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Studies of the progressive movement in American history , particularly during the interwar years, have given far too little attention to the various strands of progressive international thought. This chapter analyzes Elihu Root’s campaign for the creation of a World Court, and his defense of international law, as an important effort in the progressive , and reform-minded, movement to restrain international conflict and minimize the prospects for war through law. Root embraced a standard of “legal realism” that had little to do with either classical or structural realism . Root joined other progressives in emphasizing the moral and rational components of human nature and stressed an important connection between societal values and the projection of power . But he rejected balance-of-power thinking and looked to legal processes and institutions that would harmonize competing interests in the management of interstate rivalries. Another progressive dimension of Root’s work was a long-standing belief in an obligation of democratic nations to expand education curricula and university institutes in the field of international law.

This included a whiff of imperialism . In a recent work that chronicles the rise of the United States as a world power at the beginning of the twentieth century, Elihu Root and four other architects are singled out for the “parentage of American imperialism” following the Spanish-American War (Zimmerman 2002, 9). Root “reservationists” might properly detect the suspicious smell of empire associated with the man who helped create America’s first colonial administration in the Philippines , Puerto Rico , and Cuba; who virtually authored the Foraker Act and the Platt Amendment; and who negotiated with Japan a spheres of influence agreement in Asia and the Pacific. James R. Holmes (2007, 189), characterizing Root and Roosevelt as “international lawmen,” points out that the two statesmen embedded an “international police power” in the Monroe Doctrine by means of Roosevelt’s 1904 Corollary to the Monroe Doctrine.

While Root played an important role in the rise of America as a world power , his advocacy of national interest was closely tied to an understanding of the limits of power as well as to the importance of that power gaining in strength and prestige by upholding international law and having colliding interests adjudicated within an international court . Root as imperialist cannot be properly understood apart from Root as legalist, whose role as an active public figure and elder statesman (after leaving the United States Senate in 1915) brought him to the forefront of negotiations (in Washington and at The Hague) to secure the creation of the Permanent Court of International Justice in 1920–21 and to facilitate American adherence to the Protocol of Adherence to the Statute of the World Court. Root played a key role in laying out a compromise for the election of judges to the Court and, later, in working out a compromise or agreement on the question of whether, and under what conditions, the Court might issue advisory opinions that impact the interests of the United States.

Root and the Idea of a Court

The idea of an international court had its roots in the nineteenth century, when the United States took a leading part in promoting the judicial settlement of international disputes. The American delegation to the First Hague Conference in 1899 lent its support to the establishment of the Permanent Court of Arbitration (of which the United States would be a member). President Roosevelt submitted to that body its first case—a controversy involving the United States and Mexico . This was only a first, small step—far from the idea of a permanent court as envisioned by the American delegates. The court amounted to little more than “a panel of persons suitable to sit in a court” (usually numbering about 150 names), “appointed by all the countries taking part, and from that panel may be selected the members of a tribunal…to try a particular case.” Serious difficulties would arise about this method when parties with reference to a particular controversy selected judges. “Human nature being what it is,” as Root (1923, 4) pointed out, the judges “cannot help…becoming negotiators for the parties that select them, and they negotiate separately instead of deciding upon legal rights.”

As Secretary of State, Root, with President Roosevelt’s approval, sought to remedy this shortcoming at the Hague Conference of 1907. Accordingly, he instructed the American delegation to gain support for “a permanent tribunal composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who are devoting their entire time to the trial and decision of international cases by judicial methods and under a sense of judicial responsibility.” The conferees agreed upon and adopted a draft treaty for such a court, albeit with one conspicuous omission: they omitted any paragraph of the treaty dealing with the method of electing judges. The court never came into existence, owing to differences between large and small states over how to ensure the equitable selection of judges. James Brown Scott (1924, 15), an expert on international law and adviser to the American delegation at the conference, summarized the conference outcome:

Arbitration was rendered more effective, and a project had been proposed and accepted for the establishment of an international prize court, and a draft convention for the establishment of a permanent court had been adopted under the name of a Permanent Court of Arbitral Justice. The difficulty then and now [1924] is that no nation can be hauled before a tribunal of arbitration or an international court of justice without its consent, given in advance, or at the time of the dispute. If nations have taken position—one insisting upon the settlement of the dispute in accordance with its conception of justice , the other refusing such settlement—they stand face to face with force, if the methods of diplomacy and its derivatives…have failed.

Root would sharpen his commentary on the need for an international court with the onset of the First World War. Charles Francis Adams, in a letter to Root in 1915, worried about the onset of “Paper Blockades” on the largest possible scale, and “Milan” and “Berlin Decrees,” to be met by “British Orders in Council.” Adams wondered what “the everlasting principles of international law” would mean in terms of “their careful adjustment to existing conditions” (1915, 1). His own conviction was “that we are tending irresistibly towards Tennyson’s Parliament of man, and Federation of the world, with a Hague Tribunal and International Police in reserve” (1915, 1). Root’s account (1915a, 1) agreed with Adams “about the tendency” but pointed out that, “to put a better scheme of things into operation, however, will involve solving difficult practical problems.” Nothing could be worse, Root suggested, than “a lot of fools who think that difficulties can be solved by refusing to see them.” The fools Root appears to have had in mind are those well-meaning pacifists whose “abundant vocabulary…will not be very useful.” On the need for a court, “that is certain; but if it is to be really a court and not a form of arbitrary government by plot and counterplot, the court must have a law which it is bound to apply.” And, if the judgments of the court are to be respected, then “there must be sanctions for its enforcement, and here we come to the international police force” (Root 1915a, 1).” Interestingly enough, the Rough Rider Roosevelt (1914, SM 1), just one year earlier, endorsed in the pages of the New York Times the creation of an international posse comitatus to uphold the rulings of an international tribunal—one committed to “making the rules of international morality obligatory and binding.”

