliminaries of the Five-Power Naval Conference to be held at London in 1930. The Department of State, under President Clark’s direction, developed suggestions for further implementing the Treaty for the Renunciation of War (the “Kellogg-Briand Pact,” or “Pact of Paris”) signed at Paris, 27 August 1928. President Clark understood that war could not be abolished by ultimatum or resolution, but he believed that the pact was important as a catalyst to direct and refine the growing sentiment against war toward a concrete standard by which the actions of states could be judged in the future. Proposed accession of the United States to the Statute of the Permanent Court of International Justice was considered at length during President Clark’s tenure as Under Secretary of State; he opposed accession on the grounds that the Court would be dominated by the European Powers simply as an extension of the Versailles apparatus for the continued subjugation of Germany.
Other conferences were held during this period dealing with matters of deep concern to President Clark. The international Conference of American States on Conciliation and Arbitration was held at Washington in 1928, as were the meetings of the Commission of Inquiry and Conciliation following the Chaco dispute between Bolivia and Paraguay, in December of 1928. The Geneva Conventions for (1) the Amelioration of the Conditions of the Wounded and Sick of Armies in the Field and (2) the Treatment of Prisoners of War, were agreed upon the following year. His commitment to the modernization and implementation of the laws of war continued throughout his life. This, along with his lifelong devotion to the development of techniques for peaceful settlement of international disputes, his belief in the efficacy of juridical instruments in the prevention of war, and the accomplishment of agreements on the limitation of armaments were of paramount concern to President Clark during and after his formal professional career.
President Clark was appointed Special Representative with rank of Ambassador Extraordinary and Plenipotentiary at the inauguration of Pascual Ortiz Rubio, President of Mexico, in 1930. Later that year, after Dwight Morrow had been elected to the United States Senate, President Hoover named President Clark Ambassador to Mexico.
In 1933, after his formal retirement from public service, President Clark was appointed Delegate of the United States to the Seventh International Conference of American States (Pan-American Union) held in Montevideo, Uruguay. This Conference was the first to be held during the presidency of Franklin D. Roosevelt, who had, in his inaugural speech, dedicated the United States to the policy of the “Good Neighbor.” This conference was also the first to discuss “non-intervention.” This, of course, was now realistically possible because the United States’ protectorate policy had been modified and the Roosevelt Corollary, in effect, eliminated from the Monroe Doctrine by the Clark Memorandum. President Clark was assigned as a member of the United States delegation to this Conference to the Committee on the Organization of Peace. The Montevideo Conference was able to agree upon techniques for peaceful resolution of disputes between the member states and to create an atmosphere of cooperation due in large part to the non-interventionist tone taken earlier by the United States. The Conference created the Committee of Experts on the Codification of International Law, to which President Clark was appointed in 1936. The goal of codification of international law had long been central to the interest and activity of President Clark. He had served previously as a member of the Advisory Committee of the Harvard University Conference on Codification of International Law of Phi Delta Phi from 1945 to 1950.
The International System
President Clark opposed any international system which proposed to maintain either the international peace or the municipal status quo by the imposition by certain great powers of their will upon other states by means of force. On this basis President Clark criticized the European balance of power system and, most particularly, our participation in it. President Clark did not oppose our participation in the League of Nations because of any disagreement with the concept of a standing conference system for resolving disputes, as he favored such an approach. Rather, he opposed those portions of the Covenant of the League which he considered to be coercive, relying on military alliance rather than diplomatic negotiation in dispute resolution between sovereign states, being pre-eminently in the tradition of earlier alliance systems which sought to enforce the will of the major powers upon the rest of the world. He had a healthy distrust of any international system which proposed to insure the continuation of any state’s government system in the face of internal opposition to such government. His were not the politics of Metternich and Telleyrand.
Woodrow Wilson sponsored the League for precisely the same reason that President Clark opposed it. Wilson also despised the concept of balance of power politics but proposed to replace it with a system of collective security through the enforcement provisions of the Covenant of the League. President Clark, however, considered the dominant effect of the League to be no more than the creation of a modern “Grand Design” of Elizabeth I and Henry IV by which those monarchs attempted to limit the power of Austria, or perhaps a modified “Holy Alliance” through which the Allied Powers attempted to accomplish the same functions two hundred years later against Napoleonic and post-Napoleonic France. This time, of course, the target state, feared and hence circumscribed by the alliance of other European states, was post–World War I Germany.
We must have a world organization for purposes of deliberation, but not for the purposes of waging wars and imposing sanctions. We must bring to bear in the solution of matters of world concern, that moral force of the world of which President Wilson rightly thought so highly. As the situation stands today, we of America have lost our own moral force in the world affairs, a force which was once very great; we speak now only as our brute force may sustain us. There is indeed no moral force left in the world to whose voice the warring nations are as yet willing to hearken. We are now living under the law of the jungle wherein . . . every beast fights to the death for his own life.
President Clark considered the attempts of certain states to enforce the status quo by military alliance, or to enforce their will upon the smaller states, or to perpetuate the dominance of the victors over the vanquished following a war, as being both undesirable and impossible of accomplishment. To him, the League was primarily the tool of the victorious powers to enforce an unjust peace settlement at Versailles upon Germany. This purpose all but guaranteed the failure of the League and the resumption of war in Europe. He thought France, particularly, was attempting to use the League as a means of perpetuating the subjugation of Germany.
Another major objection to the League was its lack of universality. President Clark favored a standing conference system, without military coercive powers, which was completly universal in membership, without distinction between victors and vanquished in war, or friends and enemies as determined by ideology or governmental or economic systems.
President Clark opposed not only the universal collective security system of the League, but also the more traditional military alliance systems common in European politics. He spoke out during World War II against our membership in any “union of states” allied against the Soviet Union. Even during the height of this great world conflagration, his thoughts were upon the nature of the peace which would follow the war’s termination. He noted that one alliance system would only produce another in opposition to it, with results deleterious to peace and security:
It would hardly do to form an open alliance against Russia; and both Britain and ourselves should be wary of an alliance with her. So the device is conceived of a ‘union’ of states, which, however, would tie the nations together more securely than an alliance and be a greater threat to Russia.
But such an alliance would lead, and such a ‘union’ will lead, sooner or later, to a counter-alliance by the other nations that would challenge the power of such a ‘union,’ so meaning either constant war for supremacy or a war of absolute conquest by the one or the other and a consequent enslavement of the conquered. Peace without liberty spells a stalemate in civilization and spiritual development. ‘Union now’ has far more ill than good in it. Nor must America ever become a party to an attempted military domination of the world.
We must have a peace based on justice rather than might, that is, it must be a peace upon terms that will leave all peoples willing if not anxious to carry them out, because that is a peace that is clearly an alternative to another war. No permanent peace will come unless this be done. The men who are fighting and their families want peace now and hereafter; they of America are not primarily concerned with questions of empire holding or empire building.
Along with this peace should come a will to increase the spirituality of the earth’s peoples and a building up of a true spirit of the brotherhood of man by treating all men as brothers, not as enemies nor as menials or inferior orders of creation. Real peace will never come till the Gospel of Christ rules the hearts of men, until we shall yield obedience to the great commandment drawn from the statutes of Israel’s Law-Giver: ‘Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind. This is the first and great commandment. And the second is like unto it, Thou shalt love thy neighbor as thyself. On these two commandments hang all the law and the prophets.’ (Matt. 22:37–40) So spake the Master to the quibbling Pharisee.
Such a peace would eliminate at once all armed force because a rule of force is always a rule of hate on both sides and peace will never be born of hate. This would dispose of international police forces, occupying armies, and all the impossible tasks incident to alien domination. Since war lords know only armies and guns and brute force, none of them of the victor nations would like this, but we their peoples would welcome it as our redemption from bloodshed. For the people love the paths of peace and quiet and the orderly progress of an ever-increasing culture and advancing civilization and a constantly growing spirituality.
A solution by a rule of brute force would discard all the wisdom of the ages and take us clear back to the dawn of civilization. Surely we have grown too much through the generations to make this the best answer we can now make. Surely we shall not try to live through again the whole history of human kind, again using all the devices of armed peace and selfish power that have failed from the beginning.
President Clark did not oppose bilateral or multilateral treaty arrangements under which party states agreed to consult. Nor did he oppose treaty relationships which might lead to joint military action as long as each member state was left free to determine its own reaction to events in accordance with its own constitutional processes. This is seen in his defense of the Four Power Treaty on Insular Possessions in the Pacific. President Clark, then special counsel for the Department of State at the 1921 Conference on the Limitation of Armament, prepared a speech for President Harding to deliver to the Senate preliminary to its advice and consent to the treaty. The speech was eventually delivered by Senator New of Indiana.
Thus the elements out of which has been built the treaty fabric . . . are mutual and essential interests affecting the welfare and peace of the nations concerned and of the world, actual problems calling for solution, unconstrained relinquishment of rights or prerogatives by equal to equal, their being no enemy to be punished or friend to be rewarded, no compulsory measures of enforcement, no power despoiled—surely these are the elements to which we have a right to look and upon which we must depend for further progress in world righteousness. Take away any of them, and the result, whenever it may be, will be of questionable effectiveness and may be of doubtful morality. While man is what he is, it is difficult to see how nations can ever associate themselves together and work in harmony except upon these great elemental bases.
I may first observe [concerning the Four Power Treaty] again that the situation about which the powers are to communicate is one in which they are all concerned. In the next place, the powers concerned, and only those powers, consult together. In the third place, they consult regarding the ‘measures’ to be taken, jointly or severally, to meet the exigencies of the situation, but they are not committed beforehand, and this is the vital point, to any definite measures, nor are they either committed or under any obligation, to concert on any measure at all. That is to say, if and when a proscribed aggressive action were in any jeopardy, or that the peace of the world and the welfare of its peoples would be best served by inaction, there is no obligation here that we should counsel, consent to, or participate in the measures which any other power might propose as necessary. In other words, there is here not the slightest surrender of our sovereignty. . . . We should enter and participate in such a conference uncommitted and with full and complete right to function in the matter before us in strict accordance with our due constitutional order. So that, if the exigencies of the situation finally appeared to require the use of armed force, we might face the question uncompromised, free, and unfettered, to do the thing that then seemed wisest and best, for there is not in this treaty, nor arising from it, any obligation whatever to proceed to this extremity unless and until Congress in the due exercise of its high constitutional sovereign prerogative had fully debated the situation, reached its decision, and formally authorized the waging of war. Is this not the crux of the whole matter, and does it not destroy every vestige of legitimate objection to the Treaty?
[Graphic omitted. See source document.]
President Clark as a young lawyer, 1920–21.
