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solute conception of sovereignty. No treaty can
bind them, for they always reserve the right to
break it whenever they consider it in their interest
to do so. No international law can control
them, for they will not admit that it is law unless
it is an absolute decree of sovereign power. No
congress or conference can overrule them, for


these, in their view, possess no authority. All
contractual relations entered into with powers
which hold themselves not subject to moral law
are therefore written in running water. They
have no value whatever. What can be expected
of a power that claims to possess an unlimited
right of national expansion, restrained only by
the extent of its ability to carry its projects into
execution by an assault upon its neighbors ? The
polite expression for this exalted privilege is "lib-
erty of national evolution." But what does lib-
erty of national evolution mean if not freedom to
do what a particular nation desires to do with-
out the restraint of the collective interests of other
powers and the limitations imposed by fixed prin-
ciples of law?

It is evident, then, that any effective form of
international government implies the renuncia-
tion, to some extent at least, of absolute sover-
eignty. To what extent must this renunciation
be carried? Certainly not to the extent of ad-
mitting interference in the purely domestic affairs
of a state. But it must be accepted to a degree
that will allow of bringing to bear upon the im-
portant relations of states to one another, that


is, upon strictly international questions, the col-
lective judgment of at least a group of states hav-
ing an interest in those questions.

Here, undoubtedly, have to be made two dis-
criminations : (1) between questions which are
strictly internal to the separate states and strictly
international questions; and (2) between the
powers capable of uniting together upon terms of
equality for the consideration of questions purely
international and those that will not submit to a
collective decision.

It may often be difficult to distinguish between
what is merely domestic and what is properly
speaking international in the action of sovereign
powers. The great powers have in the past not
hesitated to interfere in matters of a wholly do-
mestic character in the case of the weaker states,
as, for example, with administrative reforms in
Turkey, and with customs tariffs in China.
Such interference is beyond question an infringe-
ment upon sovereignty. It can be justified only
when it is intended to suppress a domestic condi-
tion that unjustly affects the rights of foreign
powers, such as a state of anarchy, inhuman bar-
barity, or a persistent form of maladministration.


When, on the other hand, it aims at extorting a
commercial advantage, it has no justification. It
is natural, therefore, that small and weak states,
feeling themselves liable to such abuses by
stronger powers, should dread any form of inter-
national control that might unjustly infringe upon
their sovereignty. It would be necessary, there-
fore, in framing an international constitution in-
tended as the legal authorization of an interna-
tional government, to mark out very clearly the
limits within which it could act, and thus to pro-
tect the weaker states from the intervention of
the stronger.

It is evident, also, that the formation of a gen-
eral union for purposes of legislation, judicial
judgment, and executive action would involve
grave problems. While all independent states,
regardless of size and power, are in law juristi-
cally equal, they are not materially equal either
in a military or an economic sense. If, there-
fore, representation in international bodies leg-
islative, judicial, and executive were equal, it
would involve a certain subjection of the great
powers to the will of the small states to which
they would not willingly submit. If, on the other


hand, representation were proportioned to wealth,
population, extent of territory, or any other simi-
lar standard, the smaller states would feel that
they were in danger of being subordinated by
their more powerful neighbors. Finally, there
would be an inherent incompatibility between the
absolute and the constitutional powers, the for-
mer being indisposed to bind themselves to the re-
strictions that would necessarily be placed upon
them by general principles of law, and the latter
being uncertain whether or not they could depend
upon the good faith of powers whose political
systems were in principle opposed to any external
restraints restraints which at a critical moment
they might in perfect consistency with their abso-
lute theory of the state suddenly decide to re-

We are brought, therefore, boldly to dismiss
the pretension that a general international gov-
ernment is either possible or desirable. Such an
organization would of necessity include both great
and small states, empires and democracies, pow-
ers with unsatisfied world-wide ambitions and
petty sovereignties just emerging from semi-bar-
barism, and among them aspirants to nationality


virtually only on the ragged edge of statehood,
yet claiming the right to possess an equal voice in
an international body, but in reality the mere
vassals or protectorates of great powers.

Would it not, in fact, appear that the most that
could reasonably be expected in the form of an
international organization fit to legislate and ex-
ercise judicial functions would, at least in the
beginning, be a strong, but limited, group of
powers, each willing to sacrifice something of its
own sovereignty for the purpose of insuring peace
and equity, thus constituting a coherent force, not
upon the principle of the balance of power, but a
nucleus for the ultimate union of all responsible
and socially inclined nations? This, of course,
would have to be sufficiently powerful to defend
its members from attack and even able to offer
protection to the independence of the smaller
states desirous of entering into its compact. It
would not necessarily be a federation, which
would imply the creation of a new state, nor even
an alliance. It might be in substance merely the
formal recognition of the existence of a real, as
distinguished from a purely fictitious, society of
states based upon common intentions and a dec-


laration of definite principles of right which the
members were willing to accept, to observe, and
to defend.