Root was less forthcoming in his public commentary about whether international law could be predicated on the coercive power of international institutions. Just how this police force might come about, he was prepared to leave to the business of “experts who combine technical knowledge with imagination” (1915a, 1). In another letter to the German jurist, Lassa Oppenheim, he averred that there could be no court without a law to guide it and “there can be no police force without the judgments of a court to enforce” (1915b, 1). In other words, without some sanction in law, international policemen would amount to little more than “an irresponsible majority reducing all sovereigns to vassalage and destroying national independence” (1915b, 1). Seeking viable legal sanctions could not be separated from “agreement upon certain, definite, specific rules of national conduct, very general and rudimentary at first but capable of being enlarged by continual additions” (1915b, 1).

On April 11, 1918, Root lunched with Colonel House, joined by Abbott Lawrence Lowell and William Howard Taft; the four discussed prospects for the League to Enforce Peace. Root spoke at length; House, who invited him to put ideas to paper, was favored with a response five days later. In his memo, Root argued that seeking a legal remedy to any international breach of peace required moving beyond the existing presumption “that the use of force by one nation towards another is a matter in which only the two nations concerned are primarily interested” (Root 1918, 1). Root had in mind the argument advanced by German leaders that the invasion of Serbia by Austria–Hungary was a matter concerning only those two states. The carnage of the war dramatized how “an international breach of peace is a matter which concerns every member of the Community of nations—a matter in which every nation has a direct interest, and to which every nation was a right to object” (Root 1918, 2). And how was this to be achieved? Root (1918, 2) explained “at the basis of every community lies the idea of organization to preserve peace.” In fact, it was the “gradual growth and substitution of this idea of community interest in preventing and punishing breaches to the peace which has done away with private war among civilized peoples” (Root 1918, 2). And Root (1918, 3) was forthcoming in admitting that adopting this view entailed a limitation on national sovereignty . He viewed it as a logical (though problematic) extension of the idea that “individual liberty is…made subject to the superior right of the civil community to have the peace preserved” (Root 1918, 3).

International practices prior to the advent of the League of Nations most often meant that nations resorted to diplomatic conferences, arbitral panels, and commissions of enquiry to resolve differences that could lead to war. The drawback of these mechanisms, Root argued, is that they all depended on the political discretion of individual nations. Root’s concept of an international community of nations was predicated on the need for institutions that could command the legal authority to speak for members of the community by calling upon nations on the verge of war to submit their claims for consideration. Nations, even those that might have pledged themselves to a “community interest and right,” could still refuse to appear before a tribunal; however, to ignore a demand in the name of the community would put that nation “in the wrong in the eyes of the entire world” and, he thought with an eye toward the future, it would be “much more difficult than it is now, and much more improbable” (Root 1918, 5–6). He thought that, if the norms and rules of community had been embraced prior to 1914, Austria’s ultimatum to Serbia “would be completely destroyed” (Root 1918, 6). In contemplating a future League of whatever character, Root told House that no world organization should even be contemplated, much less entered into, if nations are unwilling to act under the authority of that body in contested cases. International law would prove to be a dead letter if nations were prepared “to make agreements and break them” (Root 1918, 6). It would be the height of folly for the United States to enter into an association of nations to enforce peace if the American people did not recognize the authority of that body to make decisions binding on them.

Root (1918, 7) did not overlook the practical dilemma of an administration making a hard and fast decision “to go to war upon the happening of some future international event beyond the control of the United States.” Root perhaps sensed the debate that would be prompted a year later by Article Ten of the Covenant of the League of Nations. He was not willing to speculate much further, saying the willingness of Americans to fight in some particular situation “would depend upon the way they looked at the event calling for their action…when the event occurs” (Root 1918, 7) Blanket obligations of collective security were, then and later, a bridge too far. Amid the bitter recriminations generated by the world war, he would only acknowledge that “it may be that an international community system may be developed hereafter which will make it possible to say ‘We bind ourselves to fight upon the happening of some particular event,’ but I do not think that system has so far developed that it is now practicable to make such an agreement” (Root 1918, 7). Root’s international police force and Roosevelt’s posse comitatus, enforcing international court rulings and apprehending lawbreakers, were more prophecy than practicality. What was logical in Root’s mind was not always the same thing as what was workable in what would remain a world of jealous great powers. In the decade before the war, Root (1908, 453) reiterated, time and time again, the sanction of international law was not to be found “in the appeal to force,” but in the power of public opinion . “The force of law is in the public opinion which prescribes it” (Root 1908, 453).

