082 001-131 PDF

SOVEREIGNTY IN
INTERNATIONAL LAW
FIVE LECTURES
BY
E. N. VAN KLEFFENS
MINISTER OF STATE AND AMBASSADOR
OF THE NETHERLANDS
1953. 1
\
o
i
E. X. VAN KLEFFENS
CURRICULUM VITAE
KLEFFENS, Eelco Nicolaas van, LL. D. ; born Heerenveen (Nether-
lands), 17 November 1894; education: University of Leyden. Adjusted
shipping questions arising out of First World War for Netherlands,
1919; Member Secretariat League of Nations, 1919-1921; Secretary
to Board of Directors, Royal Dutch Petroleum Co., 1921-1923; Deputy
chief of legal section, Ministry for Foreign Affairs, 1923-1927; Deputy
chief of diplomatic section, 1927-1929; head of diplomatic section,
1929-1939; Minister to Switzerland and Netherlands Delegate to
League of Nations, 1939; Netherlands Minister for Foreign Affairs,
1939-1946; head of Netherlands delegation at San Francisco Con-
ference, 1945; Minister without Portfolio and Netherlands Repre-
sentative in Security Council and Economic and Social Council of U. N. ,
1946-1947; Netherlands Ambassador to United States of America,
1947-1950; Minister of State, 1950; Netherlands Minister to Portugal,
1950; Member of Curatorium of Hague Academy of International Law.
PUBLI CATI ONS :
1. The Relations between the Netherlands and Japan in the Light of International
Law, 1605-1919, 1919.
2. The Rape of the Netherlands, 1940 (also in Dutch, Spanish and German).
3. Articles in periodicals.
The abbreviation "R.A.D.I." means :
"Recueil des Cours de l'Acadmie de Droit International de
La Haye"
SOVEREIGNTY
IN INTERNATIONAL LAW
INTRODUCTION
ETYMOLOGY OF THE WORD "SOVEREIGNTY"
I
shall have the pleasure of exploring with you the theme of
sovereignty in international law. In conformity with what
you are entitled to expect in an institution which calls itself
"Academy of International Law", mine will be a series of
lectures of an essentially juridical nature.
But this does not mean that you will hear me explain only
considerations of a strictly and exclusively legal order. In
saying this I touch upon a fundamental concept underlying
these lectures, and not only these lectures, but, generally
speaking, that which, in my way of thinking, tuition in law
should be. For it seems impossible to me to confine oneself,
as an instructor in or as a student of law, to an examination of
purely legal concepts. It is not possible to isolate law if one
really wants to understand it as what it is : not a set of purely
formal, abstract rules, but a living organism, a product of many
social, economic, philosophical, psychological, cultural and
historical factors, all of which have contributed to shaping it,
and are still contributing to its ever unfolding development.
A parallel may here be drawn, it seems to me, with the study of
history. Not so very long ago, the teaching of history was largely
the teaching of political and military sequences: how a policy was
shaped and followed, how it led to war, which battles were
fought, what peace was made, and so on. Little attention was
given to economic and especially to social, psychological or
cultural factors. In our days, that defect has largely been
remedied, and due heed is being paid in modern historiography
to all those various factors which had a part in shaping our
6 E. N. VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (6)
condition and destinies quite as large as statecraft and armed
force.
So it should be in the teaching of law. For the teaching of law
must never, in my opinion, be restricted to a jugglery with
abstractions and deductions therefrom. If law is really to be
understood, it has to be seen as the reflection and result of many
variegated factors: social, economic, psychological, philoso-
phical, cultural, historical. I shall endeavour, within the narrow
compass of these lectures, to do j ustice to them as best I can,
for in this respect international law does not differ from other
branches of law. The sciences are all closely related, and the
various headings under which they are known to us are conve-
nient labels, showing where in a particular section the main
accent lies, rather than compartments separated from others by
a watertight bulkhead. You may compare the sciences to a
stellar system, orif you like small rather t han large things
to an at om: you may devote special attention to one of its
component parts, but you will never understand the true
nature, function or scope of that part so long as you do not
pay due attention to the other parts in their influence on the
one you have chosen as the particular object of your study.
So, law by all means, but not law "in vacuo".
A second initial remark would seem appropriate at this
point. There are many writers on subjects of this kind whose
work tends to leave the impression that in the course of the
centuries international law has been defined and developed
chiefly by individual lawyers and philosophers. It seems to me
t hat they forget not only that the history of important ideas is,
like all history, a continuous stream, but also t hat it is not at
all the work of a number of men of one single calling, writing
in more or less widely separated times and places. I n the case
of sovereignty, statesmen and political institutions (political in
a broad sense, comprising in particular economic and social
institutions) have had an influence no less t han the lawyers and
philosophers. To leave out of account the influence of statesmen
and political institutions would be like describing a river by
leaving out of account its banks and width, mentioning only its
(7)
INTRODUCTION 7
depth at various scattered points. Accordingly, I shall endea-
vour to pay proper attention, in so far as the compass of these
lectures allows, not only to the lawyers and philosophers, but
also to the statesmen and to political institutions.
I do not believe that the decision of the Curatorium of this
Academy to give a discussion of the theme of Sovereignty in
International Law a place on the program of this Academy
needs any justification. Much has been written incidentally on
the subject, but, considering its importance, special mono-
graphs are relatively few
x
. This seems the more remarkable
in the light of professor J. P. A. Franois' very true remark
2
:
"It is important to acquire a correct opinion with regard to the
"nature of sovereignty, many being those who, starting from an
"antiquated notion of sovereignty, consider state sovereignty the
"great obstacle in the path leading to international coopera-
"tion, and believe that international organisation is conditioned
"by a complete elimination of sovereignty." This reference to
current misconceptions finds an echo in the words of the late
professor Karl Strupp, who in the course of a series of remark-
able lectures he gave here in 1934, said: "Peu de termes ont
"suscit... une telle confusion
3
." There is little comfort to be
found in a remark Paul Valry once made, when he said that
frequently words of great significance, the basic terms of social
life, are vague, insufficiently delineated, imprecise symbols.
It will be for you to say to what extent I shall succeed in dispel-
ling some of the haze surrounding the notion of sovereignty,
and I sincerely hope that by the end of these lectures you will
not find yourselves in that state of frustrated irritation
which made a xixth century American sociologist exclaim:
"Sovereignty in foreign affairs is a myth with which fools try
to deceive each other V
1. See bibliographical data in one of the best monographs: La Sou-
verainet des Etats en Droit International Moderne, by W. Sukiennicki
(Paris 1927).
2. Handboek van het Volkenrecht, vol. I (2nd ed., Zwolle 1949), p. 158.
3. R.A.D.I., vol. 47, p. 491.
4. John H. W. Stuckenberg, Sociologythe Science of Human Society,
New York 1903, vol. II, p. 127.
And now, after these few but indispensable words of i nt roduc-
tion, let us plunge "in medias res". There is this to be said in
favour of my subject, that there is nothing petty about it. It is
all on a grand scale. The very word sovereignty has a majestic
ring. It conjures up mental pictures of the rise and fall of mighty
states, republics, kingdoms, empires, the vision of a pageant of
history. There is an atmosphere of grandeur around it, some-
thing broad and colourful, like an eighteenth century bat t l e.
It has to do with that undefinable essence we all know, yet
cannot lay our hands upon: power, and the forces involved
often are as tremendous as the consequences resulting from
their dread interaction. Moreover, this subject is profoundly
human, and, being human, not always particularly edifying; it is,
in fact, an endless exhibition of ideals and of knavery, of passion
and calculation, of devotion and cupidity. Above all, like any real
tragedy, it conveys a sense of the inevitable : given the elements
involved, and no matter how good the intentions of some of
those concerned, the result was what in the imperfect sphere of
human limitation it was ordained to be. Over it, and in reful-
gent contrast with it, stand, sublime and unfathomable, the
eternal purposes of divine providence.
Let us then start our labours in this earth-bound human
environment, beginning by way of introduction with the ques-
tion of the origin of the word sovereignty.
The origin and etymology of the words sovereign and sover-
eignty are not definitely established. So far, these points have
not been given systematic attention by competent philologists.
I can only give you such brief indications as I have been able
to glean here and there.
Such eminent authorities as Ducange
1
and W. Meyer
Lbke' s Romanisches Etymologisches Wr t er buch
2
assume
without apparent hesitation that both terms are connected with
superanus, a late Middle-Latin form.
1. Glossarium Mediae et Infimae Latinitatis (1886), p. 659.
2. 3rd ed., Heidelberg 1935.
