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The Bases of International Relations
Published online by Cambridge University Press: 12 April 2017
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There are estimated to be 2,077,000,000 people now alive at a given moment on the 51,104,000 square miles of the continents, subcontinents and islands which constitute the earth’s inhabited land surface. They make extensive use of the 144,478,000 square miles of the world’s water area. Within the past century the living generations have come to control the entire surface of the earth with substantial completeness through the mechanisms of society which they have created; but they do not even yet utilize its land areas fully.
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References
1 Statistical Year-Book of the League of Nations, 1935/36, Table 2. The global figures vary considerably in different computations. This annual source unquestionably collects the detailed data most reliably and handles them most scientifically.
2 The entire surface of the globe is given by the Bureau des Longitudes, Annuaire 105 (p. 394), as 511,800,000 square kilometers (197,605,980 square miles) of which 374,200,000 are water and 137,600,000 land. The area accounted for as a total of surveys by the Statistical Year-Book is 132,360,000 square kilometers. The square kilometer is .3861 square miles.
3 The average expectation of life at birth of American males is 55.33 years and of females 57.52 years, based on the 1920 census (World Almanac, 1933, 364). For most other countries the figures are much lower.
4 The total recorded world population of approximately 2,000,000,000 increases nearly 20,000,000 annually; cf. Statistical Year-Book in successive issues.
5 Estimated world population was 906,000,000 in 1800 and 1,608,000,000 in 1900 (Carr-Saunders, Alexander M., World Population, 42).
6 Cf.Walter l3agehot’s explanation of the “connective tissues of civilization,” Physics and Politics, 8-11.
“Le veritable patriotisme n’est pas r amour du sol, c’est r amour du passé, c’est le respect pour les générations qui nous ant précédés.” Fustel de Coulanges, Questions historiques (Paris, 1893), 6; quoted in F. J. Teggart, Prolegomena to History (Berkeley, 1916), 209, and Vladimir G. Simkhovitch, “Approaches to History” (Political Science Quarterly, XLV, 488).
7 SirPaul, Vinogradoff,“Historical Types of International Law,” Biblioteca Visseriana, I, 68–9Google Scholar. This is now the generally accepted postulate of jurisprudence; Cf. Korkunov, N. M., General Theory of Law, “All human interests turn upon two main centers, the individual and society” (2d ed., 45).
8 Pound, Roscoe, “The End of Law as Developed in Juristic Thought,” 27 Harvard Law Review, 606, 609.
9 Justice, according to the Roman jurists, comprises three precepts: to live honorably, not to injure another, to give every one his own(Institutes, I, 1, 3); Pound, loc. cit., 608-9; Savigny, System des heutigen romischen Rechts, I, 407–10. “That is unjust,” says Grotius, “which is in conflict with the nature of society of beings endowed with reason” (De Lure Belli ac Pacis, I, 1, iii, 1, Classics of International Law ed., 34).
If justice is conceived as that condition of human relations which the parties cannot find adequate reason for altering and society does not deem feasible to change, the abstract and idealistic implications of the word may be more readily isolated from its concrete meaning.
10 “What habit is to the individual, custom is to the community” (Bryce, James, Studies in History and Jurisprudence, 500).
“The first thing is the erection of what we may call a custommaking power, that is, of an authority which can enforce a fixed rule of life, which, by means of that fixed rule, can in some degree create a calculable future, which can make it rational to postpone present violent but momentary pleasure for future continual pleasure, because it insures … that … njoyment of the contingent expected recompense will be received” (Bagehot, Walter, op. cit., 137).
11 “The ultimate object of positive law is … liberty. But being realizable only by means of order, order is the proximate object of positive law” (Lorimer, James, Institutes of Law, 2d ed., 523); Cf. Kant, Philosophy of Law, xxxv, Hastie, tr.; Stammler, The Theory of Justice, 148, Husik, tr.
“Freedom is essentially the power of choice, exercised by the will in deciding for itself between two or more solutions to which it is not necessarily obligated” (Delos, Joseph, La Societe internationale et les principes du droit public, 286).