Although President Wilson turned a deaf ear on the suggestion that he ask Root to accompany him to the 1919 Peace Conference in Paris (relying instead on Chandler P. Anderson and John Bassett Moore as his legal advisors), an early draft of the League Covenant prompted considerable discussion by Root and others at an Executive Council meeting of the American Society of International Law . Root’s fear, as recalled by James Brown Scott, was that the conference was driven by extreme pressure to deal almost exclusively with political questions. International law was mentioned only once in the preamble, and it appeared that “the whole Hague system was treated as scrapped” (Scott 1924, 29). He reminded his colleagues that the last Hague Conference had provided for another meeting while “recommending that the countries, through diplomatic channels…undertake to agree upon the method of selecting the judges” (Root 1923, 5). Root proceeded to author six amendments to the draft that were circulated before the New York Bar Association. The amendments were requested by the State Department and cabled to the conference in Paris. One of the amendments, providing for arbitral or judicial settlement, was ultimately incorporated in Article 12 of the Covenant. Another amendment calling for a conference on international law was rejected. Root (1919, 50) proposed to substitute for Article 13 the following provisions,

The high contracting Powers agree to refer to the Permanent Court of Arbitration at the Hague, or to the Court of Arbitral Justice proposed at the Second Hague Conference when established, or to some other arbitral tribunal, all disputes between them (including those affecting honor and vital interests) which are of a justiciable character, and which the Powers concerned have failed to settle by diplomatic methods . The Powers so referring to arbitration agree to accept and give effect to the award of the tribunal.

Disputes of a justiciable character are defined as disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which if established would constitute a breach of international obligation, or as to the nature and extent of the reparation to made for any such breach.

Any question which may arise as to whether a dispute is of a justiciable character is to be referred for decision to the Court of Arbitral Justice when constituted, or, until it is constituted, to the Permanent Court of Arbitration at the Hague.

Root, who admitted to drawing on the language originally crafted by Lord Bryce’s working group, in Britain, explained the rationale for the arbitration amendment. The work of the Bryce group had the virtue of recognizing The Hague Court and defined what were justiciable questions. He much preferred the approach of the Bryce group to the language employed by Taft’s League to Enforce Peace, “for the reason that the former defines justiciable questions, and the latter does not” (Root 1919, 52). Uppermost in Root’s (1919, 52) mind was workable procedure, inasmuch as a stumbling block would remain in any “agreement to submit to any Continental tribunal—any tribunal selected from the world at large—the question of its own jurisdiction, without any rule to apply more definite than the words ‘justiciable questions.’”

The essential question concerned the relationship between a “justiciable” question and a vital American interest. The ensuing exchange between Root and Professor David Jayne Hill as to whether Root thought the US Senate would ever consent to submitting disputes of a justiciable character to arbitration deserves to be reproduced in full.

Root, Well, I should think so, because I found very little difficulty in the Senate. You will remember I took up Mr. Hay’s treaties, which were based upon the treaty between France and England, for the arbitration of all questions of international law arising from the interpretation of treaties (excepting honor and vital interests). I found practically no difficulty in the Senate about that. The only reason why Mr. Hay’s series of treaties failed was that the Senate did not want to be ousted of its part of the treaty-making power . There still remained an important treaty-making function, and the Senate was not willing to be ousted of that. Mr. Hay did not want any of their interference, and that is where the treaties stopped. I brushed that aside and left the Senate to continue to discharge its functions as part of the treaty- making power , and the Senators were perfectly willing to arbitrate those things. Now the question of national honor is a mere camouflage. I apprehend that it found its place in the original treaty to satisfy some special susceptibilities. As to the question of “vital interests, why, no questions which can arise upon the interpretation of a treaty, or under the law of nations, can be a question of vital interest.

Hill, A nation would never jeopardize a vital interest in making a treaty, therefore it could not involve that.

Root, No. So I think the Senate would agree. I have more doubt as to whether the Senate would leave the court to decide upon its own jurisdiction. I was opposed to that without the definition, but I am in favor of it with the definition, which I think practically reduces it to the treaties we have already made (Root 1919, 54–55).Footnote 1

The Court and the Law

Root proposed another amendment calling upon the Council of the League to call a conference of nations for the purpose “of reviewing the condition of international law, and of agreeing upon and stating in authoritative form the principles and rules thereof.” Here, Root was reminded of the dilemma inherent in the Convention for the Establishment of an International Prize Court adopted at the Second Hague Conference. Article 7 of the convention provides that, in the absence of treaty provisions applicable to the case, the Prize Court (which never came into existence) shall apply the rules of international law or, if no generally recognized rules exist, the Court shall give judgment in accordance with the general principles of justice and equity. This was a path to nowhere insofar the appeal to those principles is little more than an appeal “to what anybody in this world who goes into a court thinks it is desirable to do” (Root 1919, 55–56). Root (1923, 16) insisted that the basis and operations for an international court ought not be argued “out from first principles the rights and wrongs of all these things.” The only way for peoples and governments to know what is just, “so that their opinion will crystallize in favor of justice , is by having institutions under which impartial courts may adjudge what is just and opinion may crystallize upon their judgment, instead of going this way and that way on assertions of interested parties” (Root 1923, 16).

