CHAP. Subjects outside the law Law versus sovereignty the nations have been provided for by coöperative agencies of a highly organized character.1 The limited scope of international law manifests itself when we turn from matters of common convenience to the more vital interests of the nations. An important group of subjects, involving the very questions which have been at the root of the wars of modern times, lie wholly outside the sphere in which the existing rules of international law operate. Side by side with the economic interdependence created by the complex web of international commerce and finance there exists a condition of economic competition in which the struggle for control over the raw materials of industry, for the trade of foreign markets, for concessions in undeveloped countries, and for other economic advantages remains. unregulated by any rule of conduct. Within this field international relations are as lawless as was industrial competition within the individual state during the period when laissez faire was the accepted principle. At the same time the primary political interest of national self-defense is as yet beyond the control of international law. In consequence, certain issues, commonly known as "matters of policy," are still withheld from the operation of any prescribed rule. These issues are difficult of definition, but in general they include whatever relates to the safety of the state, both in respect to security from attack from without and in respect to vital well-being from within. In like manner the forces of national expansion, popularly described as "imperialism," cannot be fitted into a recognized category of international rights.3 It is the absence of a law governing the more fundamental interests of the nations that explains the apparent contradiction between the sovereignty of states and the existence of rules of international law. The traditional theory of sovereignty implies the complete freedom of a state from control by any higher power claiming authority to regulate its acts. Whatever rules of con A full description of and commentary upon these conventions, as of 1911, may be found in Reinsch, Public International Unions. Since 1920 the administrative functions referred to have in part been taken over by the League of Nations. See below, pp. 48-49. See below, Chap. XIX, b. *See below, pp. 308 ff. The student may compare the original conception of sovereignty as 2 characteristic of the internal organization of the state with the later use of the term in international relations. Bodin used the term in 1576 to express "a power supreme over citizens and subjects, itself above the law, summa in cives ac subditos legibusque soluta potestas. Grotius used it in the same sense, De Jure Belli et Pacis (Eng. trans.), Bk. I, Chap. III, § VI; but the term had II duct are recognized by the state as binding upon it must be self- CHAP. imposed obligations. Existing usages and customs represent rules impliedly consented to by the older states, or explicitly consented to by new states as a condition of their admission into the inter national community. Further obligations assumed by international conventions must receive the express ratification of the individual state; and in deliberating upon the assumption of these obligations, each state determines for itself the nature of the engagements that it is willing to enter into and the extent to which it will be bound by them. Sovereignty thus implies not the denial of rules of law already in existence, as has at times been its practical significance,' but the rejection of rules imposed by a higher authority against the will of the state. When tested by the facts of international life it is seen that, on the one hand, sovereignty is compatible with numerous restrictions upon state conduct in matters in which the advantages of an orderly adjustment of claims, by the adoption of a common rule of law, have come to be recognized. Within these fields of international relations interdependence has taken the place of independence, and the right of arbitrary decision has been definitely renounced. On the other hand, states continue to remain free agents in respect to other matters which remain outside the law. No obligation can be imposed upon them, by whatever majority of the international community, against their individual wills. Each remains the guardian of its own interests, and the ultimate then come to imply an independence of external control as well as supremacy within the state. See Ibid., § XXI. Thereafter the term came into general use as negativing the overlordship of one state by another. See Vattel, Droit des Gens (Eng. trans.), Bk. I, §§ 4-12. By the nineteenth century the term was further extended to suggest the independent position of the state with respect to the community of nations as a whole. 1 As when states have fallen back upon their "sovereignty" to repudiate their obligations. In such cases "sovereignty" more often refers to the right of a state to interpret its obligations for itself, although occasionally it has implied the denial of the obligation itself. Compare the recent refusal of Italy in its claims against Greece to accept the intervention of the League of Nations, as provided in Art. 12 and 15 of the Covenant. Law essentially implies, within its prescribed field, the dominance of a higher authority, whether exercised by a closely organized body, such as the United States in respect to its member States, or by the more loosely organized community of nations such as existed in 1914. It is the method of their adop tion, by voluntary act in each instance, rather than the substance of the rules themselves, which determines their compatibility with sovereignty. 3 Thus the United States remains free to refuse to be bound by obligations assumed by the members of the League of Nations. Compare the refusal of Secretary Hughes for a period following 1920 to recognize the existence of the League. CHAP. II Sovereignty versus collective responsibility The orization of te League C. Nations arbiter of its own claims. Sovereignty is here seen in its purest form, as a theoretical position of legal isolation from which the state can be brought to emerge only by its voluntary acts.1 The exercise by a state of the right of arbitrary decision in questions relating to its vital interests has had, in turn, its effect upon the methods of procedure for the enforcement of national rights. Unwilling or unable to reduce their respective claims to a rule of law, the leading nations entered during the nineteenth century upon a system of competitive armaments which brought them, as a group, to a condition of ill disguised anarchy. Alliances were formed to strengthen the position of weaker nations, and were met in turn by counter-alliances of opposing groups. The unstable equilibrium thus resulting reacted upon the normal claims of the nations and led to more aggressive assertions of national rights. War continued to hold its place as the ultimate arbiter of international disputes in spite of a growing tendency to submit questions of lesser importance to tribunals of arbitration. At the same time, consistently with the recognition of the legality of war, neutrality became the recognized duty, as well