President Clark understood the severely limited utility of the use of force in accomplishing real peace and security, whether such force be accomplished by unilateral means, by treaty of military alliance, or by an institution of universal collective security. One of the most powerful sermons on the nature of peace and order ever given by President Clark was delivered in the Mormon Tabernacle, 4 September 1945, on the occasion of an inter-faith service of thanksgiving for the termination of World War II. In that great address, additional parts of which will be quoted later, President Clark said:
We are to assume, for better or worse, the responsibility for the economic, cultural, intellectual, and spiritual welfare of a hundred odd millions of people, whose very existence indeed lies in our hands. Behind each of these peoples lie ages of traditions and conventions that are part of themselves. Some seem to contemplate that we shall coerce the minds and spirits of these peoples. But God himself does not do that. We must come to them with the law of the brotherhood of men, and with mercy, justice, and the love of peace. For peace will not come to the earth while a hundred odd millions of people seethe with hate and vengeance in their hearts. They must be led, not driven, to peace.
Yet we come to our task of self-assumed duties while hate yet smoulders in our hearts, with some amongst us trying to fan it into flame. We are not without a spirit of conquest, nor has the feeling of retaliation left us.
Hate even to loathing, and revenge, and dire fear, fill the hearts of our enemies. They will dream and plan and conspire to visit upon us even as we have visited upon them. We shall seek to change their dreams; we shall punish those who plan and conspire. This is the rule of conquest.
God will not, cannot come where hate meets hate, and revenge meets revenge. Where these things dwell, righteousness cannot abide, and where righteousness is not, the powers of evil command.
Yet we must build for peace. We want no more war. All humanity calls for this. God has commanded it, for from the first he has said, “love your neighbors as yourselves.” We are all his children—the good, the bad, the fair skin and the dark. He has given to no man the authority to deal with his fellow man otherwise.
While President Clark opposed the League of Nations as being dominantly an alliance system directed at Germany, as the Holy Alliance had been aimed at Napoleonic and post-Napoleonic France, he proposed his own plan for an international system which included a modified form of collective security. His proposal was built upon three existing or suggested institutions or plans: The League of Nations, Senator Borah’s proposal to outlaw war and codify international law, and President Harding’s proposal for United States’ participation in the Permanent Court of International Justice.
President Clark proposed that there be created a world judiciary and world deliberative body, with quasi-legislative functions, which he called a “World Congress.” This two-part paradigm for world unity had in turn two prerequisites. The first was that international war be declared an international crime and the nations waging it international criminals, to be identified and punished by the imposition of economic and military sanctions to be determined by the World Congress. The second was the accomplishment of the codification of international law, as had been proposed earlier by Senator Borah. President Clark put his case for codification:
Obviously a compulsory jurisdiction over international disputes by an international judicial system must be predicated upon an accepted rule of conduct pursuant to which a nation may frame its course and according to which its course when taken may be judged by an international tribunal. No nation may safely submit its conduct to compulsory review when it does not know first what it ought to do or is expected to do under the given circumstances, and second by what rule its conduct under such circumstances will be judged.
This marks the true distinction between justiciable disputes—those concerning matters which may be determined under and in accordance with a recognized rule of law of which the offending nation knew and by which it should have guided its conduct, and non-justiciable disputes—those which concern matters as to which there is no accepted rule by which nations may shape their conduct or by which that conduct may be judged.
Thus a full codification of existing international law is indispensable to the creation of any wise and effective international judicial system with powers of compulsory jurisdiction.
The deliberative World Congress was to be fashioned by enlarging the jurisdiction of the Permanent Court of Arbitration at the Hague. The Congress was to be that body having final decision on the imposition of certain collective security measures against offenders violating agreements outlawing international aggressive war or other portions of the international code. Further, the Congress was to have recommendatory powers both as to general matters coming before it and as to special matters which might from time to time be referred to it by two or more states. The Congress could recommend changes in the international code. It was to elect the members of the World Supreme Court, hereinafter described, from a list of persons nominated by both members and non-members of the Hague tribunal.
The international judicial system was to possess compulsory jurisdiction covering as many subjects as could be agreed upon. The jurisdiction had to be compulsory as to treaty rights and compulsory or voluntary—as could be agreed upon—with respect to international legal rights as described by the code of international law.
The first part of President Clark’s international judicial model was an International Supreme Court. Entirely unconnected with the League of Nations, the Court’s members were to be nominated by the World Congress and elected by the Hague Court Panel. This Court was to possess appellate and original jurisdiction and consist of nine judges serving terms of six years. It had compulsory jurisdiction over all matters to which the parties agreed, including compulsory appellate jurisdiction, except in those situations in which all parties in a particular case agree otherwise. In addition, it had compulsory jurisdiction over any case which had been referred to courts of first instance in which one of the parties afterwards refused to submit to such jurisdiction.
The courts of first instance were to exist so as to localize international justice as much as possible and thereby limit the expense of international litigation. These courts would sit in the capital of the defendant nation and were to be composed of three judges; one chosen by the plaintiff, one by the defendant, and a third chosen by the Supreme Court from among its members, to preside. Because of their ad hoc nature, there were to be no fixed number of these courts. They were to have permissive jurisdiction over questions arising between states and involving the interpretation of treaties and the application of the international code, and compulsory jurisdiction over all questions upon which disputant parties had agreed to arbitrate.
Universality of membership in the system was imperative in the Clark paradigm. He believed that the possibilities of actual universal participation were enhanced by the fact that the plan called for the use of no new concepts, principles, or instrumentalities. As stated previously, President Clark believed that an international convention had to be negotiated and adopted by all nations, declaring international war to be an international crime and the nation waging it to be an international criminal to be punished in accordance with the convention’s provisions. War waged for self-defense, however, would remain justifiable. President Clark realized that war would scarcely be abolished by resolution, but believed that such a convention would crystallize a growing world sentiment against war and establish a standard by which every nation could judge future wars. His plan for a world order system was to be the vehicle for the eventual abolition of war as a means of dispute resolution.
With the advantage of hindsight, it would seem that President Clark, not unlike others of his time on both sides of the controversy over United States’ participation in the League, put more faith in juridical institutions of dispute resolution than such means justified. Like Wilson, Bryan, Borah, Kellogg, Hughes, and Root, President Clark had high and idealistic hopes that the evolutionary experience of the common law in controlling violence could be transferred to the international community. Many of the institutions so constructed came crashing down in the face of the aggressor nations of the 1930s.
President Clark, however, did not rest his proposed international system entirely upon formal juridical or arbitral institutions. He spoke and wrote often concerning the necessity of maintaining and enlarging upon the political and diplomatic techniques of dispute resolution as created by the Hague Conference of 1899 and 1907. He favored the use and the continued institutional development of negotiation, good offices, mediation, conciliation, and commissions of inquiry or fact-finding and often cited the many examples of the successful use of these political and diplomatic techniques of dispute resolution. His plan for world organization included a provision that we “preserve the great provisions of the Hague Convention relating to good offices and mediation and . . . Commissions of Inquiry.”
The Proper Role of the United States in the World Community
President Clark believed that the United States was uniquely prepared and placed—not by chance—to play a particular role in world affairs.
America, multi-raced and multi-national, is by tradition, by geography, by citizenry, by natural sympathy, and by material interest, the great neutral nation of the earth. God has so designed it. Drawn from all races, creeds, and nations, our sympathies run to every oppressed people. Our feelings engaged on opposite sides of great differences, will in their natural course, if held in due and proper restraint, neutralize the one the other. Directed in right channels, this great body of feeling for the one side or the other will ripen into sympathy and love for all our misguided and misled fellowmen who suffer in any cause, and this sympathy and love will run out to all humanity in its woe, thus weakly shadowing the infinite compassion of the Master.
He saw this county as the great peacemaker, standing aloof from the turmoil of European politics, able to exert its influence as a neutral and moral force standing above the balance of power politics within Europe and apart from the colonial or imperial politics between Europe and Asia. Time and again, in Conference or other church-related address, in secular speech or in professional paper, he reiterated his faith in peaceful means of dispute resolution: in good offices, inquiry or fact-finding, mediation, negotiation, conciliation, and especially in juridical techniques, particularly arbitration. Our role as the great mediator, however, could not be performed if we ourselves were a belligerent in the dispute. Our moral position would thereby be destroyed and we would become just another of the many warring and quarrelling states, indistinguishable from the rest by all criteria other than physical strength.
If we shall rebuild our lost moral power and influence by measures such as these which will demonstrate our love for humanity, our justice, our fair-mindedness, our determination to do works of righteousness as God shall make them known to us, we shall then be where at a fitting and promising time we can offer mediation between the two belligerents, and bringing our moral power and influence into action we shall have fair chance to bring an end to the criminal slaughter of our fellowmen and to give birth to a peace that shall be lasting, because just and fair to every people. Surely this is infinitely more honorable, will have in it infinitely more of humanity, will be infinitely nearer to the Master’s way, than sending our young sons overseas to be murdered.
America, the great neutral, will thus become the Peacemaker of the world, which is her manifest destiny if she live the law of peace. Believing as we do that America is Zion, we shall then see the beginning of the fulfillment of the prophecy of Isaiah of old “for out of Zion shall go forth the Law,” a law of justice, mercy, and righteousness, adopted by the nations of their own free will.
After discussing America’s colonial and early national experience, President Clark asserted that the “greatest achievement of the United States in its international relations” had been the “actual implementation on our part of the peaceful adjustment of our international disputes.”
We have only had three wars in all of our history, foreign wars, up until the time that we entered World War I, and those three wars were: the first, the war of 1812, to which I have already alluded; the next, the war with Mexico, and I never like to discuss that very much, I do not think that the war with Mexico shed any very great credit upon us; and the last, the war with Spain, and I have often thought of that as more or less of an accident, for if we had not had that incident in Havana Harbor, the explosion or the blowing up of the Maine, I think we might have gotten away without that one.
Every other dispute we have had with any nation, we have been able to settle by peaceful means.
By our aloofness during all these years, we escaped all the wars in Europe, we did not participate in any of them; we had no alliances; we moved along the course that we thought we should follow, unhampered by the dictation of anybody else.
We took part in the two Hague Conference, we tried to work out some plan there that would enable the nations of the world to settle their disputes peacefully, and to that end enter into conventions providing means and methods for such adjustments.
Then in bilateral treaties with England and France, we tried to put forward the cause of arbitration, by eliminating some of the things that prove most difficult in securing arbitration.
In addition to our example as a state which had been able to settle its disputes by peaceful means, prior to our entry into World War I and excepting the three wars described above, President Clark believed that we had a particular role to play as mediator, as a state whose good offices could only be used by belligerents if we were not in that position ourselves. In a Conference address delivered in October 1939, on the occasion of the beginning of war in Europe, he reiterated his belief of the proper role of the United States in that great conflict:
Our plain duty to humanity and to the cause of peace, our duty to our Creator, require that we preserve the moral force and influence we now have, that we regain what we have lost, and that then we increase to the highest possible point this greatest of all instrumentalities for world peace. If we become parties to this world war, on whatever side, to determine the present issues of the war, we shall lose all this moral power and influence, and sink with the world to the level where just our brute might shall be the sole and only measure of our strength. This would be an appalling prostitution of our heritage.