12 Pound, Roscoe, “What Constitutes a Good Legal Education,” American Law School Review, 7, 891.
The legal order is, says Pound elsewhere, “a process of ordering, in part by the administration of justice, in part by administrative agencies, in part by furnishing men with guides in the form of legal precepts, whereby conflicts are avoided or minimized and individuals are kept from collision by pointing out the paths which each is to pursue” (Interpretations of Legal History, 156).
13 Pound, op. cit., 21; “The End of Law as Developed in Legal Rules and Doctrines,” 27 Harvard Law Review, 226.
14 Aristotle’s maxim that man is a political animal seems to be axiomatic.
15 “The course of history is nothing but the story of man’s struggle from generation to generation to find the more inclusive order” (James, William, The Will to Believe, 200).
16 The pursuit of happiness, in whatever form the individual conceives it, is the prime human motive force. At different times it has different objectives; but, whatever the individual’s taste may be, happiness as he sees it is the thing he most surely aims to secure. The struggle to attain it is aided by institutions of government.
17 The medieval knight contested in the lists in armor; the modern industrial knight competes for contracts.
18 “An interest is a demand or desire which human beings either individually or in groups seek to satisfy, of which, therefore, the ordering of human relations in civilized society must take account” (Pound, Roscoe, Outlines of Lectures on Jurisprudence, 4th ed., 1928, 60). Law classifies interests and determines which shall be recognized and secured by the machinery of the organized community; it does not create them. The origin of interests is now traced back to human attitudes by the sociologists, who view the concentration and integration of attitudes as the manifestation of interests (Bernard, L. L. and Jessie, Sociology and International Relations, 74).
“By the interests of a man is meant the things he may desire…The object may be the ownership or possession of a corporeal thing, as a book; it may be an act, as eating a dinner; it may be a relation, as marriage; and the desire may be a foolish or hurtful one” (Gray, John Chipman, The Nature and Sources of the Law, 18–19).
The idea of interests as the source of law was effectively introduced into jurisprudence by Rudolf von Ihering in Der Zweck im Recht (1877) tr. by Isaac , Husik, Law as a Means to an End (New York, Macmillan, 1924); his principal discussion of it is in Chaps. III and IV, Husik ed., 25–46. Giorgio del Vecchio (The Formal Bases of Law, New York, 1921, p. 217 Google Scholar) in analyzing Ihering’s thesis concludes that “right is the social condition of interest, or the possibility of actualizing it in relation to others.”
The general method of giving the greatest possible satisfaction to the wishes of the various parties consistent with the realization of the social purposes of mankind is “to recognize all the conflicting interests concerned, to estimate their respective force, to weigh them, as it were, in the scales of justice so as to give the preponderance to the most important of them tested by some social standard, and finally to bring about that equilibrium between them which is so greatly to be desired” (Geny, Francois, in Science of Legal Method, 35-36, 39, Modern Legal Philosophy Series).
19 Matt., VII, 12. Confucius puts it better: “Is not reciprocity such a word? What you do not want done to yourself, do not do to others” (Analects, XV, cap. XXIII; Myers, Philip V., History as Past Ethics, 67).
20 Brooks Adams has expressed an interesting formula that centralization is proportionate to the velocity of the social movement of a community, which he suggests is further proportionate to its energy and mass. As the simpler motivating forces, he identifies fear and greed (Law of Civilization and Decay, vii). “As consolidation advances, fear yields to greed, and the economic organism tends to supersede the emotional and martial.”
21 The Biblical account of Noah’s descendants records: “These are the families of the sons of Noah, after their generations, in their nations” (Gen. X, 32); evidently each “family” was regarded by the historian as a “nation.” The patriarchal family might, however, be quite numerous, it being recorded that Abram led out 318 “trained servants born in his house” (ibid., XIV, 14) in a war of four “kings” against five. The family that kept to itself was regarded as backward; the Odyssey (IX, 112–15) speaking of the Cyclopes says:
“They have neither assemblies for consultation nor themistes [decrees of the gods], … but every one exercises jurisdiction over his wives and children, and they pay no regard to one another.”
