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to above, the Reparation Commission finds that Germany refuses to observe the whole or part of her obligations under the present Treaty with regard to reparation, the whole or part of the areas specified in Article 429 will be reoccupied immediately by the Allied and Associated forces."
Since Grotius evolved a detailed system of international law, the doctrine of the equality of nations has held an important position. Until the twentieth century, publicists stressed one implication of the doctrine, namely that “What is lawful or unlawful for one nation is equally lawful or unlawful for every other nation.” With the growing interdependence of nations and the appearance of rudimentary organs of international government, the doctrine attained broader and deeper significance so that we found certain conclusions justified: (1) Nations have equal status in the formation of international law; (2) nations are equal before the law and have equal power in its application by an international judiciary; (3) in international administration, the doctrine of equality must give way to the primacy of the great Powers.3
The first implication of the doctrine of equality is neither applied nor disregarded in the Treaty of Versailles, for the treaty does not alter the processes of making international law. The second implication is disregarded in the treaty in that the tribunal to try the former Emperor of Germany is to be composed of but five judges, to be appointed by the United States, Great Britain, France, Italy and Japan. On the other hand, a new implication of the doctrine, one which has not yet received explicit definition, namely, that on highways or in zones, international or under international control, nations have equal rights of passage and trade, was recognized and sanctioned by so many provisions of the treaty that it must be regarded as firmly established.
Finally, the only possible conclusion from the provisions of the treaty relating to the administration of international affairs is that they crystallize the primacy of five nations, the United States, Great Britain, France, Italy and Japan. That primacy is defined by the introductory clauses of the treaty; it is recognized throughout, in that these nations are empowered to administer almost every phase of international affairs. The Treaty of Versailles entrusts to those nations the peace of Europe, in fact, the peace of the world. The significance of this for our subject is that the doctrine of equality has been abandoned so far as it relates to international administration. Nations had unequal status in the administration of international affairs before the Treaty of Versailles, though the inequality was not yet defined; the treaty provides that definition.
32 Supra., p. 552.
It is almost incredible that the crystallization of the inequality of nations in international administration should not result in the invasion by inequality of the status of nations in the formation and application of international law. Evidence is not lacking that the invasion has already begun. As we have already noted, where international law is defined by international legislation, as at The Hague Conference, legal equality is accompanied by inequality of influence. And, although it has best served our purpose to regard the functions of the League of Nations as primarily administrative, it may be logically contended that certain functions of the League, those relating to the settlement of international disputes, are judicial, and that therefore, since only nine nations are represented on the essential organ of the League, the Council, nations have already unequal status in the application of international law. We can only conclude with Westlake that
We are in the presence of a process which in the course of ages may lead to organized government among states, as the indispensable condition of their peace, just as organized national government has been the indispensable condition of peace between private individuals. The world in which the largest intercourse of civilized men has been from time to time carried on has not always been distributed into equal and independent states, and we are reminded by what we see that it may not always be so distributed.33
33 Westlake, V. I, p. 322.
THE UNDERSTANDINGS OF INTERNATIONAL LAW
By QUINCY WRIGHT
Assistant Professor of Political Science, University of Minnesota
“The preamble of a statute," says Justice Story, "is a key to open the mind of the makers as to the mischiefs which are to be remedied, and the objects which are to be accomplished by the provisions of the statute.”'i With a phrase in the preamble, Marshall, Story and Webster unlocked the door to the accepted construction of the United States Constitution. Perhaps the preamble of the League of Nations Covenant will prove useful for the interpretation of that instrument. Many phrases of the Covenant, such, for instance, as those giving the Council power to “submit,” “propose,” “advise,” “recommend,” “take measures,” etc., change character entirely according as we interpret them literally, analogically, or in the light of preexisting international law. To decide which standard to adopt we must get the intent of the drafters, and for this we look to the preamble. The phrase “understandings of international law” seems important in this connection,
1 Story, Commentaries on the Constitution, sec. 459.
2 “We, the People of the United States.” See Marshall, C. J., in McCulloch v. Maryland, 4 Wheat. 403; Story, J., in Martin v. Hunter's Lessee, 1 Wheat. 304; Webster in debate with Hayne, Jan. 26-27, 1830, Cong. Debates, 21st Cong., 1st sess., VI, Part. I, pp. 58 et seq.; and general discussion, Corwin, The Doctrine of Judicial Review, 1914, p. 81; Willoughby, Constitutional Law, sec. 20; Watson, The Constitution of the United States, 1910, pp. 93 et seq.
3 "One is curious to know,” says Professor Philip Marshall Brown, "what lay behind the thought of the draftsman who penned the phrase 'understandings of international law. Did he have any conception of a definite system of law, imperfect to be sure—but in the process of orderly development? Or did he conceive of international law merely as a gentleman's agreement on a par with ‘regional understandings' referred to in another part of the Covenant, and other diplomatic, political understandings? The problem is intriguing." (This JOURNAL, 13: 739, Oct., 1919.) See also Q. Wright, American Political Science Review, 13: 556, November, 1919. The English and French texts of the treaty are printed in Sen. Doc. No. 85, 66th Cong., 1st sess.
