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respect throughout the world, and in so doing would tend to lessen occasions for diplomatic differences between belligerents and neutrals during these wars; and between all the Powers after the return of peace.
Is it, to venture still farther, impossible that the erection of such a larger tribunal as that proposed by the twelfth Convention of the Hague Conference of 1907 might even now receive further and fairer consideration? The need of something in the nature of an International Court of Prize Appeals was never so urgent as at this hour. In face of present conditions, there is less weight in the objections that were raised to its institution in 1907 and 1909. The Declaration of London has already, in large part, won a place among the canons of the law of nations. The twelfth Convention might be put under stricter limitations. Its machinery might be simplified. More perhaps might be yielded to the lesser Powers. The very attempt to open negotiations looking towards its amendment and adoption, might and in all probability would have an important effect in bringing these desolating wars to an earlier close. It would at once bring even the belligerents to speaking terms. It might result in a truce, pending the negotiations. If it took the shape of a diplomatic conference, this would give an opportunity for an informal exchange of opinion between the Powers participating in it, as to what terms of peace might by possibility be arranged. It would recall the attention of all to the fact that the ostensible cause of these wars was not its real cause. Suppose that Serbia should now grant all the demands in the Austro-Hungarian ultimatum, would it give any ground for hope of a general peace? On the contrary, the Serbian incident has become an almost negligible incident of a far past-far, as measured by the rapid course of political events.
A century ago the United States were the only considerable commercial Power not at war, but they were not in the number of the great Powers. In 1915, when the new British Order in Council was issued, they were again the only considerable commercial Power not at war, but now a great Power. As such we have a freedom of suggestion and weight of influence which gives us large opportunities. May not one of these lie in the direction of promoting diplomatic pourparlers between some or all of the belligerents, as to the possibility of now setting up the International Prize Court of Appeal for the great Powers, -perhaps with some change of form, but pursuing the objects for which the scheme has been devised, and perhaps leaving the door open for the lesser Powers to adhere, one by one, if they see fit?
There is really no ground for saying that the question of the practicability of such a step was bound up with that as to the ratification of the Declaration of London, and therefore has been already considered and disposed of. It was considered and disposed of only for the time being and without the light thrown upon the subject by the wars that were so soon to come. “Circumstances change cases.” As was once said by Henri Poincaré, "il n'y a plus des problèmes résolus et d'autres qui ne le sont pas: il y a seulement des problèmes plus ou moins résolus.”
SIMEON E. BALDWIN.
THE THEORY OF THE INDEPENDENCE AND EQUALITY
International law in common with other sciences is compelled to lay down certain major premises or postulates. These are variously termed the "fundamental," "primordial," "inherent,” or “absolute rights” of the state. Thus Hall says:
The ultimate foundation of international law is an assumption that states possess rights and are subject to duties corresponding to the facts of their postulated nature. In virtue of this assumption it is held that since states exist, and are independent beings, possessing property, they have the right to do whatever is necessary for the purpose of continuing and developing their existence, of giving effect to and preserving their independence, and of holding and acquiring property, subject to the qualification that they are bound correlatively to respect these rights in others. It is also considered that their moral nature imposes upon them the duties of good faith, of concession of redress for wrongs, of regard for the personal dignity of their fellows, and to a certain extent of sociability.
These “fundamental” postulates of international law may be summarized as the right of a state to exist, the right of independence, and the right of equality. Bonfils, however, holds that: “in reality, there is for States, * * * only one primordial right, only one fundamental right, the right to exist. He further adds:
From this truly primordial and essential right, flow, as necessary corollaries, attaching themselves one to the other by means of successive deductions like the links of a single chain, all the other rights classified as essential, inherent, absolute, permanent, or fundamental. 2
While most of the earlier writers on international law endeavored laboriously to establish the truth of these fundamental postulates, most of the later writers merely assume their existence. Some of the more recent writers, however, deny the existence of these alleged
International Law, 6th. ed., p. 43.
“rights,” or that it is necessary to base international law on any such premises. Hall says that: The absolute independence of states, though inseparable from international law in the shape which it has received, is not only unnecessary to the conception of a legal relation between communities independent with respect to each other, but, at the very least, fits in less readily with that conception than does dependence on a common superior. 3 And Lawrence, in speaking of the “right of equality,” remarks: * * * a careful examination of recent international history seems to reveal a series of important facts, which can have no other meaning than that the doctrine of Equality is becoming obsolete and must be superseded by the doctrine that a Primacy with regard to some important matters is vested in the foremost powers of the civilized world.4
The expression of views such as these just quoted would indicate the necessity of a general challenging of these alleged "primordial," "inherent," "absolute," "fundamental rights” of the state under international law. The duty of clearing away any confused notions on this subject that may exist would seem especially urgent at this critical stage in the history of civilization when these "fundamental rights” of "existence," "independence," and "equality" are conspicuously called into question by the political and military acts of most of the great Powers. Not only do Servia, Belgium, and Holland claim the recognition of these “rights,” but ghosts of former states, such as Poland and Bohemia, who suffered political assassination generations ago, now reappear to claim the right of resurrection.
The inefficacy of diplomacy, arbitration, and, indeed, of war, as means of determining and protecting the fundamental rights of states, whatever they may be, has been conclusively demonstrated. If we are to succeed in the task of "substituting law for war” we must start afresh and lay the foundations of international law on sound, concrete, realities. We cannot build on abstractions and fictitious postulates. It is necessary, therefore, at the outset to attempt to clear up any misconceptions concerning the nature and scope of international law.
3 International Law, 6th ed., p. 18.
Principles of International Law, 3rd ed., p. 242.
I. INTERNATIONAL LAW
1. THE NATURE OF INTERNATIONAL LAW
There has been a great deal of discussion of a more or less academic nature on the subject whether international law is properly to be termed law. The followers of Austin insist that the absence of an adequate sanction and a common superior to enforce international law completely disqualifies it from being recognized as law. It must be conceded, that the law of nations does not constitute a body of positive, statute law laid down by a common legislature, applied by a common judiciary, and enforced by a common executive. Nevertheless, though it is unlike municipal law in these respects, international law is to all practical intents and purposes to be regarded as law, whenever the courts of any state recognize it as an integral part of the municipal law of that state. Likewise it would seem entitled to recognition as law, whenever the government of any nation of its own volition chooses to respect a rule of international law as of a mandatory nature which must be respected even though to the distinct disadvantage of that nation in a particular instance.
2. THE SOURCES OF INTERNATIONAL LAW The United States Supreme Court has stated that international law “is founded on the common consent as well as the common sense of the world.” 5 Attempts have been made to identify international law with the so-called law of nature or the old Roman jus gentium. These attempts, however, would seem as unnecessary as they are futile. It would seem much more logical and satisfactory to find the sources of the law of nations in the "common consent" and the "common sense” of the world.
(a.) Consent. The positive consent of nations to a given rule of international law is ascertained through the signing of treaties such as the Hague Conventions, and by formal state documents announcing the acceptance of this rule. Consent may be implied in long conformity to a general usage among nations. In order to find evidence of this implied consent, recourse may be had, as stated in the case of The
Prize Cases, in Scott's Cases, p. 479.