Root (1923, 16) studiously avoided wading into debates about the philosophy of law, but he did not leave the meaning of an international court to the mechanics of “merely deciding this case and that case and the other case.” Like many legalists of his day, he viewed the court as an institution “essential to the progress of civilization towards the rule of public right by formulated rules of law enforced by impartial judgment, not mere brute force, which means misery and means tyranny” (Root 1923, 16). In addition, the codification of international law is the sine qua non for building an established legal system “providing for the determination, by a permanent and competent court, of questions of legal right arising between nations” (Root 1925, 2). When speaking about the codification of international law, Root (1925, 6) had in mind a much broader and open-ended undertaking than “the sense in which the term is used to apply to municipal law.” In the latter, the codifier “has to deal with existing law created by the dictum of superior power” (Root 1925, 6). In the former, codification also encompassed “the making of law” in areas of international conduct “where law has not yet existed, because of a lack of agreement upon what it ought to be” (Root 1925, 6). Root (1925, 6–7) cited the Geneva and Hague Conventions as having “numerous provisions established between the parties by conventional agreement in reliance upon general acceptance to give them the quality of law as distinct from mere agreement.” Root endorsed this conventional method as one “we must now look for the extension of international law.”

By 1920, as a member of the Advisory Committee of Jurists that worked out the plan for the Permanent Court of International Justice, Root endorsed the committee’s recommendation that a new conference of nations be called for the purpose of restating established rules of law. An additional contribution to codification would be for the conference “to consider the subjects not now adequately regulated by international law, but…[for] the interests of international justice require that the rules of law shall be declared and accepted” (Root 1925, 7).

There was, in Root’s estimation, another sense in which the codification of international law is vital for the existence of democracies. Autocracies might live without the rule of law but democracies could not. Individual liberty and the pursuit of equality are at risk unless there is embedded in the great mass of people “a respect for law.” Otherwise, power goes untamed, politics becomes overwhelmed by uncompromising ideological passions, and matters of public right are treated as “matters of expediency” for makeshift adjustments by fleeting and unstable majorities. So, too, is it with Root’s community of nations.

There is only one way to keep them straight, and that is to agree on the principles of law, to formulate rules of action when passions are not excited; and then when questions arise that are likely to excite passions, to say, ‘This is the law which you yourselves have agreed upon’; and then the members of a democracy will bow to law, because that is the habit of their political existence. (Root 1919, 63–63)

Root’s proposed amendments to the League Covenant must be seen in the context of, and along with, a resolution adopted by a special committee of the American Society of International Law that was communicated to the Secretary of State in Paris. This communication followed upon a request for suggestions made by the conferees in Paris at the time the constitution for the League was proposed and first published. Article 13, in its original form, “didn’t amount to very much” and went no further than an agreement “to arbitrate questions recognized as being suitable for arbitration ” should diplomacy fail to resolve the dispute (Root 1920a, 4). Root’s contribution was to provide a definition of justiciable disputes (see p. 10) that was inserted into the Society resolution and subsequently incorporated in slightly modified form in the League’s revision of Article 13. This represented “a long step forward,” inasmuch as in the Taft arbitration treaties “the term justiciable was deemed so general and vague,” lacking “any precedent upon which to draw” that “an agreement to refer to arbitration all justiciable questions…might involve all sorts of questions, whether of policy or right” (Root 1920a, 5). In addition, Article 14 was written so as require the League Council to submit to League members “plans for the establishment of a Permanent Court of International Justice” (Root 1920b, 17) The Court would have the competence to hear and determine any dispute of an international character that the parties submit to it, and it was entitled to give an advisory opinion referred to it by the Council or by the Assembly.

The Creation of the Court

Root was to have a central role in the process of creating the Permanent Court. The League Council invited distinguished jurists from ten countries to formulate plans for the organization of the Court, and Root represented the United States on what became the Advisory Committee that met at The Hague in June 1920. One of the major tasks of the Committee was to find a way of reconciling the differing positions between large and small states relative to the appointment of judges to the Court—the very issue which was left in abeyance at the 1907 Hague Conference. It was Root who put forward what became the basis of an acceptable solution that, for all practical purposes, mirrored the processes of the US Supreme Court and the Great Compromise of 1787. Carefully outlining his plan in remarks before the Committee on June 17, 18, 21, and 22, he identified the problem as “the unwillingness of the large states to permit the members of the court to be named by the majority, which would always be composed of representatives of the smaller states, and, on the other hand, the unwillingness of the smaller states to permit the larger ones a preponderance of power and authority” (Root 1920c, 2). The smaller states would not accept any remedy “inconsistent with the theory of the equal rights of sovereign states” (Root 1920c, 2). That Root would speak about equal rights as “theory” is an important clue to how he would proceed in his argumentation, holding open the possibility of some qualification. Courtesy, moderation, and a spirit of accommodation in negotiations, however, meant everything to Root. He stated “that both views are, in a broad sense, right,” and that “the equal rights of every sovereign state…is the foundation of the law of nations” (Root 1920c, 3). But, the norm of equality had to be balanced “with the inequality of practical interests which depend, not upon the grouping of individuals into states, but upon their production, their trade, their commerce, their activity” (Root 1920c, 3). He explained to the other jurists “the two do not fully agree and each has some rights to its view” (Root 1920c, 3). Taking as his point of departure the cases brought to the Arbitration Court at the Hague, Root (Root 1920c, 3) pointed out that “only few countries have been concerned, and doubtless there are many countries whose mode of life and whose international affairs are such that they will seldom…have recourse to any court.”

