THE EQUALITY OF STATES AND THE HAGUE

CONFERENCES

The Second Hague Conference accomplished many valuable results and failed in much that it attempted. Many of its failures have been attributed to a faulty method of organization. The conference itself recognized this defect when on September 21, 1907, it adopted the following vœu:

The conference recommends to the powers the assembly of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding conference, at a date to be fixed by common agreement between the powers, and it calls their attention to the necessity of preparing the program of this Third Conference a sufficient time in advance to insure its deliberations being conducted with the necessary authority and expedition. In order to attain this object the conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the governments with the task of collecting the various proposals to be submitted to the conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a program which the governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested. This committee should further be intrusted with the task of proposing a system of organization and procedure for the conference itself.

It thus becomes a duty to examine the organization of the two Hague conferences with a view to improving conditions in a Third Conference. One of the chief causes of complaint has been the method of voting. In the Hague conferences each state had one vote, of equal weight with that of all other states. To say that this should not be the case is to attack, by implication, what has been for centuries and by most publicists is still considered to be a fundamental principle of international law. In the eyes of weaker states equal voting power for all sovereign states and equal representation on all international tribunals could not be withheld without discrediting the principle of the legal equality of states. During the

Second Hague Conference two parties were formed -one strongly asserting the equality of sovereign states, and the other advocating measures which disregard the doctrine.

What then is this doctrine of the equality of states in international law? One of the most recent statements of the principle is by Moore,

who says:

All sovereign states, 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. (Digest of International Law, Vol. I, p. 62.)

The doctrine was born with the publication of the great book of Hugo Grotius, "De Jure Belli ac Pacis," in 1625. At that time, in the midst of the Thirty Years' War, international anarchy was rampant. The idea of universal sovereignty, derived from Imperial Rome, had been handed down to the Popes. But the contest between the Empire and the Papacy had destroyed faith in either a spiritual or temporal common superior. After the Reformation the notion of a common superior ceased to exist even in theory. The idea of sovereign nations supplanted that of universal empire. Some new principle was needed to take the place of control from above. For a time it seemed as though there would be no check for the strong nation, or succor for the weak. It was here that the work of Grotius found its place. He adopted the theory, well known to his time, that a law of nature controls the relations of man to man, and applied it to the relations between states. This was Grotius' great accomplishment to find in the law of nature a new and nonreligious ground for international rights and duties. It was a common conception of the age that there had once existed a time when organized communities were not yet formed and when each individual was at liberty to do whatever he wished. Further, that men in such a condition obeyed certain rules discovered to them by their own reason. These rules were called the laws of nature. People were in a state of nature with reference to each other. Grotius used this law of nature in the following manner: No common superior being left to control the relations of states, the states were free and independent, and they were in a state of nature" with respect to each other,

As to what the law of
Now, the Romans in

just as individuals were before the organization of communities. Thus, states were bound by a law of nature. nature was, recourse was had to Roman law. their judicial system identified the jus gentium with the jus naturale. That is, when they discovered that there were certain laws common to most of the countries with which they had relations, they came to think of these rules as laws of nature. Grotius followed them in this error, and when he applied the law of nature to states it was really in large part the jus gentium which he was using. One of the oft-repeated dogmas of the jus gentium was the equality of men. When Grotius applied the system to states, he made an essential part of his legal doctrine the absolute independence and equality of states. He made the theory of equality a cardinal point of his system, and the world of his day adopted it as a necessary corollary of the existence and efficacy of the law of nature. From that day to this the equality of states before the law has been accepted by most international jurists. Some of them have, however, revolted from the doctrine, so that we may with them reexamine the theory to see whether it is really a fundamental principle of international law. Is it a doctrine inherent in the nature of international law with which it is impossible to dispense?

