THE DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS ADOPTED BY THE AMERICAN INSTITUTE OF INTERNATIONAL LAW 1

With this meeting we finish the first decade of this Society. How great is the change of conditions in the field of international law during that period. Ten years ago all the governments of the world professed unqualified respect and obedience to the law of nations, and a very small number of persons not directly connected with government knew or cared anything about it. In this country at least international law was regarded as a rather antiquated branch of useless learning, diplomacy as a foolish mystery, and the foreign service as a superfluous expense. Now that governments have violated and flouted the law in many ways and with appalling consequences, the people of this country at least have begun to realize that observance of the law has a real and practical relation to the peace and honor of their own country and their own prosperity. They are beginning to take an interest in the subject, to discuss it in the newspapers, to inquire how observance of the law may be enforced. There appears a dawning consciousness that a democracy which undertakes to control its own foreign relations ought to know something about the subject. If we had not established this Society ten years ago to study and discuss and spread a knowledge of international law it would surely be demanded now, and we may be certain that our annual public discussions and the publication of the admirable JOURNAL which we have always maintained, with its definite and certain information upon international events, its interesting and well informed discussion of international topics, and its supplements, with their wealth of authentic copies of international documents, have contributed materially towards fitting the people of our country to deal with the international situations which are before them.

Following our example, all the American countries have established

1 Opening address by Elihu Root, as President of the American Society of International Law, at its Tenth Annual Meeting in Washington, April 27, 1916.

similar societies, so that there are now twenty-one such societies on the American continents. In most cases these societies have been organized with the direct approval and sympathy of the government of the country and they include in their numbers a large part of the most eminent leaders of opinion in all the American states. Still another institution has been created in the American Institute of International Law, composed of delegates selected, to a limited number, by each of these national societies. This institution has been established not as a competitor of the Institut de Droit International, which selects its members from among all the civilized countries, and not with the idea that there is such a thing as American international law to be distinguished from general international law, but with the idea that there may be special American views upon international questions; that the circumstances of the American republics may make it desirable for them to insist upon and press forward the development of particular principles in the law; that there are varieties of opinion upon such subjects which it may be useful to subject to common discussion and comparison of views; that the promotion of the habit of thinking broadly and internationally and not narrowly or locally, and a knowledge in each country of the points of view and habits of thought of each other country, will make all the American states more useful members of the family of nations, more considerate, more tolerant of differences of opinion, and more conscious of the international duties which are correlative to international rights.

The American Institute of International Law held its first meeting in Washington in December last, and, after a discussion in which representatives from all parts of the new world engaged, it adopted as its point of departure for future discussions a declaration of the rights and duties of nations which I commend especially to your attention. The declaration was in these words:

DECLARATION OF THE RIGHTS AND DUTIES OF NATIONS

I. Every nation has the right to exist, and to protect and to conserve its existence; but this right neither implies the right nor justifies the act of the state to protect itself or to conserve its existence by the commission of unlawful acts against innocent and unoffending states.

II. Every nation has the right to independence in the sense that, it has a right to the pursuit of happiness and is free to develop itself with

out interference or control from other states, provided that in so doing it does not interfere with or violate the rights of other states.

III. Every nation is in law and before law the equal of every other nation belonging to the society of nations, and all nations have the right to claim and, according to the Declaration of Independence of the United States, "to assume, among the Powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them."

IV. Every nation has the right to territory within defined boundaries and to exercise exclusive jurisdiction over its territory, and all persons whether native or foreign found therein.

V. Every nation entitled to a right by the law of nations is entitled to have that right respected and protected by all other nations, for right and duty are correlative, and the right of one is the duty of all to observe. VI. International law is at one and the same time both national and international: national in the sense that it is the law of the land and applicable as such to the decision of all questions involving its principles; international in the sense that it is the law of the society of nations and applicable as such to all questions between and among the members of the society of nations involving its principles.

