IX few cases specially provided for, require the agreement of all the CHAP. attitude smaller The problem of bringing the principle of the equality of states Jealous into harmony with the facts of modern international life is one of of the the most difficult with which the community of nations has in re- powers cent years been confronted. At the meeting of the Hague Conference in 1889, and particularly at the meeting in 1907, the smaller states of Europe manifested extreme jealousy of the tendency of the Concert of the Great Powers to dominate the affairs of the Continent; and in this they were seconded by the Latin-American states, which appeared to find in the maintenance of a strict formal equality the necessary condition of their sovereignty and independence.5 Distrust of the Great Powers led the smaller states to regard with suspicion any form of international government, however restricted. Under the circumstances the possibility of recon 1 Art. 5. This provision would appear to preclude the possibility of effective decisions even more than the unanimity rule of the Second Hague Conference, which left it open to a power to refrain from voting in the commissions, and, by withholding signature from the convention, to refuse to assume an obligation without preventing others from assuming it. See above, p. 137. 2 Art. 6. For the pro-rata basis, see Art. 27, Universal Postal Convention, 1906. This provision of the Covenant is pending amendment so as to permit the Assembly to decide upon the proportionate contributions to the budget. Art. 26. An amendment, pending ratification, requires that amendments be voted by a three-fourths majority of the Assembly, including the members of the Council, before being submitted for ratification. 'See below, p. 413. Compare, for example, the attitude of the Brazilian delegates, Barbosa, Proceedings of the Hague Peace Conference, 1907, Vol. II, Committee of Examination B, passim. The Judicial Arbitration Court, which was the particular object of attack, was to have no compulsory jurisdiction. Nevertheless, it was felt that a dan CHAP. IX Claims of the Great Powers Value of the League compromise ciling national independence with a limited and delegated supernational authority seemed too remote to merit consideration.1 On the other hand the Great Powers were unwilling to regard the smaller states as having interests commensurate with the equal voice they were claiming in the determination of future rules of law and in the establishment of new international institutions. The size alone of its population was regarded by the representative of a Great Power as entitling his state to a larger influence in the affairs of the international community. Moreover, there were, in addition, sharp differences of national ideals, political organization, material resources, and industrial development, which, it was held, gave rise to special interests demanding the protection of law. If the Great Powers, their publicists argued, were to be denied an effective legal influence in the shaping of the future of international relations, it was inevitable that they would decline altogether to coöperate with the smaller states and would continue to take decisions within their limited group whenever occasions arose demanding prompt action. With the creation of the League of Nations, as has been seen, a reconciliation of the principle of equality with that of the primacy of the Great Powers was attempted; but the activities of the League have not as yet demonstrated whether the compromise effected by the Covenant will make it possible to secure coöperation for the benefit of the international community as a whole with due regard for the larger stake which certain states have by gerous precedent might be created by it. The student may investigate the practical question whether the opposition of a number of the small states to proposals favored by the Great Powers was due to reactionary statesmanship or to fear lest an admittedly good object was being promoted by means tending to enhance the dominant control of the Great Powers. The international problem closely parallels the constitutional problem of federal government whether of the loosest or of the closest type. The delegation to a central government of power to regulate the interests of the group as a whole must be accompanied by guarantees that on the one hand the power so delegated will not be used to the advantage of the larger as against the smaller units of the federation and that on the other hand the central government will not be led to encroach upon the powers of local self-government reserved to the member states. If the records of remote or of recent history showed a greater tendency on the part of the strong to respect the rights of the weak, the reconciliation of federal and local government would obviously be a simpler matter. As it is, law versus liberty-union versus self-government-is the eternal conflict. Desirable as law may be in the abstract as an instrument of order and peace, the fear lest justice should suffer by the concrete rules adopted must necessarily delay their acceptance. In this respect the analogy between municipal law and international law is defective. The number of units subject to the former is so large that it is possible to strike a general average of capacity. The smaller number of members of the international community makes their inequalities harder to adjust. IX reason of their population and industrial wealth. On the other CHAP. hand the small states appear able, by their power of veto in the Assembly, to protect themselves against the adoption of measures encroaching upon those aspects of national sovereignty which have given force to the demand for equality. But as against the protection thus afforded there is the possibility that decisions of a large majority may be blocked by the obstructive attitude of individual states, whether these be large states seeking to protect their special interests or small states guarding their sovereignty, both, it may be, acting at the expense of the welfare of the community as a whole.1 The executive functions intrusted to the Council, while making it possible for the Great Powers to take prompt action in emergencies, offer no opportunity for the progressive development of the substantive law. There remains, it would appear, the constructive problem of devising some modification of the organization which will permit a substantial majority to act for its own group without coercing the minority to be bound by its decision.2 1 Compare, for example, the vote in the Assembly on September 25, 1923, on the amendment of Article 10 of the Covenant. The thirteen states which abstained from voting consisted for the most part of very small states. Persia was alone in casting a negative vote. The issue, however, in this case was not one of encroachment upon the small states by the large, but one of weakening the protection afforded by Article 10 to small states. 