Such a society of states as has just been out-
lined would, however, itself be a mere fiction of
the mind unless it possessed some kind of legis-
lative, judicial, and executive powers. But it is
quite possible that a society of states should in
some degree possess such powers without in real-
ity constituting a new state. The establishment
of new relations is not equivalent to the creation
of a new entity, and it is merely the establishment
of new relations that is here contemplated.
There would be no new sovereignty developed,
but merely the concurrent action of preexistent
sovereignties. For constitutional states there is
virtually no surrender of sovereign authority in
submitting to international law, because, being
themselves constituted for justice as the end of
their existence, international law contradicts noth-
ing essential to them. For an absolutist state,
however, the case is different. Pretending to
possess unlimited authority and finding the end
of its existence in augmenting its own power, the


absolutist state does not regard itself as under ob-
ligation to accept any law that is not the declara-
tion of its own will.

Here is the explanation of why the Hague con-
ferences of 1889 and 1907 were nearly fruitless
as legislative bodies. They were, however, gen-
erally regarded as law-making assemblies, sub-
ject, of course, to veto by the refusal of the sepa-
rate states to ratify their conclusions. In the
first conference twenty-six states, and in the sec-
ond conference forty-four these being all but
four of the independent states of the entire world
united in making conventions intended to have
a universal and legal character, but these were of
an extremely limited nature because in both cases
the range of subjects was restricted by previous
agreement, entire unanimity was necessary in or-
der to secure adoption of each separate item by
the conference, and the conventions that had
braved and triumphed over all these discourage-
ments were still null and void for all the powers
that did not expressly ratify them. It is not sur-
prising, therefore, that the results were meager.

While these conferences prove that interna-
tional legislation is possible by an association of


sovereign powers, they also make evident what
is necessary to render it really fruitful. The
first necessity is that strict unanimity must be
given up, and the nations must admit their ob-
ligation to obey such international rules as re-
ceive preponderant assent, not perhaps the assent
of a bare majority, but of a very large plurality.
This the absolutist governments will not do, for
they will accept no rule which involves any dis-
advantage to themselves, no matter how just it
may be. A constitutional state, on the other
hand, may accept any just rule without surrender-
ing any of its sovereign rights, for it claims no
rights which just legislation would endanger.

The primary problem therefore is how to or-
ganize an international conference, assembled to
perfect international law, in such a manner as to
prevent unjust or ex parte legislation. The only
practicable method, perhaps, is, first of all, by
negotiation between powers disposed to partici-
pate in such a conference and to be bound by it
to frame a constitution defining and limiting its
powers, and, since the procedure must of neces-
sity be experimental, to provide for its subse-
quent amendment, except as respects certain defi-


nite and essential rights explicitly and per-
manently reserved to the states taking part in it.
Such a conference, for reasons already stated,
would not be universal. At The Hague it was
esteemed necessary that an 'international confer-
ence should be universal, and this was the reason
for requiring absolute unanimity and for the con-
sequent dread of isolating one or more of the
powers, which, therefore, were able to hold up the
conference on every vital question and thus pre-
vent the adoption of the measures most necessary
to the peace and safety of the world.

While unanimity is most desirable, it is ab-
surd to insist that some one recalcitrant power,
even though a great one, may virtually frustrate
the labors of all the rest. Such a decision not
only forestalls the possibility of reaching a con-
clusion upon any really vital matter, but it pre-
vents even the discussion of the subjects most
needing to be considered. At the termination of
the second conference at The Hague, after four
months of tuition in the gentle art of arriving at
no conclusion under past-masters in obstructive
diplomacy, many of the most thoughtful of the
delegates were of the opinion that another con-


ference to be held under the same conditions
would be a waste of energy.

What then should be the competency of an in-
ternational conference? What authority may
safely and wisely be attributed to it? In other
words, how far may an independent nation sub-
mit to the collective decisions of such a body?

Reserving its political independence and its
territorial integrity in the mandate constituting
such a conference, supposing the conference to
be composed exclusively of constitutional states,
why should it not submit to any decisions in the
nature of general laws which after full discussion
the large majority is willing to accept and agrees
to observe?