22 The Roman gene, the Indian village community, the Chinese hsien, the Russian mir, etc., were all based on fictions extending the family to a group of co-proprietors. Cf. Maine, Ancient Law (1871), Chap. VIII, 254–65 (Everyman’s ed., 155); but see “ SirHenry, Maine To-Day” byWilliam, A. Robson,166–71, in Modern Theories of Law (London, Oxford University Press, 1933).Google Scholar
23 Maine, SirHenry, S., Early History of Institutions, 35, Chap. II (London, 1875)Google Scholar.
24 Israel built walled cities and established “cities of refuge” from the avenger of blood violence (Numbers, XXXV, 3–4, 11–12). The walled city ceased to exist only within a century.
By medieval town charters, the free men were subject to arrest only by due process of law. The citizens were significantly called “men of the peace,” that is, those benefiting by the orderly régime. Cf. charter of Laon of 1109, Vilevault et Bréquigny, Ordonnances des rois de France de la troisième race, XI, 185–7 (Paris, 1769).
25 A transitional stage is illustrated by recalling the “United States in Congress assembled” of the Confederation which became the “United States of America” of the Constitution.
26 Art. II of the treaty of peace and friendship between Great Britain and Spain of July 13, 1713. “A just balance of power” (potentite equilibrium) was declared to be the best and specially solid basis of mutual friendship and lasting concord. The principle was enunciated in a stipulation for the separation of the French and Spanish crowns.
27 The first westward voyage of Columbus occupied 69 days. The Jay treaty was dispatched from London Dec. 17, 1794, by a vessel which reached Norfolk Feb. 27, 1795, or in 72 days. The Savannah in 1819 went from Savannah to Liverpool in 26 days and in 1838 the Great Western crossed from Bristol to New York in 15 days. The present record is under five days.
28 See particularly Dickinson, Edwin D., The Equality of States in International Law (Cambridge, Harvard University Press, 1920)Google Scholar.
29 Pressures to bend the will of a state to the wishes of others or another were, of course, part of the mechanism of diplomacy, if not of international law.
30 The eventual arrangement of the annexation of Bosnia-Herzegovina in 1908, despite the intervention of the “Great Powers,” between Austria-Hungary and Turkey, is a case in point (see protocol of Feb. 26, 1909, 102 British and Foreign State Papers, 190).
31 Such was the practice for the Hague Conference of 1899.
32 This was the Hague form.
33 Art. 12 of the 1906 and 1912 conventions, Malloy, William, M., Treaties, Conventions … between the United States of America and Other Powers, III, 2892, 3051. In 1912, Italy, Japan, The Netherlands and Portugal were granted colonial votes also.Google Scholar
34 For these pronouncements of Jan. 8, Feb. 11, July 4 and Sept. 27, 1918, see Foreign Relations of the United States, 1918, Supp. 1, Vol. I, 15–16, 112, 270, 319.
35 The device of a Preliminary Peace Conference in which the victors formulated conditions of peace, followed by a discussion of terms with each enemy belligerent, was resorted to. Most of the conditions proposed were accepted without much question by the several vanquished states. The matters which were objected to, and therefore which represented no meeting of minds or reconciliation of interests, are those which later made trouble.
36 This JOURNAL, Supp., Vol. 13 (1919), 109; Miller, ,David, Hunter Google Scholar, My Diary at the Conference of Paris, II, 410; French text at 355.
37 Miller, op. cit., III, 247. The comment was made while the categories of states were still being revised. The complexity of that task may be appreciated by recalling the diversity of the claimants to participate. In addition to the five “Great Powers,” there were 17 other belligerents; six states which had severed diplomatic relations with the enemy; two in process of formation; two invaded states; the aritish Dominions and India; 12 neutrals concerned with any permanent peace machinery; and the five enemy Powers.