2 Bare majority decisions, attended by a right of individual veto as respects the application of the law to a particular state, would obviously disrupt the association. On the other hand, majority rule binding upon all the members, as prevails in the United States Congress, is out of the question under present conditions. Unequal voting power would seem feasible, provided it be accompanied by the right of individual veto. a. Nature and scope of the right of existence Theoretical and practical aspects CHAPTER X THE RIGHT OF EXISTENCE The right of existence, or of self-preservation, is recognized by international law as the primary right of states, being the necessary postulate of the possession of all other rights. Like the right of life in municipal jurisprudence, it is questioned only in respect to the inferential rights associated with it, primarily the right of self-defense against direct and indirect attack. In a larger sense the right of existence might be made to include both rights of independence and of territorial property, since these are essential to the due enjoyment of the right of life. Because, however, of the failure of international jurisprudence to adopt a logical analysis of the rights of states, and because of the corresponding absence of a uniform terminology in the diplomatic documents of foreign offices, clear exposition of the subject will be facilitated if the conventional classification of municipal jurisprudence be followed, thus leaving independence and territorial property to be treated as rights separate and distinct from the right of existence. The substance of international rights persists, under whatever designation the particular claim is made. So sacred is the right of existence that the least deliberate infringement upon it by a state may be regarded by the injured state as a most serious offense. The invasion of a state's territory to the slightest extent, an affront committed against the diplomatic officers who represent its sovereignty, an insult to the flag which symbolizes its international personality, have been on occasion the cause of sharp diplomatic conflict or of open war. On the other hand the right of one state has been at times violated by the deliberate act of another state when emergencies have arisen presenting no other alternative for the preservation of the rights of the latter. In many instances these violations have their origin, on one side or the other, in the lack of control on the part of the states over certain elements of their citizen body which commit acts for which the state may not be held officially responsible, yet must under the emergency be held practically responsible. The conflict The pursuit of Francisco Villa into Mexico by United States troops in 1916 is a case in point. of international rights thus resulting is governed by a few general CHAP. principles of law, which are, however, so vague as to leave it an open question in many cases whether the right of one has justified a breach of the right of the other. In consequence, by reason of the absence of an international authority competent to give effective sanction to international law, the right of existence on the part of small states has been at times precarious; and on occasion, as in the case of the partition of Poland, it has been no more than a legal fiction.1 It must be said, therefore, that while the right of existence is possessed in principle equally by all states, its actual enjoyment is largely conditioned upon the physical power of the F individual state. But this is a qualification which affects the secure enjoyment of the fundamental right of existence rather than the legal right itself. In principle the right is the same for one and all. defense direct International law clearly recognizes the right of self-defense b. Selfagainst both direct and indirect attack.2 Where the attack is against direct, a state may not only stand upon the defensive on its own attack territory, but may invade the territory of the other state in order to prevent by anticipation the commission of an aggressive act by armed forces within the invaded state.3 Two conditions must attend the exercise of this form of self-defense: first, that the necessity of self-defense should be of the very gravest character; and second, that the state whose territory is violated should be either unwilling or unable itself to prevent the commission of the threatened act. In 1817 the United States Government ordered a war-vessel to proceed to Amelia Island, then in Spanish territory, and expel a band of marauders who were committing depredations upon American commerce, and whom the Spanish Government appeared unwilling or unable to keep under control. Again in 1837, during the progress of a rebellion in Canada, the Canadian Government, in order to anticipate an attack upon its territory by insurgents established upon an island in the Niagara River through which ran the boundary-line between Canada and the United 1 Such would be the case in municipal law if murder were committed and the authorities of the state manifested open indifference. * Westlake correctly distinguishes between the right of self-defense and the looser "right of self-preservation" advanced by Vattel and later by Rivier. International Law, 2nd ed., I, Chap. XIII. The fact that the invaded state in such a case recognizes no duty to acquiesce does not limit or qualify the legal right, provided the public opinion of the international community gives its approval. Moore, Digest, I, 42, 173. |