O)
INTRODUCTION 9
I have been unable to trace this word either in Holland, i n
Belgium, in England, or in It al y; as to Germany, as the general
editor of the Thesaurus Linguae Latinae in Muni ch obligingly
told me, it is practically certain that the term does not occur
there before the year 600, it being uncertain when thereafter it
was first used in Germany.
I was somewhat more fortunate as regards France. The perma-
nent secretary of the Royal Academy of Sciences, Letters and
Arts in Brussels kindly drew my attention to the great cartulary
of St. Victor of Marseilles
1
, which contains a charter of around
the year 1000, in which there occur the words: "Juxt a via
"superaria que vadit ad Artiga". Here, the word clearly has the
meaning of "' upper", "t hat which is hi gher"; it has as yet
nothing to do with public authority or social level. Ducange,
however, has a quotation, clearly, as the context shows, of a
much later date, in which the word superanus has the meaning
of what he calls "ex opt i mat um ordine; pr i nceps"
2
much
closer, therefore, to the modern meaning of the words "sover-
eign" and "sovereignty".
Superanus is, of course, a derivation from super, "over",
"above". Super became the root of several adjectives: let me
mention supremus, superbus, superus (remember the superi: the
Gods above), and supernus, to be found in classic and later Lat i n
3
;
such little research as I have been able to undertake points to
the conclusion that superanus, yet another derivation of "super",
is a very much later growth
4
; the suffix "- anus" seems to denote
a popular, rather vulgar origin. The word passed into various
1. Ed. Gurard, Documents Indits, vol. I, p. 292.
2. Ludwig. Vol. 8, Reliq. MSS., p. 221 : "Unus vero eorum qui superarti
"dicuntur, vehementer ei cepit obsi st er e. . . . Ille etiam superanus....
"interfectus est". See also Ducange, op. cit., p. 640 and 655. Compare
Etienne Pasquier (1529-1615), Recherches sur la France (Amsterdam 1723),
Book VIII, Ch. 19, tit. 1, col. 795: "Voil comme d' un mot de souve-
r a i n qui s'employait communment tous ceux qui tenaient les premires
"dignits de la France, mais non absolument, nous l'avons avec le temps
"accommod au premier de tous les premiers, je veux dire au roi".
3. Supernus e.g. in Lucretius V, 647 and VI, 192 and 942; Horace,
Epodes I, 29; also used by Ovid, Seneca, Pliny the Elder, Tacitus and
many others.
4. It follows that in no case can supernus be regarded as a contraction
of superanus.
10 E.N. VAN KLEFFENSSOVEREIGHTT IN INTERN. LAW (10)
romance languages, and we are all familiar with its Italian form
of soprano: the highest pitch of the voice, the treble.
The text from the great cartulary of St. Victor is important,
because it helps to make it probable that the word superanus is
older than its equivalent in other languages ; in other words : it
probably is not a mere artificial reconstruction into Latin of a
word that first was coined in another language. For in another
language it first appears, so far as I have been able to ascertain,
at a later, though as yet not quite certain date in England, viz.
in a xiith century Anglo-Norman psalter, known as the Oxford
psalter because of the fact that one of the chief Mss. is in the
Bodleain Library
1
. Verse 7 of the psalm there listed as no.
XVIII, corresponding to verse 6 of the xixth psalm as found in
the bible as we know it, or in the English book of common
prayer, is the place that interests us. I am indebted for the text
to the representatives of the British Council in Oxford and in
Lisbon; it reads:
E sun cuntre curs desq ; ala suurainetet de lui.
E nest chi se repunge de sa calur
2
.
(And the sun follows an opposite course at its height.
And there is no one who resists its heat).
What strikes the attention is that the word sovereignty here
denotes "the highest place", "the zenith", a literal translation of
the vulgate, which has "summum". Instead of the meaning of
St. Victor's cartulary, which had a comparative sense, the
meaning here is clearly superlative, a value the notion of sover-
eignty has retained to the present day, just as "soprano" is the
highest pitch of voice.
This, then, was in the xnth century. The chanceries at that
time do not appear to have used the word "sovereign", not
even in its Latin form of "superanus", when it came to desig-
nating the highest authoritythey first used the expression
1. MS Douce 320, fol. 40; a description in Summary Catalogue of
Western Manuscripts in the Bodleian Library, vol. IV, p. 592, no. 21894.
2. This text differs from other translations, probably because the original
Hebrew text was not clear.
(11) INTRODUCTION 11
"maior" ; subsequently, "superior" became the current term
1
.
It was the popular language in England and in France which
appears to have laid hold of the word "sovereign" to express
the same notion, and this mutation of the earlier significance of
the term must have consolidated itself in the course of the xinth
century, for it was in 1283 that Philippe de Beaumanoir wrote
his famous dictum "cascuns barons est (sic) sovrains en se baron-
nie"
2
; elsewhere in the same book, he mentions the citizens of
Artois, who "pledent par devant le roy Paris d'aucuns
"apiax
3
qui sunt fet li par raison de le sovrainet"
4
. And as
regards England there is, a mere 7 years later, a book known
as the "South English Legendary or Lives of Saints", in which
the phrase occurs: "For, Sire King, thou art mi sovrein, and the
"Erchebischop al-so"
5
. This chronological quasi-coincidence
need not surprise us when it is recalled how close were the
relations between France and England in Plantagenet times, and
how strong influences from France on the English language.
From then on, the term began its triumphant progress. It
only gradually lost its purely topographical significance of "in a
"high location". Dante used it three times, once in that literal
sense
8
, once figuratively to indicate "of a high order" ' , and
once in the modern sense of "supreme authority" in which
subsequently it came to be exclusively employed
8
.
The word "sovereign" for the highest, the supreme power in
a given legal order may have been a product of the feudal age,
but the notion it represents had forced itself upon the human
mind ever since men began to establish independent political
groups, and that goes back to the dawn of time. It cannot be
1. Francesco Calasso, I Glossatori e la Teoria della Sovranit (Milan,
1951), p. 46 note 11 (important).
2. Coutumes de Beauvoisis, ed. Salmon, XXXIV, 41.
3. I.e. appeals.
4. LXI, 72.
5. Early English Texts-series, 1887, vol. I, p. 74.
6. Inferno, 32: "Cosi '1 sovran li denti all'altro pose".
7. Inferno, 22: "Barattier fu non piccol, ma sovrano."
8. Convivio, 63: "Comandare il suggetto al sovrano procede da ordine
perverso; che ordine diritto il sovrano al suggetto comandare."
12 E. N.VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (12)
emphasized enough that there was sovereignty and there were
sovereigns long before these terms were coined, just as Molire's
Monsieur Jourdain spoke prose long before he had ever heard
of it, or just as there was Macchiavellism long before Mac-
chiavelli
2
. Terminology differed, but not the essence of that to
which the appellation referred. And since we are more interested
in the essence than in its designation by words, let us now see
whether we can fix some main positions on the chart depicting
the successive stages through which in many lands the notion
of supreme power has passed in the course of the centuries.
1. Charles Benoist, Le Machiavlisme, vol. I: Avant Machiavel (Paris
1907).
CHAPTER I
ANTIQUITY AND MIDDLE AGES
1. THE EAST
T
HE thing that strikes the attention of us moderns is that in
the East in olden times most nations did not seem to feel
the need of some legal theory with regard to the State,
public authority and international relations. In China, Egypt,
Babylonia, Assyria, Persia, and Israel, State and public authority,
like international relations, have to our knowledge never been
the object of methodical legal study. The subject of sovereignty
was no exception, in spite of the existence of many sovereign
states which had dealings with one another of various kinds.
The explanation was, of course, partly that, in those countries,
there was no spiritual freedom as we know it, and partly that
public law had no individual existence, bound up as it was with
religion and moral philosophy to an extent which excluded
independent treatment. In China there have at least been
attempts at formulating a code of behaviour for sovereign
states
1
, but its practical importance was insignificant.
India appears, to some extent, to have been an exception,
having evolved at least a concept of territorial sovereignty
2
,
but it is difficult to assess the influence that concept had in
actual practice.
2. GREECE
Ancient Greece was, as we all know, teeming with greater or
smaller sovereign states, amongst whom the majority were the
well-known city-republics, with Athens in the front rank. No
1. Gettell, History of Political Thought (Portuguese ed., Lisbon 1936)
p. 45. See also Siu Tchouan Pao, Le Droit des Gens et la Chine Antique,
Paris 1926.