Root could not openly say, even as he clearly understood, that no court would ever be created without deference to the interests of the great powers. Yet, progress might be possible if there were some way “to reconcile these two views…the one coming from the…indisputable point of legal equality of states, and the other from the practical point of view of a deep and extensive practical interest in the subject” (Root 1920c, 3). It was natural, he said, that citizens of free countries would seek to resolve some issue “because they are equal politically with equal voice in the affairs of their country” (Root 1920c, 3). At the same time, Root (1920c, 3) had represented in American courts clients who “have a much greater interest in the matter which is to be disposed of than” others less directly impacted in a contentious case. Root was treating the election of court judges as one of those “practical matters” whereby “the greater practical interest” ought to factor into a decision that at base was as much political as legal. However distinct may be the judicial and political powers, “the personnel of the judiciary must necessarily have its origin in the political power” (Root 1920c, 4). In seeking a just outcome, Root (1920, 6) explained “the task is one of the adaptation of means to an end; it is that we may recommend that the proposed court be so constituted that, with the greatest certainty possible to human nature , it will do justice—a practical adaptation of human means to secure a divine end.” And, as for the role of state sovereignty in constituting the court:

In constituting a court, which is to render judgments limiting the rights of nations, we shall not be merely exercising the powers of sovereignty . What sovereign right has France to limit the sovereignty of Italy, of Great Britain? What sovereign right has Italy to name a judge to say that the power of France should be limited? Whence does this power come? From the sovereignty of Italy? It comes from consent; it has its origin in consent, not in the theory of sovereignty , not in the law of nations; it is purely conventional. The right of Italy to name a judge who can give decisions limiting the sovereign rights of France comes, not from the sovereignty of Italy, but from the consent of France . (Root 1920c, 7)

In determining whether the consent should be given mutually, and upon what terms, Root (1920c, 7) called attention to “the conditions and circumstances of the agreement we are proposing to make.”

In thinking of a way to resolve the impasse, Root (1920c, 3–4) returned to the Federal Convention of 1787 “not for the purpose of proposing that disposition here, but for the purpose of illustrating the way in which such a question has been disposed of.” Perhaps anticipating that such an example would bring charges of parochialism (especially when voiced by a citizen from a country that had repudiated the League), he admitted he had “not yet found any [solution] which is entirely satisfactory to me” while being confident “that we will reach it by discussion, by compromise of views, by the enlightenment which comes from hearing the expression of opinion from different points of view” (Root 1920c, 4). But his apology was, in reality, a plea for openness among fellow jurists. The 1787 compromise provided for “the creation of two legislative bodies…one in which the small states should be predominant” and another “in which the large states would be predominant, so that each had a veto on the unfairness of the other” (Root 1920b, 19). Could not this structural arrangement be applied to the relationship between the League and the formation of the Court? Root (1920c, 5) suggested “for the consideration of my colleagues, whether possibly the election of judges by the concurrent vote of the Assembly and the Council might not point out…the same solution of this difficult question, which has already been accomplished on the political side?” Root (1920c, 5) had an answer ready:

The effect of the practical working [of this arrangement] would be that in the Assembly, where the smaller Powers are in the majority, they would protect the interests of the smaller states, and in the Council, the larger Powers having a preponderance, would protect such practical interests of their greater trade and their greater production as would be submitted to the court.

By the practical workings of this arrangement (which was adopted by the Committee), court judges would be elected by the separate concurrent votes of the two bodies, thereby requiring each candidate to garner a majority vote in both. The smaller states, without surrendering any sovereignty , “would have a check on the big ones, and each body, one controlled by the great powers, and the other controlled by the small powers, would be able to prevent the other from doing anything unfair or unjust” (Root 1920c, 5).

The Committee also incorporated Root’s (1920b, 19) recommendation of a “conference committee” which (drawing on the American constitutional model) would come into play “if the Assembly and Council do not agree in the election of judges by a certain time, and after a number of ballots, a conference committee shall be appointed who shall agree and report.” Furthermore, the election of judges by the Council and Assembly would be removed “from the ordinary give and take of politics” insofar as the names of judges “should be made from lists made up by the old Permanent Court of Arbitration at The Hague” (Root 1920b, 19). The judges of the court were elected in 1921 and, in the course of 1922, the court itself was installed in the Peace Palace of The Hague, and formally opened to the world at large.

Root and the Diplomacy of the Fifth Reservation

The original protocol establishing the court (December 16, 1920) contained a provision that it should remain open for the signature of the United States. In February 1923, President Harding asked the Senate for consent to the signing of the protocol, having been persuaded to move forward by Secretary of State Charles Evans Hughes. The same request was forthcoming one year later from President Coolidge. On January 7, 1926, the Senate (voting 76 to 17) passed the resolution providing for American adherence to the court subject to five reservations,

  1. 1.

    That such adherence shall not be taken to involve any legal relation on the part of the United States to the League of Nations or the assumption of any obligations by the United States under the treaty of Versailles.

  2. 2.

    That the United States shall be permitted to participate through representatives designated for the purpose and upon an equality with the other states, members, respectively, of the council and assembly of the League of Nations, in any and all proceedings of either the council or the assembly for the election of judges or deputy judges of the Permanent Court of International Justice or for the filling of vacancies.

  3. 3.

    That the United States will pay a fair share of the expenses of the court as determined and appropriated from time to time by the Congress of the United States.

  4. 4.

    That the United States may at any time withdraw its adherence to the said protocol and that the statute for the Permanent Court of International Justice adjoined to the protocol shall not be amended without the consent of the United States.

