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Limitations on National Sovereignty in International Relations1

Published online by Cambridge University Press:  02 September 2013

James W. Garner
James W. Garner
Affiliation:
University of Illinois
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Extract

Among the traditional political conceptions which in recent years have become the object of almost irreverent attack, is that which ascribes the quality of absolutism to that often elusive, but ever present, double-faced creation of the jurists which bears the name of sovereignty. Text-writers, sometimes in unqualified terms, still persist in claiming for it the unrestricted supremacy which was attributed to it in an age when its wielders everywhere were absolute monarchs; but an increasing number, less influenced by legal theories than by realities, see in it only the “ghost of personal monarchy,” as Hobbes characterized it, “sitting crowned on the grave thereof.”

On the one side the attack is directed by a new school of political writers, who deny its very existence or maintain that it is not an essential constituent attribute of the state. According to them, the notion is useless if not fallacious; the theory is discredited by the facts of modern state life and the term should be abandoned and expunged from the literature of political science.

Type
Research Article
Information
American Political Science Review , Volume 19 , Issue 1 , February 1925 , pp. 1 - 24
Copyright
Copyright © American Political Science Association 1925

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Footnotes

1

Presidential address delivered before the American Political Science Association at Washington, D. C., December 29, 1924.

References

2 Their views are analyzed and evaluated by Coker, F. W. in a recent work entitled, Political Theories of Recent Times (1924)Google Scholar by Merriam, Barnes, and others, Chap. III.

3 Among those who entertain this view or appear to sympathize with it may be mentioned: Borchard, , “Political Theory and International Law” in Merriam, , Barnes, and others, Political Theories of Recent Times, (1924) Chap. IV.Google Scholar; Brown, , International Realities (1917) p. 66 Google Scholar; also 9 Amer. Jour. of Internat. Law, p. 324 and 11 ibid., p. 159; Butler, , “Sovereignty and the League of Nations,” British Year Book of International Law, 1920–1921, p. 38 Google Scholar; Brierly, Shortcomings of International Law,” ibid., 1924, pp. 12–14; Dupuis, , Le Droit des Gens et les Rapports des Grandes Puissances, etc., (1920), pp. 7, 482Google Scholar; Hill, , The Rebuilding of Europe (1917) Chap. IGoogle Scholar; also Proceedings Amer. Society of Int. Law, 1916, p. 15; Krabbe, The Modern Idea of the State, (trans, by Sabine, and Shepard, ) p. 248 Google Scholar; Pillet, , Les Droits Fondamentaux des Etats, etc. 5 Revue Générale de Droit International Public, (1898) p. 73 Google Scholar; Ralston, , Democracy's International Law, (1922), pp. 20 ffGoogle Scholar; Reinsch, , “Administrative Law and National Sovereignty,” 3 Amer. Jour. of International Law, (1909) p. 10 Google Scholar; Scelle, , Le Pacte des Nations, (1919), p. 94 Google Scholar; Schücking, , L'Organisation Internationale , 15 Revue Générale de Droit International Public, (1908), p. 22 Google Scholar; Snow, , “International Law and Political Science,” 7 Amer. Jour. of International Law, (1913), p. 326 Google Scholar; and SirWilliams, John Fischer, “International Law and International Financial Obligations Arising from Contract,” Bibliotheca Visseriana, (1924), vol. II., p. 24.Google Scholar

4 The theory is well stated by Dupuis, op. cit., p. 484; by Hill, Rebuilding of Europe, Chap. I. and World Organization and the Modern State, Chap. I. and by Lansing, , “Notes on World Sovereignty,” 1 Amer. Jour. of International Law, pp. 107, 303.Google Scholar

