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American Foreign Policy Toward International Law and Organizations: 1898-1917 Loyola of Los Angeles International and Comparative Law Review Volume 6 Number 2 Article 1 3-1-1983 American Foreign Policy toward International Law and Organizations: 1898-1917 Francis A. Boyle Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation Francis A. Boyle, American Foreign Policy toward International Law and Organizations: 1898-1917, 6 Loy. L.A. Int'l & Comp. L. Rev. 185 (1983). Available at: https://digitalcommons.lmu.edu/ilr/vol6/iss2/1 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. LOYOLA OF LOS ANGELES INTERNATIONAL AND COMPARATIVE LAW JOURNAL VOLUME 6 1983 NUMBER 2 American Foreign Policy Toward International Law and Organizations: 1898-1917* FRANCIS A. BOYLE** TABLE OF CONTENTS 1. INTRODUCTION .............................................. 187 A. PoliticalRealism ........................................ 187 B. Legalism-Moralism ..................................... 188 C. The Legalist Approach to InternationalRelations ......... 190 II. AMERICAN FOREIGN POLICY TOWARD INTERNATIONAL LAW AND ORGANIZATIONS ........................................ 198 A. American Legalism as a Reaction to the Spanish-American War .................................................... 198 B. American Legalism as a Rejection of the European Balance of Power System ........................................ 201 C The American Legalist War Prevention Programfor World P olitics .................................................. 204 1. A system for the obligatory arbitration of interna- tional disputes ....................................... 207 a. the First Hague Peace Conference ................ 207 * Copyright 1983 by Francis A. Boyle, Professor of Law, University of Illinois College of Law at Champaign-Urbana. This article is part of a dissertation entitled "Realism, Positivism, Functionalism and International Law," to be submitted for the degree of Doctor of Philosophy in Political Science at Harvard University. A preliminary version of this article was delivered before the 76th Annual Convention of the American Society of International Law on a panel devoted to The Seventy-fifth Anniversary of the Second Hague Peace Conference, held under the auspices of the Lieber Group on the Law of War, April 23, 1982. This article is dedicated to Leo Gross. I alone am responsible for its contents. ** A.B., 1971, University of Chicago; J.D., 1976, Harvard Law School; A.M., 1978, Harvard University; Ph.D., 1983, Harvard University. Loy. L.A. Int'l & Comp. L. J6 [Vol. 6:185 b. the Hay Arbitration Conventions .................. 213 c. the Second Hague Peace Conference .............. 215 d the Root Arbitration Conventions .................. 216 e. the abortive planfor compulsory compromis ....... 218 f the golden age of internationalarbitration .......... 219 2. The foundation of an international court of justice... 221 a. the theoreticalbasis ............................... 221 b. arbitration versus adjudication .................... 222 c. the plan for a court of arbitraljustice .............. 223 d the stalemate over the selection ofjudgesfor a world court ....................................... 228 e. the Permanent Court of InternationalJustice ...... 233 3. The codification of customary international law ...... 239 4. Arms limitation, disarmament and new procedures for the peaceful settlement of international disputes.. 252 a. arms limitation and disarmament .................. 252 b. good offices and mediation ........................ 256 c. internationalcommissions of inquiry ............... 257 d Convention on the Opening of Hostilities .......... 259 e. the Porter Convention ............................. 263 5. The Third Hague Peace Conference ................. 266 III. UNITED STATES FOREIGN POLICY TOWARD CENTRAL AMERICA AND THE CARIBBEAN .............................. 269 A. InternationalLaw and United States Imperial Policy ..... 271 1. The M onroe Doctrine ............................... 271 2. The Roosevelt Corollary ............................. 272 3. The Panama Canal .................................. 274 4. The Dominican Republic Loan Convention .......... 276 5. Cuba and the Platt Amendment ..................... 278 6. The interaction between United States imperial policy in the Americas and the United States attitude toward Japanese imperial policy in the Far East ..... 280 7. The Mexican Revolution ............................ 283 B. The Inter-American System .............................. 290 1. The First International American Conference ........ 