2. B. K. Sarkar, Hindu Theory of International Relations, American
Political Science Review, XIII, p. 400-414 (1919).
wonder that, in some branches at least, international l aw
reached a certain stage of development: these sovereign states
were equal before the law, and many were in peaceful or
warlike contact with one another. Treaty l aw; the law of diplo-
matic intercourse; consular law; the law concerning the peaceful
settlement of international disputes, and, to a certain extent,
the law of belligerency and of neutrality, all reached a certain
degree of evolution
1
.
But on sovereignty there was little to be found in ancient
Greece. This seems the more surprising inasmuch as the Greeks
gave considerable thought to the notion of the state
2
. Wi t h
regard to sovereignty, the most that can be said is that the
notion of supreme power existed, although the modern Greek
word for sovereignty (Kuptapxiot) did not. In Aristotle's Politica
the notion occurs at least three times: "The government is
"everywhere sovereign in the st at e"; "The government, which
"is the supreme authority in states", and "I n a constitutional
"government the fighting-men have the supreme power"
3
.
But people do not appear to have paused to ask themselves the
questions we shall deal with in the course of these lectures;
they were content to state the existence of a supreme authority,
and asked themselves who were best suited to exercise it. And
that, with regard to sovereignty, was all.
3. ROME
The legal climateif this expression is permittedof Rome
was not favourable to the development of international law, the
reason being a constant tendency on the part of Rome to
consider other peoples as people beyond the pale, people with
whom you can have dealings, but essentially on a footing of
superior versus inferior. Rome was Rome (though its citizenship
1. St. Seferiades, Principes Gnraux du Droit International de la Paix,
R.A.D.I., vol. 34 (1930), p. 218-228. See also Victor Martin, La Vie
internationale dans la Grce des Cits (Paris 1940).
2. H. Krabbe, L'Ide moderne de l'Etat, R.A.D.I., vol. 13 (1926),
p. 515-524.
3. I l l , 6, 1 ; III, 7, 1 ; III, 7, 4, respectively (Jowett's translation,
Oxford 1885).
(15) ANTIQUITY AND MIDDLE AGES 15
was extended to Italians by the Lex Roscia), and none was
acknowledged as being its equal. The rest of the Roman orbit
was not, it is true, considered as conquered territory to be
annexed to such territory as Rome already possessed, but as the
land of other people, bound to Rome by ties of more or less
close and in any case permanent dependence
1
. It was a compli-
cated system. The eives romani were in the front row. After them
came first the amici populi Romani, autonomous, and entitled to
have relations with other states, but not free with regard to
Rome, and in particular obligatorily neutral in Rome's wars.
Then came the sodi: military allies without foreign relations of
their own and with a trace of autonomy, of whom there were
different groups: the Latini (to be found not only in Latium
where the Lex Roscia diminished their raison d'tre, but also in
various provinces, and especially in Spain), the foederati, and
the civitates "liberae", free in name, but not in point of fact.
Thirdly, there was the group of the dediticii: those who had
surrendered to Rome's mercy, living henceforth under a de
facto regime of greater or lesser tolerance. All were dependent,
the degree of dependency being different in respect of each
group. Prior to their total or partial subjection, all these ele-
ments had possessed independent status, and therefore, so long
as they had it, had dealt with Rome as what we would call
equal subjects of international law. But by making with Rome
a pact of submission, of whatever degree, they lost that status.
Fourthly, and lastly, there were previously independent king-
doms (such as Egypt), where the Roman emperors proclaimed
themselves successors to the throne. And so, within the "immensa
romanae pacis maiestas"
2
, as it came to be called, the possibility
of a continued existence, let alone of development, of interna-
tional law disappeared as the sphere of Roman dominion was
extended. There remained, it is true (and for our purpose that
1. The standard-work on the subject is Th. Mommsen's Roemisches
Staatsrecht, Leipzig 1887, especially vol. III. But a remarkable chapter
on Roman public international law is to be found in the late Prof. J. van
Kan's lectures, given at this Academy in 1938, on the General Rules of
International Law (R.A.D.I., vol. 66, ch. I, par. 7).
2. Pliny the Elder, Historia Naturalis, XXVII, 1, 2.
is very important), the states (of which Persia is a good example)
beyond the frontiers, liberi populi externi all; not necessarily
enemies \ but just free nations outside the empire ; with them,
relations were conceivable on the basis of what we would call
international law. But those states were few, and their contacts
with Rome were only occasional. Peoples that had no regular
state organisation were called bandits or brigands (latrones aut
praedones)
2
, and dealt with as such.
As with international law in general, so with sovereignty. As
sovereign states around Rome grew fewer in number until those
left were no longer of any great consequence, there simply was
no need, and hardly any place, for a doctrine of sovereignty.
I have already mentioned that the Romans knew the idea of
sovereign states outside their own: the "liberi populi externi", in
addition to Rome itself the forerunners, in a way, of modern
sovereign states. But as to analysis or definition there is, so far
as I know, only one single quotation to be mentioned. That is a
quotation well worth remembering, being the starting-point of
important developments in the Middle Ages, which will occupy
our attention hereafter. It is to be found in the digest, the
author being Proculus, a jurist of the 1st century A.D.; a text,
hallowed, so to speak, by its insertion in Justinian's great work,
and one which I should ask you to note carefully, were it only
because it is the earliest definition of a sovereign state. Accor-
ding to Proculus, a liber populas externus ("a foreign power", we
would say) is "is qui nullius alterius populi potestati est subiectus"
3
.
Remember that phrase; it has played a tremendous part in
subsequent centuries, and I shall have to revert to it hereafter.
If, then, from a doctrinal point of view the legacy of Rome
with regard to our subject is little greater than Greece's, though
at least it leaves us with a definition, let it not be supposed that
Rome, or, more exactly, the Roman empire, was of little impor-
tance for the development of the notion of sovereignty. For that
1. "Hi enim hostes non sunt" (Pomponius, in the Digest, 49, 15, 5, 2).
2. Pomponius, Digest 50, 16, 118; also Ulpianus, ibid. 49, 15, 24.
3. Digest 49, 15, 7, pr. Grotius refers to this passage in De Jure Belli
ac Pacis I, 2, par. 21, 4.
empire, continued through successive transformations and even
migrations
1
in the dark-and early Middle Ages, finally became
the holy Roman empire of the German nation which exercised
a very great influence on the development of the notion and
doctrine of sovereignty.
4. THE MIDDLE AGES
For our subject, the study of the Middle Ages is of absorbing
interest. First of all, because it will expose the fallacy, too often
repeated, that the origin of the modern sovereign state is to be
found in the times of Renaissance and Reformation, and that
Jean Bodin first gave it a doctrinal basis in 1576. And secondly,
because of the apparent paradox that sovereign states and at
least two doctrines explaining their nature blossomed forth in
Western Europe in a period when, on the face of it, the spirit of
the age seemed particularly unfavourable to their rise and
development. Recent research has shed new light on all this,
and we hope to make good use of it.
Let us first look at facts and institutions.
Since we must begin somewhere, we may well begin in the
year 800, the year when Charlemagne became emperor. At that
time, there were three other more or less contiguous empires,
one Christian, and two Mohamedan: the eastern empire,
destined, as Charlemagne put it one year before his death, "to
remain at peace (with the empire of the West), allied and
united in the love of Christ"
2
, and on the other hand the Cali-
phate of Bagdad and the Emirate of Cordoba.
These states undoubtedly were sovereign states and, as the
1. It passed to Constantinople with Constantine the Great (330), where
its seat remained for 500 years. It was re-transferred to the West with
Charlemagne's coronation in 800 {translatio imperii a Graecis ad Francos,
the name of Bellarmini's treatise published at Antwerp in 1589; earlier
Conrad von Megenberg. De translatione Imperii (1355), published at
Prague in 1868), and again transferred from the Franks to the Germans
in the person of Otto the Great (962) ; see Leopold von Bebenberg, De
iuribus et translatione imperii (1338-1340), published at Heidelberg in
1664.
2. Quoted by Baron de Taube, "Byzance et ses Voisins", R.A.D.I. 11
(1926), p. 353, from Corpus der Griechischen Urkunden des Mittelalters
und der Neueren Zeit, Series A, Section I, No. 391.
I. 1953. 2
18 E, N. VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (18)
late M. Charles Dupuis rightly observed at this Academy, "The
"co-existence of these great sovereignties seemed to call for a law
"to determine their relations. But none of them tended to main-
"tain with the others regular and continuous relations. Islam,
"then dominant and conquering, was thinking only of fighting
"and subduing the infidels; it accepted no definitive peace with
"them, admitting merely truces, simple interruptions in the
"wars which were to be the normal state of affairs so long as there
"would be unbelievers to convert or subject. Such a state of
"mind evidently opened no possibilities of development to a law
"of peace between the Christian and the Musulman empires.