You will observe that this declaration states in the main familiar principles. We have long been accustomed to such statements in the text-books. Indeed the official reporter of the Institute, in his commentary upon the declaration, undertakes to show and does show that every statement, far from being novel, is based upon the decisions of American courts and the authority of American publicists. Yet the declaration was not superfluous or unimportant. There is a vast difference between the occasional decisions of a national court or the opinions of individual students, and a unanimous agreement of representatives of all the sovereign states of the Western Hemisphere upon a statement in definite terms of fundamental principles of international right. A still more important reason for such a declaration lies in the fact that the fundamental principles declared, now stand denied or repudiated by the conduct of nations in the great war that rages in the old world.

This instrument asserts the right of every nation to continued existence, to independence, to exclusive jurisdiction over its own territory, and to equality with every other nation; and it denies the right of any nation to commit for its own protection or preservation, unlawful acts toward innocent and unoffending states. These are the fundamentals of international right. They involve the existence of a democratic

community of nations in which each individual nation has the same rights and full liberty for their enjoyment, limited and limited only, by the equal rights of every other member of the community. The body of rules of action which long experience and general consent have worked out for the assertion and preservation of these rights and the application of the universal limitation upon them in the practical relations between nations constitutes international law. This scheme of organization of the civilized inhabitants of the earth is sharply distinguished from the conditions of tribal hostility which prevailed during all the early part of human history and in which each separate tribe maintained its independence and liberty as best it could by force of arms in a normal relation of hostility to all other tribes, and it is equally distinguished from the condition of subordination and suzerainty in which a single nation, acquiring a preponderance of power, reduces other nations to submission and imposes upon them friendly relations with each other as equal vassals of the superior state. A familiar example of the one extreme is to be found in Europe during the Middle Ages and of the other in the Roman Empire, and upon a smaller scale and for a brief period in the control of Napoleon over a large part of continental Europe. One condition. affords independence to strong, civil societies at the expense of progress in civilization. The other condition fosters the arts of peace at the cost of liberty. The democratic organization of a community of nations, on a basis of acknowledged right, declared and protected by law, seeks to avoid both of these extremes, and the vast progress of civilization since the Peace of Westphalia, with the general advance of mankind in comfort, intelligence, individual freedom and opportunity, testify to the superior merit of the arrangement. Yet just as ordinary democracies composed of natural persons tend, unless continually restrained, to lapse into anarchy, on the one hand, or to seek security under autocracy, on the other, this community of nations has hitherto been in a condition of unstable equilibrium, always in danger of being overturned in one direction or the other. The age-long struggle to maintain the balance of power in Europe, often misguided, as we can see in looking back, often controlled by selfish purposes, often violating the very rights it professed to preserve, has nevertheless been a constant effort to counteract these tendencies.

A careful examination of the undisputed facts which show the origin and conduct of the present war leaves no room for doubt that the entire basis of the community organization of nations upon which rests the structure of international law is put at issue in the struggle. The principles of action upon which the war was begun involve a repudiation of every element of fundamental right upon which the law of nations rests. The right of every nation to continued existence, to independence, to exclusive jurisdiction over its own territory, and equality with other nations, is denied. The right of any strong nation to destroy all those alleged rights of other nations in pursuit of what it deems to be useful for its own protection or preservation is asserted. Under this view what we have been accustomed to call fundamental rights would become mere privilege to be enjoyed upon sufferance according to the views of expedience held by the most powerful. If this view prevails the whole structure of modern international law will be without foundation; and the discussion of its rules with the nations who maintain this view must now be not a real appeal to any law, but merely a balancing of possible injuries and benefits. So long as these fundamental questions are unsettled all discussion of international law must be hypothetical, as if architects were to discuss the elevation of a building while the ground plan remains undetermined. These propositions are the postulates of all reasoning regarding the rules of international law. All discussion of international right is based upon them, assumes assent to them. To discuss international law with a nation which denies these postulates can be nothing but an unreal and futile appearance of discussing the law. When your major premise is disputed you must establish that before you can go on with your argument. There is only one real question of international law to-day, and that is, whether these postulates of the law are to stand or not. As between nations which agree that they should stand there may be discussion as to international rules based upon that hypothesis, but as between nations which assert and nations which repudiate these fundamentals of the law there can be no real discussion except of expediency. The declaration of the American Institute of International Law arrays the members of all these American countries upon one side of this vital question of principle which is being fought out in the great war. Their act is altogether impersonal. It takes no ac