political state, analogy to the fully developed type of the state previously considered offers a reason for the hypothesis so universally adopted by publicists and governments, that every nation is the equal of every other nation in the world. From the consideration given to the character of independence and sovereignty in a state, it is evident that this cannot be an actual equality, a fact which has been forced upon some writers who have attempted to explain it by limiting the subject of equality, but the result has been destructive of the value of the assertion.

For example, the modification of the hypothesis by Lawrence is unsatisfactory although suggestive of the fiction on which it is founded. He says: "From the time of Grotius to the present day publicists have declared that all independent States are equal in the eyes of International Law. The equality they speak of is not an equality of power and influence, but of legal rights." Equality of this nature is purely ethical, for rights unsupported by actual power are only moral precepts, which may possess influence, but never positive force. An equality among sovereigns to be real must be an equality of might, otherwise it is artificial, an intellectual creation.

Nor can the equality of states affirmed by Wheaton, nor the sovereignty to which he refers, be considered real, even from his own statement, in which he says: "The sovereignty of a particular State is not impaired by its occasional obedience to the commands of other States, or even the habitual influence exercised by them over its councils." It is manifest that with such sovereignty as this, the equality and independence of sovereigns are entirely artificial, resting only upon a legal assumption. It is this assumption which analogy explains.

In discussing sovereignty from the point of view of the state, it was shown that in times of domestic peace individuals having certain qualifications attained through development are presumed to possess an equal share of the sovereignty of a single state, and that the same is true of states which as units composing a federal state are presumed to share equally in the federal sovereignty. The fiction of this assumption is proven when tested by the exercise of physical force, the ultimate appeal of the real sovereign. Since a war between two, three or four nations is no more destructive of the general peace of the world community than a conflict between a few individuals in a state is destructive of its domestic peace, the persistent international condition is that of peace, as no conflict of modern times has been of sufficient magnitude to constitute a World War, thereby imposing upon the Community of Nations a general condition of belligerency. As a result the assumption of equality in the possession of sovereign power during times of peace in the world, when a state possesses certain qualifications, such as a recognized sovereign and an organized and operative government, is never withheld from such a state in international intercourse.

It should always be borne in mind, nevertheless, that the equality of individuals in a state, the equality of states in a federal union, and the equality of nations in the Community of Nations are all artificial and based upon assumed qualities which can only be tested by the actual exercise of physical force. It 6 Lawrence, Principles of International Law, p. 241.

7 Wheaton, International Law, p. 45.

is true that a war between two states may demonstrate the relative amount of real power possessed by each, but, since the world is at peace, they remain to neutral states presumptively equal until the sovereignty of one is actually absorbed by the other. It matters not how great is the contest or how decisively victorious one of the belligerents may be, to the rest of the world the assumption of equality continues unaffected, for general peace prevails.

Thus, although the Community of Nations lacks the organization essential to make of it a political state, the individual nations, by general though independent consent and not by direct command of a World Sovereign, employ that fiction of equality which in a state relates to the possession by individuals of the sovereignty. In the Community of Nations this is applicable to the equality of nations in the possession of the World Sovereignty. This assumption, so firmly imbedded in the Law of Nations, is a conscious or unconscious recognition of the unity of the states of the world in the possession of a universal sovereignty; and it is, furthermore, a manifestation of the tendency of modern thought towards an organized World Community.

SUMMARY

To summarize the conclusions reached:

First. There is possessed by a body of individuals in the world the physical might to compel absolute obedience from all other individuals in the world considered collectively, and from all individuals in the world considered separately.

Second. This all-powerful body of individuals possesses therefore the real sovereignty of the world, the world being considered as a unit or a single and universal community.

Third. The sovereignty in every state as now organized politically is artificial when viewed from the standpoint of the world as a single community; and such sovereignty depends for its sphere of operation and exercise upon the will of the body of individuals possessing the World Sovereignty.

Fourth. Since only the sovereignty existing in a state has been directly exercised, World Sovereignty has not up to the present time been positively expressed. It remains passive through lack of harmony of purpose and unity of action by its possessors, and through the absence of proper channels of expression.

Fifth. The nature of World Sovereignty in its present state of development is similar to that of the lesser sovereignty, which, viewed from the standpoint of the community or state, is real. The condition existing is analogous to that in a community, wherein the real sovereignty has never been exercised although its existence is certain. Such a community is unorganized, for organization is a positive exercise of real sovereignty.

THE LAW OF NATIONS.

The definition of a Law given in the Note in which was discussed the relation of sovereignty and law in a state was "A rule of human conduct emanating

from the sovereign. In adapting this definition of Law in its relation to World Sovereignty there is presented this difficulty: the Community of Nations, being unorganized, that is, without a government, and therefore without an agent of the sovereign to formulate in terms and formally proclaim rules of human conduct, the will of the World Sovereign cannot find expression through the usual channel of enacted law, by which the sovereign will is announced in a state.

As a result of this condition, arising from the non-existence or non-development of a government in the Community of Nations clothed with legislative authority, the question may be reasonably and consistently asked, whether or not the body of rules known as the Law of Nations or International Law is in fact law in the common legal meaning of that word as applied to the rules of conduct issuing from the sovereign of a state, and can it be properly classified under that head.

As has been shown, there must exist from the nature of human society and the constant intercourse between nations a World Sovereignty, and necessarily a World Sovereign. A law to be law according to the definition given in these Notes must have sovereign authority behind it, whether it be a moral law given by a divine ruler or a statute law uttered by the governmental agent of the sovereign of a state. The Law of Nations, that is, World Law, must therefore emanate from the World Sovereign if it is indeed Law properly so-called. Since the will of the World Sovereign fails in positive and direct expression, it is necessary to determine, first, what that will is in regard to human conduct in the world, and, second, whether the body of rules which governments and publicists recognize as the Law of Nations, coincides with and actually expresses such sovereign will. If it is thus coincident and expressive then it is law in the legal sense; if it is not, then it is law only in name and not in fact.