"And apart from the religious and the political and military
"antithesis resulting therefrom, none of the four empires was
"disposed to increase its peaceful relations with its neighbours.
"The distance separating their capitals favoured their separate
"existence; mistrust led them to ensconce themselves therein"
1
.
In order to study sovereignty in international law during this
early period, we shall therefore needs have to confine ourselves
to Western and Central Europe.
I believe it may safely be said that, speaking of Europe, the
great difference and contrast between the Middle Ages and the
modern era is, that in the Middle Ages, in spite of all diversity,
turbulence and sparse contacts, there was a strong accent on
unity, whilst in the modern era, in spite of all similarity and
close ties (turbulence there unfortunately remains), the accent
has been, hitherto at least, predominantly on separateness.
This medieval sense of unity was, of course, opposed by its
very nature to the growth of equal, sovereign states in the
modern sense. We shall see how they arose nevertheless in this
very period. To understand it requires an explanation.
That the sense of unity was so strong throughout the Middle
Ages was, without any doubt, partly the result of the tenacious
and enduring Roman tradition of one emperor and empire, and
partly of the consciousness of there being one Faith, one Church,
and one Head of that Church.
1. Rgles Gnrales du Droit de la Paix, R.A.D.I. 32 (1930), 12.
Translation by v. K.
I n the course of his very remarkable lectures given at this
Academy in 1938
1
on the idea of international organisation in
its main phases, my eminent and lamented compatriot van Kan
drew a carefully shaded picture of this state of things which, if
you do not already know it, I think you will read not only with
profit, but with pleasure. He recallsI regret having to con-
dense much that deserves to be read in fullhow the Christian
empire was considered the continuation of the old Roman
empire. Medieval lawyers spoke of Roman law as their own.
Frederick Barbarossa mentioned Constantine, Valentinian, and
Justinian as his predecessors in one breath with Charlemagne
and Louis the Pious. The fascination which the old empire
exercised on the mind of Europe was indelible, and remained
so great t hat it survived even the abdication of the last Western
Roman emperor in 476 ; did not an emperor, now "t he" emperor,
reign with full authority in Constantinople? The new rulers in
Italy did not even attempt to usurp the imperial title; for the
Goths they may have been kings, Reges Barbarorum, but for the
Romans they were merely consul, or patricius, or magister militum.
The coins of these rulers showed not their own effigy, but the
Byzantine emperor' s, and some, in spite of the obvious, in spite
of everything, bore the legend Invicta RomaUnvanquished
Rome. And in a sense Rome was not vanquished; it remained
caput orbis terrarum, the head of the world, even to Justinian and
although he resided in Constantinople
2
. Tradition was stronger
even t han reality. This tradition of the one enduring empire,
extending like a vast dome or cupola over everything of a
worldly nature, was supported by a religious basis. The book
of Daniel
3
, the second epistle of St. Paul to the Thessalonians,
and some passages from the Apocalypse, though far from clear,
formed the scriptural foundation of a belief t hat there would be
four successive dominations: that of Babylonia, that of t he
Medes, that of the Persians, and that of Alexander the Great,
1. R.A.D.I. 66, p. 299 sq.With regard to literature and sources
relating to this section, van Kan's masterly exposition gives an abundance
of material.
2. R.A.D.I. Const. Deo Auctore (de conceptione Digestorum), 10.
3. II, 36 sq. and VII, 7 sq.
of which the Roman empire was supposed to be the successor.
If that empire fell, the end of the world would be at hand. To
save the world, that one empire therefore simply had to continue
its existence
1
.
Still largely following van Kan, be it in much abbreviated
form, a few words must now be said of that second element
which made so strongly for unity in the Middle Ages : the con-
sciousness of one common faith, one Church, one Head of that
Church. Christianity was believed to have universal signifi-
cance. There is one God, and let there be one-ness in all things,
unitas maneat in omnibus; all human beings have one Father and
one heavenly destination. One Saviour came to save all from
one original sin, committed by the one couple from whom all
are the offspring, and all are united, as Charlemagne's coun-
selor and confidant Alciun put it, in una fide, spe et cantate
2
, one
faith, one hope, one charity.
The adherents of this one faith are gathered together in one
single community, the one and only Church, catholic, ecumeni-
cal, teaching one world a single creed for all. This Church has
one head : the pope, and (to quote Dante's Monarchia
3
) as the
emperor would lead the human race to earthly happiness, so the
pope will lead it to eternal life. But the papacy too came to
claim supremacy in temporal matters, founding this claim on
various bible-texts, most especially the Gospel of St. Matthew,
where it is said (16 : 19, repeated 18 : 18): "whatsoever thou
"shalt bind on earth shall be bound in heaven: and whatsoever
"thou shalt loose on earth shall be loosed in heaven".
We are not concerned here with the struggle, long and dis-
tressing, for supremacy between popes and emperors, our aim
being merely to demonstrate the strength of the idea of the
unity of mankind in the middle ages, creating a spiritual climate
directly opposed to the rise and growth of separate sovereign
states. Everything was conceived in the form of a pyramid, with
1. See E. Koeken, De Theorie der vier Wereldrijken en van de Over-
dracht der Wereldheerschappij tot op Innocentius III, diss. Nijmegen,
1935.
2. Epist. Alcuini, 3, Mon. Germ. Epist., IV, 25.
3. I l l , 16. English translation by A. Henry, Boston & New York, 1904.
(21) ANTIQUITY AHD MIDDLE AGES 21
the pope or the emperor (or both simultaneously) at the top.
Latin was the common language in every field ; Roman law had
its adepts everywhere; we can only make the briefest mention
here of the sense of solidarity engendered by the Crusades. That
nevertheless there arose a number of sovereign states, is all the
more remarkable when it is remembered that, in addition to all
these unifying elements, there was yet another powerful institu-
tion with a unifying tendency and a pyramidal structure:
feudalism, that peculiar political and social system, not of
Roman, but of Frankish origin, which is so characteristic of the
Middle Ages.
For it goes without saying that a structure in which every
group of people, high or low on the social ladder, has a common
lord who in his turn belongs to a smaller and higher group
having yet another chief, ends at the top in one being, who
could only be the unique pope or the unique emperor, or the
duality pope-emperor. Everyone of these three conceptions had
its protagonists, the Holy See being the most explicit and success-
ful
1
. "Ego sum papa, ego sum imperator, " exclaimed the great
pope Boniface VIII (1294-1303)
2
.
Potent indeed must have been the forces, and compelling the
circumstances which, in spite of all these adverse trends, made
it possible for several states to constitute themselves at an early
date as sovereign states (the word "sovereignty" then being
still unknown), independent from either emperor or pope, and
successfully to assert their status as such.
Never had the one-empire idea, that greatest attempt of all
time at supranational organisation in Europe, come so near to
realisation as during the reign of Charlemagne as emperor and
that of his son Louis the Pious, those brief 40 years from 800 to
840. And yet, even this largest empire did not embrace all of
Western Europe. Let us allow contemporary documents to
speak for themselves.
There is left to us a cartulary or charter of Charlemagne,
1. See van Kan, op. cit., eh. III.
2. See H. Finke, Acta Aragonensia, Berlin 1908, No. 90, p. 130.
22 E. N. VAN KLEFFENSSOVEREIGNTr IN INTERN. LAW (22)
inserted in the Corpus iuris canonici
1
, which enumerates the
vassals of his empire. It mentionswith a saving-clause
referring to "all those who in addition are subject to us" (celeri
omnes nobis subiecti) : the Romans, the Franks, the Alamans, the
Bavarians, the Saxons, the Thuringians, the Frisians, the Gauls,
the Burgundians, the Bretons, the Lombards, the Gascons, the
Beneventins, the Goths, and the Spaniards. This leaves out the
Scandinavians, England, Scotland, and Ireland, unlesswhich
hardly seems likelysuch important nations have to be taken
as coming under the saving-clause of "other' subjects".
A general remark is in order here. Later imperial as well as
papal claims were exorbitant when compared to actual fact.
I n so far as the emperors are concerned, the culminating point
was reached under Henry VI of Hohenstaufen, Barbarossa's
son (1190-1197) who simply claimed the whole wide world:
Teutonici orbem imperii non est transeundum
2
, it is impossible to
leave the German empire' s territory, simply because it has no
limits. At least as ambitious were some of the papal claims, the
theorybut merely the theorybeing that all the world is
St. Peter' s fief. But in point of fact there were, in spite of all this
ambitious and conflicting wishful thinking, several sovereign
states, and by our standards, they were sovereign de jure too.
