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77

said Omsk government;

"75 while Senator Fall (New Mexico), on December 3d, introduced a resolution requesting the President to withdraw recognition from the Carranza Government of Mexico and to sever diplomatic relations with that country.76 The former resolution was promptly buried in committee, but the latter was given serious consideration by the Foreign Relations Committee of the Senate and would undoubtedly have been pushed to a vote but for the vigorous protest and assertion of the constitutional powers of the Executive by President Wilson."

There have been several judicial decisions bearing on the power of recognition, all of which have declared the power to be with the “political department” of the government, without in every case indicating whether the executive or legislative department, or both, was meant. Thus in the case of United States v. Palmer, decided in 1817,78 Chief Justice Marshall said that the courts of the Union "must view such newly constituted government as it is viewed by the legislative and executive departments of the government of the United States,” and in other cases the distinction between the two departments has not been carefully drawn. However, in the case of United States v. Hutchings, so decided shortly before the Palmer case, Marshall distinctly referred to the right of recognition as belonging to the Executive; and similar positive language was used in the case of Williams v. Suffolk Insurance Company, decided in 1839.81 In other cases the tone of the decision, if not the exact language, shows clearly that the executive department is meant.8

The weight of judicial opinion, therefore, as well as precedent and practice, shows that the power of recognition belongs clearly to the President alone, or to the President in conjunction with the Senate. Although there have been frequent attempts to claim for Congress

82

75 S. Res. 34. Congressional Record, 66th Cong., 1st sess., 154.
76 See text of resolution in N. Y. Times, Dec. 4, 1919.
77 See his letter to Senator Fall, Dec. 8, 1919. Ibid., Dec. 9, 1919.
78 3 Wheat., 610, 643.

79 Rose v. Himely, 4 Cranch, 241, 272 (1808); Gelston v. Hoyt, 3 Wheat., 246, 324 (1818); Foster v. Neilson, 2 Pet., 253, 307 (1829); Jones v. United States, 137 U. S., 202, 212 (1890).

80 2 Wheeler's Criminal Cases, 543, cited in Sen. Doc. No. 56, op. cit., 24. 81 13 Pet., 415, 420; of. Prize Cases, 2 Black, 635, 670 (1862).

82 Kennett v. Chambers, 14 How., 38, 46, 50-51 (1852); United States v. Trumbull, 48 Fed. Rep., 99, 104 (1891); The Stata, 56 Fed. Rep. 505, 510 (1893).

an independent and even a paramount right in regard to recognition, Congress itself has clearly conceded that the act is distinctly an executive function, its own powers being limited to proffers of advice and assistance, and to consultation with regard to the exercise of the right when dangerous consequences might result. This is also the view taken by such an eminent authority as Professor Willoughby, who freely concedes that recognition is an act to be performed by the President, but adds :

It is to be presumed, however, that when the recognition of a status of belligerency or of the independence of a revolutionary government is likely to constitute a casus belli with some other foreign Power, the President will be guided in large measure by the wishes of the legislative branch. Upon the other hand, it is the proper province of the Executive to refuse to be guided by a resolution on the part of the legislature, if, in his judgment, to do so would be unwise. The legislature may express its wishes or opinions, but may not command.83

88 Willoughby, On the Constitution, I, 462; cf. Corwin, op. cit., 82.

THE DOCTRINE OF THE EQUALITY OF NATIONS IN
INTERNATIONAL LAW AND THE RELATION OF
THE DOCTRINE TO THE TREATY OF

VERSAILLES

By S. W. ARMSTRONG

Fellow in History, Princeton University, 1919-1920

The Hague Conference of 1907 had for one of its objects the formation of an international court of justice, the decisions of which were to systematize international law and resolve its inconsistencies. Such an international court, the “Court of Arbitral Justice,” was approved in principle by the Conference, but failed to be established because the Conference was unable to agree on the composition of the court.

Forty-four nations were represented at the Conference, each nation, save the United States, demanding representation on the court. To have allowed each nation to select a judge for the court, would have been to create, not a court, but a judicial assembly. But any plan which did not allow to every nation, not only representation but equal representation, was vigorously opposed by the smaller nations, which alleged violation of their fundamental rights, basing their argument on the doctrine of the equality of states in international law. The resultant impasse was clearly outlined by Mr. Scott in an address to the Conference as follows:

In international law all states are equal. . . . If it be said that all states are equal, it necessarily follows that the conception of great and small Powers finds no place in a correct system of international law. It is only when we leave the system of law and face brute fact that inequality appears.