Here is the crux of the whole matter of in-
ternational organization. If everything is to re-
main entirely voluntary, such organization is use-
less. If, on the contrary, everything is compul-
sory, that makes an end of state independence
and transfers sovereignty altogether to a central

The key to the problem is to be found in the
expression " decisions in the nature of general


laws." There is no reason why such decisions,
made under constitutional limitations, should not
be freely accepted as binding. It is the only way
in which the rules of international law can be
brought to any high degree of perfection; and it
is the perfection of these rules that is, their ap-
proximation to principles of justice that alone
can furnish a basis for the normal life of a so-
ciety of states.

Given an acceptable body of law, the necessary
machinery of international government is re-
duced to extreme simplicity. Next comes the
need of judicial decision. The reluctance of con-
stitutional governments to submit their disputes
to arbitration does not proceed from a desire to
act unjustly. It arises rather from the conviction
that in the absence of fixed standards of judg-
ment decisions will be reached which are purely
arbitrary mere attempts to settle the dispute by
makeshift compromises that do not embody jus-
tice to any one. Where the law is clear, there is
little difficulty in inducing responsible govern-
ments to submit to an international tribunal dis-
putes which, to use the technical word, are "jus-
ticiable," that is, which are of a legal character.


But it is obvious that the reason why so many
international questions are not of a legal char-
acter is simply because the law is so incomplete,
so imperfect, or customs are so contradictory,
that there is no legal basis of settlement, since
there is virtually no clear law upon the subject.

The remedy here is quite simple. It consists
in perfecting the law; and the law can be per-
fected only by discussion and decision in an in-
ternational conference, the members of which are
willing to accept one another's bona fides, and
respect the clear, deliberate, and preponderant col-
lective judgment of the delegates.

It is true that difficulties have been raised re-
garding the formation of an international ju-
diciary, but the chief of these has grown out of
the idea that such a tribunal must have a uni-
versal character; that is, that every state must
have a representative on the international bench.
A court composed of forty- four judges would be
in every way impracticable. But it is altogether
unnecessary. The assumption that every state
must be represented on the bench is based upon
the idea that every state must sit in its own case,
which is absurd. This idea grows wholly out


of the vagueness and imperfection of the law,
which involves the reference of a dispute to the
private judgment of a jurist who may be in-
fluenced by his national prejudices in making his
decision. But when the law is clear and com-
plete, the decision is greatly simplified. It then
becomes merely an ascertainment of facts which
must rest on sufficient evidence, and an applica-
tion of the law to the circumstances of the case.
National prejudice, under these conditions, is
virtually excluded; and where the law is per-
fectly clear the requirements of a good interna-
tional judge are simply common honesty and
clear intelligence, which happily are not national
monopolies and are not impossible to find.

As to the form or constitution of the court, that
is a matter of much less consequence than is
ordinarily supposed. The important thing is
that there should be some competent court avail-
able; for ordinary cases, perhaps, a small per-
manent tribunal of expert jurists always open
to hearings, and for special and delicate con-
troversies specifically chosen judges selected ad
hoc by the contestants.

When we come to the enforcement of judicial


decisions, other difficulties present themselves, but
most of them are imaginary, at least as far as
constitutional states are concerned, for these are
habituated to accepting without hesitation the
decisions of properly constituted courts. As for
absolutist governments, governments based on
force and not on law, they are by definition left
out of the society of states as here conceived.
There would be the same danger in including
them in it that there would be in inviting a band
of highway robbers to form part of a protec-
tive constabulary to secure the safety of prop-

The natural consequence of refusing to respect
the decision of an accepted international judicial
tribunal would be, that a state thus refusing
would henceforth be considered an international
outlaw, and might properly be treated as such.

How far military power should be employed
in the enforcement of international obligations is
a matter for grave consideration. The use of
military force means war, and the question there-
fore becomes, For what purposes should nations
be prepared to go to war? Certainly not for any
objects that can be peaceably obtained without


the sacrifice of essential rights. Certainly not for
any such abstract idea as peace, apart from any
known or concrete circumstances. No wise na-
tion, therefore, will enter into any general com-
pact to "enforce peace," which in view of actual
facts might bind it to the most odious obligations
against its own judgment and conscience. Such
an agreement would, moreover, bind itself and
its cosignatories by a solemn compact to preserve
the status quo, for a time at least, in every unjust
situation. Nor is there less danger in the en-
forcement of delay, which might produce worse
consequences than prompt action. But there
might, with very good reason, be an international
declaration of what should constitute just and
unjust causes of war, which would serve as a
warning to unjust aggressors as to where the sym-
pathies of neutrals would be placed in case the
rules were violated. It is inconceivable that
prudent statesmen will ever unite in an engage-
ment to go to war under circumstances wholly
unknown to them, and not affecting the direct in-
terests of the powers they represent or their specific
obligations toward their neighbors or allies. In-
ternational morality will find its best field of de-


velopment in conditions that leave the nations free
to exercise in such matters their reason and their
consciences in the light of the actual conditions
by which they may be surrounded.