5 Compare the explanations of Sabine and Shepard, introduction to their translation of Krabbe, , The Modern Idea of the State, (1922), pp. XVIII.–XXX.CrossRefGoogle Scholar; of Gierke, , Political Theory of the Middle Ages, pp. 87 ff.Google Scholar and of Malberg, Carré de, Théorie Général de l'Etat, vol. I., (1920), pp. 73 ff.Google Scholar M. Carré de Malberg states that both the idea and the word were of French origin. The theory, he says, was born of the struggle during the Middle Ages on the part of the Empire, the Papacy, and the feudal seigneurs. Compare also Meyer, , Lehrbuch des Deutschen Staatsrechts, 6th ed. p. 5 Google Scholar; Rehm, , Allgemeine Staatslehre, p. 40 Google Scholar; and Duguit, , L'Etat, vol. I, pp. 337 ff.Google Scholar

6 De la République, I, 8. Compare Hill, , World Organization and the Modern State, p. 21.Google Scholar

7 Le Fur, , L'Etat, La Souverainété et le Droit, Zeitschrift für Völkerrecht und Bundesstaatsrecht, Bd. I (1907), p. 16.Google Scholar Compare also the views of Borchard, op. cit. p. 125 and Kelsen, , Das Problem der Souveränität und die Theorie des Völkerrechts (1920), p. 102.Google Scholar

8 It is so characterized by Hill, David Jayne in his Rebuilding of Europe, p. 14.Google Scholar

9 Jellinek, Notably, Lehre von der Staatenverbindungen pp. 34–36 Google Scholar; Recht des Modernen Staates, pp. 465–7; and Gesetz und Verordnung, pp. 196 ff.; von Liszt, Völkerrechtlichen Staatenverbandes; Treitschke, , Politics (Eng. Trans, by Dugdale, and de Bille, ), pp. 28 ff. and 97Google Scholar; and Ullmann, , Völkerrecht (1908) p. 6.Google Scholar Compare also de Louter, , Droit International Public Positif, p. 172 Google Scholar, who lays down the broad proposition that considered à l'intérieur sovereignty is subject to no other will than its own and that à l'extérieur “it signifies absolute independence of all those with whom the sovereign State maintains relations on a complete footing of equality.”

10 Compare the following from the opinion of Chief Justice Marshall in the case of the Schooner Exchange v. McFaddon (1812) 7 Cranch 116: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”

11 The theory of absolute sovereignty qualified by the doctrine of self-limitation is attacked especially by Nelson, , Die Rechtwissenschaft Ohne Recht (1917), p. 59 Google Scholar; by Kelsen, op. cit., p. 189; by Borchard, op. cit. p. 132; and by Krabbe, op. cit., pp. 233 ff.

12 Op. cit. p. 7. Some writers have pointed out that the theory of absolute sovereignty is clearly inconsistent with the principle of international justice the promotion of which is one of the objects of international law. In this connection Willoughby suggests that the exercise by a state of a legal right which is inconsistent with justice might very well be regarded as itself an illegal act. Procs. Amer. Soc. of Int. Law, 1922, p. 21.

13 To this effect see Bluntschli, , Theory of the State (Oxford trans.) p. 495 Google Scholar, who remarks that the State “is not all-powerful, for it is limited externally by the rights of other States and internally by its own nature”; Dupuis, op. cit., pp. 7, 494; Fauchille, , Traité de Droit Int. Pub. (1922) t. I, p. 432 Google Scholar; Fiore, , Droit Int. God. (trans, by Borchard, ), pp. 42, 170Google Scholar; Funck-Brentano, et Sorel, , Précis du Droit des Gens, p. 7 Google Scholar; Hill, , World Organization and the Modern State, pp. 39, 140Google Scholar; Lawrence, , Principles of International Law, p. 116 Google Scholar; Lorimer, , Institutes of the Law of Nations, vol I, pp. 47, 139Google Scholar (who remarks that no jural entity can be absolutely independent of any other and that the doctrine of absolute independence when applied to States amounts to a total repudiation of international responsibility); Merignac, , Traité de Droit Int. Pub. t. I, p. 525 Google Scholar; Oppenheim, , International Law (3rd ed.), vol. I. p. 194 Google Scholar; and Pillet, , 1 Rev. Gén. de Droit Int. Pub. 5 Google Scholar and 5 ibid, p. 73.

