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part in maintaining international peace as a means of preventing CHAP. the inevitable injury to themselves as neutrals in the event of a war between two irresponsible belligerents. In the second place, it is necessary to remove from the law of war all those elements which operate as a menace in time of peace. Obviously under the existing rules of maritime war the right to capture the merchant fleet of the enemy operates even in time of peace as a club in the hands of the nation whose navy is larger, and which may thereby obtain its will by intimidation without resorting to actual force. Practically speaking, the seas are not free to a state which must count on the loss of its merchant fleet as a condition of war, irrespective of the justice or injustice of its cause. The removal of this menace in time of peace could be accomplished, not by acquiescing in war and then denying to a belligerent the exercise of his customary rights, but by outlawing war and then by concerted action maintaining the freedom of the seas normally enjoyed in time of peace.1

In this light may be read President Wilson's statement on January 22, 1917, that "no doubt a somewhat radical reconstruction of many of the rules of international practice hitherto thought to be established may be necessary in order to make the seas indeed free and common in practically all circumstances for the use of mankind"; and again, that the freedom of the seas was "a problem closely connected with the limitation of naval armaments and the coöperation of the navies of the world in keeping the seas at once free and safe." Official Statements, loc. cit. The writer's conclusions are confirmed in Potter, Freedom of the Seas in History, Law, and Politics, Chap. XII, which appeared while the present volume was in press. See, in particular, pp. 242-247, where the relation of the freedom of the seas to the general problem of international organization is discussed.

a. Freedom in respect to foreign relations

Limitations imposed by unequal treaties

CHAPTER XIX

THE EXTERNAL INDEPENDENCE OF STATES

In the preceding chapters the internal independence of the state has been presented, both from the point of view of the jurisdiction or control of the state over the persons subject to its authority, and from the point of view of the property rights which a state possesses over the territory to which it has title. International law is, however, further concerned with the external aspect of independence, which is expressed in the freedom of the state in respect to its activities outside the boundaries of its national domain.

Apart from the rights associated with the management of its domestic affairs, whether concerning persons or territory, a state is recognized as being in law a free agent in the maintenance of relations with other states. As such, it may enter into a wide variety of formal and informal contractual agreements with other states. The objects contemplated by these agreements have only in small part been brought within the field of international law. For the most part states have pursued their foreign policies without reference to, or control by, the interests of the international community as a whole. The primary concern of international law has been simply to determine the capacity of the state to enter into contractual relations with other states which shall be regarded by the international community as legally binding upon the parties competent so to contract.

The question of the legal capacity of a state to contract is, as has been seen, one of the decisive points in the determination of the possession by a political community of full international personality. Any restriction imposed upon a state by another state or group of states in respect to the free determination of its foreign

'How far this legal freedom corresponds to an actual freedom is a question beyond the scope of international law. Even in municipal law a legal freedom of contract may have to be exercised under conditions which amount to practical compulsion. A corresponding physical necessity may dictate the action of states without encroaching upon formal independence.

'See below, pp. 302 ff.

3

Sce above, p. 86.

1

XIX

relations raises a presumption against the formal sovereignty of CHAP. the state. It is important to observe, however, that restrictions or limitations upon freedom of external action may be imposed upon a state without qualifying its legal status within the international community, provided they take the outward form of a free contract between the parties. Consequently when a stronger power or group of powers has not desired to deprive of membership in the international community the party that is being subjected to restrictions, the formality has been observed of concluding a treaty between the two parties, which preserves at least the outward appearance of a voluntary bargain between free agents. By the treaty of 1839, for example, Belgium obligated itself to observe toward all other states the neutrality imposed upon it by the powers which guaranteed to it that status. The restriction involved no impairment of the formal sovereignty of the state. Again, the restrictions placed upon Cuba by the United States at the time of the emancipation of the island were incorporated into a formal treaty between the two states, with the result that Cuba was able to assume the position of a sovereign state in the international community. By the terms of the treaty Cuba is obligated not to enter into any treaty with a foreign power which would impair its independence or to permit a foreign power to obtain lodgment in or control over any portion of the island. If in point of law the obligation, from the general terms in which it is framed, might seem to amount to a serious restriction upon Cuba's freedom, in point of fact it is reduced to insignificance by the improbability of a desire on the part of Cuba to take the action contemplated. In contrast with these two cases it may be noted that the London Convention of 1884 imposed upon the South African Republic the obligation not to conclude treaties with any other foreign state except the Orange Free State. This restriction was not regarded by the republic as barring its claim to be "a sovereign international state," although Great Britain subsequently asserted and enforced a contrary conclusion.5

Similar in their legal character to the restrictions imposed upon a weak state by one or more stronger states are the restrictions sometimes imposed upon a defeated state by the treaty of peace 1See above, p. 90. 2 See above, p. 88.