38 Treaty of Peace with Germany, Hearings, 300–5 (Sen. Doc. 106, 66th Cong., lst Sess.).
39 The Phillimore, House, three Wilson, Smuts, Cecil, French and Italian plans, Miller, Drafting of the Covenant, II, 3, 7, 12, 45, 61, 67, 98, 245–6, 248. The Smuts and Wilson drafts had aprovision for the rotational representation of smaller states. In the Italian plan the bodies were to “deal with matters of common interest.”
40 Miller, op. cit., II, 108 (British 7); 120 (Percy, Art. IV); 132 (Cecil-Miller, Art. II); 142 (Hurst, Art. III).
41 Ibid.,232 (Art. 3).
42 Ibid., 259–60, 301, 308; Cf. I, 137, 140, 146–8, 150–1, 159–63.
43 Ibid., 338, 364.
44 The members non-permanently represented were increased from four to six in 1922, from six to nine in 1926, from nine to ten in 1933, and from ten to eleven in 1936. Since 1926 the Assembly has created a semi-permanent group by making a state consecutively reeligible to candidacy for non-permanent representation.
Germany was given permanent representation on its admission in 1926, and the Soviet Union in 1934. Brazil and Spain were refused such membership.
45 The rule was challenged unsuccessfully by Italy in pursuit of its policy to annex Ethiopia. On Sept. 5, 6, and 26, 1935, the Italian representative made the gesture of absenting himself while the Ethiopian representative was sitting (League of Nations Official Journal, 1935, 1140, 1144, 1201), but sat with him during the crucial decisions of Oct. 5 and 7(idem, 1290, 1214, 1217).
46 In addition to specific instances exemplifying this part of the rule, it may be said to be constitutional for disputes under Art. 17.
47 In the Conference for the Reduction and Limitation of Armaments, for example, the rule in the General Commission (the committee of the whole) was that delegations “would be invited to attend meetings of the Bureau (the steering committee) especially when questions in which they were particularly interested were being discussed” (Records of the Conference, Series B, III, 693 [1936.IX.1]).
48 The Governing Body consists of 32 members, and of the 16 who represent governments 8 specifically sit for the “states of chief industrial importance.” The 8 other government and the 8 employer and 8 worker members are chosen by the delegates of their respective groups in the sessions of the International Labor Conference.
49 This system has developed elastic features to reflect the relative importance of the interests involved.
50 Statute, Arts. 4–7.
51 Statute, Art. 9.
52 This practice has been criticized and defended; Cf. Hudson, Manley O., The Permanent Court of International Justice, sec. 151, and’pp. 336–7. A judge ad hoc is added for advisory opinions only if the question relates to an existing dispute.Google Scholar
53 Statute, Art. 62. (Series A, No. 1, p. 12.)
54 Statute, Art. 62; Rules of Court, Arts. 58–60. See also Lord Finlay’s explanation (Series D, No. 2, 86, 89) that intervention may be due to “material interests,” “actual rights,” or “in view of the legal developments which might arise” from the decisions.
55 Statute, Art. 66.
56 Idem, Art. 26.
57 Idem, Art. 27.
58 Statute, revision, Art. 66.
59 The principle permeates but does not dominate what may be described as spontaneous multilateral relations. Here considerations of policy and prestige play a part. The Briand-Kellogg treaty for renunciation of war was negotiated by 15 states only, and after its signing, invitations to adhere were sent to 49 others.
60 Pound, Interpretations of Legal History, 21. The arbitrator in the Palmas Island case, Judge Max Huber, said that “international law, like law in general, has the object of assuring the coexistence of different interests which are worthy of legal protection” (this JOURNAL, Vol. 22 (1928), 867 at 911).
61 No instance of exclusion has occurred in the international institutions.
62 Kocourek, Albert, “Some Reflections on the Problem of a Society of Nations,” this JOURNAL, Vol. 12 (1918), at MS. In handling those forces, Kocourek adds, it is essential to provide methods to “standardize and stabilize the diversity and clash of power-interests in international affairs with the fullest possible measure of free competition.”