We cannot, within the compass of these lectures, deal with
them all. In view of their importance, however, I should like to
say a word about a few of them : England, France, Spain, the
Italian city-states, and the Swiss cantons.
1. England. For more than two centuries, England, having
become a single kingdom under Athelstan of Wessex (925-940)
3
,
acknowledged allegiance to neither pope nor emperor. "Most
"Hol y Fat her, " William the Conqueror wrote to the pope,
"your legate Humbert has intimated to me in your name t hat I
"should swear you and your successors an oath of homage.
" I refuse to take the oath because I have not promised to swear
"it and because my predecessors have not taken one, as far as
1. Decretum Gratiani, C. 11. qu. 1, c. 37.
2. Mon. Germ Script., XXI, p. 193.
3. F. M. Stenton, Anglo-Saxon England (Oxford 1943), 336.
" I know, to your predecessors
1
". But in 1173 the fortunes of
king Henry I I had fallen so low after the murder of Thomas
Becket, that he agreed to accept his kingdom for himself and his
eldest son Richard Coeur de Lion from the pope as the pope' s
vassal
2
. This papal tie did not prevent Richard, when captured
in Austria by the emperor Henry VI in 1194, from acknowled-
ging his vasselage to the Hohenstaufen, a subjection which,
whatever its real significance, was formally declared at an end a
century later by Edward I I (1307-1327) who stated: Regnum
Angliae ab omni subiectione imperii esse liberum
3
. As for the pope,
J ohn Lackland made unqualified submission to pope Innocent
I I I in 1213, receiving his kingdom as a fief of the Holy See
subject to tribute, a payment stopped in 1332
4
. I n 1366 Parlia-
ment unanimously repudiated papal superiority
5
.
Conclusion: in the middle ages, England was a sovereign
country, the period between 1173 and 1366 excepted, but its
dependency during these latter years was of a formal rather
t han of a real nature.
2. France. France formed part of Charlemagne' s empire.
When in 840 his only successor Louis the Pious died, there was
first a short period of turbulence, ending three years later with
the treaty of Verdun, one of the most important treaties ever
made, and decisive for the future development of Europe and
the rise of many sovereign states. Under it, the empire was
divided into three parts, and since there could only be one
emperor, the imperial crown began to wander, first going to the
middle part until 875, then for half a dozen years to what now
is France, and finally, in 881, to Germany where, with one very
short interruption, it remained ever since, until in 1806 the
1. Works of Lanfranc of Canterbury, quoted by M. Zimmermann,
Crise de POrgan. Internationale la Fin du Moyen-Age, R.A.D.I., 44
(1933), p. 363.
2. Ibid.
3. Quoted by Seferiades, R.A.D.I., 34 (1930), p. 327.
4. Stubbs, Constitutional History of England, I, 561 (Oxford 1891).
See also Shakespeare, King John (V, 1, 4): "Take again From this my
"hand, as holding from the Pope Your sovereign greatness and authority".
5. Stubbs, op. cit., II, 435.
empire came to an inglorious end when Napoleon's star was
still rising.
At no time has France acknowledged feudal ties with the
Holy See
1
. As for the empire, France has admitted its vasselage
for the last time in the course of the reign of Otto the Great
(936-973)
2
. For the rest France was a sovereign state, although
its territorial limits varied, differing to a greater or lesser extent
from those of present-day France.
3. Spain. In 628, Swinthila, king of the Visigoths, seized the
last strongholds of the empire in Spain and, first of the Gothic
kings, reigned supreme and alone in the Iberian peninsula.
After the Moors, having invaded Spain in 711, had been partly
driven back, there arose four kingdoms: Navarre, Aragon,
Castile, and Portugal. Portugal always kept, as we all know,
a separate existence
3
; the greater part of Spain was finally
united by the marriage of Ferdinand of Aragon to Isabella of
Castile.
There is no trace of any part of Spain acknowledging vasselage
to either emperor or pope. On the contrary, the great Castilian
king Alfonso X, the Wise (1284) emphatically repudiated any
allegiance. In his famous book Las Siete Partidas
4
(1265), he
wrote: Non habernos mayor sobre nos en el temporal
5
. One cannot
be clearer.
4. The Italian cities. So far, we have been dealing with states
of considerable size, inhabited by people of different ethno-
graphic origin or composition and speaking different languages,
but by the middle of the xith century there began to manifest
itself in a number of cities in the northern half of Italy a ten-
dency towards autonomy first, and towards full sovereignty
thereafter, cities inhabited by people of the same race, the same
historical background, the same language. In those Italian
1. Zimmermann, op. cit., p. 362.
2. Seferiades, op. cit., p. 237.
3. In 1143 the first king (Afonso Henriques) acknowledged the Pope's
overlordship, becoming his vassal and promising on behalf of himself and
his successors to pay an annual tribute (Livermore, History of Portugal,
Cambridge 1947, p. 68).
4. Ed. of the Royal (Spanish) Academy of History, Madrid 1807.
5. I, til. I. 1. XV.
communities there set in a reaction against the general insecurity
resulting from oppression by feudal lords and the lack of effec-
tive power, in those distant parts, on the side of the emperor.
In a variety of ways, legal or not so legal, by simple usurpation
or against some form of compensation, those cities began to
elect their own magistrates, to look after their own administra-
tion, to make their own laws, and-important pointto con-
duct their own foreign relations with others.
In the beginning, the overlordship of the emperor continued
to be duly acknowledged, but the process of emancipation went
so far, that in 1158 the emperor Frederic I considered it neces-
sary to take measures. He first tried consultation, convening the
imperial diet in Roncaglia. There, the jurisdiction of the empe-
ror was defined with the assistance of the four most celebrated
doctors of law of Bologna, the privileges of the cities finding
recognition only insofar as they had been lawfully granted, but
not insofar as they had been usurped.
But the sap of freedom was then running too strong, and the
settlement of Roncaglia soon set at nought. Warfare ensued.
At first the emperor had the upper hand. Milan was utterly
destroyed (1162) because of the lead it had taken in the eman-
cipation movement. But the fortunes of war turned : the cities
banded together in the Lombard League, and in the battle of
Legnano (1176) a decisive victory was won by the communities.
As a result, peace was signed at Constance in 1183. But although
all privileges of the cities were admitted, the link which kept
them under the empire was upheld. Gradually, however, this
link came to be severed by means of grants, or against payment,
or simply by unilateral affirmation by the communities, and in
the end they were what we would call fully sovereign states
1
.
5. The Swiss cantons. The history of the emancipation of the
Swiss cantons from their several overlords resembles in its main
characteristics that of the Italian cities. It only set in a good
1. I am indebted, in respect of this section, to the excellent rsum by
Gaspare Ambrosini in Rassegna Italiana di Politica e di Cultura, Nov.
1952, pp. 493-494. See also Bmont and Monod, Medieval Europe, Engl.
ed. (New York 1902), p. 308 sq.
26 E. N. VAN KLEFFENSSOVEREIGNTr IN INTERN. LAW (26)
deal (two centuries) later, and its consummation with regard to
the whole of the Swiss cantons as we know them took a much
longer time: it was only in 1815 that they were able to call
themselves the "xxii sovereign cantons of Switzerland' ' . But the
inception of this protracted movement took place in the Middle
Ages, the period we are at present concerned with, and as early
as 1291 we see the inhabitants of Schwyz, of Uri and of Unter-
walden making a solemn pact, "maliciam temporis attendentes", for
their common defence
1
, as if they already were sovereign states.
This pact was renewed 24 years later at Br unnen
2
; in 1332,
Lucerne joined the original three in yet another convent i on
3
;
in 1351 all of them and, in addition, Zurich widened the circle
4
,
adding Glarus in 1352
5
. And so the movement continued. The
link with Austria and with the emperor was, formally at least,
maintained for a long time, ending only when the Swiss were
much-needed allies in the wars with Burgundy.
The result of this analysis clearly is that, contrary to the very
persistent conception that the sovereign state, unknown in the
Middle Ages, is a product of Renaissance and Reformation,
there were in the Middle Ages quite a number of sovereign
states, some small, but some very large, and all of them impor-
t ant in the light of history
6
.
What , now, made the rise of so many separate sovereign
states possible at a time when, as we have seen, the prevailing
spiritual trends were towards unity? I think it was a congeries
of factors which together produced this result. There was the
ambition of the rulers, whether kings, or doges, or city-tyrants.
There was undoubtedly also the influence of national diversity,
at all times a powerful element in sustaining sovereignty; we
1. Nabholz and Klaeui, Quellenbuch zur Verfassungsgeschichte, Aarau
1950, p. 1 sq.