14 Le Droit des Gens, Introd., sec. 20.

15 International Law (3rd ed.) p. 46. Compare also De Visscher, (La responsabilité des Etats, Bibliotheca Visseriana, t. 2, p. 90)Google Scholar who remarks that “the responsibility of States is, in the international order, the necessary corollary of their equality. If the mutual recognition of their sovereignty implies for each of them the liberty of action which is necessary in the pursuit of their own ends, it places upon each in return the restrictions imposed by the coexistence of other States whose rights are equal to theirs.” Compare also the Declaration of the Rights and Duties of Nations adopted by the American Institute of International Law at Washington in 1916 to the effect that every nation has a right to exist and develop itself and to be free of control by other States, so long as it does not interfere with or violate the rights of other states.

16 For example by Pillet, , 5 Revue Générale 86 Google Scholar; and Hill, , World Organization, p. 140.Google Scholar

17 Dupuis, op. cit. p. 488.

18 Hyde, , International Law Chiefly as Interpreted and Applied by the United States, vol. I, p. 86.Google Scholar

19 Thus the refusal of the United States government to recognize the Soviet government of Russia has apparently been influenced to some extent by the character of that government as well as by its policies. Compare Harriman, , “The Recognition of Soviet Russia,” Proceedings of the American Society of International Law, 1924, p. 92.Google Scholar

20 For example, President Wilson's War Message to Congress, April 2, 1917. See in this connection the comment of Wright, , 17, Amer. Jour. of Int. Law (1923) p. 240.Google Scholar

21 Moore, , Digest of International Law, vol. II. p. 5 Google Scholar; Borchard, , Diplomatic Protection of Citizens Abroad, p. 213 Google Scholar, and Wright, , Control of American Foreign Relations, p. 14.Google Scholar

22 Some instances are referred to by Brierly, in the British Year Book of International Law for 1924, p. 13.Google Scholar He adds that “the supposed absolute right of a State to alienate its own territory is a fiction which is suggested to us, not by anything in the practice of States, but by our preconceived notions of what sovereignty ought to imply.” Westlake, (Collected Papers on International Law, p. 131)Google Scholar remarks that a State may alienate its sovereignty subject to the rules of the Society of States, one of which makes every alteration of the map of Europe a matter of common interest to that quarter of the globe, as a landed proprietor may alienate his property subject to the laws of his country.”

23 As to these incidents see Audinet, , Le Monopole des Assurances sur la vie , 20 Revue Générale de Droit Int. Pub. (1913), p. 5 Google Scholar; Jèze, , 29 Revue de Droit Pub. 433 ff. and 30Google Scholar ibid. pp. 58 ff.; and Scelle 30 ibid. 637 ff. and 653 ff. In the case of a sulphur monopoly established by Sicily in 1838, an indemnity was awarded upon arbitration, to a foreign national whose rights had been prejudiced by the monopoly (Borchard op. cit. p. 182). In the case of Henry Savage an indemnity was likewise obtained on behalf of an American citizen on account of a loss which he had sustained in consequence of the establishment by Salvador of a state monopoly of the manufacture and sale of gunpowder ( Moore, , International Arbitrations p. 1855 Google Scholar).

24 Article 15, sec. 8.

25 Article 5.

26 Compare the observations of Castberg, M. in the Swiss, Revue de Droit International, 1922, p. 198.Google Scholar

27 See especially the argument of SirHogg, Douglas, Acts and Documents Relating to the Judgments and Advisory Opinions of the Permanent Court of International Justice, Series 6, pp. 26 ff.Google Scholar

28 Collection of Advisory Opinions, Series B, p. 24.

29 It was so stated by Chief Justice Marshall in the case of the Schooner Exchange v. McFaddon, quoted above. To the same effect see Lawrence, , Principles of International Law, 7th ed. p. 199.Google Scholar

30 Compare Brierly, , “Shortcomings of International Law,” British Year Book of Int. Law, 1924, p. 13 Google Scholar and Krabbe (op. cit.) p. 240, who justly remarks that “whenever any interest has been recognized as having legal value by an international legal community, the competence of the State as a legal community undergoes a limitation with reference to the valuation of such interests.”

