only because a number of exceptions prove the rule! The old text-books on International Law devote a large space to the consideration of questions of ceremonial; for questions of precedence loomed large on the diplomatic horizon. An amusing passage in Macaulay's History of England11 gives an account of the contentions for pride of place between the plenipotentiaries at the Congress of Ryswick. "The chief business of Harlay and Kaunitz was to watch each other's legs. Neither of them thought it consistent with the dignity of the Crown which he served to advance towards the other faster than the other advanced towards him. If, therefore, one of them perceived that he had inadvertently stepped forward too quick, he went back to the door and the stately minuet began again." And history records many other like happenings.5 55 So William Penn, the Quaker, when in 1693 he laid before the world his scheme for 54 Ch. 22 (Popular edition, p. 624). 55 See also the entertaining fourth chapter in Sir Ernest Satow's Guide to Diplomatic Practice. a League of Nations, dared not omits some provision for the susceptibilities of equal sovereigns. He suggested that in the place of session of the Imperial Diet of Europe "to avoid quarrel for precedency, the room may be round, and have divers doors to come in and go out at, to prevent exceptions." one. 9957 These then are the rights which jurists assert flow from the sovereignty, the independence, and the equality of States. There is an old maxim, Ubi jus ibi remedium: there is no right without a remedy; or as Coke quaintly said: "Want of remedy and want of right is all What remedy, then, does International Law provide for the violation of these rights? There is diplomatic protest; and, if that fail, there is war. But war is a "remedy" which is open to the evil-doer as well as to the injured party. Recourse may be had to war independently of right and wrong. The scales of war are not weighted on the side of justice. 56 The Present and Future Peace of Europe, § 8. 58 59 power Grotius demanded of neutrals that they should do nothing by which the upholder of a wicked cause might become stronger or by which the movements of a just belligerent might be hampered." Christian Wolff, in 1749, went further.5 He and his followers held that it was the duty of States to support that whose war was just. Had the theories of Grotius or Wolff determined the practice of neutral States, war might have acquired something of the character of a legal remedy. practice did not follow precept. tended ever more to predicate complete indifference and an entire aloofness from the moral issues raised between two belligerents. The reason is not far to seek. Every country that goes to war claims that justice is on its side, and in the absence of an objective test which is independent of opinion and makes it unnecessary nicely to balance the right and wrong of a complicated series of facts, who is to decide 60 58 Ubi supra, iii., 17, 3. But Neutrality 59 De Jure Belli Gentium, ch. 6, §§ 656, 674. 60 Such an objective test is provided by schemes for a League of Nations; for if one State commences hostilities against another State without submitting the question to arbitration or to the Council of Conciliation the question of justice" is ipso facto determined. with whom the justice lies? But, though easily explained, the modern conception of neutrality is a terrible indictment of modern civilization; it has been not altogether unjustly said that "a proclamation of neutrality is an announcement by the State which makes it of its determination to let ill alone."1 Since, then, in the last resort it has been left to the "irrational and doubtful decision of war," as Erasmus called it,62 to vindicate the sovereignty, the independence, and the equality of States, and since the scales of war are weighted heavily on the side of the powerful States, sovereignty, independence, and equality, even in the limited sense given to those words by international lawyers, find a place only in the textbooks and not in the practice of Europe. As the present Attorney-General, Sir F. E. Smith, well said, whilst he was still a young man, "In the rough and ready practice of nations suit in 61 Lorimer, op. cit., vol. ii., p. 122. Lorimer's book has long suffered from an undeserved neglect. For years the two handsome volumes have been obtainable as a remainder for the ridiculous sum of 3s. 6d. If a League of Nations be formed it is possible-in spite of his belief in the Law of Nature--that the stone which the builders rejected will become the head of the corner. 62 Complaint of Peace (English translation (1917), p. 54). 9963 forma pauperis is not a hopeful procedure." The rights of sovereignty, independence, and equality, were moral rights, not legal rights— rights without a remedy; from which fact Lasson draws a characteristically German conclusion: "If things on earth are to be made better, it will be necessary in the first place to rid international relations of the hypocritical phrase of right and of the sacredness of treaties." And perhaps he is right if German policy remains unchanged. 63 International Law (1900), p. 34; (1918), p. 65. 64 Princip und Zukunft des Völkerrechts, p. 15. |