Later, during World War II and after our entry as a belligerent, President Clark again reviewed our history as a peace-seeking nation and pleaded for a continuation of that tradition.
From the Jay Treaty with Great Britain of 1793, until the recent past, we have encouraged and sought to secure the settlement of international difficulties and disputes by friendly means—by arbitration where we were concerned, and by arbitration and mediation where others only were involved.
In the two Hague Conferences of 1899 and 1907, while other nations busied themselves mostly with conventions dealing with war, our emphasis was placed on perfecting conventions for the pacific settlement of international disputes. This was in line with the lofty purpose of our national diplomacy until after the last Hague Conference. In all these, peace with other members of the society of nations motivated our course.
Nor should we overlook the special efforts of Secretaries Olney, Hay, Knox, and Bryan to negotiate both general and special treaties to promote peace, nor the Kellogg-Briand Pact for the Outlawry of War.
Nor should we end this brief catalogue of some of our efforts without calling attention to the Rush-Bagot notes by which the United States and Great Britain accomplished the limitation of armament on the Great Lakes, an informal agreement that has robbed our Canadian border question of all threat of trouble for more than 130 years.
That, gentlemen, is America’s record, the greatest record for peace made thus far by any nation in the world. Future generations will so appraise it.
He ended his discourse with a powerful plea for a return to peaceful ways and a return to our role as the world’s peace-maker.
I believe that permanent peace will never come into the world from the muzzle of a gun. Guns and bayonets will, in the future as in the past, bring truces, long or short, but never peace that endures.
I believe President Wilson had the true principle when he spoke of the strength and power of the moral force of the world. Moral force in a nation fructifies industry, thrift, goodwill, neighborliness, the friendly intercourse of nations, the peace that all men seek; whereas force is barren.
I believe America’s role in the world is not one of force, but is of that same peaceful intent and act that has characterized the history of the country from its birth till the last third of a century.
I believe that moral force is far more potent than physical force in international relations.
I believe that America should again turn to the promotion of peaceful adjustment of international disputes, which will help us regain the measureless moral force we once possessed, to the regeneration and salvation of the world. We now speak with the strength of physical force only; we have no moral force left.
I believe we should once more turn our brains and our resources to the problem, not of killing men, women, and children, combatant and noncombatant, but of bringing to them more of good living and high thinking.
President Clark’s isolationism did not stem entirely, or perhaps even dominantly, from his secular views on world politics. His political opinions were shaped in large part by a religious faith which was based upon three basic theological postulates, leading in turn to two conclusions for secular politics. First, the Lord has commanded from Sinai and in the Garden, “thou shalt not kill.” Second, that injunction applies to war. Third, we are relieved of this prohibition against war only when God commands that we go to war—and then He will go before us and fight our battles.
33. And again, this is the law that I gave unto mine ancients, that they should not go out into battle against any nation, kindred, tongue, or people, save I, the Lord, commanded them.
34. And if any nation, tongue, or people should proclaim war against them, they should first lift a standard of peace unto that people, nation, or tongue;
35. And if that people did not accept the offering of peace, neither the second nor the third time, they should bring these testimonies before the Lord;
36. Then I, the Lord, would give unto them a commandment, and justify them in going out battle against that nation, tongue, or people.
37. And I, the Lord, would fight their battles, and their children’s battles, and their children’s children’s, until they had avenged themselves on all their enemies, to the third and fourth generation.
One conclusion for international politics followed from this. No alliances should be entered into which in any way trammeled our discretion to go to war only under the conditions specified by the Lord. Finally, though not stemming necessarily from this theological teaching, whenever we chose to go to war we lost our potential role as a neutral peacemaker.
In addition to his abhorrence for war (and most particularly for our participation as a belligerent in any war in which we were not morally obliged to participate), President Clark opposed colonial or imperial intervention of any kind into the affairs of other states. Time and again he inveighed against a busy-body foreign policy. His objection to colonial or imperial intervention covered the entire spectrum of classical nineteenth-century practice which extended into our own century, to economic or political intrusions which resulted in interventionist politics of perhaps a lesser order of magnitude. On this point he maintained a completely consistent position from the beginning of his professional career prior to World War I, to the end of his life.
His position on interventionist politics was clearly affected by his abhorrence of any policy resembling that of Metternich and Talleyrand, or those of Elizabeth I and Henry IV two centuries before, in which groupings of states sought to contain the power of a third state or to dictate the nature of its internal polity, most often to accomplish the maintenance of the status quo. In a background paper prepared in 1914, just prior to the outbreak of World War I and in preparation for the projected Third Hague Conference (which was aborted by the great War), President Clark opposed any scheme similar to the Congress of Vienna; he opposed any concept of a big-power directorate over world events to be accomplished by interventionist policies; he opposed the concept of spheres of influence which granted one or another state particular interventionary prerogatives. Finally, he opposed any form of third party intervention in civil strife except to protect the intervening state’s nationals.
Is the United States prepared to take the position that the existing status quo of the world shall be permanently maintained, and this status quo includes not only the perpetuation of existing states in their extent, boundaries, etc., but it includes and must include, if it would command the adherence of the monarchies of the world, the perpetuation of the existing status quo of government? Is the United States prepared to say that there shall be no further evolution in the monarchic governments of the world? Would they support a treaty which guaranteed the perpetuation of the absolute monarchy of Russia? . . .
. . . Is the United States itself in a position to join in a sort of second Holy Alliance with a view to determining, or participating in a determination of, the internal policies of foreign peoples with whose aims and aspirations the American people may have little in common? Is the United States prepared to say what form of government shall exist in every other country in the world? Is it prepared to say that no people shall rise up and throw off a despotic power, or correct intolerable evils, by force of arms?
Within months of this writing, World War I began. Before peace came, the dynastic, imperial governments in Russia, Austria-Hungary, and Germany were destroyed and the whole governmental fabric of Europe profoundly and irreversibly changed.
In a speech delivered in 1945 before the National Industrial Conference Board in New York, after the conclusion of the Second World War, President Clark reaffirmed his hostility to the spirit of colonial or interventionist influence upon foreign states, whether accomplished by force of arms, as discussed in his writings prior to the First World War, or by economic levers:
With all due respect to our governmental departments and those who man them, one can be reasonably certain that the dominating element in making the loans by government will, in many cases, be the political element, and political loans are always a highly hazardous venture. No loan is likely to be made to the fellow we do not like, no matter how sound he may be financially, and loans will be made to the fellow we do like, without too much scrutiny about his financial responsibility, providing he promises to play our game. Making such loans would mean our control of the domestic policies of every country willing to sell out to us. Thus we would become not only the monitor, but the dictator of every little country in the world, we would be trying to control their national, economic, even cultural life, to meet the ideas of the official staffs and their civilian cronies of our departments. To do this we shall have to dictate who shall govern the borrowing countries.
There is a good deal of talk about remaking the world to conform to our standards of life and living, as to food, clothing, education, economics, culture, government, and what not.
We must give up this idea too many of us have, that our way of life and living is not only the best, but often the only true way of life and living in the world, that we know what everybody else in the world should do and how they should do it. We must come to realize that every race and every people have their own way of doing things, their own standards of life, their own ideals, their own kinds of food and clothing and drink, their own concepts of civil obligation and honor, and their own views as to the kind of government they should have. It is simply ludicrous for us to try to recast all of these into our mold.
Furthermore, we must come to acknowledge and accord to every people, the divinely given right to live their own lives as they wish to live them. We claim this for ourselves; we must yield it to others.
Serious question may be raised regarding the desirability—indeed, the possibility—of America standing completely aloof from European international politics in our time, when there is yet no European “balance.” The existence of two superpowers, with strategic weapons systems which dwarf the military capacity of any other state or grouping of states, changes radically the situation from that which existed when President Clark was engaged in public life. The existence of this relative bipolarity (at least such a condition based upon the criterion of strategic weapons, economic and other forms of power for the moment not considered) caused by two superpowers, one with hegemonial if not imperial interests upon Europe and parts of Asia, may make it impossible for the other to stand by as a neutral. But that was not the condition of the world in all but the last few years of President Clark’s life. The goals for which he strove—the preservation of the integrity of each state from alien intrusion; the resolution of disputes by peaceful means; an avoidance of war—are as much to be desired and sought after now as then.
President Clark’s beliefs—in avoiding balance of power politics in Europe, in maintaining our integrity and morality through neutrality in order to perform the role of objective and detached peacemaker, in avoiding the presumptuousness inherent in exerting any colonial or imperial dominance over others—quite naturally led to one of his most influential acts in shaping the nature of American foreign policy and international relations in this hemisphere.
The Clark Memorandum on the Monroe Doctrine repudiated any political or legal right of the United States, by virtue of the Monroe Doctrine, to intervene in the affairs of Latin American states. This effectively negated the Roosevelt Corollary to the Monroe Doctrine, which doctrine was announced by President Monroe in his annual message in 1823. Basically, the Doctrine declared that the United States would oppose future colonization, or any other form of political control over countries within the Western Hemisphere, by European states. This was qualified by our pledge of non-interference in relations between existing colonies or dependent states in this hemisphere and their metropolitan European states.
The basis of this doctrine, President Clark believed, had been laid by America’s early leaders; their policies assured that this country, and indeed this continent, should enjoy an existence separate from Europe. He noted that the Monroe Doctrine was not international law, but rather, in the words of Elihu Root, “rests upon the right of self-protection and that right is recognized by international law.” The major clarification accomplished by the Clark Memorandum was its emphasis of the fact that the Monroe Doctrine related solely to relationships between Europe on the one side and American states on the other. It did not define relationships between the United States and Latin American States, nor relationships between the Latin American states themselves.
It is [important] to note . . . that the declaration does not apply to purely inter-American relations.
Nor does the declaration purport to lay down any principles that are to govern the interrelationship of the states of this Western Hemisphere as among themselves.
The Doctrine states a case of United States v. Europe, not of United States v. Latin America.
President Clark noted that many situations popularly thought to be covered by the Doctrine in fact were not. For example, the Monroe Doctrine was not hostile to the establishment of monarchical governments in the Americas. Monarchies had been established in Brazil, Haiti, and Mexico without objection by the United States. Our objection to Maximilian’s empire in Mexico had been based primarily on its reliance upon European troops for its maintenance and support. Further, the Doctrine had no application to wars between American states; it was not concerned with the relations between colonies held in Latin America by European states prior to 1823; it had no relevance to wars between metropolitan European states and their colonies established prior to this date; nor was it a pledge by the United States guaranteeing protection of Latin States beyond our unilaterally accomplished decision in a particular situation to do so. The Doctrine did not prohibit European states from waging war on Latin American states nor did it obligate the United States to defend any Latin state engaged in such a war. A final limitation upon the Doctrine, as determined by President Clark, was that it had never received the formal sanction of Congress.