31 So admitted by Chief Justice Marshall in the case of the Schooner Exchange.

32 See especially Anzilotti, , 13 Revue Générale, p. 6 Google Scholar, and the authorities there cited; Borchard, Diplomatic Protection of Citizens Abroad, especially chaps. IV–VIII; DeVisscher, op. cit. pp. 89 ff.; Wright, Control of American Foreign Regions, Chap. 10, and Audinet, , 20 Revue Générale, pp. 12, 16Google Scholar, who asserts that it is a principle of international law that a State is bound to accord to foreigners in its territory the same civil rights that it accords to its own nationals.

33 See notably the decision of Martens in the Case of the Costa Rica Packet (5 Moore, , Hist, and Digest of International Arbitrations, 4453 Google Scholar); and the cases cited by Ralston, International Arbitral Law and Procedure, Chap. X.

34 Compare Wright, , The Enforcement of International Law Through Municipal Law in the United States, p. 22.Google Scholar

35 See the protest of the diplomatic corps at the capital of Ecuador (1888) and a communication of the United States government to the Ecuadorean government relative to a law passed by the Congress of Ecuador which was pronounced to be “subversive of the principles of international law by which … the ultimate liability of governments to one another must be determined,” Moore, , Digest of International Law, vol. I, p. 6.Google Scholar As to the acceptance of international law as a condition of membership in the family of civilized nations, see Maine, , International Law, p. 38 Google Scholar; Phillimore, , International Law, vol. I, p. 78 Google Scholar; Borchard, , in Merriam, and Others, Political Theories of Recent Times, p. 130 Google Scholar; Wright, , Control of American Foreign Relations, p. 358 Google Scholar; and Hill, , Procs. Amer. Soc. of Int. Law, 1916, p. 15.Google Scholar Pillet, (1 Revue Générale, 10–11)Google Scholar remarks that this principle is a necessary consequence of international society, just as the laws of mechanics are the resultant of elementary physical forces. Hall (op. cit. 4th ed. p. 42) very properly remarks that no State living under international law can free itself from its restrictions except by a positive act of withdrawal from the family of nations.

36 Droit des Gens, t. 1, p. 22.

37 Westlake, (Collected Papers, pp. 78–79)Google Scholar declares that when a rule of international law is invoked against a State it is not necessary to show that the State has in fact assented to the rule either diplomatically or by having acted on it. It is enough to show that the general consensus of opinion within the limits of European civilization is in favor of the rule. “International society is not a voluntary but a necessary one and the men who compose any State derive benefits from that society and cannot at their pleasure adhere to it in part and not altogether.” Even Lord Alveretone, while insisting in the West Rand Gold Mining case upon the necessity of assent, admitted that a rule of international law was binding if it was “of such a nature and has been so widely and generally accepted that it can hardly be supposed that any State would repudiate it.”

38 On various occasions the government of the United States has released conscripted aliens, liquor smugglers seized outside the three-mile limit and vessels engaged in taking seals in the open seas when the constitutionality of the municipal legislation under which these acts were done was upheld by the Courts. (See the cases of ex parte Larrucea, 249, Fed. Rep., 981 and In re Cooper, 143, U. S., 472.) The persons and ships were released upon demand, because the municipal legislation under which they were conscripted or seized was admittedly in contravention of well-established rules of international law. In such cases the American government evidently proceeded on the principle that international law is superior to municipal law.

39 See especially Borchard, , Diplomatic Protection to Citizens Abroad, p. 181.Google Scholar Compare in this connection an instruction of Secretary of State Bayard to the United States Minister to Colombia, Oct. 13, 1886, Moore, , Digest vol. II, p. 4.Google Scholar The United States Supreme Court in the Chinese Exclusion Cases (130 U. S. 600), while upholding the constitutionality of an act of Congress passed in violation of treaty obligations admitted that the act constituted no defense in international law.

