En la conferencia de profesores norteamericanos de derecho internacional a que se ha hecho referencia, el Excelentísimo señor don Domicio da Gama, Embajador del Brasil, habló en estos términos: "Los brasileños defendimos la igualdad de las naciones en La Haya; dijimos entonces que no había Estados pequeños."

Y es verdad esto ante los ojos del derecho internacional.

Sin embargo,

al tratar esta cuestión a la luz clara de los hechos y la amarga experiencia humana, no necesitamos más que volver los ojos a la presente guerra pars que toda duda sobre el particular desaparezca. No nos toca a nosotros, ciudadanos de este continente de América que vive felizmente en términos de amistad con todas las partes contendientes en el conflicto actual, adelantar opinión alguna sobre los derechos y obligaciones mutuos de todos los estados, grandes o pequeños, salvo el solo caso en que los derechos de nuestros ciudadanos, o la honra o seguridad de nuestras Repúblicas se encuentren de modo alguno amenazados o en grave peligro.

Al levantar la voz por nuestras repúblicas creo que podrá decirse cou toda prudencia y propiedad no sólo desde el punto de vista del principio internacional, al que todos aspiramos, sino desde la más alta convicción de lo que constituye el bien o el mal en la ley y en la moralidad: que no hay Estados pequeños de este lado del Atlántico.

Lo que todos anhelamos es una ley, una fuerza, una sanción, que salvaguarde los derechos de cada miembro de la comunidad de las naciones de este hemisferio sin considerar ni el poder comercial ni el militar, ni tampoco los líneas fronterizas.

Algunos han pensado que tal sanción podrá obtenerse en último análisis por una demostración de fuerza en la que todas las naciones, o una mayoría abrumadora de ellas, participara de común acuerdo y que la ejerciera, en caso de que esa contingencia por desgracia se presentase. Muy lejos de mí está el pensar en una sanción apoyada por la fuerza de las armas. Aun cuando no podemos cegarnos hasta el grado de decir que no hay estados pequeños, que la cuestión de la preponderancia del poder comercial o militar no se pierde completamente en las relaciones internacionales, deseo sin embargo insistir en estos momentos en que la protección de los derechos de todos y cada uno de nosotros quedará asegurada por una acción de acuerdo con lo antes proyectado y aprobada por los esfuerzos y concurso de todos los que participan en las altas aspiraciones de aquellos hombres a quienes mencioné en la primera parte de este trabajo. Esos esfuerzos y ese concurso prometen mucho en pro de la integridad de los derechos soberanos de todas las Repúblicas del continente, sean grandes o pequeñas, para que ellas tengan su verdadera protección y garantía en el acatamiento por el hombre de los derechos de sus conciudadanos, manifestado en toda la extensión de este vasto y doble continente por el reconocimiento en escala muy superior de nación a nación.

Una palabra más: Si el conflicto cruel y devastador que convierte en campos de muerte las ricas comarcas de Eurapa y desmoronó los preciosos monumentos del progreso humano, tiene tal vez otro significado que no sea un retroceso hacia las barbaries de la edad media y la devastación de miles de hogares, esperamos que sea éste que aquel principio de las leyes de la guerra que enseña que un Estado puede por medio de las armas adquirir el territorio de una nación hermana y retenerlo por el llamado derecho de conquista, será desechado como completamente en contravención de los principios de la justicia, y que aquel Estado que alega el derecho de legítima defensa como única justificación por la invasión armada del territorio de otro, se presentará ante el jurado de las naciones abrumado por el peso de la responsabilidad.

Adjournment.

JOINT SESSION OF SUBSECTION 1 OF SECTION VI AND THE AMERICAN SOCIETY OF INTERNATIONAL LAW.

SHOREHAM HOTEL,

Tuesday night, December 28, 1915.

Chairman, ELIHU ROOT.

The session was called to order at 8 o'clock by the chairman, the president of the society, Hon. Elihu Root.

The CHAIRMAN. Gentlemen of the subsection on international law of the Pan American Scientific Congress, gentlemen of the American Society of International Law, and ladies, it gives me great pleasure to act as the spokesman for the American Society of International Law in welcoming all of you who are our guests at this our annual meeting, and especially to welcome the cooperation and union of the members of the Pan American Scientific Congress in this effort towards the promotion of the science which underlies and is the basis of all international good understanding.

It has been customary in the past at meetings of the American Society of International Law for the presiding officer to begin the meeting by a very informal statement of the principal and most significant events in international law and diplomacy during the preceding year. That I shall omit. I shall hold that the terrible events which have happened during the past year are within the knowledge of all and that they are beyond the power of anyone's description, and shall pass immediately and ask your attention to some observations upon the outlook for international law.

