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rately organized. These must be satisfied with representation through the states to which they belong.
It is perhaps fortunate for the English-speaking world that the name “Society of Nations" was not used, for thus some confusion is avoided. There already was a Society or Family of Nations which will continue to exist, whatever may be the fortunes of the League. Germany, for instance, is still a member of the Society of Nations although not yet admitted to the League. Mexico, although not yet invited to join the League, is still a member of the Society of Nations. Canada, Australia, South Africa, New Zealand, and India do not belong to the older Society, and membership in the League does not admit them to it. The two expressions are obviously not used in the same sense. There are no two rival organizations with slightly different names, each subscribing to a different agreement. The older Society of Nations has no written Covenant, no officers, no seat of government or administration, and when a state has once been admitted there is no means of escaping the obligations of membership. It is an inchoate, indefinite Society, but a very real one. When we speak of states as members of the Society of Nations we refer to states as defined in international law. The Central and South American republics, after their revolt from Spain, set up governments and each for its own people exercised the powers of a state. They were states in fact, de facto states, but not in the full sense of the word. Before the modern era, it was possible for some organized peoples to live in practical isolation from the rest of the world. These also were states in a constitutional sense. They had their own laws, forms of government, officials, and military forces. Such isolation is no longer possible; but still there may be territories and peoples politically organized which have only a de facto status. These may come into existence through civil wars, or revolution, or through the consent of the states of which they formerly were parts. It is not, however, until evidence of stability is produced, either by continued existence, or by appeal to their history while dependent peoples, that their statehood is fully accepted in international law. The technical process by which a state ceases to be merely de facto and becomes de jure is Recognition. In the Treaty of Versailles the formal creation of Poland and other states is contemporaneous with their recognition by Germany and other signatories. For a brief period prior to the signing of the treaty they were de facto states, and as to some of the victorious Allies, de jure states. Recognition gives to states the right of legation, of sending and receiving diplomatic agents; and it acknowledges them as equal, sovereign, independent states having the right to exist. They acquire not only rights but duties, and among the latter is the all-important obligation to respect the rules of international law.
Just what this international law is there will be occasion to discuss later on. Suffice it to say for the present that it is a body of rules which, through usage, custom, and common consent, the members of the Family of Nations consider binding on themselves. They are not rules imposed by a world legislature, for no such body at any time has been in existence. There is no such body for the old Society of Nations and none has been created for the new League. The entire theory of international relations would have to be reconstructed to admit of this, and we should have a confederation similar to the United States of America, in place of sovereign independent states. If we go back in history to the time when Rome was the head of a universal empire, we find the nearest approach to a world legislature that history records. But it was not an international legislature, because all of the subdivisions of the empire were vassal states, not free, sovereign, and independent. The Holy Roman Empire, on the other hand, was an empire only in name, with no authority over the member states, and doomed to disappear. Napoleon had a dream of world empire which came near to realization, but if he had succeeded, he would have destroyed the Society of Nations by substituting for it one state. Napoleon's attempt at universal dominion was itself an occasion for intensified reassertion of the rights of states to live. There was indeed an attempt to create something like a confederation of these states for mutual protection, but even this broke down after twenty years of half-hearted experimentation.
The modern world consists of a circle of states each aspiring to greatness, seeking wealth, influence, increase of territory, outlets for growth of population into colonies and undeveloped lands, and each asserting its absolute sovereignty, and its legal equality with all the others. This situation has been described by advocates of a new order as international anarchy. The phrase is without justification, for it implies absolute disrespect for law on the part of all states. The world has just witnessed the best demonstration that the greater part of it has a respect for law for which it is willing to fight. Nevertheless, it is evident that there is something wanting in an international system which can be maintained only by four years of war. Of what value to the world is the Society of States, with its recognition of the sovereignty, independence, and equality of its member states? Are these realities or merely fictions? Should they be abandoned and some new doctrine be substituted for them, or must they be preserved to serve a better purpose under new conditions?