40 As Krabbe, (Modern Idea of the State, p. 234)Google Scholar pertinently remarks, nothing is gained by distinguishing between a legal competence which remains intact and a competence to act which is limited.

41 Privatrechtstitel, Völkerrecht des, Zeitschrift für Völkerrecht und Bundesstaatsrecht, 1908, p. 209.Google Scholar Le Droit International Public, etc., 1 Rev. Gén., pp. 9–10; also article Les Droits Fondamentaux des Etats, etc., 5, ibid, p. 82.

42 Thus Hooker, Richard in his Ecclesiastical Policy (I, 10), published in 1592 Google Scholar, said the “strength and virtue of the law of nations is that no particular nation can lawfully prejudice the same by any of their several laws and ordinances any more than a man by his private resolutions the law of the Commonwealth wherein he liveth or annihilate that whereupon the world hath agreed.”

43 Compare Scott, , “The Legal Nature of International law,” 1 Amer. Journal, 832.Google Scholar

44 For example, by Willoughby, , “The Legal Nature of International Law,” 2 Amer. Jour. of Int. Law, 357.CrossRefGoogle Scholar

45 This is the view of ProfessorGilchrist, R. N., in his Principles of Political Science, p. 128.Google Scholar He adopts the Austinian view that the rules of international law are rather rules of international morality than rules of law. He admits that they are usually observed, but asserts that “ultimately the individual states have to say what laws apply to them and how they apply.”

46 This is the estimate of Mr.Myers, D. P. in an article on “The Control of Foreign Relations,” in the American Political Science Review, vol. 11, p. 24.CrossRefGoogle Scholar

47 Between May, 1920 and October, 1924 the Secretariat of the League of Nations registered 764 treaties. The average is now about 175 per year.

48 Thus treaties of arbitration, treaties providing for the investigation of disputed facts, and treaties obliging the parties to submit their disputes to the Permanent Court of International Justice limit their freedom in respect to the making of war and the same may be said of treaties by which the parties obligate themselves not to employ certain weapons or instrumentalities for injuring an enemy, not to erect fortifications on their frontiers or in certain parts of the interior or not to construct certain types of war ships or ships above a certain tonnage or in excess of fixed ratio. The State's freedom of action is especially limited by commercial treaties obliging each party to admit the subjects of the other to enter, reside and carry on business in its territory, to own and dispose of land, to have access to its courts, to attend its public schools, to be exempt from conscription and compulsory loans, to receive the same protection in their persons and property as are afforded to nationals and to depart freely with their goods and effects in case of war.

49 See notably the so-called White Slave Convention (analyzed by Renault, in 9 Rev. Gén. 497 ff.Google Scholar), the Radio Telegraph Convention, the North Sea Fisheries Convention, the Convention for the Simplification of Customs Formalities, the Convention of February 9, 1920 concerning Spitzbergen, the Washington and Genoa international labor conventions, the Barcelona and Geneva Conventions of 1921 and 1923 relative to communications, transit, etc. As to the nature of the limitations created by the last-mentioned conventions see De Visscher, , Droit International des Communications, especially pp. 7 ff.Google Scholar

50 Schücking, (op. cit. p. 122) pertinently points out that these who, while admitting that the State may be bound by its own will, deny that it can be bound by a foreign will are in error, since self-imposed obligations in fact involve the subjection of the State to the control of a foreign will. Thus where a State obligates itself by treaty to surrender fugitive criminals, upon the demand of another State, it is no longer free to act upon its own will but must obey the will of a foreign government when a just demand for extradition is made.

51 Compare Wehberg, , the Problem of an International Court of Justice (trans. by Fenwick, ) p. 3 Google Scholar; and Von Liszt, , Das Völkerrecht, p. 10.Google Scholar Chief Justice Marshall, in the case of the Exchange v. McFaddon, while affirming the “absolute and exclusive” sovereignty of every nation within its own territory added that their “mutual benefit being promoted by intercourse with each other and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice … of that absolute and complete jurisdiction … which sovereignty confers.”