2. Ibid., p. 5 sq.
3. Ibid., p. 9 sq.
4. Pact of Zurich, ibid., p. 14 sq.
5. See for these developments Wm. E. Rappard, Cinq Sicles de Scurit
Collective (1291-1798), Paris-Geneva 1945, p. 11 sq.
6. It goes without saying that this author does not subscribe to dicta
such as Brierly's, who said (R.A.D.I. 23 (1928), 491): "Il n'y avait de
"souverain, ni dans l'Antiquit, ni au Moyen Age, soit en fait, soit en
"thorie".
shall see other examples of it later on. There was the inability
of the emperors to make their authority felt far from the centre
of the empire, the result being a balance of power. Finally,
I mention the slowness, dangers, and difficulties of communica-
tions. All this, operating in conjunction over a period of time,
produced those fateful results which ran so completely counter
to the spiritual climate prevailing in those turbulent centuries.
And now, after facts and institutions: law and doctrine. For
doctrines on sovereignty there existed (even if the word sover-
eignty itself did not), and they have kept their interest and
importance to the present day. We must now examine them.
When dealing with Rome, I drew attention to the ist cen-
tury definition by Proculus of a liber populus externus, what we
would call a foreign power, the definition being is qui nullius
alterius populi potestati est subiectus
1
, "t hat which is subject to
"t he power of no other people." This definition was not for-
gotten during the Middle Ages ; small wonder when it is remem-
bered how very great the attention was which Roman law then
received, and the influence and prestige it then enjoyed. It is
much more surprising that in our day so many peopleand
they were not "les premiers venus"have taught for so long
that in the Middle Ages the concept of sovereignty was un-
known
2
. In his introduction to the "Liber Constitutionum" of
Frederic I I , Roman emperor as well as king of Sicily, Marino
da Caramanico, a jurist from southern Italy of whose life little
is known, but who must have lived in the second half of the
xiiith century, gives a most remarkable treatise
3
on what we
would call sovereignty, and he recalls Proculus' definition
almost immediately in the beginning, the opening sentence of
1. Digest 49, 15, 7, pr. 1.
2. Very important for the whole of this section: v. d. Heydte, Die
Geburtsstunde des Souveraenen Staates (Ratisbon 1952), and Fr. Calasso,
I Glossatori e la Teoria della Sovranit (Milan 1951). For this point see
Calasso, ibid., p. 22 n. 14, where a long list of authors holding this view
is given.
3. This interesting dissertation, of which 2 copies are to be found in
the Vatican and 1 in the National Library at Naples, has been reprinted
as an annex to Calasso's op. cit.
the 3rd section reading: "Sed in rege libero, qui nullius alterus
potestati subiectus est, idem dicimus." Quite a different theory
was offered by St. Thomas Aquinas. I shall refer to their theories
later on.
As a matter of law, however, such kings were considered
exceptions, exceptions to the overall temporal power of emperor
or pope. The old Roman tradition of there being one central
temporal power was so strong, that a king was presumed to be
dependent unless it could be proved that he was a free sovereign,
later known in France as an "alleux souverain". Since every-
thing legal had to be based on Roman or Canon law, the main
legal basis for this general presumption was the canon in apibus
("among the bees") of the Decretum Gratiani
1
which, trans-
lated into English, says: "among the bees one of them is the
"chief, the cranes follow one of them literally: so there is one
"emperor, one provincial magistrate. When Rome was founded,
"it could not have two brothers at one and the same time",
etc.
2
. Such reasonings, which strike us as almost childish,
enjoyed the greatest authority in the Middle Ages, largely
because of their exalted origin.
This, then, was the general rule. As to exceptions, they had
to be construed individually according to the merits of each
case. England was generally
3
supposed to be outside the empire ;
Spain had driven out the imperial troops
4
. The case of France
was a little more complicated, the consecration of its free or
sovereign status being a famous decretal by pope Innocent III
of the year 1202 known as "per venerabilem", in which it was
stated that, since the king of France hardly acknowledges any
superior in matters temporal (cum ipse superiorem in temporalibus
minime recognoscat)
6
, the pope could grant, without offence being
given to anyone, a petition the king had addressed to him.
1. Causa VII, q. I, c. 41.
2. Cf. Calasso, op. cit., 56-57.
3. But not by all: Huguccio of Pisa, teacher of Pope Innocent III, held
that, like France, England was, legally speaking, subject to the Emperor
(see his comment on the Decretum Gratiani in Calasso, op. cit., p. 63).
See also above, p. 23.
4. Ibid., p. 24.
5. Calasso, op. cit., p. 44, quotes Patr. Lat., Epistolae, CCXIV, col.
1130 sq.
That this was commonly accepted, is shown by a Glossa of
Accursius ( 1250) which, on recalling that the sons of those
who belong to the Roman empire are in patria potestate, adds :
Aliae vero gentes quaedam ut servos tenent filios, ut sciavi, aliae ut
prorsus absolutos, ut francigenae
1
, which clearly implies that the
king of France was considered as not being under the emperor.
Without going into other cases such as Sicily and the Scandi-
navian states, we must therefore conclude that in the Middle
Ages there were sovereign states, even although the pope claimed
spiritual (and at times even temporal) overlordship. The sense
of the medieval concept of sovereignty should now be examined.
Sovereignty has two faces. One looks outward, towards the
outside world, being concerned with foreign relations; it was to
this face that the digest referred when, as we have seen, it
defined a free nation as "not being subject to another nation's
power". But in addition to this negative side there is yet another,
a positive face, a face which looks inward, and refers to a na-
tion's power to regulate its own affairs; call it autonomy if you
like. These aspects are what is currently known as external and
internal sovereignty, the study of one being the concern of
international law, whilst the study of the other is the object of
what we call constitutional and administrative law. Now the
digest only referred to the former (which is perhaps surprising in
a work of a predominantly civilistic, and therefore internal
nature). It is greatly to the credit of medieval lawyers that they,
in addition, clearly saw the second or internal side of the ques-
tion. And when we speak of medieval lawyers, this credit should
largely be given to that great centre of legal learning, without
any doubt the primus inter pares of the period : Bologna.
The earliest text I have found is still concerned solely with the
aspect of independence. It is not Italian, but French, not a text
of lawyers who wrote in Latin, but more in the nature of a
popular saying in the vernacular. It dates from the end of the
xnth century, and says:
1. Gl. romanorum, Inst. I, 9.
"Li roi ne tient de nului fors
"de Dieu et de lui" \
in other words: the king of France is not subject to anyone.
Here, as in the digest, independence is asserted, but internal
autonomy is not expressly vindicated. But then there is a coeval
gloss, dating probably from the second half of the xnth cen-
tury
2
, by an Italianised Belgian lawyer, Stephen of Tournai or
Stephanus Tornacensis (1128-1203) who, as a former pupil of
the great glossator Bulgarus, became a "maestro" at Bologna.
Commenting on a passage in the Decretum Gratiani
3
, he said :
"(rex) in regno suo. Vel eundem
"vocat regem et imperatorem"
4
.
A king, this means, has the same power in his kingdom as the
emperor. Both his not being subject to anyone else and his full
authority to regulate the affairs of his kingdom are thus implied.
That this had by then become current doctrine, is borne out
by a remark of one of the greatest Bolognese lawyers, Azo, who
in or about 1200
5
wrote:
"Quilibet rex hodie videtur eandem potestatem
"habere in terra sua quam imperator"
6
.
Until then, the equivalence of a king in his realm and an
emperor was stated as an objective fact, and we shall see that
many continued to treat that equivalence so objectively. But
there were others who injected a subjective note, the initiator
thereof being the great pope Innocent III (1198-1216) himself.
A pronouncement of such a high authority naturally carried
great weight and found adherents. The passage is from the same
decretal "Per Venerabilem" of the year 1202 we have quoted
above to show why France was considered a sovereign state.
In it, the pope said, referring to the king of France, "cum ipse
1. Calasso, op. cit., 35.
2. Ibid., 36.
3. Dist. II, e. 4.
4. Steph. Tornac, Summa, ed. Schulte, Giessen 1891.
5. See Calasso, op. cit., pp. 36-38.
6. Ibid., 38.
(31) ANTIQUITY AHD MIDDLE AGES 31
"superiorem in temporalibus minime recognoscat" (since in
matters temporal he hardly recognizes a superior).