THE OUTLOOK FOR INTERNATIONAL LAW.

By ELIHU ROOT,

President of the American Society of International Law.

The incidents of the great war now raging affect so seriously the very foundations of international law that there is for the moment but little satisfaction to the student of that science in discussing specific rules. Whether or not Sir Edward Carson went too far in his recent assertion that the law of nations has been destroyed, it is manifest that the structure has been rudely shaken. The barriers that statesmen and jurists have been constructing laboriously for three centuries to limit and direct the conduct of nations toward each other, in conformity to the standards of modern civilization, have proved too weak

to confine the tremendous forces liberated by a conflict which involves almost the whole military power of the world and in which the destinies of nearly every civilized State outside the American continents are directly at stake.

The war began by a denial on the part of a very great power that treaties are obligatory when it is no longer for the interest of either of the parties to observe them. The denial was followed by action supported by approximately one-half the military power of Europe, and is apparently approved by a great number of learned students and teachers of international law, citizens of the countries supporting the view. This position is not an application of the doctrine sic stantibus rebus, which justifies the termination of a treaty under circumstances not contemplated when the treaty was made, so that it is no longer justly applicable to existing conditions. It is that under the very cir cumstances contemplated by the treaty and under the conditions for which the treaty was intended to provide the treaty is not obligatory as against the interest of the contracting party.

This situation naturally raises the question whether executory treaties will continue to be made if they are not to be binding, and requires consideration of a system of law under which no conventional obligations are recognized. The particular treaty which was thus set aside was declaratory of the general rule of international law respecting the inviolability of neutral territory, and the action which ignored the treaty also avowedly violated the rule of law, and the defense is that for such a violation of the law the present interest of a sovereingn State is justification. It is plain that the application of such a principle to a matter of major importance at the beginning of a long conflict must inevitably be followed by the setting aside of other rules as they are found to interfere with interest or convenience; and that has been the case during the present war. Many of the rules of law which the world has regarded as most firmly established have been completely and continuously disregarded, in the conduct of war, in dealing with the property and lives of civilian noncombatants on land and sea, and in the treatment of neutrals. Alleged violations by one belligerent have been asserted to justify other violations by other belligerents. The art of war has been developed through the invention of new instruments of destruction, and it is asserted that the changes of conditions thus produced make the old rules obsolete.

It is not my purpose at this time to discuss the right or wrong of these declarations and actions. Such a discussion would be quite inadmissible on the part of the presiding officer of this meeting. I am stating things which. whether right or wrong, have unquestionably happened, as bearing upon the branch of jurisprudence to which this society is devoted. It seems that if the violation of law justifies other violations, then the law is destroyed and there is no law; that if the discovery of new ways of doing a thing prohibited justifies the doing of it, then there is no law to prohibit. The basis of such assertions really is the view that if a substantial belligerent interest for the injury of the enemy come in conflict with a rule of law, the rule must stand aside and the interest must prevail. If that be so it is not difficult to reach the conclusion that for the present, at all events, in all matters which affect the existing struggle, international law is greatly impaired. Nor can we find much encouragement to believe in the binding force of any rules upon nations which observe other rules only so far as their interest at the time prompts them. Conditions are always changing and a system of rules which cease to bind whenever conditions change should hardly be considered a system of law. It does not follow that nations can no longer discuss questions of right in their diplomatic intercourse, but upon such a basis it seems quite useless to appeal

to the authority of rules already agreed upon as just and right and their compelling effect because they have been already agreed upon.

When we recall Mansfield's familiar description of international law as "founded upon justice, equity, convenience, the reason of the thing, and confirmed by long usage," we may well ask ourselves whether that general acceptance which is necessary to the establishment of a rule of international law may be withdrawn by one or several nations and the rule be destroyed by that withdrawal so that the usage ceases and the whole subject to which it relates goes back to its original status as matter for new discussion as to what is just, equitable, convenient, and reasonable.

When this war is ended, as it must be some time, and the foreign offices and judicial tribunals and publicists of the world resume the peaceable discussion of international rights and duties, they will certainly have to consider not merely what there is left of certain specific rules, but also the fundamental basis of obligation upon which all rules depend. The civilized world will have to determine whether what we call international law is to be continued as a mere code of etiquette or is to be a real body of laws imposing obligations much more definite and inevitable than they have been heretofore. It must be one thing or the other. Although foreign offices can still discuss what is fair and just and what is expedient and wise, they can not appeal to law for the decision of disputed questions unless the appeal rests upon an obligation to obey the law. What course will the nations follow?