52 Norman Angeli in his The Great Illusion (especially chap. III) and in his American and the New World State (chap. I) has pointed out how delicate is this organism and how easily economic and financial disturbances in one part of the world react upon other parts. Compare also Wehberg, op. cit. pp. 1 ff.

53 See notably Westlake, , Collected Papers, p. 3 Google Scholar; Pillet, 1 Rev. Gén. 3 Google Scholar; Rivier, , Droit des Gens, vol. I., p. 8 Google Scholar; Jitta, , La Rénovation du Droit International, pp. 185–6Google Scholar; Hill, World Organization, chap. III; Lawrence, The Society of Nations, chap. I; and the resolution of the American Institute of International Law adopted at Havana, Jan. 23. 1917.

54 See Oppenheim's criticism of Jellinek's, view, The Future of International Law (1921) p. 9.Google Scholar As Oppenheim points out organization is not essential to the existence of a juridical society.

55 Such was the thesis of the late Alpheus H. Snow who asserted that “it is not going beyond the fact to say that at the present time the nations and peoples of the world are, by agreements, by commerce, by relationships, and by institutions indissolubly and federally united, so that they together constitute a body politic and corporate which is the law-giving personality above the nations.” He adds that it is not necessary that it should be formally created as an institution, its functions defined and organs and agents provided; it exists by recognition of the nations, that is, by society at large. See his article “The Law of Nations” 6 Amer. Jour. of Int. Law (1912), p. 894; also his American Philosophy of Government, p. 427. French, translation in Rev. Gén. 1912, pp. 309, 318.Google Scholar Compare also Scott, , The Recommendations of Havana Concerning International Organization, (1917), pp. 40–41.Google Scholar

56 So Mr. Snow maintained in the article cited above. Compare also Hull, , Props. Amer. Soc. of Int. Law (1911) pp. 280–289 Google Scholar, who advocates a somewhat similar change of terminology. See also Pillet, , 5 Revue Générale, p. 87 Google Scholar, and Krabbe, (op. cit. pp. 245–6) who remarks that the term “international” law is really a misnomer and that since “the law of nations has now developed into a super-national constitutional law it would be better in the future to use this term, thus carrying out in terminology the parallelism between national and super-national law.” SirStephen, James Fitzjames in his History of the Criminal Law of England (vol. II, p. 35)Google Scholar observed that international law is not law so far as it is international nor international so far as it is law.

57 Westlake suggests that the term should be replaced by the word “independence,” which is a negative conception and implies the notion of freedom from the control of other states rather than the right of a superior to command and control an inferior. Scelle op. cit., p. 94, also advocates this change of terminology on the ground that “independence” connotes an idea of social relations among States analogous to the liberty of individuals. In fact the term “sovereignty” envisaged from the point of view of its external manifestations is used by many writers on international law as synonymous with “independence.” See the discussion by Crane, in his The State in Constitutional and International Law, pp. 49 ff.Google Scholar Hall, op. cit. p. 19, remarks that the theory of absolute sovereignty is not necessary to the concept of a legal relation between States. Brierly (article cited, p. 14) suggests that since the traditional theory of sovereignty is qualified by actual practice, it might be reformulated on the basis of the analogy found in the municipal law of many states by which qualifications are imposed on the ownership and use of private property. On this point see also Phillimore, , International Law, vol. I, (1st. ed.) p. 433 Google Scholar and vol. II, p. 313.

