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submit to by force at any given time, nor yet what states ought to do or refrain from doing in their expression of the life principle. The question, first of all, is, What do states want? What are the natural tendencies of human nature which seek satisfaction? The secondary question is the ethical and practical one of adjustment of these wants where other wants are in conflict. The basis is one of power-relation based on interest. Might comes before right; and nothing, it may safely be said — and the truth can not be too loudly acclaimed — does more injury to a correct, a just and possible solution of these great controversies than the attempt to reverse this order of thought.
The United States is today the leading country of ethicism. It is with us a political tradition, and there are economic foundations which have tended to foster it. The political tradition came to us as one of the donations causa mortis of the natural law of the 1700s. The economic support came from our geographical situation. In an incredibly short time the United States became the richest country in the world. It has been and is a country of wealth and opportunity. The hard conditions of life do not bend down the backs of energetic and capable individuals. There is room and fact for unbounded optimism, generosity, the feeling of well-being, and successful effort. All this leads to a philosophy of conduct where each man believes that as a human being he has equal rights with all others; that these rights are imprescriptible; and that they are a part of the moral constitution of the universe, valid for all times and all places. The fact of economic freedom of the middle classes has by an easy transition been transposed into a kind of metaphysical symbol. There is no country where "rights” are oftener spoken of, or any country where the term is used in more senses.
If, however, the economic situation were changed and one-third of the entire population were habitually on the border line of starvation, with the doors of opportunity locked by a system of caste and overlordship, it is safe to predict that the point of view would quickly shift to a more realistic basis. The economic classes would then measure not their forces of right, but their forces of power. If the United States is to take the leadership in a permanent congress of states, it must in its own leadership learn that our conceptions of right are folkways and nothing more, built up by political traditions and economic surroundings. This leadership must not make the fatal mistake of assuming that our own happy folkways can be imposed instantaneously on other folkways; and it must profoundly understand that the efficient and permanent forces of the world are the wants of human nature, the expression of group interests, and the psychic dispositions of nations and states, the sum of which is the moral philosophy of particular social aggregates.
We conclude that the form of world federation is both possible and desirable. The United States, because of its ethicism both as a government and of its constituents, is more favorably situated than any other country to institute such a federation. The organization must be a permanent one, regardless of the many breakdowns which may be expected. It must at the outset be provided with a liberal sum of money. Its deliberations should have the widest international publicity.
It would be useless and impracticable to attempt any detailed discussion of the form of organization, or to suggest any concrete plan for the judicial, administrative, or (quasi) legislative functions of such a congress. Hundreds of concrete suggestions, many of them valuable and nearly all instructive, are already available, especially on the judicial function.
Such a congress should have no actual grant of political powers, and whatever powers it might acquire would come in the course of time and experience, and especially through the development of habits of international thinking. No state would give up any part of its sovereignty, and there would be no direct physical power to compel submission to any resolution of the federal diet. In the process of time it is possible that by the cohesion of forces, supported by a unity of thought of preponderant states, a form of positive power (direct force or authorization of force) or a form of negative power (commercial boycott) might develop; but any such suggestion of a grant or absorption of force would be a source of obstruction to the creation of a permanent international conference. In a word, such a congress should not in advance be committed to anything more than a continuous discussion of the practicability of realizing the idea of standards of conduct in international relations. Any advance concrete proposal even of principles might be fatal to success and would be in any case obstructive.
The essential problem is realistic. It is not what ought to be the relations of states, nor yet what states can be compelled to accept by any combination of force, but what methods will successfully standardize and stabilize the diversity and clash of power-interests in international affairs with the fullest possible measure of free competition.
In an exchange of notes of November 2, 1917, between Secretary of State Lansing and Viscount Ishii, Special Ambassador of Japan, occurs the following paragraph: .
The Governments of the United States and Japan recognize that territorial propinquity creates special relations between countries, and consequently, the Government of the United States recognizes that Japan has special interests in China, particularly in the part to which her possessions are contiguous.
That states are more interested in the immediate neighborhood of their frontiers than in remote parts of the world, and are apt to carry on a disproportionate commerce and intercourse or even to expand in such regions, are facts familiar to all students of history and diplomacy; but that geographical position should create special legal capacities is a doctrine perhaps more unfamiliar and seemingly in conflict with certain traditionally repeated maxims, such as the equality of states. If peculiar geographic relationship gives rise to peculiar legal privileges and responsibilities, an absolute equality of states can not be assumed, although equality before the law or equal protection of the law might still be recognized. The fact is unquestionable that on frequent occasions the geographic position of territory has been offered and accepted as a justification for exceptional proceedings, admitted, in some cases, to be otherwise contrary to the requirements of international law.
In its recognition of territorial propinquity, the Lansing-Ishii agreement does not stand alone. An inspection of the cases shows that they may be classified according as geographic proximity has been mentioned to justify (1) the annexation of territory, (2) the enjoyment of special economic privileges, (3) the exercise of extraterritorial jurisdiction, or (4) the protection of special political inter
ests. Territorial, economic, jurisdictional, and political interests have each been presented on occasion as deserving special consideration in neighboring territory.
1. ANNEXATION OF TERRITORY
(a) CONTIGUITY The claim to unoccupied territory on the ground of proximity is familiar in international law, though it has not always passed without protest. The principle is described as contiguity or continuity, according as the territory in question is or is not separated by water.'
The right of a state to islands within its maritime belt has been universally recognized, and Lord Stowell's well-known decision in the case of the Anna, besides asserting that islands formed of alluvium beyond the three-mile limit belong to the mainland, suggests that the same is true of those occupying a strategic position.
The German Prize Code : recognizes “islands situated not more
1 The claim to dominion of portions of the sea itself has been attributed to proximity. Grotius, De Jure Belli ac Pacis, ii, c. 3, secs. x, xi; Bynkershoek, De Dominio Maris, c. 2, par. 1; Pufendorf, De Jure Naturae et Gentium, Carew, trans., iv, c. 5, secs. 7, 8; Heffter, Europäisches Völkerrecht, sec. 74. A limited jurisdiction over contiguous waters, beyond the maritime belt, was implied in the American objection to the hovering of war vessels about its coasts while neutral. In a note of December 16, 1915, Secretary of State Lansing contended that “This government has always regarded the practice of belligerent cruisers patrolling American coasts, in close proximity to the territorial waters of the United States ... as vexatious and uncourteous to the United States." The British Government was “surprised” at this “claim to distinguish between different parts of the high seas.” (Note, March 20, 1916.) The United States, however, reaffirmed its attitude with references to earlier precedents and to an analogy: “In time of peace the mobilization of an army, particularly if near the frontier, has often been regarded as a ground for serious offense and been made the subject of protest by the government of a neighboring country. In the present war it has been the ground for a declaration of war and the beginning of hostilities.” (Note, April 26, 1916.) This JOURNAL, Spec. Supp., 10: 377, 379, 385. For German references to the Russian mobilization on her frontier as a “threatening measure," see ultimatum, July 31, 1914, and declaration of war, August 1, 1914, Naval War College, International Law Documents, 17: 100. See also German note, January 12, 1917, United States White Book, No. 4, p. 314.
2 The Anna, 5 C. Rob. 373 (1805); Scott, Cases, p. 684. : Prisenordnung, September 30, 1909; Reichsgesetzblatt, August 3, 1914, Art. 3a.