There remain, of course, many international
questions that cannot be reduced to formulae of
international law, or submitted to the decision of
judicial tribunals. These are the questions of
national policy which every nation must reserve
for its own determination. What means each na-
tion shall take for its own defense, whether on
land or sea, must be left to its own decision, as
well as where to find its friends and whom to
consider as its enemies.

But this reserve of national independence by
no means excludes international relations outside
of those which relate to the determination and en-
forcement of international law. There is a wide
field for friendly social intercourse, for mutual
counsel, for an exchange of views, and for the
exercise of those influences which promote con-
fidence and consolidate friendship. This is the
work of diplomacy which will find its task greatly
lightened, but not in any sense superseded, by


the perfection of international law, and the re-
sort to international tribunals.

Diplomacy, rightly considered, is a creative
function. It clears the way for better under-
standings and closer relationships. The nations
are constantly making a new world. New needs
and new inventions are incessantly preparing the
way for new international contacts. There is
no longer a possibility of isolation. There can
be in modern times no hermit nation. Trade is
breaking down the old barriers, and the multipli-
cation of new desires, even among semi-barbar-
ous peoples, is opening new ports and develop-
ing new markets.

The whole world is now compelled to think and
to act internationally. The public is hardly
aware of what was accomplished in the last cen-
tury in the way of organizing specific interna-
tional relationships by the creation of such or-
ganisms as the Universal Postal Union, the Tele-
graphic Union, the Radio-Telegraphic Union, the
Metric Union, the Geodetic Association, and half
a dozen other permanent quasi-legislative or ad-
ministrative associations of an international char-
acter. There are, besides, many periodic con-


ferences relating to industrial property, literary
and artistic property, railway and oceanic trans-
portation, safety at sea, sanitation, the use and
sale of drugs and intoxicants, commercial statis-
tics, monetary affairs, and other matters of gen-
eral human interest. To these must be added
the permanent commissions such as the Bureau of
The Hague Tribunal, the Sugar Commission, the
Opium Commission, the Committee on the Map
of the World, the Bureau for the Publication of
Customs Tariffs, etc. Some of these are the re-
sult of official action through diplomatic inter-
course, others of private initiative; but all com-
bine to unify the nations, and to accustom them
to cooperation and submission to collective de-

The success of these efforts suggests the util-
ity of still wider joint action in the treatment of
those residuary problems which cannot be solved
by legal processes because they are matters not of
strict legality, but of national policy.

I refer now to those great international ques-
tions of an economic nature which create the con-
ditions for economic imperialism, and which,


more than any other definable causes, endanger
the peace of the world. The seed-plot of future
wars is to be found in the undeveloped countries.
Unable to protect themselves, they are forced to
rely upon the protection of stronger countries, and
they often become the victims of their designs.
China, Persia, Morocco, Turkey, the Balkan
States, South Africa, these have been the great
centers of international disturbance. It is not
merely that they are markets for manufactured
goods. That rivalry of mere salesmen might
be comparatively innocuous. Economic imperi-
alism has its roots in the exportation of capital
seeking permanent investment in backward coun-
tries, in concessions, in the political influence that
extorts them, and mainly in the foreign govern-
mental power that backs up and supports the
extortions. Finally, the rivalry for monopoly
between the subjects or citizens of different gov-
ernments leads to friction. Intrigues follow,
contracts are opposed or broken, acquired rights
are insisted upon, and powerful financial influ-
ences are brought to bear for the employment of
armies and navies to enforce them. Dynastic


imperialism masks its political designs under this
defense of alleged national rights and interests,
and embraces the opportunity to make a popular
war; whereas, without such an excuse, there
would be opposition to a military adventure.

It cannot be held tliat the development of the
backward countries is undesirable, or that the
protection of its own nationals by a government
is not a duty. On the contrary, it is only by
foreign capital that the resources of these
neglected territories can be utilized for the benefit
of mankind; and every citizen has a rightful
claim upon his government to protect him from
injustice even in a foreign land. The extension
of civilization over the earth demands both the
enterprise of the pioneer and the assertion of civil
authority. The crime of governments is that for
political advantage they make business a partner
in schemes of military exploitation ; and the folly
of the business world is that it invites the power
of the sword to tip the balance of business compe-
tition, thereby involving itself in military costs
that heavily handicap all industrial and commer-
cial activities in time of peace, and sweep them to
the brink of ruin in time of war.


From these undeniable facts two fallacious con-

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Online LibraryDavid Jayne HillThe rebuilding of Europe : a survey of forces and conditions → online text (page 10 of 15)