NATURAL JUSTICE

It has been seen in the Note upon Law in a State, that law arising through the decrees of judicial tribunals, when not interpreting enacted laws, is based upon the rational presumption that the sovereign of the state is persistently desirous of directing human conduct in accordance with the principles of natural justice. Thus, although a case may be entirely novel, it is assumed by a municipal court, in the absence of enacted laws applicable to such case, that the sovereign will is in harmony with the principles of natural justice, and the court applying those principles as it understands them renders a decision, and by that act makes known the will of the sovereign and announces the law, since the passive acquiescence of the sovereign is equivalent to a command. The point to be noted is, that the law existed without formal enactment, the court being merely the agent for its announcement in terms.

It is upon a similar presumption and assumption that the great body of the Law of Nations is founded. The conditions in a state and in the Community of Nations are analogous. The principles of natural justice or absolute justice

8 This JOURNAL, Vol. 1, p. 317.

or strict justice (whichever name most accurately defines the moral intent to be constantly righteous towards others) are by civilized states assumed to be in accord with the dominant sentiment of the human race, that is, with the presumed will of the World Sovereign, except so far as repeated practice between governments has established a custom, in which case, as in that arising in a state, the custom overrules the abstract principle of natural justice. Consuetudo vincit communem legem. By these precepts sovereigns and their agents ought to be guided in their intercourse with one another as if the will of the World Sovereign had been declared in the exact terms of enacted law, even as in a state an individual is bound to respect the principles of natural justice in dealing with his fellows as a moral and political duty.

Under the English juridical system the source of the Common Law and of the Law of Nations is recognized as resting on the same assumption of sovereign intent, and the latter is on that account given legal force in the municipal courts of England. Blackstone says: "The Law of Nations (whenever any question arises which is properly the object of its jurisdiction) is here adopted to its full extent by the common law, and is held to be a part of the law of the land. Thus under the English system the principles of natural justice are applied both internally and externally to the state in the regulation of all human relations. A similar recognition of the legal character of the Law of Nations appears in the Constitution of the United States, though it was undoubtedly but the principle expressed by Blackstone reiterated.

CHARACTER OF THE LAW OF NATIONS

These rules of international conduct, which from the nature of their source are necessarily ethical, may vary according to the interpretation which is given to them; and, since there is no constituted authority representative of the World Sovereign to declare and apply them, the meaning placed upon them is dependent upon the moral standard of the sovereign of a state who invokes and sanctions them. These variations find expression in the practices and utterances of governments, and coincident interpretations are frequently set forth in treaties. Treaties, however, like customs, may form numerous variants of these principles; and though presumed to interpret the will of the World Sovereign, they are not necessarily reasonable, just, or ethical any more than are the customary law and the statutory law emanating from the sovereign of a state. The relation of Treaties to the Law of Nations is well analyzed by Madison.

He says:

They [treaties] may be considered as simply repealing or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which case they are, first, a law between the parties themselves, and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered a voluntary or positive law of nations.10

• Blackstone, Bk. 4, ch. 5.

10 Quoted in Wheaton's International Law, p. 39.

Until an established custom or usage of nations is changed, or the utterances of governments are disavowed, or treaties are denounced or permitted to lapse, the sovereigns of the states accepting them are bound by them or assumed to be so bound; but, like customary and statutory laws, these may be modified at will by the sovereign, and are similarly unstable and subject to variation as the relations between nations are affected by new conditions resulting from political and commercial changes and the influences of a progressive civilization upon international morality.

THE LAW OF NATIONS IS LAW IN THE LEGAL SENSE

From the foregoing consideration of the origin and character of the Law of Nations, it will be seen that it possesses the essential features of law as found in states, and particularly that branch of law which arises from the same source, natural justice; and, though but partially developed through the lack of an established central government to act for the World Sovereign and to make formal declaration of the sovereign will, it has a quality of legality which is recognized and acknowledged by civilized states.

Civilized states, like civilized persons, recognize the need of law to regulate their intercourse and to preserve social order. Because a law issuing from a proper authority is not enforced, that fact does not deprive it of its legal status. It still remains a law until annulled by a definite expression of the sovereign will. The same is true of the rules of human conduct that originate in natural justice, and which are recognized by the individuals in a state as legally binding, even though they may not be enforced. They still remain laws in the legal sense.

Turning now to the wider field of the Community of Nations and the application of those principles of natural justice which affect the intercourse between nations and which are presumptively the will of the World Sovereign, the same proposition holds good. The fact that these principles are not enforced by a governmental agent directly delegated by the World Sovereign does not deprive them of their legal character or effect. They remain laws, and constitute a code of rules and a standard of right and justice, by which the external conduct of states should be judged, and in harmony with which governments should mould their foreign policies.

Without a superior, supernational government, the sovereign of each state becomes the censor of its own conduct, the self-constituted agent of the World Sovereign to carry out the sovereign will in so far as that will applies to itself, its government, and the members of its state.

DEVELOPMENT OF CERTAIN LAWS OF NATIONS

It is natural that along certain lines of conduct there has been a more general recognition of the collective will of the world than along others, and that as a result in regard to certain subjects the desire and intent of the World Sovereign have received a like interpretation by all civilized states. Such universal interpretation and application approximate, if they do not coincide with, enacted

law.