58 Rolland, , La Télégraphie Sans Fil et le Droit des Gens , 13 Rev. Gén. 75 Google Scholar; Fauchille, , La Télégraphie sans Fil et le Droit International , 47 Revue de Droit Int. et de Lég. Comp., p. 7 ff.Google Scholar

59 A right now definitely affirmed by the International Air Convention of 1919. (Art. 1.)

60 See the reply of the Soviet government of Russia to the Genoa Conference (New York Times May 12, 1922). The late Senor Drago in an article entitled Les Emprunts d'Etat et leurs Rapports avec la Politique Internationale, published in the Revue Générale de Droit International for 1907, pp. 251 ff, invoked the principle of national sovereignty to sustain an argument that when a State defaults in the payment of bonds held by foreigners, or even repudiates them, other States whose nationals sustain losses in consequence thereof have no right to protest or intervene. The issuing of bonds, he argued, is a power of sovereignty and there is no denial of justice in the failure to pay them, because there is no international court with jurisdiction to hear and determine complaints arising therefrom. See the trenchant criticism of this perversion of the concept of sovereignty, by SirWilliams, John Fischer in the Bibliotheca Visseriana, vol. II, pp. 21 ff.Google Scholar

It may be observed that during the controversy in 1901 between Venezuela and certain foreign governments relative to claims for unpaid bonds issued by the Venezuelan government and held by nationals of the other governments the Venezuelan government, invoking the rights of sovereignty in domestic matters, insisted that the national laws of Venezuela were conclusive as to the merits of the claims in controversy. This contention, of course, was not admitted and it was denied by the mixed commissions to which the claims were ultimately submitted. See Scott, G. W., “Use of Force to Recover on Contract Claims,” 2 Amer. Jour. of Int. Law, p. 82.Google Scholar

61 Such was the contention of Barbosa, Beernaert, Carlin, and others. Their arguments are summarized by Nippold, , in Die Zweite Haager Friedens Konferenz, Bd. I, 93 ff.Google Scholar Such also was the contention of Von Liszt, , Das Völkerrecht, p. 13 Google Scholar, and Pohl in a monograph entitled Deutsche Prisengerichtbarkeit; Ihre Reform durch das Haager Abkommen vom 18 October 1917. (Tubingen, 1911.) Pohl argued that an international prize court would be a super (überstaatliche) institution to which states would be subordinate.

62 This was pointed out by Schücking, op. cit., pp. 99, 122, 124; by Ferneck, Hold von, Eine Lanze für den Prisenhof, Zeitschrift für Völkerrecht und Bundesstaatsrecht, Bd. 6 (1913) pp. 1 ff.Google Scholar Compare also Oppenheim, , The Future of International Law, p. 44 Google Scholar, and Root, 15 Amer. Jour. of Int. Law, p. 8.Google Scholar

63 American statesmen have uniformly maintained the theory of the absolute and exclusive sovereignty of the United States but during the controversy with Colombia concerning the Isthmian Canal treaty it was contended by high authority that the sovereignty of Colombia was limited by the right of other states to have the canal constructed in any event. Compare the following from an address of Mr. Elihu Root on “The Ethics of the Panama Question” before the Union League Club of Chicago, Feb. 22, 1904 (printed in Senate Document no. 471, 63rd. Congress, 2d. Session, p. 39): “By the rules of right and justice universally recognized among men and which are the law of nations, the sovereignty of Colombia over the Isthmus of Panama was qualified and limited by the right of the other civilized nations of the earth to have the canal constructed across the Isthmus and to have it maintained for their free and un-obstructed passage.” As a universal principle equally applied, this view we believe is sound, but in the particular controversy it was put forward by those who asserted it as a justification of conduct by their own government, the right-fulness of which was denied by that one whose sovereignty had been contested. Would they have admitted the validity of the principle asserted if it had been applied to their own country?

64 Dupuis, , Le Droit des Gens et les Rapports des Grandes Puissances, p. 495.Google Scholar

65 Compare Oppenheim, , The Future of International Law, p. 11.Google Scholar

66 Compare on this point the remarks of the late Secretary of State, P. C. Knox, before the Pennsylvania Society of New York, December 11, 1909, published in 4 Amer. Jour. of Int. Law 181 and an address of Viscount Grey on the League of Nations, New York Times, June 30, 1918.Google Scholar

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