  5. 5.

    That the court shall not render any advisory opinion except publicly after due notice to all states adhering to the court and to all interested states and after public hearing or opportunity for hearing given to any state concerned; nor shall it, without the consent of the United States, entertain any request for an advisory opinion touching any dispute or question in which the United States has or claims an interest [emphasis added] (Lien 1926, 47–48).

The resolution was submitted by the Secretary of State to the signatories of the court statute and also to the Secretary General of the League of Nations. British Foreign Secretary Austen Chamberlain, at a meeting of the League Council in March 1926, expressed the concern that the wording of the second half of the fifth reservation might “hamper the work of the Council and prejudice the rights of the members of the League” while conceding “it is not clear that it was intended to bear any such meaning.”Footnote 2 The signatories met in conference six months later to consider the American reservation in order to determine if acceptance of the reservation would entail modifications of the court statute. The United States, although invited to the conference, declined to send anyone, with Secretary of State Frank Kellogg expressing the view that the reservations were clear and unequivocal.

The conference report ended up accepting unconditionally the first four reservations, but stipulated that the right of vetoing advisory opinions be the subject to further discussion with the United States. The signatories agreed that the court should not render any advisory opinion without American consent in any case that the United States was a party. What had to be clarified was America’s role in objecting to any advisory opinion in cases where the United States claimed an interest. The Final Act of the signatories suggested a draft protocol that contains the following, “The manner in which the consent provided for in the second part of the fifth reservation is to be given, will be the subject of an understanding to be reached between the Government of the United States with the Council of the League of Nations” (Root 1931a, 4).

More than two years would pass before Senator Frederick Gillett would introduce a resolution (submitted to the Foreign Relations Committee) suggesting to the President that an exchange of views be undertaken in order to establish whether the differences between the United States and the signatory states could be harmonized. Before the resolution could be acted on, President Coolidge, on November 24, 1928, announced that he intended to reopen the negotiations. A little more than two weeks later, the League Council invited a committee of experts to Geneva to deliberate on the desirability of making changes in the Statute of the Court. Root was invited to serve as a member of that committee (Jessup 1938, 2/434).

Root, joined by his friend and biographer Philip Jessup, made the Transatlantic crossing in his eighty-fifth year, arriving in Geneva at the beginning of March 1929. In his mind, the trip represented maybe the last opportunity to bring the United States into the World Court. He had no powers to negotiate with the League Council, the administration preferring that any agreements be negotiated with the individual signatory states. Yet, the evidence seems clear that, during the last days of the Coolidge administration and the beginning of the Hoover administration (revealed in the traffic of cables between Washington and Geneva ), Root would be no idle spectator. He later recalled that “the importance of [the United States] to the Court was becoming secondary to my instincts as an old State Department man of the United States,” having “to secure protection for my own country against a dangerous and incredible situation” (Root 1929, 14–15).

That situation was as much about the posturing and mixed signals from Washington than the challenges from signatories of the League. Upholding American interests (and interest in the Court) was not made easier by “our dependence in all these things upon the action of a lot of people who don’t think about the subject or feel responsible for it” (Root 1929, 15). Lurking behind his efforts to craft together an acceptable formula were protests that the duty “to render advisory opinions to the Assembly or the Council makes the Court a Department of Justice for the League” (Root 1929, 1).

In an interview given by Root on May 27, 1929, and marked in his own handwriting “Very Confidential,” he described his modus operandi in Geneva . He talked fully with members of the Council for ten days before the meeting of the Committee of Jurists. The “slender thread” upon which he based his hopes was an important network of personal relationships; otherwise “I could have been fired” (Root 1929, 15). He “had it out with Chamberlain, Stresemann , Briand and Adatci, and the representatives of the Scandinavian and South American states….and got them all to understand the situation” (Root 1929, 15). One of the members of the Council even confided to Root (1929, 4) that they had given up asking for advisory opinions, saying “the authority of the Court is so great that we would not dare refuse to follow it, and we don’t want an advisory we have to follow.” Although unable to act as a representative of the United States with authority, he proceeded to do so anyway, “with the consul’s office…instructed to carry on all correspondence that I wanted in code, and constant cable correspondence between the State Department and myself at every time and every stage” (Root 1929, 6).

Sir Austen Chamberlain, in early March, had drawn the attention of the League Council to a letter from Secretary Kellogg (February 19, 192), who amended his earlier observation about the reservations being clear and unequivocal, and called for an exchange of views that might lead to some agreement by which the interests of the United States could be protected as an adherent to the Court statute. After Chamberlain particularly cited Root’s membership on the Committee of Jurists, the Council proposed that the Committee’s function be expanded to include the question of the accession of the United States to the Court. On March 18, the Committee approved a draft protocol superseding the proposed protocol in 1926. The revised protocol accepted all five reservations based upon a formula Root devised on how the reservations would be put into effect.Footnote 3 We turn now to Root’s formula and his procedural modification of the second half of the fifth reservation.

