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Enforcement of World Law

By William Bross Lloyd, Jr.

(Publisher's note: The remarkable document excerpted below came to WCN offices two days before going to press. Written by William Lloyd, Jr., in 1946,* one year after the founding of the U.N., it blends neatly with our main theme this month: "The American Dream." Lloyd, the son of Lola Maverick Lloyd, one of the founders of the Women's International League for Peace and Freedom, was a conscientious objector in World War II and founder/publisher of Toward Freedom. An activist citizen of the world, he analyzes here the fundamental faults of the League of Nations and the United Nations, both of which have betrayed the original thesis of the United States: government "with the consent of the governed," and thus, in effect, the citizens of the world, the ultimate victims of state wars. Our thanks to Robin Lloyd, William's daughter, for this timely re-addition to the growing world law literature.)

One of the greatest tragedies of political life is the fact that heads of state necessarily concentrate on pressing problems of the moment, and that masters of the lessons of history rarely achieve power.

A man in the last-mentioned category, the late Arthur Deerin Call, who devoted many years of his life to the American Peace Society, submitted recommendations on behalf of the Society to the League of Nations Commission of the Paris Peace Conference in 1919. His suggestions unfortunately were not adopted.

But who can tell what beneficial effect he might have-with his added years of study and prestige-on the deliberations at San Francisco had he been spared for a few more years of service to mankind?

He was not the only scholar who turned his mind in the direction of applying the lessons of U.S. Constitutional history to the problem of organizing world peace, but his article on "Force and World Peace" in the June 1936 issue of World Affairs remains to this day one of the most lucid and best-documented studies along this line.

The following quotation is part of a reprint from this article which has been widely distributed since 1940 by the Campaign for World Government of Chicago:

"Nothing appears to bear more directly upon the fact that any military coercion of a State is war, than the history of the discussions upon this very point in the Federal Convention of 1787. In that Convention the plan to establish a government with power to coerce a State by arms, as will be seen, was proposed, discussed, and unanimously eliminated.

"From the records it appears that the sixth resolution of the Virginia plan, which became the basis of our Constitution, contained at the outset a combination of what we now know as Articles X and XVI of the Covenant of Geneva's League, for it proposed to vest its National Legislature with the right to call forth the forces of the Union against any member of the Union failing to fulfill its duty under the articles thereof. This plan was laid before the Congress on May 29, 1787. The next day, according to Mr. Madison's notes, Mr. George Mason of Virginia 'observed that the present confederation was not only deficient in not providing for coercion and punishment against delinquent States but argued very cogently that punishment could not in the very nature of things be executed on the States collectively, and therefore that such a Government was necessary as could directly operate on individuals, and could punish those only whose guilt required it.'

"In the session of June 20, Mr. Madison said further:

'it was acknowledged by Mr. Patterson that his plan could not be enforced without military coercion. Does he consider the force of this concession? The most jarring elements of nature; fire and water themselves are not more incompatible than such a mixture of civil liberty and military coercion...'"

Of course the world has changed a great deal since 1787. It is noteworthy that our forefathers were launching an untried experiment in popular government in a then remote part of the world, covering a small amount of territory surrounded by three powerful and ravenous empires. Employing the tools of reason and common sense, they concluded that coercion of states should have no place in our Constitution, and they set up an insignificant army in the face of a very threatening foreign situation. (Emphasis added.)

At San Francisco, our statesmen were planning an association ostensibly to include all peoples of the world, to which the only external threat must come from the planet Mars. In those meetings our own delegates spoke on behalf of the greatest industrial and military power on earth and on behalf of a people which at that time retained a considerable reservoir of prestige and good will.

Yet the statesmen of the world attempted at San Francisco to imbed this principle of coercion of states more deeply in their new creation than in their first attempt at organizing peace through the League of Nations.

Articles 42 and 51 or the United Nations Charter, provide elaborate machinery for such attempted coercion, as compared to the rather elementary and vague provisions of Articles X and XVI of the League Covenant. The press and most popular commentators are unanimous in glossing over this enlarged provision for coercion of states as "realistic" advance in constitutional structure. In his article, Mr. Call quoted Alexander Hamilton in the same type of proposal for our Constitution: "The thing is a dream, it is impossible."