The so-called “Roosevelt Corollary” to the Monroe Doctrine announced the United States’ intention to adjust financial and other difficulties between Latin states and Europe to prevent European states from intervening in this hemisphere in forceful resolution of such disputes. For example, an international legal doctrine of the time, somewhat tenuous then, and more substantially repudiated since, allowed for the forcible collection of debts by certain actions being taken by the lending nation against the debtor nation. Seizure of customs houses occasionally occurred in such situations. President Clark concluded that the policy of the Roosevelt Corollary to intervene before European intervention was not justified by the basic tenets of the Monroe Doctrine.
Finally, President Clark concluded that the Monroe Doctrine was a unilateral pronouncement by the United States, not formally an agreement between the United States and the United Kingdom, or part of conventional international law. It was a statement of policy to be interpreted and applied unilaterally by the United States.
Force and War
President Clark did not view international war as simply an extension of political discourse, but rather as a violation of God’s law unless sanctioned expressly by Him.
Nothing is more unrighteous, more unholy, more un-Godly than man-declared mass-slaughter of his fellowman for an unrighteous cause. It has brought down the wrath of the Almighty in all times. God will visit His vengeance upon all who bring it. The law declared at Sinai was ‘Thou shalt not kill,’ and in the Garden of Gethsemane: ‘All they that take the sword shall perish by the sword.’ With these divine commands deep-embodied in our spiritual consciousness, we can look with no degree of allowance upon the sin of unholy war, and a war to make conquest or to keep conquest already made is such a war.
President Clark attacked as specious and deceptive the reasons usually given for going to war. He did not believe that the world could be made safe for democracy, or freed from want and fear, by means of war. He considered that the real reasons for most wars—from our own war with Mexico to World Wars I and II—were based on greed and lust for power and possessions, leading to imperial wars of conquest.
The love of liberty is a fairly universal passion of humanity when free to express itself. But liberty was never implanted in the hearts of a people from the point of a bayonet, nor will it ever be from the nose of an airbomb. Can we keep a straight face and say that bombers and occupying armies are to bring subjection without fear,—that they will give freedom from fear through fear?
He viewed the natural effects of war—the pain and killing, the brutalizing of a population taught to hate and to kill, the loss of spirituality and the physical and mental degradation procedure by both the battlefield and by the propaganda of hate at home—as being its only real results. After describing the physical cost of World War II in terms of the millions of dead and wounded and the overwhelming destruction of property, President Clark noted the profound spiritual effect of that “apostasy from peace”:
youth and older men to the very depths of desponding atheism. Our whole social structure seems undermined. We are becoming a blaspheming, unchaste, non-Christian, Godless race. Spiritually we seem ripe for another war.
Another result of war, removed from the platitudes about the safety of democracy, or freedoms from want and fear, was an increase in the influence of militaristic thinking, both within our domestic polity and upon our foreign policy. President Clark decried this trend in Conference addresses, secular speeches and in professional writings.
Furthermore, I regret to say, indeed I am almost ashamed to say, that at the moment, our military branches seem in almost complete control of our own government. They appear to dominate Congress, and under the circumstances, we may assume they are in sufficient control of our foreign relations to be able to set the international scene. To us who do not know, it looks clear that we are today getting the same sort of forebodings that preceded the last war. We are not justified in doubting, on the facts we have, that we of the United States are, for the first time in our history, under a real threat from our military arm, and that if the plans of the militarists carry, we shall become as thoroughly militarized as was Germany at her best, or worst. Certain it is we are being generously dosed with that sovereign narcotic, which designing militarists have in the past always administered to their peoples, the doctrine that to ensure peace we must maintain a great army and gigantic armaments. But this ignores, indeed conceals, the unvarying historical fact that big armies have always brought, not peace, but war which has ended in a hate that in due course brings another war.
Our militarists will no more to able to let a great army lie unused than they were able to withhold the use of the atom bomb once they had it, even though some military men are now quoted as saying the war was won before the bombs were dropped on Nagasaki and Hiroshima. Under the threat that Germany was perfecting such a bomb, we were justified in perfecting ours. But it may well be a disaster to civilization for us unnecessarily to have initiated its use. Some of us think it was shameful.
All this is not the way to peace, but to war.
President Clark was one of the early proponents for the outlawry of war. As has been described previously, the outlawry of war was a basic part of his own proposal for an international organization for dispute resolution. However, he believed that several exceptions should be made to any such agreement. In his background writings done in preparation for the Washington Conference on the Limitation of Armaments, held in 1921, President Clark noted four exceptions to his draft proposal for the outlawry of war. First, civil war must remain legal, as it seemed to be on occasion the only way a people could rid themselves of oppressive regimes. Second, he favored an exception permitting the forcible protection of nationals abroad. (This older rule of international law has been under increasing criticism and has substantially atrophied. President Clark noted the possibility of its abuse and decried interventionism under this guise with a fervor unsurpassed by the critics of this rule today.) At the time of his preparation for the Washington Conference, President Clark favored another exception allowing belligerent operations against a state defaulting on an arbitral award. He seemed to retreat from this exception later in his life, however. Finally, and most important to the problem he was then considering—namely, a disarmament treaty—he favored an exception to the outlawry of war to permit belligerent operations for the enforcement of disarmament provisions of a treaty sufficient to preserve the integrity of the agreement.
As would be expected, President Clark supported the Kellogg-Briand Treaty outlawing aggressive war.
There are many causes for international unfriendliness, but the most potent of them all, indeed more potent than all the others combined, is international war. The embers of hate enkindled during such a conflict glow for many years; sometimes a generation must pass before the coals are so dead they may not be fanned into a flame and may become an engulfing conflagration.
Few of us have lost a vivid memory of what those terrible postwar years meant. . . . We should go far before we again invite such an experience. Whatever makes for peace, we should upon the most material considerations—to say nothing of the larger humanitarian and spiritual aspects—support or foster. Secretary Kellogg has made a great move towards peace by negotiating the treaty renouncing war. There are some who will say it goes too far; there are others who will complain it does not go far enough. Whatever may be said on the one side or the other of this difference in view, this may be said for the Treaty itself: it crystallizes the peace sentiment of the world against war. It is a standard around which the influences that make for peace in the world, can hereinafter rally. It will be the acclaim of peace which will, at least sometimes, drown the alarm of war. It is the ‘thou shalt not’ which, becoming operative, will hereafter bring every nation making war, face to face with its blighted word, for judgment by peoples of the world.
President Clark had no illusions about the capacity of an international agreement outlawing war to, in itself, legislate war out of existence. He considered the effect of such a treaty to be worthwhile, however, in its capacity to cause a hardening of public opinion against aggressive war and a refining of international legal thinking on the definition of such a war. (In a similar manner he supported many disarmament agreements accomplished, beginning with the Rush-Bagot agreement, and continuing through the first decades of this century.)
Consistent with his position on the outlawry of war, President Clark believed that title to territory acquired by conquest should not be recognized in international law, a position later to become United States policy, at least for a time, and known as the Stimson Doctrine of Non-Recognition.
. . . if conquest can give a good title to territory, then conquest is a legitimate means of getting good title to territory. This is the unholy rule of force, the unholy rule that ‘might makes right.’
This is the rule that has lain behind every great empire that has ever been built during the whole history of the world; it lies behind every great empire that exists today. There is nothing new in the doctrine, neither in the practice.
Under such a rule, war is and must always be the instrument of the growth of empire. Under such a rule nations rise and fall, as might advances or wanes.
Under such a rule, safety in empire comes only to the power which is dominant in arms and resources.
But such a rule of force, of ‘might makes right,’ is Satan-born. It is not of God.
Obviously no great empire of conquest can sleep quietly and comfortably at nights if the have-nots swagger forth in search of more territory and are willing to fight for it.
Most of the literature in international law and foreign policy dealing with war prevention treats only the supposed origin of wars, that is, their physical beginnings. President Clark understood that many, if not most, international wars have their origins, partially at least, in the nature of the resolution of their predecessors. He noted, in many addresses and writings, that the seeds of World War II were planted at Versailles. Unlike many others who have made the same point, President Clark forecast such a result shortly after the Versailles settlement. This same reasoning caused him to seriously doubt the wisdom of pursuing a policy of “unconditional surrender” against Germany in World War II. He evidently understood that the vacuum created by the complete devastation of Germany would be filled by another European power. The only state sufficiently powerful after the war to accomplish this was the Soviet Union.
Finally, President Clark warned against allowing our victory at the end of World War II to be turned into another spiraling rivalry, this time against the Soviet Union. He recognized the threat that this totalitarian state posed to our country, but still maintained that a peaceful resolution of our differences should be sought:
Between ourselves and our late ally Russia, we are building a jealously, a fear, a rivalry, and a hatred that unless halted will take us into the direst tragedy in the history of the world, in its magnitude, in its physical destructive force, and in its intellectual and spiritual degradation, and possibly even to our annihilation. . . .
We alone in all the world challenge Russia’s aims. She hates and fears us. We hate and are fearful of her. Thus far the two powers seem to plan and scheme only in terms of force. Battles on land, on sea, in the air, are to settle the matter. So far as we of the public know, the two sides have never worked together honestly trying by peaceful means to reach a mutual live-and-let-live understanding. We do not know of even an effort on the part of both parties together, mutually to concede, mutually to put out of view the intent to use force to gain the end sought. Such an effort may have been made, but we do not have the facts. Indeed, we must regretfully admit that our own military establishment seems to be now deliberately planning and preparing for another great war, it must be with Russia, since of the whole world she alone has the power and resources to challenge us, which war both sides plan, it is said, to make the most terrible and destructive of all recorded time.
The Laws of War
The modernization and implementation of the laws of war were central themes in President Clark’s philosophy of international law. This was true not only because he considered the laws of war to be the nucleus and seminal spring of traditional international law, but also because he had an abiding concern for humanity. He believed that the laws of war, as they have developed since the time of Hugo Grotius in the sixteenth century, were but a reflection of the laws of God announced on Sinai and in the Garden of Gethsemane. He observed:
The commandment ‘Thou shalt not kill . . .’ is binding upon every one of God’s children. It speaks to them as individuals; it commands them as associated together in nations . . . it embraces the mass slaughter of war. . . . It forecast the Master’s law of love and forgiveness. . . .