as the right, of third parties. There was thus an almost complete absence of a sense of collective responsibility on the part of the community of nations as a whole for the maintenance of international peace. Neither in respect to the enlargement of the scope of international law, nor in respect to the just interpretation and faithful enforcement of such rules as existed, was it found possible to secure concerted action beyond the "beliefs" and "wishes" expressed at the peace conferences of the Hague. The dominant conception of national law, that the protection of the rights of the individual citizen is to be attained by the coöperative action of the community in establishing common agencies of justice, did not enter into the code of international law. 2 It is difficult, if not impossible, to determine at the present moment how far the fundamental character of international law as it existed in 1919 has been changed by the establishment of the League of Nations. Taking the League as a working institution, operating under a constitution as yet not given practical effect in That the term as generally used in international relations is open to serious objections has long been pointed out by scholars. The fact, however, that it is still in official as well as general use makes it impossible to omit reference to it. * See below, p. 519. See the Final Acts of the Hague Peace Conferences of 1899 and 1907, Hague Conventions, 25-30. 4 For the text of the Covenant of the League, see Appendix A. II all of its articles, it would appear that a new international organ- CHAP. ization has been created, closer in its legal obligations than the existing society of nations and yet not possessing such powers as to constitute it a federation or "super-state." The purpose of the organization is stated in the preamble to the Covenant as being the promotion of international coöperation and the achievement of international peace and security by the acceptance of obligations not to resort to war, the prescription of open and just relations between nations, the establishment of the understandings of international law as the actual rule of conduct between states,2 and the maintenance of justice and respect for treaty obligations. Provision is made for the accession of new members other than the original signatories of the Treaty of Versailles, of which the Covenant was made to form the first twenty-six articles (Article 1). The obligations are assumed without time-limit, but withdrawal from the League may take place after two years' notice. The organization consists of an Assembly, a Council, and a Permanent Secretariat (Article 2). The Assembly consists of representatives of all the members of the League, and is to meet at stated intervals, which have been fixed for the first Monday in September of each year. The Council consists of representatives of the five "Principal Allied and Associated Powers," together with six other members selected by the Assembly (Article 4). The Permanent Secretariat is established at Geneva, the seat of the League, and its expenses are apportioned among the members of the League in varying amounts (Article 6).5 the League: The functions assigned to the League are partly legislative, Functions of partly executive, and partly judicial. The legislative functions legislative are vaguely defined, both Assembly and Council being competent At the opening session of the Assembly the president of Switzerland, as host, felt it necessary to "affirm once more that the League of Nations is not and never will be a super-state which will absorb the sovereignty of states or reduce them to tutelage."' The term "super-state" has no definite legal connotation. As popularly understood it would appear to be a federal state with the power to dictate to its individual members. The right of individual veto in the Assembly precludes the possibility of coercion by however large a majority. For a study of what may be understood by "the understandings of international law," see Q. Wright, Am. Journal, XIV (1920), 565. For a discussion of the respective jurisdictions of the Assembly and the Council, see C. G. Fenwick, "Notes on International Affairs," Am. Pol. Science Rev., XV (1921), 96. The number originally provided for was four, the Council being given a right to increase the number with the consent of a majority of the Assembly. "See below, p. 139. and executive CHAP. II Adminis trative functions to deal with any matter "within the sphere of action of the League or affecting the peace of the world" (Articles 3, 4); but the deci sions of either body require the agreement of all members present at the meeting. The executive functions consist in the maintenance of the general peace and in the supervision of the administrative work intrusted to the League. In providing for the first of these objects the Covenant foreshadows the adoption, if it does not actually mark the adoption, of the principle of collective responsibility on the part of the League as a body for the protection of the rights of its individual members. Article 11 provides that "any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League.' Wars and threats of wars have always been a matter of concern to the nations individually; they are here declared to be of concern to the nations in their collective capacity as members of the League. Again in Article 16 it is stated that if any of the contracting parties should break the agreement to arbitrate contained in Article 12 it shall thereby "ipso facto be deemed to have committed an act of war against all other Members of the League." More significant still is Article 10, by which the members of the League pledge themselves "to respect and preserve as against external aggression the territorial integrity and existing political independence of all the Members of the League." The scope of this last clause was officially interpreted by the Assembly at its first meeting as not embodying a guarantee of the status quo, but merely securing mutual protection against acts of aggression, pending the submission of the dispute to the League or to arbitration.1 The administrative functions of the League are more specific and tangible. Prior to the establishment of the League international coöperation for objects of general welfare had been limited At the opening session of the Assembly in 1920 the committee on the admission of new states stated "that Article 10 does not guarantee the territorial integrity of any member of the League. All it does is to condemn external aggression on the territorial integrity and political independence of any member of the League, and calls on the Council to consider what measures to take to resist that aggression." The motion of the Canadian delegation to amend the Covenant by striking out Article 10 was postponed. At the meeting of 1923 an amendment, proposed by Canada, interpreting Article 10 so as to leave each national parliament free to decide upon its obligations to employ force should the Council consider that step necessary to protect the territorial integrity of a state, although reported favorably by the commission on amendments, was defeated by the adverse vote of Persia and the abstention from voting of a number of the smaller and weaker states. |