By itself, the fifth reservation provides no way by which the Council could ascertain whether the request for an advisory opinion from the Court touches upon a dispute for which the United States has or claims an interest. Root rejected the inference that the United States could make good on objecting to an advisory opinion by simply going into the Court and fighting it out as if in a lawsuit. The United States, in this situation, would be in the position of having to establish its objection on the record of the Court and of stating what the interest is, as the Court would then be in the business of having to determine the nature and limitation of the interest in order to determine whether the question put to it touches that interest. For example, “if it is a question that incidentally affects the Monroe Doctrine, the Court must say what are the limitations of the Monroe Doctrine, in order to say whether it is justified in refusing to give an opinion” (Root 1929, 10). The United States, then, would “have done the very thing the fifth reservation was designed to prevent” (Root 1929, 10). The Council, upon submitting a request to the Court for an advisory opinion , would be left in a politically precarious position. In a memorandum submitted by Root to the Senate Foreign Relations Committee in 1931, Root (1931a, 13) outlined the predicament,

The Council would…have sent its request without knowing whether the question was objectionable to the United States, for it had no means of getting direct and authentic information on the subject. It would have no opportunity to seek from the United States its consent and the Court would give an advisory opinion on the subject. The result would probably be that the Council would be rebuffed by the Court, the plans for settlement of an international controversy…would be frustrated and the whole use of advisory opinions, very important for the prevention of war, especially during the readjustments following the World War, would be doubtful and uncertain.

Root (1931a, 17) and the other Jurists, in their final report, concluded that it was impossible “to allay the apprehensions of either side…by the elaboration of any system of paper guaranties or abstract formulae.” The better route “is to deal with the problem in a concrete form, to provide some method by which such questions as they arise may be examined and views exchanged, and a conclusion… reached after each has made itself acquainted with the difficulties and responsibilities which beset the other” (Root 1931a, 17).

Root’s (1929, 10) formula was embodied in Article 5 of the reservations protocol. What he described as the “only door there is for the application of the fifth reservation” is enumerated in the first four paragraphs of the Article in question (Root 1929, 10). Any proposal requesting an advisory opinion of the Court, made in either the Assembly or the Council, would require the Secretary General to notify the United States, “and thereupon there shall be an exchange of views between the proponents of the request and us as to whether an interest ours is affected” (Root, n.d., The United States And The World Court, 5).

The formula goes on to provide that, in case the Secretary General should not get the notice around in time, or should there be a special exigency on the last day of Council, a second notice should be forthcoming from the Registrar of the Court stating a reasonable time limit within which the United States is afforded the opportunity to advise the Court on whether its interests are affected. “Further, the proceedings of the Court shall be stayed for a period sufficient for an exchange of views between the Council or the Assembly and the United States” (Root 1929, 11–12).

There follows a provision stipulating that, in any case in which the United States objects to an advisory opinion , there shall be attributed to that objection “the same force and effect as attaches to a vote for the opinion by a Member of the League of Nations in the Council or in the Assembly” (Root 1929, 11). If no agreement can be reached, and were the United States to persist in its objection to an advisory opinion , then, in the language of the Treaty, “the exercise of the powers of withdrawal provided for in Article 8 hereof will follow naturally without any imputation of unfriendliness or unwillingness to cooperate generally for peace and good will” (Root 1929, 11–12).

Root (1931b, 13), testifying for two and a half hours before the Senate Foreign Relations Committee in 1931, could not “envisage a disagreement regarding a question which is likely to lead to the abandonment of the entire enterprise.” He reminded Senators of the importance of negotiating in good faith. “Cooperation must be between people who treat each other in a friendly manner. It cannot exist between enemies who treat each other in a hostile manner” (Root 1931b, 13). A refusal to treat that acceptance as an acceptance “would require a finding on the part of the Senate that the United States cannot consent to be frank and truthful and sincere about its views in the course of its cooperation in support of this great agency of peace” (Root 1931b, 12).

Although Root was circumspect about the duties of the Senate in his testimony, he was more explicit in private exchanges with like-minded friends and associates. The Senate would do itself a cardinal disservice in the eyes of the world if it were suddenly to depart from the five reservations, with Root convinced that there was nothing in the protocol for adherence to the Court that would justify a failure to approve. It would impair the constitutional authority of the President to negotiate treaties if, after having the advice and consent of the Senate, “the Senate considers that it can withdraw its own conditions and propose other and further conditions” (Root 1929, 13). For the sake of the Senate’s own self-respect, and “for the exercise of its own power hereafter, it is bound to say that, ‘More sacred than the Constitution is our own word, which we have pledged here’” (Root 1929, 14).

“Slow and Laborious”

At the close of his testimony to the Senate committee, Root returned to the relationship between the Court and the development of the law of nations. He pointed out that, prior to the first Hague conference in 1899, international law typically was made by the treatment of concrete cases through the foreign offices. The problem is that these cases “came up very far apart” and, “as the relations of nations have become so complicated…this slow method of making international law was lagging far behind” (Root 1931b, 16). His own experience taught him that legal rules are almost always never agreed to “by the representatives of governments in the conferences under their own steam” (Root 1931b, 16). Precedents and customs always had to be studied beforehand by experts, “and here or there…comes a rule of international law,” although usually “of an academic variety” (Root 1931b, 16). But what they have really agreed to is “a conception or rule of international law by students or professors” that may not outlive a conference presentation or an obscure article publication (Root 1931b, 16). By contrast, the World Court would be called upon frequently “to pass upon rules of international law and apply them in specific cases,” a process that “follows the course by which our law was created, the course by which all law must be created”—that is, “in conformity to the life of the people who are affected” (Root 1931b, 16). Root (1931b, 16), for one, strongly desired that his own country, “which has certain conceptions of ordered justice …shall have its hand in this development and do its duty to the future of civilization by bringing its own conception of justice to bear upon it.”