Art. 1, Malloy, Treaties, I, 362.

Art. 4. Br. and For. State Papers, LXXV, 5.

For the controversy with respect to the effect of the restriction in question upon the sovereignty of the South African Republic see Baty, International Law in South Africa, 47 ff.

Restrictions treaties of

imposed by

peace

CHAP.

XIX

Effect of bilateral treaties

b. Objectives of foreign policy

with which the war is concluded. These restrictions have been at times of a far-reaching character, but their legal effect is judged not by the extent to which they affect the actual independence of the state, but by the extent to which they encroach upon the state's formal sovereignty. Provided the latter be left intact, the obligations imposed upon the defeated state are, in the theory of the law, considered as conditions which it willingly pays as the price of peace. By the Treaty of Versailles Germany was obligated to abrogate certain treaties, to continue others in force, and to conclude new treaties of a stipulated character. None of these restrictions, however, affected the legal competence of Germany to contract with third states in a sense contrary to the obligations of the treaty. Apparently any such contracts would be legally valid as between the parties to them, although involving breach of contract by Germany with the parties to the Treaty of Versailles, and giving the latter the right to such redress as international law affords.

3

Apart from the exceptional cases in which the freedom of a state in the control over its foreign affairs is restricted by treaties of unilateral obligation, there is the large body of treaties in which the parties mutually restrict their freedom of action in respect to their relations with third states. The fact that in such cases the contracting parties stand on a parity and that the obligations undertaken may be set aside by dissolution of the treaty in accordance with its terms prevents the restrictions thus assumed from being regarded as in derogation of the legal capacity of the parties. Thus the formation of a political alliance may restrict the right of the allies to enter into contractual obligations with third states contrary to the terms of the alliance. Again, states may enter into commercial treaties containing a "most-favorednation" clause which will have the indirect effect of qualifying their bargaining power in concluding a trade agreement with third states. But no question is raised thereby with respect to their general legal competence. Agreements to the contrary would be legally valid, although giving rise to a claim for redress on the part of the injured state.

2

International law assumes, therefore, a general right on the part of a state to maintain such relations with other states as shall See below, p. 327. The student may compare the corresponding provisions of municipal law, which, with the exception of contracts void as being against public policy, permit restrictions upon personal freedom of action in various fields of activity.

* See Art. 282-295.

XIX

seem to it best to promote its national welfare. The actual rela- CHAP. tions thus maintained are, however, for the most part outside the scope of international law. While numerous restrictions have come to be imposed upon states in the administration of their domestic affairs, obligating them, for example, to accord a due measure of protection to aliens, and to extradite fugitive criminals, international law has thus far left the individual state practically unhampered in the pursuit of its foreign policies. In consequence, since international law has offered no adequate sanction for the protection of national rights, states have felt it their primary duty to themselves to shape their foreign policies so as to secure the fullest measure of protection for their national existence. This duty accomplished, states have, in more modern times, concentrated their attention upon the development of their commercial relations with other states, and have sought by one means or another to obtain for themselves the largest possible share of the material wealth of the world. The result has been that conflicts of national policies have come about, at times friendly, where the issues involved were not of importance, at other times sharp to the point of armed hostilities, where matters of vital concern were at stake. In the meantime the international community as a whole has attempted only in small degree to reduce these conflicts to law and order by undertaking a collective responsibility for the pro tection of national rights. The fundamental sovereignty of the state has been put forward by the stronger powers as an argument against the development of such a collective responsibility; while weaker states have found their best protection in avoiding the areas of conflict. In so far, therefore, as existing international law is concerned, the foreign policies of states, and the disputes to which they give rise, can practically be dismissed from attention. But since these same foreign policies are often entangled with the assertion of legal rights and have been, as a matter of fact, at the root of most of the wars of modern times, it is necessary to sketch their broad outlines and the conditions under which they are put into effect.

National

For nations as for individuals, self-preservation is the first and fundamental right. A state recognized as a member of the inter- self

See above, p. 142. It will be remembered that in so far as international law is concerned it makes no difference in this respect whether the particular nation is a homogeneous group, such as should logically constitute a single state, or whether it is a heterogeneous group with no natural binding ties and held together chiefly by the power of a dominant part of the state.

protection