To Peter, striking off with his sword the ear of Malchus, the High Priest’s servant, at the moment of the Savior’s arrest, Jesus said: ‘They that take the sword shall perish with the sword,’ and lastly, ‘Thou shalt love thy neighbor as thyself,’ which James called the ‘Royal Law,’ which Jesus declared was one of the two commandments upon which hung all the law and the prophets.
He believed these prohibitions against violence could be retired only by God’s command. Wars of conquest violated God’s law and the dictates of humanity. President Clark understood that an agreement prohibiting aggressive war, like a disarmament agreement, would not get to the basic elements of war causation. But these approaches—seeking agreements to outlaw war and to limit its implements— were within the range of accomplishment by government while more basic remedies were not:
Accordingly a mere treaty provision, however broad-sweeping or condemnatory, cannot change the great fundamental ambition for power and dominion, all of which are beyond the reach of mere government, being lodged with the people themselves, effort for advancement in the elimination of war must be focused upon that which gives promise of yielding to treaty stipulation and which generally is wholly within the power of government, that is to say, upon the making of an undertaking between governments hereafter to regard international war as an illegal instrument for working out aggressive national aims and to consider the adjustments secured by a victor in such a war as void and of no force or effect,—or as it is sometimes expressed to outlaw international war and nullify the aggressor’s triumphs.
To be justified in going to war in self-defense, a nation must be foreclosed from all other alternatives; it must truly be that nation’s last resort.
President Clark was adamant in his belief that once war had begun, “there are certain things that human beings would not do to their fellows.” This statement reflects his deep belief in the efficacy of the humanitarian laws imposed on the parties in armed conflict. It is this aspect of the laws of war that dominated his writing and speeches on the subject. He was impressed with the development and application of these laws from the time of Hugo Grotius until the First World War, but was troubled by the change of behavior since 1914.
But as to these eternal principles, where do we now stand? ‘Thou shalt not kill.’ We still frown on murder, but do I need to tell you in what small esteem life is now held? . . . The military staffs of all nations, including our own, fresh from bloody battlefields, now plot and work night and day, even more feverishly than before World War I, and without the dissimulation that preceded that planning and scheming for the destruction, the literal extermination of every people in the world except their own and their favored friends. God’s law is: ‘Thou shalt not kill,’ and He made no exceptions either directly or by implication, either as individuals or nations except by His special direction.
President Clark believed that it was every nation’s responsibility to establish human dignity and the principles of Christianity to international affairs. Accordingly, the laws of war loomed large in his conceptualization of international law and its role in the world. A summary of the history of the laws of war is helpful in appreciating President Clark’s attitude toward them.
Although the wars fought in antiquity could be characterized generally as being brutal, each civilization developed rules or law governing its military’s conduct in war. Perhaps the most advanced example comes from ancient India, where, although the Brahmans formulated maxims similar to Machiavelli’s Prince, they (unlike the latter) recommended moderation and even liberality to the vanquished. Their “laws of warfare,” set down in the “Code of Manu” (Manava-Dharma-Sastra) seem to have been inspired by a genuine regard for the rights of humanity. Humane and even chivalrous treatment of combatants, as well as non-combatants, was recommended.
Although wars in the Middle Ages are considered to be the epitome of barbarism insofar as the laws of war are concerned, there were some significant advances made during this period. St. Augustine (A.D. 354–430) revived the ancient Roman doctrine of the “just war,” and Tertullian (A.D. 160–230) made strenuous objection to war and its atrocities on the basis of the scriptures. Later, Isadore of Seville (560–636) and, more importantly, Thomas Aquinas (1223–1274) advanced these concepts. The Roman Catholic Church developed a comprehensive legal system which was codified and came to be know as Corpus Juris Canonici. These laws, of course, were neither national nor international, but rather supra-national or universal. They did, nevertheless, relate directly to the historical development of the laws of war as they are know today. Because of the nature of political organization during the Middle Ages, feuds or “private wars” were rampant. When the writers of the period discussed war, they envisaged these feuds rather than the national wars that we have experienced. The Roman Catholic Church did accept the legitimacy of the feuds, but attempted to control or at least mitigate them by means of the principle of the “Truce of God.” These truces were days during which no fighting could occur. In A.D. 1041, these were expanded by the French Prelates to last from sunset Wednesday until sunrise Monday; they had become general ecclesiastical law by the Third Lateran Council in 1179.
In addition to regulating the time and duration of battle, the Church attempted to control its ferocity and the treatment of combatants and prisoners by forbidding the use of the crossbow and arch, and prohibiting the enslavement of Christian prisoners of war. Notwithstanding these few advances, medieval war was replete with excesses of savagery and lack of control.
Whatever degree of regulation of war there had been completely disintegrated with the decentralization of the Communitas Christiana. The emergence of the secular “nation-state” relatively unaffected by the limitations placed on the conduct of war by the Church, the development of new instrumentalities and methods of war, the deep ideological split between Catholics and Protestants, resulted in war being conducted with the greatest cruelty. This is the period to which President Clark often referred when he spoke of the extreme savagery of war in the Middle Ages.
Hugo Grotius, commonly know as the “father of international law,” shocked by the excesses of the Thirty Years War, became convinced of the need for the development of laws of war. He subsequently wrote his classic De Jure Belli et Pacis and in its preface declared his motivation:
I saw prevailing throughout the Christian world a license in making war of which even barbarous nations would have been ashamed; recourse being had to arms for slight reason or no reasons; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint.
From that time until 1914, the laws of war occupied a prominent place in the teaching and practice of international law. President Clark considered this emphasis to be in large part responsible for some of the major advances of civilization. He believed that one of these significant achievements was a sustained effort to maintain the “distinction between combatants and noncombatants. War was to be waged between armies and not between civilian peoples. Statesmen and nations sought to relieve non-combatants from the woes, cruelties, and horrors of war.”
President Clark was proud of the American role in the development and progress of the laws of war. Up to the time of the American Civil War, there had not been a modern written code regulating war between nation-states. In 1863 Francis Lieber prepared the “Instructions for Government of Armies of the United States in the Field.” These rules provided, inter alia: that bombardment, without notice, of places where there were civilian peoples was forbidden; for the protection of museums, of libraries, of scientific institutions; that undefended towns were not to be bombarded and civilians were to be spared; that old men, women, children, and the wounded were to receive the maximum possible protection; that wanton violence, unauthorized destruction of property, robbery, pillage, rape, wounding or killing inhabitants were prohibited under penalty of death. These rules were adopted by several nations, as they modeled their “war codes” after Lieber’s. In addition, several international peace conferences, notably the two Hague conferences of 1899 and 1907, followed the Lieber example of regulating war.
[Graphic omitted. See source document.]
President Clark in 1959. Photograph by courtesy of J. Reuben Clark, III.
President Clark honored this effort to lessen the savagery of war and believed it represented the essence of Christianity. He was proud that “in this march of humanity for a higher level of international life and relations among the peoples of the earth the United States took a leading and glorious part.” He was distressed, however, that in his time “the world had gone back a half a millennium in its conduct of international relations in time of war, and that no nation has to bear a greater blame for this than our own.” He believed that Grotius’ prefatory statement applied as forcefully today as when it was written. “In World War One we began to sag back into barbarism.” In World War II,
. . . all distinctions between combatants and non-combatants disappeared. This was inevitably so, if they used the type of weapons they employed. So we had many towns destroyed in England. . . . There were many towns in Germany equally destroyed, including Berlin, and particularly Dresden and as to this last city, some of our people, Americans, are affirming that the bombardment of Dresden (where it is said we killed in two nights more than two hundred fifty thousand people, men, women and children, including wounded who had been collected there) was in violation of a tacit understanding that if Germany would leave Oxford and Cambridge alone, we would not touch Dresden. I do not know how true this report is, but we know the result.
President Clark called for the reimposition of law upon international violence even during time of war.
Is it not time in the world for a curb to be placed upon the narrow, fiendish concepts of militarists, and their evil lusts and passions by which they are constantly driven to plan and carry out ever increasing woe, misery, destruction, and slaughter of the aged, the infirm, the sick, the crippled? There are elements of good that must control the base in men, even in war. How long will their ears be deaf to the cries of the Christian conscience of the world, and to their own better instincts as men? How long will they challenge the eternal principle voiced by the Master two millenniums ago: ‘With what measure ye mete, it shall be measured to you again?’ And again: ‘Put up again thy sword into his place; for all they that take the sword shall perish with the sword.’
Thus, President Clark deplored the concept of “military necessity” and total war. In the face of the laws of God and the dictates of humanity, “that man must refrain . . . from using weapons that viciously maim and torture their victims,” militarists operated under the assumption that they must be prepared to do whatever is necessary to gain victory. “In fact,” he explained, “it is said that the employment of poison gas was suggested to President Roosevelt by his military advisors, but he refused.”
To President Clark, the ultimate acceptance of this philosophy and accordingly the ultimate violation of the laws of war was the use of the atom bomb.
We have been among the leaders in developing the great principles of the laws of war, that went to the humanizing of war, most of which went into discard when we entered World War II. We had developed since the time of Grotius, the doctrines that tended to control and limit the destruction of non-combatants, old men, women, children. All of that went by the boards at Hiroshima.
In addresses delivered at General Conference and in secular speeches he expressed his opposition to the use of this weapon and his fear of the future.
The next war is now planning under a system that will call for the use of weapons which will wipe out cities and, if necessary, nations. I have had it reported . . . that our military men are saying that if we had a forty-eight hour lead, the war would be over. How many of us brethren are really horrified by the thought of the indiscriminate, wholesale slaughter of men, women, and children—the old, the decrepit, the diseased; or are we sitting back and saying, ‘Let’s get at it first.’ How far away is the spirit of murder from the hearts of those who take no thought in it. . . . Today we sit quietly with our consciences scarcely stricken when we contemplate Nagasaki and Hiroshima where we introduced the use of the Atom bomb.
And again:
The considerations which brought about the non-use of weapons such as dum-dum bullets [and] poison gas . . . are equally as potent against the use of the atom bomb. There should be some things that humans would not do to their fellows.
President Clark’s abhorrence of indiscriminate slaughter of the innocent was not confined to the use of non-conventional weapons like the atom bomb. As noted earlier, he expressed similar horror at the reports of the slaughter of the people of Dresden.
It was not only the particular type of instrumentality which was to be condemned, but also the attitude of acceptance of wholesale murder of innocent people for the accomplishment of so-called military or political ends. He believed that not only the use but also the very development of such methods should be proscribed.
Thus we in America are now deliberately searching out and developing the most savage, murderous means of exterminating peoples that Satan can plant in our minds. We do it not only shamelessly, but with a boast. God will not forgive us for this.