I. “The High Contracting Parties, in “Les Hautes Parties Contractantes, order to promote international coöpera- considerant que, pour développer la cotion and to achieve international peace opération entre les nations et pour leur and security
garantir la paix et la sûreté, il importe by the acceptance of obligations not d'accepter certaines obligations de ne to resort to war,
pas recourir à la guerre, by the prescription of open, just and d'entretenir au grand jour des re honorable relations between
lations internationales fondées sur tions,
la justice et l'honneur, by the firm establishment of the d'observer rigoureusement les pre. understandings of international law scriptions du droit international,
the actual rule of conduct reconnues désormais comme règle among Governments, and
de conduite effective des Gouverne
ments, by the maintenance of justice and a de faire régner la justice et de re
scrupulous respect for all treaty specter scrupuleusement toutes les obligations in the dealings of or- obligations des traités dans les rapganized peoples with one another, ports mutuels des peuples or
ganisés, Agree to this Covenant of the League Adoptent le présent Pacte qui inof Nations."
stitue la Société des Nations.
Is the term "understandings" intended to characterize international law in general or is it intended to distinguish one portion of international law from other portions? To the writer the latter seems more reasonable, when we notice that part of international law seems to be given a more vigorous sanction in the next line. While the "understandings of international law" are merely to be firmly established, “justice . . . in the dealings of organized peoples. with one another " 4 is to be maintained.
Let us examine the terminology of this preamble more fully. Consider the four phrases setting forth the means by which the objects of the Covenant are to be attained. Evidently the sanctioning words were selected with great care. “Accept” (ad capere, to take for) imports an active engagement of the will of the party, while “prescribe” (præ scribere, to write before) imports a passive appeal to
4 This phrase seems synonymous with "unwritten principles of international law.” “To ascertain,” said Chief Justice Marshall, "that (portion of the law of nations) which is unwritten we resort to the great principles of reason and justice.” Bentzon v. Boyle, 9 Cranch, 191, 198 (1815).
5 "To receive is frequently a passive act; whatever is offered or done to another is received; but to accept is an act of choice.” (Crabb's English Synonyms.)
the intelligence of the party. The same is true of the French equivalents “accepter” and “entretenir.” The members of the League actively accept obligations not to resort to war, while they passively agree to observe the open, just and honorable relations prescribed for them. To continue, "establish" (stabilis from stare, to stand) imports a sanction by passive external conditions, while “maintain” (manus teneo, to hold by the hand) imports a sanctioning by active external agency.8 The French terms “observer rigoureusement" and "faire régner" give greater emphasis to this distinction. Thus, while the League will merely encourage conditions under which understandings of international law may become established, it will actively maintain justice and a scrupulous respect for treaty obligations.
The "obligations" to be accepted by and the “relations" to be prescribed for the members of the League enjoy a less objective sanction than the “understandings'' to be established and the “justice” to be maintained by the League. The first two impose moral obligations, the last two legal obligations. But as between the last two, clearly the obligations imposed by the last are more objectively sanctioned. They are legal obligations in the strict sense as used by the Austinian jurists, to be enforced by the authority of established judicial bodies,10 as opposed to legal obligations of the kind imposed by
6 “To dictate is a greater exercise of authority than to prescribe. To prescribe partakes altogether of the nature of counsel, and nothing of command; it serves as a rule to the person prescribed, and is justified by the superior wisdom and knowledge of the person prescribing." (Crabb.)
7 "To institute is always the immediate act of some agent; to establish is sometimes the effect of circumstances." (Crabb.)
8 “To sustain and support are frequently passive, maintain is always active. Sustain and support may also imply an active exercise of power or means which brings them still nearer to maintain." (Crabb.)
9 See Wright, Minnesota Law Review, 4: 33 (December, 1919), Columbia Law Review, 20: 145-148 (February, 1920); Bernard, Four Lectures on Subjects connected with Diplomacy, London, 1868, p. 164; President Wilson, Statement to Senate Foreign Relations Committee, Aug. 19, 1919, 66th Cong., 1st sess., Sen. Doc. No. 106, pp. 502, 507, 514, 517, 534-535.
10 Austin, Jurisprudence, 4th ed., 1: 79, 88, 2: 510; Holland, Jurisprudence, 11th ed., p. 42; Gray, The Nature and Sources of the Law, p. 82; Salmond, Jurisprudence, p. 9. Austin's emphasis upon the origin of true law in the command of superior authority has not been insisted upon by his successors, but they have followed him in insisting upon its sanction by regular judicial authority backed by the power of the state.