In matters of justice there can be no distinction, for every state, be it large or small, has an equal interest that justice be done. If, therefore, a permanent court be constructed upon the basis of abstract

1 Scott, The Status of the International Court of Justice, pp. 38-39, 73-74.

right, equality, and justice, it would follow that each state would sit, of right, within an international tribunal, and we will be confronted with a list of judges,—with a panel, not a court.?

In short, the obstacle which prevented the establishment of an international court of justice in 1907 was the doctrine of the equality of nations in international law. My purpose is to examine this doctrine as defined by certain noted publicists, to attempt a broad formulation of the doctrine, and finally to study the doctrine as applied or disregarded in the Treaty of Versailles.

I. The essential principles underlying the Grotian system remain the fundamental principles of international law. Such are the doctrines of the legal equality and of territorial sovereignty or independence of states. These fundamental principles, though not clearly stated by Grotius, underlay his system and were fully developed by his successors, more especially by Wolff, Vattel, and G. F. de Martens.3

Of these three, let us consider the doctrine as defined by Vattel, who has particular significance for us because of his influence on the founders of our nation. In turn, Vattel's famous work, The Law of Nations, published in 1758, shows clearly the influence of the political philosophy of that period.

That nations “are by nature equal and hold from nature the same obligations and the same rights” is derived by Vattel from the theory that “men are by nature equal, and their individual rights and obligations the same, as coming equally from nature” for nations “are composed of men and may be regarded as so many free persons living together in a state of nature.” From the analogy that “a dwarf is as much a man as a giant is,” Vattel argues that the status of nations in international law is independent of their relative strength, that “a small republic is no less a sovereign state than the most powerful kingdom."

But Vattel is not content with mere equality of sovereignty. “From this equality,” he continues, “it necessarily follows that what is lawful or unlawful for one nation is equally lawful or unlawful for every other nation." His conclusion is the existence of a "perfect

2 Scott, The Status of the International Court of Justice, p. 65.

3 Hershey, The Essentials of International Public Law, p. 58. In the quotations throughout the article, the italics are those of the author.

equality of rights among nations in the conduct of their affairs and in the pursuit of their policies. The intrinsic justice of their conduct is another matter which it is not for others to pass upon finally; so that what one may do another may do, and they must be regarded in the society of mankind as having equal right.” 4

Among later publicists, we find no one who bases his derivation and definition of the doctrine of equality so firmly as Vattel on the political concepts of the eighteenth century, the state of nature and the social compact. Sir Robert Phillimore seems to have constructed his theory on substantially the same foundation, but not as clearly and in less detail.

Phillimore's position may be outlined as follows: Each state is a member of the universal community and therefore there exists a natural equality among states as among individuals. This natural equality among states follows also as the essential companion of their independence, which is the fundamental right upon which international law is built. The natural equality of states is essential, and is independent of their relative territory, resources and population. Any peculiar privilege claimed by a state on the ground of superior attributes is a derogation from the natural equality of states (and therefore incompatible with a basic principle of international law). Incident to the equality are: (1) the right of a state to protect its subjects wherever they are; (2) the right of a national government to recognition by foreign states; (3) the right of a state to external marks of honor and respect; (4) the right of a state to enter into contracts or treaties with foreign states."

Chronologically the next authority to be considered is Lorimer, but his position is such that we can take it up more profitably below. Accordingly, let us turn our attention to Sir Travers Twiss.

Twiss emphasizes more strongly than does Phillimore the relation between the independence and the equality of states. Indeed, for Twiss the equality of states essentially consists in that their independence is absolute, irrespective of power or weakness—“The Principality of Montenegro is as much an independent state as the Empire of all the Russias.” But Twiss concludes, in vein similar to both Vattel and Phillimore, that “It results from this equality, that

4 Vattel, The Law of Nations, Vol. III, p. 7 (Carnegie Institution ed.).

5 Phillimore, Commentaries upon International Law, 3d ed., V. I, pp. 216-217, V. II, pp. 45-46.

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