The careful appraisals of Articles 42-51 by competent, conscientious students of constitutional history have not yet been published, but meanwhile silence gives the appearance of consent.

If we wish to correct what history shows to be an impossible principle for interstate organization-for the welfare of the rest of the world as well as of ourselves-two avenues of action are open. For the first, let us accept the big powers' defense of the veto as regards military action. But the Atlantic Charter and the United Nations Charter proclaim the sovereign equality of all nations, great and small. What justification is there, then for the coercion of small nations except the Nazis' creed that might makes right?

Therefore, why not extend to all nations the privilege of vetoing military coercion, but eliminate the veto as quickly as possible from the peaceful processes of world cooperation in day-to-day affairs of mutual concern?

Extending the veto in military fields and eliminating it in fields of constructive cooperation might be just the kind of creative compromise which would satisfy isolationists of all lands, and at the same time permit the world organization to get on with the job of building peace in terms of useful function and services.

The second avenue is a challenge to the constitutionality of our commitment to a United Nations military force on these grounds:

Our Constitution provides that Congress shall have the power to declare war. But Articles 42-51 make a mockery of this provision, putting effective power of declaring war for the United States in the hands of the U.N. military commander. Such a commitment goes beyond the scope of a treaty and is invalid until and unless ratified as a constitutional amendment.

The positive alternative to coercion of states-the broad foundation of United States federal power, was described in this passage of a letter from James Madison to Thomas Jefferson, as quoted in Mr. Call's article: "Hence was embraced the alternatives of a Government, which instead of operating on the States, should operate without their intervention on the individuals composing them."

We will look in vain for any corresponding power in the United Nations, even within the most narrow jurisdiction. The Secretariat hires and directs individuals as part of its staff, but otherwise there is no power in the U.N. to legislate directly for individuals nor any responsibility directly to them. Voting in the Assembly and Security Council is by direction of national foreign offices, not by reasoned conviction of individual delegates responsible for their conduct to an electorate. (Emphasis added.)

In this respect, as in many others, the U.N. follows the League of Nations pattern. There is much discussion now of whether a fundamental strengthening of the Charter is essential to world peace, or whether it should be left untouched. Since the League of Nations experience is open to study, it would seem mere common sense to examine its efforts to become an effective world institution without possessing the power of dealing directly with individuals. Without careful study of the League experience, we shall be charting our course on the basis of vague hopes and wishful thinking.

What a difference the principle of coercion of individuals would have made! In the first place there would have been a world law governing the manufacture, transportation and sale of narcotics. Penalties would have been uniform and certain throughout the world.

. . .Other applications of the principle come to mind. The International Labor Office sought to improve labor standards, especially in low-wage areas, but did not have even the power to investigate conditions with its own field staff. The history of the Factory Acts in England should have underlined the lesson that no regulation of abuses is possible without at least the power of direct inspection.

Regulation of international air transport, ocean fishing, whaling, sanitary and safety safeguards at sea, are other tasks in which significant further progress depends on the application of world authority to individuals.

The Baruch report provides for an outstanding application of the principle under discussion. All dangerous atomic operations would be carried on directly by an Atomic Development Authority, which would also be authorized to make direct inspections, through its own agents, of "non-dangerous" plants.

. . .To summarize, two main lessons were drawn from United States history by Mr. Call's article: first, that coercion of states is impractical and amounts to war itself; second, that a workable interstate organization must include the federal power of dealing directly with individual citizens.

How to go about attempting to change our present diplomatic system and U.N. structure in accordance with these lessons is a question which cannot be dealt with adequately within the limited scope of this article. Suffice it to say that the author is convinced that the workmanlike approach requires established constitutional procedures: as a U.S. Constitutional Convention was needed to draw up a U.S. Constitution, so a world convention will be required to draw up a world constitution.** Meanwhile, we, as the most prosperous and least war-torn people in the world, can point the way toward a new beginning in world affairs through the calling of a U.S. Constitutional Convention on foreign affairs, under Article V of the present U.S. Constitution.

Certainly the importance of coercion of individuals rather than states justifies careful attention by world citizens to all possible means of putting this principle into effect in world affairs.

*World Affairs, Vol. 109, No. 4, December, 1946
**The World Syntegrity Project

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