Looking again to the origin of the doctrine, it is immediately apparent that it is based upon a political theory which has long been discarded by political scientists. Historically, there never was such As to what the law of nature

a state of nature as Grotius believed in. is, thinkers before and since his time have differed essentially. That there is no such thing as a law of nature which may be treated as a positive code is certain. The contract theory, which had such farreaching results in its application, premised a state of nature identical with that upon which Grotius relied. The theories of Hobbes, Locke, and Rousseau were evolved as a means of escape from this state of nature. Modern political theorists are able to discard this contract theory by proving that such a state of nature never existed. (Willoughby, Nature of the State, pp. 89-118.) It is shown that liberty in its true sense did not precede the organization of communities, but was a result of it. In such a state of nature as existed

rights did not exist - only powers. Men have rights only when they do not have to fight for them. In a state of nature the stronger or more crafty are able to carry out their desires only by force.

Natural right as right in a state of nature which is not a state of society is a contradiction. There can be no right without a consciousness of common interest on the part of members of a society. Without this there might be certain powers on the part of individuals, but no recognition of these powers by others as powers of which they should allow the exercise, nor any claim to such recognition; and without this recognition or claim to recognition there can be no right. (Green, Lectures on the Principles of Political Obligation, Phil., Works, vol. 2, p. 354.)

There never was, and there never can be, any liberty upon this earth and among human beings outside of state organization. Barbaric selfhelp produces tyranny and slavery, and has nothing in common with the self-help created by the state and controlled by the law. Mankind does not begin with liberty. Mankind acquires liberty through civilization. Liberty is as truly a creation of the state as government. (Burgess, Political Science, Vol. I, p. 88.)

Now, in the absence of an international organization, something bearing the same relation to states that states do to individuals, how can states have rights any more than individuals could in their "state of nature?" To say that they have only powers dependent upon brute force corresponds very fairly with the events recorded in history since the beginning of separate life for states. And if states have no rights, which are the result of international organization, why is it necessary to premise that their rights are equal even "before the law?" It is not intended here to discuss the question of the character of international law as opposed to positive or municipal law; but it is sufficient to say that the phrase "before the law when used in international and in positive law has quite a different meaning. If we adopt the Austinian doctrine that there is no international law in a true sense; or if we take the view that treaties, customs, etc., sanction an international law for the breach of which the final recourse is war between the interested nations, we must admit that international law has not yet reached the stage of perfection to which municipal law has attained. In the latter case war is but a trial of powers, not an assertion of rights; since the

vanquished nation may be able to bring greater authority for its contention than its stronger contestant. It is through this confusion between the so-called law between states and as exercised over citizens by states that the assumed analogy between men and states has been put forth. Even admitting that before municipal law all men in a state are equal, it does not follow that all sovereign states must be equal before international law.

This fiction of international law has lived a vigorous life for almost three centuries, not on its philosophical merits but from an alternative reason which Grotius made part of his fundamental system. He asserted that states were bound by rules that had received the assent of all or most of their number. (De Jure Belli ac Pacis, Book I, ch. 1, sec. 14.) Thus, when rules had been generally received they were, on his own theory, binding as long as they did not violate plain precepts of natural law. This is the history of the doctrine of equality after its foundation by Grotius upon a false political philosophy.

Certain modern writers support the doctrine of equality almost entirely on this latter ground, i. e., consent. Thus, Oppenheim (International Law, Vol. I, pp. 19-20) says:

Since the law of nations is based on the common consent of states as sovereign communities, the member states of the family of nations are equal to each other as subjects of international law. States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty and of the fact that the law of nations is a law between, not above, the states.

On page 161 he continues the thought as follows:

The equality before international law of all the member-states of the family of nations is an invariable quality derived from their international personality. Whatever inequality may exist between states as regards their size, population, power, degree of civilization, wealth, and other qualities, they are nevertheless equals as international persons. The consequence of this legal equality is that, whenever a question arises which has to be settled by the consent of the members of the family of nations, every state has a right to a vote, but to one vote only. And legally the vote of the weakest and smallest state has quite as much weight as the vote of the largest and most powerful. Therefore, any alteration of an