292 2. The Second International American Conference ..... 296 3. The Third International American Conference ....... 300 4. The Fourth International American Conference ...... 303 5. The Central American sub-system ................... 304 IV. AMERICAN NEUTRALITY DURING THE FIRST WORLD WAR .. 307 A. The Bryan Peace Plan ................................... 307 B. The Laws of Neutrality .................................. 312 V. CONCLUSION ................................................. 325 1983] American Foreign Policy Toward InternationalLaw 187 I. INTRODUCTION A. PoliticalRealism A cardinal tenet of the "realist" or power politics school of in- ternational political science is that international law and interna- tional organizations are "irrelevant" to conflicts between states over matters of vital national interest. ' These conflicts comprise issues of international politics which concern the very survival of nation states, the international system and the human race itself. Consider- ations of international law do not and should not intrude into such areas. However, when such considerations do intrude, it should only be to the extent that they serve as a source of ad hoc or ex post facto justifications for decisions based on antinomial factors such as Machiavellian power politics and national interest. In the realists' view of international relations, international law is devoid of any intrinsic significance within the utilitarian calculus of international political decision making. International law, morality, ethics, ideol- ogy and even knowledge itself are mere components in the power equation. They are devoid of significance or prescriptive worth, and when deemed necessary for the vital interests of the state, such com- ponents are subject to compulsory service as tools of power.2 Since there are no barriers to the acquisitive nature of nation-states be- yond their own inherent limitations, members of the realist school assert that an analysis of international relations must concentrate exclusively upon the dynamics of power politics. The reasons for the realists' negative perception of interna- tional law are more the product of metaphysical speculation than of solid empirical research. The nations of the world are said to sur- vive precariously in the Hobbesian state of nature, where life is "sol- itary, poor, nasty, brutish, and short." 3 In this state of nature there exists no law or justice, no conception of right or wrong, and no morality. There is only a struggle for survival in which every state is at war against every other state. The acquisition of power, at the 1. See Boyle, The Irrelevance of InternationalLaw: The Schism Between International Law and InternationalPolitics, 10 CAL. W. INT'L L.J. 193 (1980) [hereinafter cited as Irrele- vance]. For an analysis of the relationship between international political realism and the American legal realist movement of the 1920's and 1930's, see H. STEINER & D. VAOTS, TRANSNATIONAL LEGAL PROBLEMS 346-52 (2d ed. 1976). 2. See generally H. MORGENTHAU, POLITICs AMONG NATIONS 4-15 (5th ed. 1973). But cf. Editorial Comment, Lawyer-Secretaries of Foreign Relations of the United States, 3 AM. J. INT'L L. 942 (1909) (the great United States Secretaries of State were lawyers). 3. T. HOBBES, LEVIATHAN 100 (M. Oakeshott ed. 1962). Loy. L.A. Int'l & Comp. L. J[ [Vol. 6:185 expense of other states, is a fundamental right and a fundamental fact of international politics. Sheer physical survival in the Machia- vellian world of power politics, totalitarianism and nuclear weapons must be the litmus test for the validity of man's political, philosophi- cal, moral and legal presuppositions. International law therefore becomes irrelevant to any matter of importance in international re- lations. Moreover, international law will not become relevant to in- ternational politics in the foreseeable or even distant future. Statesmen who disobey the "iron law" 4 of power politics at the behest of international law invite destruction at the hands of aggres- sors. Such statesmen facilitate the destruction of third parties which cannot realistically hope to remain neutral in a serious conflict be- tween major powers. Historically, whenever considerations of inter- national law have entered into attempted solutions for the problems of international politics, the probability that violence, war, defeat, death and destruction would ensue has dramatically increased. The primary case in point was President Woodrow Wilson's approach to international affairs after the outbreak of the First World War. B. Legalism-Moralism On January 8, 1918, President
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