While Root (1931b, 15) would try to convince reluctant Senators (and more reluctant than he likely appreciated) that membership in the Court was in keeping with the best “idealism of America,” and that nations and ambassadors the world over “are beginning to conform their feelings toward the existence of new ideas,” he never wavered from his conviction that improving “foreign relations…is necessarily very slow and laborious and difficult” (1932, 1) No amount of brilliant speeches, professional meetings, or impressive books could substitute for “steady, continuous, and unspectacular labor” (Root 1932, 1). Nothing of lasting value would come from reformers “who are impatient, the people who are in a hurry, and who want everything done at once” (Root 1932, 1). This temperament would have the not surprising outcome of the excited reformer, once an immediate outcome is not forthcoming, conclude, “Oh, well, it does not amount to anything” (Root 1932, 1). Questions of legal reform, he believed, could not be taken up without discussing “international feeling, international manners, international morals”—all of those being “necessary to complete the picture” (Root 1932, 1). Moral improvement in the conduct of nations would not come from reaching “written or oral agreements…making treaties…[or from] intellectual reasoning” (Root 1932, 1). What mattered for Root (1932, 1) is “the enlargement and elevation of standards of conduct in all countries.” Institutionalizing new standards of conduct was not just about settling controversies. If nothing has been done but settle differences, “you start the future just where you started years before” (Root 1931b, 16). If international law is to be effective, it must rest upon “concurrent judgment and condemnation,” and the only way to make general judgment possible in contentious cases “is by bringing them to the decision of a competent court which will strip away the irrelevant, reject the false, and declare what the law requires or prohibits in a particular case” (Scott 1924, 21).

Reinforcing the progressive dimension of Root’s promotion of international law, as well as his support for American membership on the World Court, was the conviction (sustained over long years of public service) that “the theoretical postulate of all diplomatic discussion between nations is the assumed willingness of every nation to do justice” (Root 1912, 7). And, although Root’s discussion of justice centered most often upon judicial procedures for clarifying rights and obligations, it figured prominently in his own efforts to promote the popular understanding of international law. Serving as the first president of the American Society of International Law , he wrote, “The increase of popular control over national conduct, which marks the political development of our time, makes it constantly more important that the great body of people of each country should have a just conception of their international rights and duties” (Root 1907, 1).

Root tied his discussion of international law to the advancement of democracy and globalization. “The existence and assured continuance of development of democracy ,” he wrote in 1917, “is the great fact forecasting the future conditions under which the effort to reinstate the law of nations is to be made” (Root 1917, 5). A law-governed international system depended, therefore, on creating a community of democracies. Within this community of nations, Root (1917, 7) envisaged “standards of conduct…being established, and a world-wide public opinion …holding nations to conformity or condemning them for disregard of the established standards.” From this angle, and a view endorsed years later by Anne-Marie Slaughter (2006, 203), Root was making the case that the advance and spread of democracy was necessary for international law to survive. While Root (1917, 7–8) knew perfectly well the “great wrongs” that democracies are “liable to commit,” law “in a democracy …is an expression of the people’s own will, self-respect, and personal pride, and patriotism demand its observance.”

Following the failure of the United States to support the League of Nations or to adhere to the World Court, Root increasingly emphasized how international law served as a disciplinary restraint on the parochial political loyalties and ideological excesses of democracies themselves. Root questioned whether any society, democratic or otherwise, had a special claim to universal values or a right to impose such standards (democratic or otherwise) by force. He grew increasingly skeptical about the rancor and prejudiced public opinion behind the political process, unconvinced that democratic societies and their leaders could grasp the complexities of international relations. According to Anthony Carty (2006, 211), this skepticism “is the distinctive reason why he wishes to combine democracy with international law.” Root’s legalism shifted from why democracies favor international law to why democracies need international law as a form of discipline and restraint. People’s resentments and sense of injustice suffered from other countries must be disciplined into agreed international standards (Slaughter et al. 2006, 15).

The often-shrill opposition of American leaders to the League and World Court was driven by the “popular assumption, often arrogant, often ignorant that the extreme claims of one’s country are always right and are to be rigidly insisted upon as a point of national honor” (Root 1912, 6). Submitting a dispute to the jurisdiction of the Court, far from sacrificing independence, “admits that in a dispute on which we have taken a stand we might possibly be wrong; at least, it admits that we are unable to convince our opponent that we are right; and it yields the determination to an impartial outsider.” He continued

We are the last nation who should adopt that doctrine, for we think we are the most powerful of all. We could play the bully, claiming we never could be wrong…and refuse to submit any quarrel to an impartial tribunal. But decency, self-respect, American love of fair play, and American tradition and history would reject any such selfish and obsolete doctrine…If we have, more than any other nation, advocated this doctrine throughout all the days of our weakness, shall we abandon it now, in the day of our might? Are we to submit disputes to courts when we are weak and refuse to do it when we are strong? (Root, n.d., 15)

To oppose the idea of judicial settlement of international disputes, in Root’s judgment, meant “going back to barbarism, to ‘the good old plan that he shall take who has the power , and he shall keep who can’” (Ibid. 15).