Sovereignty, independence, and equality are attributes of states so closely connected that it is difficult to define them separately. They are different facets of the same jewel-the right to exist. They are the terms by means of which each state describes its legal right to the full enjoyment of its statehood, limited only by its duty to the other states. Where supposed rights conflict, the obligation lies equally on all states to refrain from their assertion until by agreement a compromise can be effected. If they had been universally content to do this, an ideal situation would have existed; but the ideal is never attained. On the contrary, conflict of rights has ever been with states, as with persons, the occasion for renewed assertion of those rights. With states the danger of such a situation has been that independence and equality include the right to decide when and on what provocation war shall be resorted to as a means of maintaining those very rights. Thus the fatal circle is complete. With such a system, power is evidently the arbiter of justice, a doctrine even more discreditable to international law than it would be to municipal law. But this situation is not the unethical result of a conspiracy of powerful brigand states; it is the result of evolution. From doctrines put forth for the benefit of all, the weak
as well as the strong, have flowed consequences not at all anticipated. This may be illustrated by the development of the do trine of the equality of states.
For almost three centuries writers on international law have included among fundamental principles the juristic equality of states. “All sovereign states,” they say, "without respect to their relative power, are, in the eye of international law, equal, being endowed with the same natural rights, bound by the same duties, and subject to the same obligations." The doctrine is said to possess both a philosophical and historical sanction, and its truth until recent years has seldom been questioned.
Philosophically, the principle was given form by Hugo Grotius. Universal sovereignty having ceased to be even theoretically possible, national states emerged, warring with each other for supremacy, and with no restraint except physical weakness. To relieve this situation Grotius invoked the so-called law of nature. As people were said to have been in a state of nature before the organization of governments, and though free, to have obeyed certain laws discovered to them by their own reason, so states, freed from any control from above, were now in a state of nature with respect to each other. By analogy the law of nature was applicable to the relations of states. To explain the meaning and content of the law of nature, recourse was had to the Roman law in which the jus gentium and the jus naturale were identified. A favorite dogma of the jus gentium was the equality of men. Grotius adopted this conception and so made the absolute equality of states a fundamental principle of his legal system.
Modern political theorists have satisfied themselves that historically there never was a state of nature such as Grotius premised. There certainly never was a law of nature that could be treated as a positive code; and the equality of men living according to a law of nature was a misconception. Liberty and equality for men did not exist until the organization of political communities. Until that time men had only such liberty as they could win from nature
Summarized from the author's address printed in the Proceedings of the American Society of International Law, 1909, p. 238-247.
nd each other by the exertion of powers. Equality is not, there
pre, really a postulate of the law of nature and could not properly be said to become an attribute of states on the philosophical grounds which Grotius laid.
But the doctrine doubtless would never have been accepted by the world of the seventeenth century had it not been for this erroneous appeal to the law of nature. The adoption of any principle by all states was a great stride in the world's progress, tending to bring order out of chaos, and set up standards of conduct which to this day are viewed with respect. Judged by its results in the years immediately following its promulgation, its justification is so strong that it should not be discredited merely by abstract reasoning. It gave to weak states an admitted principle to which to appeal when dealing with strong states, and stayed the hand of those accustomed to crush without mercy.
Yet there came a time when states began to find numerous occasions for disregarding the principle. The law of nature seemed less and less a valid reason for a steadfast recognition of equality. It was then that there was brought forth the alternative and supplementary ground for equality which the far-seeing Grotius had advanced. He had asserted that states are bound by rules which have received the assent of all or most of their number. Whatever might have been the ground for the original consent, an appeal to history cumulating examples amounting to a custom was sufficient to establish the validity of a rule. Thus, the great states of the world having agreed among themselves that recognition of the sovereignty of a state carries with it all the international rights and duties which they possess themselves, the rule is binding and cannot be controverted. This undoubtedly is the sounder reason for asserting that all sovereign states are equal in international law. It is, in fact, a statement of the modern doctrine that international law is based on practice. Sovereignty having been defined as the absolute political independence of a state, the recognition of this attribute theoretically establishes the equality of states and admits them into the Family of Nations.
Now it is undoubtedly the practice of statesmen to assert that