POLITICS FEBRUARY 26, 1916
It is at least a century since the law of nations last stood in such urgent need of rational analysis and revision. The whole international system is in the crucible of barbaric strife. Its reconstruction requires lastly more than merely restoring what the belligerents have destroyed. There is need for new concepts and the elaboration of new principles. There is work for constructive thinkers and for those who are bold in exposition. It would gratify Americans if their statesmen should assume the leadership in this great enterprise. The leadership, however, will probably be claimed by others; and an explanation will probably be found in Pan-Americanism. Because of its peculiar relation to Latin-America the Untied States is bound to the ancient platitudes of international law in several matters of fundamental importance. European critics told us as much in 1907, when Secretary Root virtually made it a condition of our being represented at the second Hague Peace Conference that all American republics should be invited. We are impressively reminded again of the millstone about our neck of the “Declaration of the Rights of Nations,” recently proclaimed by the American Institute of International Law.
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Although framed by a private body–the Institute consists of a hundred and five members, five from the national society of international law in each of the twenty-one republics–this Declaration may be taken as expressing the attitude of Pan-America towards international law. Its framers represent the most eminent authorities of their respective countries; the United States delegation, for example, includes Secretary Lansing and two distinguished ex-Secretaries of State. Its principles undoubtedly have the support of our Latin neighbors and will be championed by the United States as chief defender of Pan-Americanism.
According to the preamble of the Declaration, national law in civilized states protects five fundamental rights in the individual–the right to life, the right to liberty and the pursuit of happiness, the right to legal equality, the right to property, and the right to enjoyment of these rights. These rights of individuals can be translated, we are told, into terms of international law and applied to nations just as they have been applied to individuals. Thus translated they mean that nations have the right to exist, the right to independence, the right o legal equality, the right to territory, and the right to have these fundamental rights observed. The Declaration is thus based upon a major premise which is well nigh meaningless and a minor premise which is fallacious. Its conclusions are significant only because they illustrate the variety of internationalism which the United States is sponsor for Pan-Americanism may be called upon to defend.
The sweeping generalization of the major premise is dangerously misleading. To say that these fundamental rights are universally recognized and are “familiar to the peoples of all civilized countries” is merely to repeat euphonious dicta. Does it need to be suggested that equality before the law means one thing in the Dual Monarchy and quite another in the Dominion of Canada, that the right to property construed in a Bolivian court would pass unrecognized before the King’s Bench at Westminster, or that the right to liberty of the Russian subject would cause a revolution in Switzerland? Furthermore, these rights of the individual even now are being subjected to searching criticism in most of the leading states. We are in an age which is giving new meaning to old maxims. We are coming to see that where individual rights conflict with the rights of society the latter must prevail. It is precisely this principle that nations need to understand in order that international law may become something more than meaningless generalities. Nations will not be helped to a realization of this need by an attempt to transplant a vague conception of private rights into the field of international law.
The minor premise of the Declaration is fallacious. When will publicists realize that national law, designed primarily for natural persons, cannot be taken over bodily and converted into a law of nations? When will they see that any analogy between persons subject to national law and states subject to international law must be drawn with the finest discrimination? To suggest only a few of the obstacles to such an analogy, it may be pointed out that while the natural person is movable, the state is immovable; while the natural person is mortal, the state is immortal; while the natural person is a physical thing representing only one of the elements of state existence, the state is an artificial thing requiring for its existence not only people, but territory government, and sovereign political power. We may pardon Grotius and the early publicists for resorting to this analogy. They lived in a world almost devoid of international system. To meet humanity’s need they drew from nebulous theories of a law of nature and from the systems of national law with which they were familiar. But surely it cannot be argued that present-day publicists and statesmen are similarly excusable, with the record of almost three centuries of Grotian system open for their enlightenment. We must conclude that those who persist in the twentieth century in reciting the ancient dogmatic analogies between the rights of human beings and the rights of nations are suffering from a dearth of ideas.