If we are to avoid extermination, if the world is not to be wiped out, we must find some way to curb the fiendish ingenuity of men who have apparently no fear of God, man, or devil, and who are willing to plot and plan and invent instrumentalities that will wipe out all the flesh of the earth. And, as one American citizen of one hundred thirty millions, as one in one billion population of the world, I protest with all of the energy I possess against this fiendish activity, and as an American citizen, I call upon our government and its agencies to see that these unholy experimentations are stopped, and that somehow we get into the minds of our war-minded general staff and its satellites, and into the general staffs of all the world, a proper respect for human life.
Closely related to President Clark’s concern for the laws of war was his interest in the development of an international law of civil strife. Here again, his efforts went to the regulation of such conflicts and the measures that could be taken to mitigate their horrors and destruction. The major part of his study on this topic was related to his appointment, in 1912, as the American Representative to the Ninth Annual Conference of the International Red Cross held in Washington, D.C. It was before this Conference that President Clark presented his influential memorandum, “Assistance of Red Cross Societies to Forces Engaged in Insurrection, Revolution or any type of Civil Disturbance.” His thesis in this memorandum was that the Red Cross Societies should be allowed to render aid and assistance to the ill and wounded of both sides in countries where civil war or insurrection existed. For a clear understanding of the significance of his proposition, a brief summary of the laws of war as they regard civil strife is in order.
Francis Lieber incorporated into his code a distinction between “international wars” and “civil wars,” but the distinction between domestic and foreign wars had been present since antiquity. This is in keeping with traditional international law which regarded civil strife as a domestic issue lying beyond the jurisdiction of international norms. Notwithstanding this general rule, civil war may attain the status of international war, both as regards the rights and duties of the contending parties and of third states through recognition of the insurgents as belligerents.At this point, traditionally, international laws of war apply to the conflict. Although the laws of war are to apply once belligerency is recognized, the incumbent government is always loath to recognize such a status, as it considers such a recognition tantamount to an acceptance of the insurgents’ legal standing. The incumbent considers itself to be the sole sovereign power on the territory and pretends to exercise a monopoly of unconditional constraint. Thus, although civil war is not considered illegal from the international point of view, it is the ultimate of illegality from an internal perspective. When civil strife occurs, therefore, the incumbent government resents any aid or assistance that might be tendered the insurgents. This necessarily includes “non-political” humanitarian aid, as the very existence of the rebel force constitutes a political and perhaps a physical threat to the continuance of the incumbent government. To the incumbent any aid rendered, no matter how neutral or humanitarian its tender may be, represents a tacit recognition of the international status of the conflict and at the same time may constitute a provisional recognition of the insurgent forces.
This is the problem that President Clark confronted directly in his memorandum to the International Conference of the Red Cross. General Yermaloff of Russia voiced the traditional objection to any tender of aid to a rebel force: “Under the laws of this country, insurgents or revolutionaries are criminals and the Red Cross frankly has no business considering the question of extending aid to outcasts.” President Clark answered this traditional position:
First, it must be clearly kept in mind that the Red Cross is an organization which has and can have obviously no international political status; that its sole reason for existence is the dispensing of aid, relief, and succor to suffering humanity wherever such exists and irrespective of race, creed, or conditions; that its activities wherever engaged are as a consequence, wholly devoid of international political significance or effect; and finally that, therefore, a tender of service by it is not and cannot be construed as an act having any, even the slightest political color or meaning.
I observe that my esteemed colleague, General Yermaloff, states that insurgents and revolutionists can be considered under the laws of his country only as criminals. I presume that the words ‘traitor’ and ‘treason’ are know in all languages and to all peoples, but I beg to suggest to his attention the fact that the opinion of the world upon matters of this kind in recent past has made much advance. In early times this position was not wanting to consider that every soldier before capture and after capture, whether well or wounded, might be treated as an enemy and put to death, but we have outgrown that conception. We now, in times of international conflict, vie with one another extending assistance to those of the enemy who may happen to fall into our hands. Now the prisoners of war are treated as our own soldiers, they are nursed back to health and strength with identical care and attention given our own, and are returned under appropriate conditions to forces or countries from which they came. In this connection, I need no more than to refer to the reciprocal treatment of Spain and the United States in 1898, and Russia and Japan in 1904. Shall we say that those who oppose us in civil conflicts, those who are kindred to us, our fathers, our sons, and our brothers, are to receive less consideration, less kindness and less love than our alien enemies?
President Clark believed that the humanitarian laws of war should apply to civil strife just as they apply to international strife. Respect for human life was the important issue. To forsake that because of diplomatic or political considerations was to reject all the humanitarian advances made by civilization and to act contrary to the laws of God. His position has not been accepted by state practice, but is still expounded by the proponents of the International Red Cross and by virtually all the commentators writing on the subject.
Peaceful Settlement of Disputes
Central to President Clark’s philosophy of international law was his great faith in techniques of peaceful resolution of disputes. He believed that lasting solutions to international disputes were far more likely to be accomplished by peaceful means than by war. Time and again he voiced support for the accomplishment of the Hague Conventions of 1899 and 1907, the Bryan Treaties, and other international agreements on the creation and use of institutions of peaceful resolution of disputes. He supported the political and diplomatic techniques of negotiation, good offices, mediation, conciliation, and commissions of inquiry or fact-finding.
In his own plan, offered as a substitute for the League of Nations, and combining certain proposals of Senator Borah (which would outlaw international aggressive war and codify international law) and President Harding (who favored our participation in the Permanent Court of International Justice), President Clark first called for the continued development and use of the institutions of peaceful resolution created by the Hague Convention for the Pacific Settlement of International Disputes. Later he was to propose some changes designed to strengthen these techniques.
The First Hague Conference (1899) (to which delegates were sent by President McKinley) framed, and The Second Hague Conference (1907) (to which delegates were sent by President Roosevelt) amplified and amended The Convention for the Pacific Settlement of International Disputes. This Convention provided for three methods of peacefully settling international disputes, as follows:
1. Good Offices and Mediation on the part of disinterested nations.
The United States was the first to invoke this method of peaceful adjustment when it mediated between Ecuador and Peru while Mr. Knox was Secretary of State, and by so doing prevented those countries from going to war.
2. Commissions of Inquiry.
This machinery was used for investigating the Dogger Bank incident between Russia and Great Britain, during the Russo-Japanese war, and so averted what seemed to be an imminent possible war between Russia and Great Britain.
3. Arbitration.
The United States and Mexico were the first to use this method of adjustment under the Hague Convention, while Mr. Hay was Secretary of State, when the two nations took the Pius Fund Case to The Hague.
The United States as well as other powers, have since that time used The Hague Tribunal to secure the adjustment of a number of matters of the highest international importance and danger.
In his work preparatory to the abortive Third Hague Conference, President Clark considered those parts of President Wilson’s peace proposal dealing with inquiry of fact-finding techniques to represent an advance over the more informal techniques of the two preceding Hague Conferences. He preferred a permanently organized standing commission over the ad hoc commissions of the Hague Conferences; he suggested a commission possessing compulsory jurisdiction rather than the voluntary jurisdiction possessed by the Commissions of Inquiry of the Hague Conferences; and he favored universal jurisdiction over the subject matter of the dispute as stipulated in Wilson’s proposal rather than the Hague Convention system which excluded disputes involving “honor or vital interests” of the parties. Most of these proposals were adopted in the Bryan Treaties, a series of bilateral agreements between the United States and over thirty other states, providing for standing commissions of inquiry, and possessing the sweeping jurisdictional power favored by President Clark. These treaties, sponsored by Secretary of State William Jennings Bryan and the Wilson administration, were failures.
Whether due to the rigidities present in the Bryan treaties—the permanent commissions, their compulsory use, the power of the commissions to initiate action—or, what is more likely, to the onset of World War I and the consequent breakdown of most pacific systems of dispute resolution, the Bryan treaties were a failure. Of the 30-odd Bryan treaties concluded, 28 entered into effect. Only 10 permanent commissions were ever established and none was ever called upon to conduct an investigation in a dispute. The treaties are important solely because of their influence upon the Covenant of the League of Nations and upon treaties of Inquiry and conciliation entered into during the League period.
In retrospect, it would seem that the more informal diplomatic and political techniques of the Hague Conferences were used because of their flexibility. The theoretically more powerful quasi-juridical techniques favored by President Clark were not used by the nations of the world because they feared their binding, compulsory nature.
President Clark reserved his highest hopes, however, for judicial techniques of dispute resolution, particularly that of arbitration.
One of the proudest achievements of our whole history, is our early espousal of and our subsequent fidelity to this principle of the peaceful adjustment of international disputes. . . . These adjudications cover almost an infinitude of circumstances. We have submitted to arbitration the far reaching, sovereignty-touching question as to whether or not we have conducted our belligerent operations in accordance with the laws of war. We have invoked the judgment of international tribunals as to whether we have fulfilled our obligations under treaties, and have done this even where it involved the question of our rights on the High Seas. We have entrusted to such tribunals the question on the neutral or un-neutral conduct of a neutral towards ourselves as a belligerent in respect of matters involving the honor of both ourselves and the other country, and have done this when the tempers of both peoples were so aroused as to threaten to engulf our two mighty nations in a fratricidal war. We have called for the opinion of an unbiased international tribunal.
International arbitration is a judicial process for settling international disputes based on the consent of the parties in conflict. Such arbitration contemplates a final settlement of a dispute between parties having “legal personality” under international law, who agree to submit the controversy to a neutral party for a final decision or award. Arbitration is to be distinguished from conciliation or mediation, in which the role of the neutral party is to persuade the states in dispute to accept a settlement, rather than to impose upon them a binding decision as in arbitration. Article XV of the Hague Convention of 1899, in establishing the Permanent Court of Arbitration, declares the object of international arbitration to be: “The settlement of differences between States by judges of their own choice, and on the basis of respect for law.” President Clark breaks international arbitration down into two parts:
A nation may arbitrate question of policy . . . as to which it may become involved in matters of difference with other nations. . . .
. . . The other kind of arbitration is an arbitration of legal differences; that is, differences which arise between two governments on questions and matters of Law.
History shows international arbitration was occasionally practiced between the various city-states of ancient Greece. During the Middle Ages, it was frequently used as a means of peaceful settlement of disputes. Arbitration then fell into disuse until it was revived in the ninetenth century by a series of arbitrations between the United States and the United Kingdom arising out of the Jay Treaty (1794) and the Treaty of Ghent (1814). After its revival, arbitration played an important role in nineteenth-century international law. The clearest modern manifestation of effective arbitration was probably the “Alabama Claims,” which concerned the claims of the United States against the United Kingdom for damages arising out of the activities of the Confederate warship Alabama. Out of the nineteenth-century arbitrations a system of rules and procedures for arbitration was development that became generally accepted. In 1875 the Institute of International Law (a private organization) completed an influential draft code of these arbitral rules and procedures.