Vague and uncertain as the future must be, there is some reason to think that after the terrible experience through which civilization is passing, there will be a tendency to strengthen rather than abandon the law of nations. Whatever the result may be, the world will have received a dreadful lesson of the evils of war. The sacrifice of millions of lives, millions homeless and in poverty, industry and commerce destroyed, overwhelming national debts-all will naturally produce a strong desire to do something that will prevent the same thing happening again.

While the war has exhibited the inadequacy of international law, so far as it has yet developed, to curb those governmental policies which aim to extend power at all costs, it has shown even more clearly that little reliance can be placed upon unrestrained human nature, subject to specific temptation, to commit forcible aggression in the pursuit of power and wealth. It has shown that where questions of conduct are to be determined under no constraint except the circumstances of the particular case, the acquired habits of civilization are weak as against the powerful, innate tendencies which survive from the countless centuries of man's struggle for existence against brutes and savage foes. The only means yet discovered by man to limit those tendencies consist in the establishment of law, the setting up of principles of action and definite rules of conduct which can not be violated by the individual without injury to himself. That is the method by which the wrongs naturally flowing from individual impulse within the State have been confined to narrow limits. That analogy, difficult as it is to maintain in view of the differences between the individual who is subject to sovereignty and the nation which is itself sovereign, indicates the only method to which human experience points to avoid repeating the present experience of these years of war consistently with the independence of nations and the liberty of individuals. The Pax Romana was effective only because the world was subject to Rome. The Christian church has been urging peace and good will among men for nineteen centuries, and still there is this war. Concerts of Europe and alliances and ententes and skillful balances of power all lead ultimately to war. Conciliation, good will, love of peace, human sym

pathy, are ineffective without institutions through which they can act. Only the possibility of establishing real restraint by law seems to remain to give effect to the undoubted will of the vast majority of mankind.

In the effort to arrange the affairs of the world so that they will not lead to another great catastrophe, men will therefore turn naturally toward the reestablishment and strengthening of the law of nations. How can that be done? How can the restraints of law be made more effective upon nations? It is not difficult to suggest some things which will tend in that direction. Laws to be obeyed must have sanctions behind them; that is to say, violations of them must be followed by punishment. That punishment must be caused by power superior to the lawbreaker; it can not consist merely in the possibility of being defeated in a conflict with an enemy; otherwise there would be no law as between the strong and the weak. Many States have grown so great that there is no power capable of imposing punishment upon them except the power of collective civilization outside of the offending States. Any exercise of that power must be based upon public opinion. It can not rest merely upon written agreements or upon the accidental dictates of particular interests. It must proceed from general, concurrent judgment and condemnation. When that exists, punishment may be inflicted either by the direct action of governments, forcible or otherwise, or by the terrible consequences which come upon a nation that finds itself without respect or honor in the world and deprived of the confidence and good will necessary to the maintenance of intercourse. Without such an opinion behind it, no punishment of any kind can be imposed for the violation of internatioal law. For the formation of such a general opinion, however, questions of national conduct must be reduced to simple and definite form. Occasionally there is an act the character of which is so clear that mankind forms a judgment upon it readily and promptly, but in most cases it is easy for the wrongdoer to becloud the issue by assertion and argument and to raise a complicated and obscure controversy which confuses the judgment of the world. There is but one way to make general judgment possible in such cases. That is by bringing them to the decision of a competent court which will strip away the irrelevant, reject the false, and declare what the law requires or prohibits in the particular case. Such a court of international justice with a general obligation to submit all justiciable questions to its jurisdiction and to abide by its judgment is a primary requisite to any real restraint of law. When we come to consider the working of an international court, however, we are forced to realize that the law itself is in many respects imperfect and uncertain. There is no legislature to make laws for nations. There is no body of judicial decisions having the effect of precedent to declare what international laws are. The process of making international law by usage and general acceptance has been necessarily so slow that it has not kept pace with the multiplying questions arising in the increasing intercourse of nations. In many fields of most fruitful controversy different nations hold tenaciously to different rules, as, for recent example, upon the right of expatriation, upon the doctrine of continuous voyages, upon the right to transfer merchant vessels after the outbreak of a war. Yet any attempt to maintain a court of international justice must fail unless there are laws for the court to administer. Without them the so-called court would be merely a group of men seeking to impose their personal opinions upon the States coming before them. The lack of an adequate system of law to be applied has been the chief obstacle to the development of a system of judicial settlement of international disputes. This is well illustrated by the history of