We are told in the first article that “every nation has the right to exist and to protect and conserve its existence.” This is to be understood in the sense in which the right to life is understood in national law, according to which it is unlawful for a human being to take human life except in self-defense. The language of the United States Supreme Court: “To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from the foreign nation acting in its national character or from vast hordes of its people crowding in upon us.” It is respectfully submitted that this article could be cited in justifying the conduct of every prince and potentate now engaged in war’s blood business. It illustrates the futility of talking about rights when the nations are bleeding from want of remedies.
Article two proclaims each nation’s right to independence and the pursuit of happiness free from interference or control y other states. What are the legal limits of a national’s right to the pursuit of happiness? Who shall say when the conduct of every prince and potentate now engaged in war’s bloody business. It illustrates the futility of talking about rights when the nations are bleeding for want of remedies.
The content of article three does violence to reason. It informs us that “every nation is in law and before law the equal of every other state composing the society of nations.” This right to equality, by admission of the framers, is derived from national law and yet it is something entirely different from any equality which national law attempts to guarantee. Most systems of national jurisprudence at least pretend to guarantee equality before the law, meaning that all persons who have the same rights are equally protected in their enjoyment, and that all who are under the same obligations are equally compelled to fulfill them. No system of national jurisprudence assures equality of rights and duties to all its subjects. There is inequality of rights and duties, for illustration, between infants and persons of legal age, between insane persons and persons of sound mind, between married women and unmarried women, and between citizens and aliens. Yet the equality of nations described in this Declaration is expressly declared to be not only an equality before the law, but also an equality of rights and duties. As between nations, quoting Lord Stowell, “relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor, and any advantage seized upon that ground is mere usurpation.”
An equality of rights and duties is impossible in any workable system of international law. It has never existed in the international law of facts. To pledge the support of the United Americas to such a doctrine is to attempt to perpetuate anarchy. International organization, even by the slow process of evolution, can never be achieved while state equality is worshipped in this dogmatic form. Everyone knows that independent states do not have equal rights and duties. The differences between them in population, in territory, in wealth, in armed strength, in habits of thought, in conceptions of law and right, in all that goes to make up civilization, are among the most obvious and insistent of facts. By attempting to ignore these fundamental and essential truths we may condemn ourselves to impotence in the present crisis. Common sense should teach us that Powers like Great Britain, Germany, and the United States will not and cannot allow Hayti, Persia, and Salvador an equal right with themselves in formulating and enforcing international law. Perhaps it was inevitable that the American Institute should include the ancient platitudes about equality. Inevitable or not, the inclusion is none the less to be regretted. It illustrates most forcibly the handicap which Pan-American associations may place upon the United States when it seeks to play its proper part in the world’s affairs.
A fourth article asserts that every nation has the right to territory and to exclusive jurisdiction over its territory and people. How unfortunate that the emphasis could not have been placed upon the growing interdependence of nations, rather than upon the exclusive and absolute character of national territorial jurisdiction. How significant that the framers elucidate the principle by quoting from an opinion handed down by a great American justice more than one hundred years ago.
There is some consolation in the last article. It asserts that international right and duties are correlative, and that “every nation entitled to a right by the law of nations is entitled to have that right respected and protected by all other nations.” Could this cardinal principle have been made the starting-point instead of being tardily recognized at the end, the whole tone of the Declaration might have been changed. Nations have a common interest in the efficacy of international law. May they not share in a common obligation to participate in some way in its enforcement? We are harping too much today upon the rights of nations. Our business is to devise remedies to the end that rights may be made valuable without desolating the earth in war. If the thought of the savants could have taken this direction, their proclamation might have been at least forward-looking instead of reactionary.
Pan-American thought on international questions is not particularly forward-looking. The republics to the sought of us are extremely jealous of the rights of small nations. They are intensely suspicious o fall interference from without. It is probably fortunate that they have this feeling, but the feeling undoubtedly blinds them to the larger currents of internationalism. Its embodiment in dogmatic form in such a document as the recent Declaration must raise in the minds of thoughtful Americans the serious question: can the United States afford to yield its place in the forefront of the movement for making international law a vital controlling force in world affairs, as the price of closer union with the Latin-American republics?