The principle and procedure of arbitration was the creation of machinery to peacefully settle international disputes. The conference produced the Convention for the Pacific Settlement of International Dispute which contained, in addition to provisions on good offices, mediation, and inquiry, a number of articles on international arbitration. This Convention did not impose any specific obligation to arbitrate; it merely attempted to establish the procedure and institutions to be utilized when two or more states agreed to submit a dispute to arbitration. The Convention contained detailed rules and established the so-called “Permanent Court of Arbitration,” which was really no more than a permanent panel of arbitrators, know as “members of the court,” from which an ad hoc court could be convened.
The Second Hague Conference (1907) continued the development of this “Permanent Court,” as it established the method of selection; it required each party to the Convention to nominate a maximum of four persons to the panel. When two states decide to submit a dispute to the Court, they select two arbitrators from the panel, who then choose an umpire. In practice, a special treaty (compromis) is usually framed for creating a court for any particular case. The Second Hague Conference also pronounced a voeu (resolution) that there be an assembly of a third peace conference within another period corresponding to that between the first and second Conferences. The third conference, planned for 1915, failed to meet because of the outbreak of war in 1914.
The American Preparatory Committee for the Third Hague Conference, nevertheless, developed elaborate plans for its role in the ill-fated Conference. In a 140-page memorandum, President Clark, who chaired the American Preparatory Committee, developed the issues that he proposed be discussed at the Conference and the stipulations he deemed it imperative for the American Delegation to secure. One of the most important concerned arbitration. The first two Hague Conferences had attempted, but failed, to pass a declaration for compulsory arbitration, President Clark believed, because the “continental parliamentary methods” utilized by the Conference had allowed the Russian president of the Conference to wield his plenary procedural control to require unanimity to pass any declaration. Thus, compulsory arbitration failed to be adopted, although a two-thirds majority favored it. President Clark, therefore, recommended to the Preparatory Committee that every effort be made by the American Delegation to secure a stipulation providing for compulsory arbitration. The adoption of compulsory arbitration was imperative to President Clark, as he believed that peaceful settlement of international disputes through arbitration was necessary to establish world peace. The diplomatic history of the United States, he believed, had proven this proposition.
During the period of time President Clark was preparing this memorandum for the Preparatory Committee of the Third Hague Conference, the American Peace Society, the American Society for the Peaceful Settlement of International Disputes, and other interested groups were agitating for the establishment of a truly permanent court to replace the Hague Permanent Court of Arbitration. President Clark observed, however, that the real difficulty in the peaceful settlement of international disputes was not in forming a “permanent” court as opposed to a permanent panel from which an ad hoc court was selected; nor was it in enforcement of the judgment; rather, the vital point was in securing a binding agreement to arbitrate. He concluded that the most feasible approach to this would be to follow the lines suggested, but which failed, in the Second Hague Conference; that is, to frame a list of subjects, and provide that all disputes arising therefrom be submitted to arbitration. Although he admitted that such a plan had faults, he claimed that however small and limited such a list might be, it would still “constitute a real gain in the progress of the cause of arbitration.” Put in slightly different terms, President Clark’s plan would have established a principle and procedure which would enable an injured government, party to the agreement, in certain specified matters, to hail into court the defendant government, also party to the agreement, whether that government was willing or not, and to secure a judgment by default if the defendant nation proved indifferent or obdurate. The key to the success of this proposal, President Clark felt, was that states would agree to the jurisdiction of the arbitral body in advance of the occasion of any particular dispute. After such agreement, jurisdiction of the tribunal would be mandatory. This would have required an amendment to the Convention on the Pacific Settlement of International Disputes. This Convention’s plan of “limited obligatory arbitration” was faulty in that it required the disputing state to make a special agreement before each case could be arbitrated and after the occurrence of the dispute in question; it also failed to provide that if one of the parties refused to arbitrate the other party could proceed to the arbitration alone. Clark believed that his plan for compulsory arbitration was the “most promising,” the “most important,” and the “most effective” in promoting the judicial settlement of international disputes. “It is,” he explained, “certainly far and away more important than movements looking to the establishment either of an international constabulary or of a truly permanent world court.”
Disarmament
President Clark believed that selective and wise disarmament agreements would strengthen any prohibition against aggressive war and at the same time mitigate the horrors of war if such prohibition failed. The latter basis for support of disarmament agreements merged with his belief in the efficacy of the laws of war; for parts of the corpus of the laws of war included prohibitions against the possession or the use of certain types of weapons. He did not accept the thesis that an increase in weaponry automatically resulted in an increase in national security.
“We are being generously dosed with that sovereign narcotic . . . that to ensure peace we must maintain a great army and gigantic armaments. But this ignores, indeed conceals, the unvarying historical fact that big armies have always brought, not peace, but war. . . .”
President Clark, as noted before, did not believe that either laws proscribing aggressive war or disarmament agreements reached the basic causes of war. Such root causes, he believed, were in large part beyond the power of government to affect. Such basic changes in the nature of man would have to come by the civilizing process of centuries.
If the thirst for wealth, the greed for territory, the ambition for power and dominion could be removed from men, there would be no more war. But these are some of the basic immutable human passions to be softened at least, possibly eliminated, only by civilizing centuries.
He did not conclude from this, however, that attempts to outlaw war, or to delimit certain weapons systems, were fruitless. Rather, he felt that government should act in such areas, even though such actions accomplished less than would be desired, simply because those were the “levers” susceptible to governmental actions.
President Clark favored the limitation of military budgets as one feasible technique of arms control. He proposed that such a provision be sponsored by the United States at the Third Hague Conference. Each party state would obligate itself to maintain its existing budget without increase, unless six months notice of increase were given, along with a justification for the action. He also supported treaty provisions prohibiting the use of certain instrumentalities of war. He expressed support for existing limitations on the use of poison gases and dum-dum bullets and hoped for further advancement in restricting the use of these and other instrumentalities.
The promiscuous use of submarines, aircraft, and poisonous gases against non-combatants during the last war, and the purpose—as it is popularly understood—of army and navy men the world over to develop and perfect these instrumentalities with the intention of using them in the next great war in an effort to exterminate peoples, renders it indispensable that this country should take the high ground that the armies and navies of the world shall not be permitted to plan and prepare beforehand for the working out of any fiendish holocaust to mankind. Because it is an unthinkable thing that we shall permit lodgment in the minds of the peoples of the world the thought that the next war is not to be planned and prepared for as a war of actual extermination, a conception which even the dark ages did not venture to, for at worst they then left the conquered their lives. The future war must be fought by army against army, not army against people.
It may well be that no matter if the Conference reaches restrictive agreements covering such matters, that still the armies and navies of the world will plan secretly for the indiscriminate use of such things against non-combatants in the next war and it may even be that they will measurably prepare for such use. But any such planning and preparation will be carried out under a sense of the reproof of mankind against such a course, and will be infinitely less harmful to the peoples of the world than unrestricted legalized activities of the same sort.
President Clark expressed particular support for arms limitation agreements to protect civilian populations. He proposed a revision in the laws of war to accomplish this:
Each of the parties hereto does hereby agree that in all belligerent operations of whatever character in which they may hereafter find themselves engaged, it will not, except as a matter of indispensable reprisal, use submarines or other submersibles for hostile destructive purposes against enemy vessels or works other than vessels or works of war, or use aircraft against other than armed forces or armed craft or actual fortified places or actual bases of operations or supplies or places of manufacture of munitions of war, or use poisonous gases or other chemicals injurious to human life except only that the same produce instant death and except only against the armed forces of the opposing belligerents, and that it will scrupulously observe and protect the persons, property, and liberties of all non-combatants outside the actual zone of field operations, and so far as the conduct of such operations will permit, within the zone of field operations also.
President Clark opposed any system of sanctions which required alliance systems and the use of force as means of enforcement.
President Clark’s philosophy and proposals on disarmament are exemplified most succinctly by his suggestions to the American Delegation to the Washington Conference of 1921. There follows a summary of the historical context in which his ideas developed and from which the Washington Conference emerged.
By the end of World War I, Japan, Great Britain, and the United States were caught up in an accelerating naval arms race. Each feared the effects of stopping its ambitious programs while the others continued to build. The problem went beyond the momentum of arms manufacture, however, as each of these countries had possessions and ambitions in the Pacific Far East. Tension grew between the United States and Japan, as Japanese student mass meetings commonly argued methods of fighting the United States, and in America, several alarmist books forecast the “inevitable war with Japan.” When the Anglo-Japanese Alliance continued, after its objects—Germany and Russia—had been prostrated, American Anglophobes and the Hearst Press became convinced that it was now aimed at the United States. Although Great Britain announced that it would not consider the Alliance binding in a war between the United States and Japan, pressure continued for its termination. The Washington Conference became a tactful method for terminating the Alliance and further alleviating tension in the Pacific Far East by a disarmament agreement.
Limitation of armament by mutual agreement was a concept by no means novel to the Washington Conference of 1921. Abbe St. Pierre, Immanuel Kant, Jeremy Bentham, and many other publicists, statesmen, and philosophers had considered disarmament at length. Czar Nicholas II of Russia had attempted to promote a disarmament plan in the First Hague Conference in 1899, and President Wilson’s concept of disarmament was incorporated into the Covenant of the League of Nations.
In President Wilson’s view and reflected in the League Covenant, disarmament was inextricably connected with a mutual security system to provide for the nation’s protection. President Wilson believed the only alternative to such a mutual security system was a powerful naval and military establishment, adequate reserves of military equipment, universal military training, a world-wide system of espionage, and authority in the executive branch of government to use the nation’s armed forces for protection of the nation’s security. Membership in the proposed mutual security system was not approved by the American people, as reflected in the election of Warren Harding in 1920.
The Republican Party, having successfully blocked United States participation in the League of Nations, was now faced with the stern logic of the Wilson alternative. But the naval arms race was opposed by pacifists, by businessmen who disliked the cost, and by those who felt that to continue would push Great Britain and Japan together in antagonism against the United States. In December of 1920, Senator Borah of Idaho introduced a resolution in the Senate designed to bring about a tri-power disarmament conference. By mid-1921, the proposal was unanimously approved in the Senate and passed the House with only four dissenting votes. Plans for such a conference were soon developed, in spite of President Harding’s secret opposition.
When domestic preparations were complete, Secretary of State Hughes sent informal inquiries to London, Paris, Rome, and Tokyo. Belgium, China, the Netherlands, and Portugal were later invited, to include all parties with interests in the Pacific Far East. The delegates assembled in Washington on 12 November 1921.
