VII

PUBLICISTS WHO DOUBT OR DENY STATE EQUALITY

From regarding equality as merely an ideal it is a short step to doubting or denying it altogether. The divergence between the opinions of those who accept the principle and the opinions of those who doubt or deny it is not so great as one might assume at first instance. All jurists recognize the fundamental principle of equality of protection in the enjoyment of rights. Almost all modern jurists admit some differences of status among international persons. Those who accept the principle of equality regard equal capacity for rights as the normal and the ideal, and inequality as abnormal and something to be discouraged. Those who doubt, or deny the principle are more impressed with the extensive prevalence of inequality in the practice of nations, and the unreal and impractical character of equality even as an ideal.

Positivist tendencies in the study of

the law of nations have brought an increasing number of

jurists to the latter opinion.80

Funck-Brentano and Sorel distinguish the real from the theoretical law of nations, aefining the former as those rules founded on custom and convention which actually deter

A few writers omit equality or treat it under another name. Hall develops much the same idea under the name of independence (Int. Law, pp. 17 ff., 47), while Westlake asserts that "the equality of sovereign states is merely their independence under another name. (Int. Law, Vol. I, p. 321).

mine the, conduct of independent states, and the latter as the speculations of writers as to what ought to determine the conduct of independent states. Vattel is described as one of the best known of the theorists, while their own manual is devoted to real or positive law. The notion that international society is a state of nature is emphatically rejected. The principle of state equality is represented as having little practical significance:

All established States are sovereign, but in their mutual relations they do not all possess the same rights of sovereignty. They are equal therefore only in theory and more especially as one considers the principle of their sovereignty without taking account of the conditions in which that sovereignty is exercised. All sovereign States are equal as sovereign States; in reality, these identical terms, these words "sovereign State, that we apply to them indiscriminately, designate States of very diverse constitution, sovereignties of a very different nature, and consequently sovereign States perfectly unequal in rights and strength. It is correct to say that when sovereign states enter into mutual obligations they employ in the agreement the same abstract right, of contracting; but if we examine the very nature of the agreement, the events which have caused it, and the consequences which result from it, we see that this agreement while resulting from an abstract equality, almost always demonstrates the real inequality of the contracting parties. This inequality is the consequence not only of the disproportion which exists between the extent, wealth, and military power of states; it results also from the political relations that the nations which form states maintain with one another; it results especially from the internal constitution of these nations, from their public and private morals, and from the degree of their intellectual culture. Apart from the application which is made of it the equality of states is a word without significance. This equality exists only as far as it is respected, and states only respect it or enforce respect for it as they understand it. Civil and political equality among the subjects of a single state may become a reality because the laws of the state may be conceived in a way to

establish equality and guarantee its practice; bsolute
among states there is no public authority (il n'
point de lois communes); equality has no other fo
tion and no other guarantee than the customs (mõèù.
nations; difference in national character, intellec.
culture, moral progress, political traditions, produc
vity, and finally of geographical situation destroys &
real equality among states. If in spite of so many
causes of diversity, so many sources of contradiction,
so many reasons for irregularity, general rules of con-
duct have been established and considered as equally
applicable to all states, these rules acquire a positive
importance only as they take account of the conditions
in which states are placed in their relations with one
ates
another. 81

The question of equality in its relation to the theory of fundamental rights has been considered by Pillet, who concludes that it is futile, as well as a logical mistake, to treat equality as a fundamental right. Inequality must prevail between civilized and partially civilized states, between sovereign and partially sovereign states, between the guarantors and guaranteed states, between states that are neutralized and states that are not, and, in some respects at least, between states that are great and states that are small. The assertion that Russia and Geneva have equal

rights, says Pillet,

has a primary and a very great defect: it is not just. States are not equal from the point of view of their rights any more than from that of their wealth and their power.

Bien éloignée de l'égalité des livres la vie publique ne nous montre qu'inégalités, and that is reason enough why we

81 Droit des gens, p. 46.