The difference with the preceding statements, including the
digest, is striking. There, kings are said to be sovereign because
of the fact that they have no superior; here because they say that
they recognize no superiora subjective standpoint which is
open to proof that they have a superior. Now in 1202, when this
pronouncement was made, Innocent III happened to be
anxious, for political reasons, to save the susceptibilities of the
emperor
1
. Is it too hazardous a guess to think that, by represen-
ting the sovereign position of the king of France as open to
evidence that he was no sovereign, but subject to the emperor,
the pope was trying to be agreeable to the latter whilst trying
hard not to give offence to the former? I believe that this
subtle change had a political origin, but the curious thing is
that in spite of that origin, which must have been recognized by
every contemporary, several lawyers
2
followed it, Italians and
French alike, though all of the Bolognese school. Thus the great
commentator Bartolus himself (1314-1357), whoin conformity
with the digest which did not speak of kings but of peoples
spoke of commonwealths (civitates) instead of kings
3
; also Jean
de Blanot ( 1255), a Frenchman who studied in Bologna
4
, and
Guillaume Durand ( 1275), a French jurist who spent almost
the whole of his life in Italy, teacher of law in Bologna and in
Modena
5
; they all speak of a king (or commonwealth) who
does not himself acknowledge a superior, and not of a king (or
commonwealth) who, as a matter of fact, is not subject to
another's power.
Others, however, continued the objective tradition of the
1. See, for this episode, Calasso, op. cit., pp. 53-54.
2. Most vehement of all, however, Pope Boniface VI I I (1294-1303),
who with his accustomed violence thundered: "Nee insurgat hie superbia
gallicana, quae dicit quod non recognoscit superiorem. Mentiuntur: quia
de jure sunt et esse debent sub rege romano et imperatore", etc. (Mon.
Germ. Hist., Leges, series IV, t. IV, p. 1, n. 173).
3. Calasso, op. cit., 27 n. 27 and the sources mentioned there. See also
Barcia Trelles in R.A.D.I. 67 (1939), 468.
4. Ibid., 114, 116.
5. Ibid., 115 sq.
digest: Alanus (Alan or Allen), an Englishman who, as so many
in those days when the general use of Latin made learning
truly international, had been drawn to Bologna by the spell of
its legal magic (1208)
1
; Caramanico whom we already have
met before
2
, and, in Spain, Alfonso the Wise, who in 1265
wrote in Las Siete Partidas that the king is, "quanto en lo tem-
por al , bien asi como el emperador en su imperio" and "nos ....
"que por la merced de Dios non habernos mayor sobre nos en
"el temporal"
3
.
So we have seen that the original simplicity and objectivity of
the definition was somewhat marred by Innocent III by the
injection of the subjective element for what may be assumed
were political reasons: consideration for the claims of the
emperor to universal temporal dominion. But the next pope of
the name of Innocent (IV, 1243-1254), when still the great
Bolognese master Sinibaldus de' Fieschi, asserted the correspon-
ding papal claim. Commenting on Innocent Il l ' s decretal "per
venerabilem" to which we have referred, he subtly said that, if
the king of France does not acknowledge a superior, that is
merely a defactostandpoint, for de iure he is subject to the pope,
and not, as some say [ut quidam dicunt), to the emperor
4
.
Small wonder that, caught between the millstones of the rival
claims of emperors and popes, the doctrine of sovereignty could
not flourish in the Middle Ages. Yet, compared with Roman
times, there was no inconsiderable development. In addition to
Proculus' definition in the digest, we have already seen that the
two faces of sovereigntyone looking inward and meaning full
legislative, executive and judicial power, and the other looking
outward and meaning independencewere clearly perceived.
Moreover, it is possible to point to no less than two medieval
attempts at formulating a doctrine of sovereignty. The. first is
1. Ibid., 35.
2. Proemium to the Liber Constitutionum of Frederic II, Emperor
and King of Sicily, X (reprinted as an annex to Calasso, op. cit.).
3. II, tit. I, 1. V and I, tit. 1, 1, XV.
4. For want of space this is a greatly abridged version. See for the whole
story Calasso, op. cit., p. 65. Sinibaldus' statement in Innocentius IV,
Super Decretal. IV qui filii sint leghimi. Per Venerabilem, gl. recognoscat.
(33) ANTIQUITY AND MIDDLE AGES
33
by the South-Italian lawyer Marino da Caramanicoalready
mentioned; the second by St. Thomas Aquinas. Both will now
be briefly analysed.
Marino da Caramanico's treatise is typical for the period
(2nd half of the xinth century) and for legal thought of those
days. With an abundance of quotations from Roman law-texts
to prove his contentions, his argument is as follows :
A free king (i.e., in conformity with Proculus' formula which
Caramanico uses, qui nullius alterius potestati subiectus est) is the
equal of an emperor, and therefore what we call sovereign (and
what Caramanico calls "princeps"), like the emperor. For, like
the emperor, such a free king makes laws. In temporal matters
both king and emperor have the right to command and to see
their commands obeyed; everything in a kingdom, and also
booty, is the king's, just as in an empire it is the emperor's.
Kings as well as emperors have the duty to see that justice is
done; they have the same insignia, and their position vis--vis
the Church is identical. In Justinian's compilation, Caramanico
points out, the words "royal" and "imperial" are used indiscri-
minately, and the word "princeps" is applicable to either king
or emperor. Remember too, he adds, that there is not just one
emperor, but that there are two or three : one in the West, one
in the East, and then onehe saysof the Bulgars.
There follows an argument, in" part of extreme subtlety, to
show that the undisputed fact that Sicily was a fief of the Holy
See does not result in subordination of the Sicilian king to the
pope in temporal matters, but this argument, having no general
significance, need not therefore concern us here. Caramanico
then proceeds to offer an ingenuous theory of more general
interest to show why that king is not subordinate to the emperor,
stating that Rome, having acquired by conquest vast territories
which used to be separate states, did not hold those territories
de iure, but simply defactoa theory which closely resembles the
Stimson non-recognition concept
x
of 1932. The Roman empire
1. Letter from the U.S. Secretary of State (Col. Stimson) to the Chair-
man of the Senate Committee on Foreign Relations, dated Feb ruary 23, 1932
(Hackworth's Digest of International Law, I, 334-335, Washington 1940).
I. 1953. 3
34 E. N VAN KLEFFENSSOVEREIGHTY IN INTERN. LA W (34)
simply suffered, Caramanico adds, what it had made other
people suffer, and he quotes a poet (unknown to me) who said :
"nee lex est aequior ilia
"quam necis artifices arte perire sua".
Do not forget, he recalls, that to liberate is better than to
enslave, and if the empire alleges that we have freed ourselves
through violence, stealth or fraud, we reject that contention.
The treatise endsapart from a few digressions which need
not delay usby declaring that, if in Sicily Roman law is in
force, that is not because Sicily is under the empire, but because
of reasons of convenience. And, he concludes triumfantly, he
feels "without titubation" (sic) that for all these reasons the
king of Sicily is a free king and that he is properly called the
monarch or sovereign ("principem") of his realm.
All this is xmth century international law, strongly imbued
with, in fact thoroughly steeped in, Roman legal concepts.
Caramanico dealt with sovereignty as if it were property in the
sense of Roman civil law: "whereas", he says (XIII, 25), "a
"feudal lord has the direct dominium and civil possession of a
"fief, the vassal has the possessio utilis et naturalis"; as such, his
argument is highly typical for medieval thought on the subject.
For the rest, you will have noticed that it is an argument by
indirection, a sort of syllogism: the sovereign emperor has
certain powers and attributes ; the king has the same power and
attributes as the emperor; ergo the king is sovereignall in the
best medieval style of the schola.
The time has now come to show you that, leaving aside for
once Roman law as the chief source of guidance and inspira-
tion, the Middle Ages produced quite a different theory of
sovereignty, a theory which, though coeval with that of Cara-
manico, was not determined by any given system of law, but
derived from general considerations not dependent on any
place or time, forming part of a majestic construction of univer-
sal design. I refer to that great and dominating figure of the
xmth century: St. Thomas Aquinas (1225-1274).
So far, we have been concerned with jurists, jurists that is
who, true to the methodology of their time, were at pains to
find in Roman law an answer to every problem. St. Thomas, the
"Doctor Angelicus", theologian and philosopher, is different.
If the lawyers swore by Justinian, St. Thomas, always guided
by Christian theology, derived his philosophy from the writings
of Aristotle. It is pertinent to remark here that Aristotle's works,
or what was left of them, had after a long eclipse been restored
to Western thought in the xiith century, having followed a
strange circuitous route: the Greek text had been translated
into Arabic, from which language Jews in Spain translated it
into Latin, one of the earliest re-discoverers being Gerald of
Cremona (1187)
1
. Apart from Aristotle, St. Thomas relies on
the bible and Christian theology; Roman law is not ignored, but
plays a very subordinate part.