The State Department asked President Clark to be its special counsel “for the preparation of certain matters in connection with the Limitation of Armament and the Far Eastern Conference;” just prior to its convocation, the Department also appointed him “expert assistant to the American commissioners appointed by the President to represent the Government of the United States at the Conference.” Later, he served as special counsel to Secretary of State Hughes during the Conference. President Clark was influential in both the preparation and the actual progress of the Conference.
President Clark believed that the Conference was of “utmost far-reaching importance to the peace, progress, and prosperity of the world and the happiness of its peoples.” He understood the possible weaknesses of such a conference and made suggestions to mitigate them, but certain of his important suggestions were ultimately dropped. He suggested that two categories of disarmament issues be entertained by the Conference: first, the “direct problems,” such as the size, extent, and character of armaments; and second, the “indirect problems,” such as the necessity of framing new war codes to implement the direct problem solutions. Regarding the size and extent of armament, he suggested a specified per capita tax; that is, that no more than a certain sum per capita per year should be spent on armament by any nation. He recognized, however, the existence of a popular demand for some limitation upon the numerical size of both armies and navies of the world powers, and a need to meet this demand if possible. President Clark considered the problem of the character of armament to be equally important to that of its size and extent, yet none of his suggestions on this point were incorporated into the Washington Conference. He believed that it would be most important to consider the extent and purpose of future use of aircraft, submarines, and poisonous gases. He observed, “the promiscuous and uncontrolled use of these instrumentalities during World War I, was of such notorious character, was so deservedly reprobated by the people of the world, that there must be a radical curtailment of their use in the future.” He felt nothing could justify the government’s failure to use its influence to restrict the use of these instrumentalities. Historians have judged this failure to incorporate the character of armament provisions into the Convention to be its “fatal flaw.”
The decision to limit the Washington Conference on disarmament to naval disarmament was grounded on three related assumptions: (1) that the armaments really dangerous to American security and world peace were naval armaments; (2) that the significant rivalry in naval armament was in capital ships, large cruisers, and aircraft carriers; and (3) that the limitation of armament should be based on the principle of parity among the naval powers.
The final agreement on disarmament, commonly known as the Five Power Treaty, was signed on 7 February 1922. It called for a ten year abandonment of all building programs of capital (battle) ships and the scrapping by the United States, Great Britain, and Japan of designated capital ships based on the ratio of 5:5:3 respectively. France and Italy were later included to create a 5:5:3:1.67:1.67 ratio. To compensate for the difference in ratio, the United States, Great Britain, and Japan agreed that no power would strengthen its fortifications or naval bases in a designated area of the Pacific. A limitation was placed on the size, but not on the number of small cruisers, and on the total tonnage of aircraft carriers of the United States, Great Britain, and Japan. There was no limitation on submarines, destroyers, or the types of weapons that could be used. Curtailment of fortification in the Far East alleviated tension there, as the powers agreed to respect each other’s rights. Thus, Japan accepted a small naval ratio, but obtained greater security; Britain and America consented to leave certain insular possessions without further protection, but retained greater tonnage in capital ships.
The second aspect of the Washington Conference of 1921 specifically concerned international tensions in the Far East. This part of the Conference produced two treaties: the Nine Power Treaty and the Four Power Treaty, under which the members of the Conference and states later acceding agreed to “respect the sovereignty, the independence, and the territorial integrity of China, to refrain from securing special rights, privileges or spheres of influence in China, and to consult together whenever one part to the Conference felt a situation had arisen that involved its provisions.”
Consequences of the Washington Conference are difficult to assess because of long-range as well as immediate effects and entanglement with other events during the complicated inter-war period. From the diplomatic point of view, the treaties emanating from the Washington Conference were a substantial achievement as an example of problem settlement by negotiation and compromise. Many critics of the Conference have argued that because the armies of the world were going to use any means necessary to win, the United States should have prepared to the ultimate and for the worst. President Clark countered that the armies and navies of the world should not be allowed to plan such a holocaust. He expressed a value he perceived in disarmament conferences:
It may be true that after the war is under way the nations will act as the critics have suggested, but the damage will not be nearly so great and the effect on humanity and civilization will be infinitely less if we have to prepare for such measures after hostilities have begun, instead of planning and preparing it all beforehand.
Although he believed in prepared self-defense, he opposed the very concept of “total war.” Preparation and planning of total war would only guarantee mass slaughter and the destruction of all humanitarian advances of civilization. Not being naive about the prospects for an enduring settlement, President Clark warned the American Committee that to hold out too great a hope regarding the results of this type of conference would cause disappointment. He believed that the very nature of things made great advance in this area most improbable. Nevertheless, President Clark remained devoted to the principle of disarmament and considered it to be a prerequisite to any substantial compliance with the laws of war:
To bring us to our peace, we should have total, not partial world disarmament as the Atlantic Charter suggests. The reasons may be given in a sentence. You will no more have a world society of law and order by taking away the guns from a part of the gang and letting the others [have] theirs, than you will by having all of them tote all the guns they can carry,—and all history shows this last will not bring peace.
President Clark, as a true professional, did not denigrate the value of disarmament or war crimes agreements simply because he realized that they did not provide ultimate solutions to world problems. He understood that governments are obliged to work in these areas and with those tools which are available to them; that often this will result in less than ideal solutions. However, if governments refused to deal in any but long-term solutions we may not all survive the short-term:
And may I be allowed here a word of admonition,—It will not do for us to think these treaties may be dismissed with a contemptuous smirk that being merely treaties, they mean nothing, are made only to be broken, that they are valueless. This is the doctrine of despair and must not be propagated. For what, I ask you, is the alternative? If nations may not establish by mutual undertaking the rules and principles by which they are to be governed; if the sovereign plighted faith of mighty peoples is hereafter to be freely and without censure, flaunted; if, in short, nations may not trust one another, then I say to you the world is lost. Because the alternative to life under free, common understanding, with mutual trust and forebearance, in an association of recognized, unconstrained peers, is domination by one or by few under such a rule of brute force as will plunge the world into chaos, and threaten humanity with oblivion. No, we may not cast aside these treaties as mere idle words under penalty of being overwhelmed by the outburst of righteous condemnation from all the peoples of the world.
But he feared that the best efforts of governments would not be sufficient:
But my heart is heavy with foreboding, because the nations (ours among them) are proposing to arm on a scale never before equalled in the history of the world; and armed nations have always been fighting nations. I fear Armageddon is not yet fought, and, if fought with this weapon, we shall pray the Lord to fulfill his promise:
“And except those days be shortened, there should no flesh be saved: but for the elect’s sake those days shall be shortened.” (Matt. 24:22)
Conclusion
The basic beliefs of President J. Reuben Clark, Jr. on international law and order are startlingly relevant to the issues of today. This would probably come as no particular surprise to President Clark. Speaking to a university audience during the Korean War, he answered the charge that his views on international order were dated by time with the answer that “human nature does not change; in its basic elements it now is as it was at the dawn of history, as our present tragic plight shows. Even savages inflict no greater inhumanities than are going on in the world today.”
The goals toward which he strove are as desirable and as necessary of attainment today as they were at the beginning of this century. He devoted his professional life to working toward the goal of establishing the rule of law rather than of force as the central factor in international life. He was implacably opposed to the perversion of Hobbesian thought which said that brute power of force, and law, are synonymous. He opposed international arrangements among the great powers to keep the peace by enforcing the status quo upon smaller states by policies of intervention, colonial rule, or imperial governance. He possessed a revulsion for aggressive war unsurpassed by any current commentator known to this writer. He believed in the efficacy of international agreements to curb war and to circumscribe its means and mitigate its effects if all efforts to avoid it failed. He believed in the necessity of achieving disarmament agreements and served as a principal adviser in several such conferences, as he believed, consistent with prophets before, that armaments possessed would eventually be armaments used. He devoted much of his professional life toward the development of peaceful techniques of dispute resolution, from political and diplomatic means such as mediation, good offices, conciliation, and inquiry or fact-finding, to judicial techniques such as arbitration or formal court procedures. He believed that the united States had a particular role to play as a peacemaker in world affairs, as a city which was set upon a hill, for other nations to see and emulate. This position, he believed, could be sustained only through the maintenance of separateness sufficient to insure a political neutrality which would allow this country to perform the role of peacemaker and arbiter; not by forcible means as the world’s policeman, but by the force of moral example in which our civilization would attract the emulation of others by the sheer desirability of our society. Then, he believed, out of Zion should go forth the law, to be adopted by the nations of the world of their own will.
Whether such neutrality could be maintained by one of two superpowers around which much of the rest of the world is polarized may be doubted. It would be unfair to President Clark, however, to impose upon his identification of basic goals the particular modalities of their accomplishment which he would have employed at an earlier time under vastly different circumstances. For while human nature has shown depressingly little change for the better since the two World Wars, the structure of the international system has altered from that of a European “balance” to that of a polarization between two superpowers. Each fears that its withdrawal from active international political involvement would see the other quickly move into the void, whether by imperial governance or hegemonial influence. And yet both superpowers have had more than sufficient reason to question the nature of their involvement in areas within and without their so-called “security zones” or spheres of influence. Interventionism has turned as sour for the intervenors as it has always been for the victims of such presumptuousness. Both states have seen the limitations of their effective power and may now hopefully possess less of that hubris which could lead to their destruction.
The basic goals remain. The role of peacemaker can only be exercised effectively by persuasion, not by force. And that in turn requires that the spiritual, moral, and cultural house of the would-be peacemaker be in order. The need for the elimination of aggressive war, the mitigation of the results of war when it cannot be avoided, the better way of peacefully resolving disputes and limiting a disastrous arms race are all more necessary now than before. A policy of colonial or imperial interventionism is no more desirable now than in earlier years. And each goal possesses that basic prerequisite—the health of our own domestic polity based upon an increase in the force of our spiritual, moral, and intellectual values. For this is the fundamental strength of the nation.
May God endow us with knowledge and understanding; help us and our allies to see our task aright; give us understanding of men and nations; bestow upon us justice, tempered with mercy; enlighten us that we see the things that matter as against those that do not; give us discernment of men and nations; put pride and arrogance, self-righteousness and intolerance, hate and revenge, from our hearts, and plant into peoples’ hearts the ways of peace and righteousness, they forsaking force and the rule of might; give us, above all else, wisdom to govern in accordance with the eternal principles of the everlasting gospel, for in no other way and by no other process will peace come permanently to men.
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Clark is an able man. He works hard, thinks straight, and has the capacity of getting at the bottom of things. He is one of the few men to whom, after listening to their statement of a case, I feel justified in giving an opinion without reading all the documents myself.
—John Bassett Moore, eminent jurist
and authority on international law
In my judgment [Reuben Clark] is perhaps the soundest international lawyer in this country. . . . Were I president, I would make him Chief Justice of the Supreme Court. . . . No one could have gone there better equipped at the start.
—Philander Chase Knox,
Secretary of State