St. Thomas knew a large part of Italy, as well as Paris and
Colognea considerable section of the civilised world of his
day. No wonder that, with his extensive learning and his know-
ledge of the world, his bent is universalist : at the same time the
servant of a Church which claims to be universal, and of man-
kind irrespective of nation and race; whose teaching is for all
times and all places, aiming, with rare talent and conspicuous
success, at a compelling demonstration of unity in the plurality
of social phenomena.
Though first and foremost a theologian, St. Thomas is one of
the great figures of political science, whose pronouncements
thereon are to be found not only in many places of the cele-
brated Summa Theologica, but also in his less-known works,
such as the Summa contra Gentiles, the Commentaries on Aristo-
tle's Politica, and especially De Regimine Principum
2
. It is
perhaps not superfluous to recall here a remark of professor
Barcia Trelles, made at this Academy in 1927, when he said
1. G. Cohen, La grande clart du Moyen-Age, pp. 17, 52 (New York
1943).
2. Opera Omnia, Ed. Leon., Vives, Marietti. Of De Regimine Prin-
cipum, St. Thomas only wrote the first book and the first six chapters
of book I I ; the author of the rest being his disciple Ptolemeus of Lucca
(Gettell, op. cit., p. 136 n.).
36 E. N. VANKLEFFENSSOVEREIGNTY IN INTERN. LAW (36)
that in the Middle Ages the sciences had not yet been systematized
in the form of a series of clearly defined subjects, and t hat
theology was the common denominator for all problems
1
.
If St. Thomas was a highly original writer on political and
legal matters because he was not just another adept of Roman
law, h also was original in the sense that he broke with current
doctrine by taking as the central point of his thinking not the
pope or the emperor, but man, whom he calls "naturaliter
"ani mal sociale et politicum", in the footsteps of Aristotle and
his COV TToTuTiKv
2
. I n this respect he was an innovator, or, if
you like, a revolutionary, dealing a first heavy blow to the
hierocratic and the imperial concepts of the political community
as previously advocated by the Holy See and the emperor.
So far by way of general characteristics. But we are specially
concerned with sovereignty, a word St. Thomas never appears
to have used. Yet he gives a complete and original theory of
sovereignty, for which he uses the word "principatus"
3
. States,
he taught, are part of the great universal community of mankind
with one common divine and one common natural law, with
which state-made law must be in conformity. With that reserva-
tion, the state (civitas), like authority a God-given "something",
is a perfect community: it has full authority, and its high mis-
sion is to ensure the common good, an objective aim (although
its translation into fact is a matter dependent on time, place
and circumstance), and therefore by no means destined for
arbitrary or selfish interpretation. I n its interior aspects, St.
Thomas names as the main attributes of a sovereign state the
power to legislate, to levy taxes for the realisation of the bonum
commune, to punish criminals, and to declare war, a catalogue
of which echos are heard to the present day *. In its exterior
aspect, the state is the equal of other states, of whom it is inde-
1. R.A.D.I. 17 (1927), 127.
2. Politics, I, 2, 9.
3. Used in the same sense by Marino da Caramanico, and later on
(1324) by Marsilius of Padua and John of Janduno in their Defensor Pacis
(III, 2, 11) (Goldast, Monarchia II, pp. 153-312).
4. W. Sukiennicki, La Souverainet des Etats en Droit International
Moderne; p. 36 sq. (Paris 1927).
pendent in principle, and also in practice by cultivating, to the
fullest possible extent, cuTpKEioc, that typical Aristotelian con-
cept
1
, which St. Thomas calls per se sufficientia, giving it only
relative significance as the highest degree of self-sufficiency in
every fieldmaterial as well as immaterial, as demanded by the
bonum communeattainable in any given circumstances. Such
is the communitas perfecta: the sovereign state according to St.
Thomas, in which power and reason both aim at the common
good, whilst avoiding arbitrariness and oppression.
You will have noticed that these are concepts and notions
very different from those of the Romanising lawyers. Aquinas
deserved to be discussed here, however briefly and inadequately,
were it only because of his originality of approach and thought,
and because of his comprehensive universalism, in which all the
individual pieces, the concept of sovereignty not excluded, find
their appropriate place in one immense, logical, closely knit
system.
But another main reason for drawing attention to this great-
est of medieval theologians-philosophers is the important fact,
already mentioned, that this saint of the Church dealt a heavy
blow to the primacy of both pope and emperor by adopting the
Aristotelian conception of choosing man as the starting-point of
his system. The cardinal importance of the human individual,
any human individual, was thus restored to the central place it
had occupied in ancient Greece, and in this sense St. Thomas,
who in other respects is so essentially representative of medieval
thought and method, clearly belongs to the Renaissance. He
blazed a trail soon followed by others who broadened it until it
became the highroad of Humanism, closely allied withor to
some extent dissociated from Christianity, that Humanism
which has been so largely instrumental in shaping the whole
Western world as we know it to-day, with its strong accent on
the high value of the individual.
The breach made by St. Thomas in the primacy of pope and
1. Politics, VII, 4-5 ("to have all things and to want nothing is suffi-
ciency" Jowett's translation, Oxford 1885).
emperor was in strict accord with the spirit of the age. The
reality of so many sovereign states asserting their independent
position vis--vis both the Holy See and the empire could not
but strike public opinion forcefully. In Italy, in France and in
England, either the primacy of the pope, or that of the emperor,
or both were under attack. Dante was a champion of the
empire
1
, and by the same token his genius weakened papal
claims. In France, the writings of John of Paris, a brilliant
young Dominican Father, denying that either the pope or the
emperor was superior to the other, tended to confirm the sover-
eign position of the king of France
2
. The French statesman
Pierre Dubois, in a book he wrote in the years 1305-1307, is
extremely outspoken against the emperor: "there is no sane
"person, I believe, capable of thinking it probable that it could
"happen at this conclusion of centuries, that there would be in
"things temporal one single monarch of the whole world admi-
ni s t er i ng everything, whom all would obey as their superior"
3
.
Marsilius of Padua (1270-1340), rector of the University of
Paris, was the author, in collaboration with John of Jandun, of
a book under the title of Defensor pacis ( 1324)
4
, one of the most
remarkable political treatises of the middle ages. Like another
great Franciscan, this time an Englishman : William of Occam
(1280-1347)
B
, he denied the supremacy of the Holy See and
advocated the widest autonomy for individual states.
Thus, the soil was being prepared for new ideas, ideas which
would be in keeping with the facts and realities of the period.
Various developments first weakened, and finally destroyed
the old order. By the nature of things, the Great Schism (13 78-
1429) did great damage to the claims of the Holy See to supre-
macy. Most especially, the Renaissance put as strong an accent
on the individual as earlier medieval thought had placed on one
1. De Monarchia (about 1310). See H. Kelsen, Die Staatslehre des
Dante Alighieri (1905).
2. De Potestate Regia et Papali, Goldast, Monarchia II, p. 108.
3. De Recuperatione Terrae Sanctae. ed. Langlois, in Collect, de Textes
pour servir l'tude et l'enseignement de l'histoire (Paris 1891). The
quotation is from par. 63.
4. Goldast, Monarchia, II, pp. 153-312.
5. Ibid.
central authority. Machiavelli not 'merely dissociated politics
from morality, but stressed the independent position of the
individual ruler
1
. Most Italian city-tyrants, those typical repre-
sentatives of individualistic excesses to which the Renaissance
gave rise, recognized no one above themselves except, theoreti-
cally at least, God. Soon, the reformation attacked even the
spiritual authority of the pope; it proclaimed the individual
conscience to be free from subjection except to God alone. Both
the Renaissance and the Reformation tended to assert the free
state as they asserted the free individual, and all this naturally
contributed to sapping and destroying whatever was left of papal
and imperial claims to universal supremacy.
But often old ideas are slow in dying, and a last flicker of
those claims to supremacy was seen after the discovery of
America had raised such questions as to whether the emperor
could, as emperor, claim the newly discovered territories, and
whether the Holy See had power to assign them. How' claims in
this direction were effectively and once for all refuted by the
great Spanish theologian Francisco de Vitoria is a fascinating
story, told in a remarkably lucid and lively way, in 1927, by
professor Barcia Trelles, in one of the best lectures ever given at
this Academy. If you do not already know that striking exposi-
tion, I believe you will read it not only with profit, but with
pleasure. Rather than trying to give a precis of it, I would refer
you to the original
2
.
And herewith we close our chapter on the Middle Ages. The
old champions of one world in things political stir no longer in
the field which in previous centuries had been the scene of their
vociferous claims and clashes. The road is now free for the
continued evolution, without interference by imperial or papal
cross-currents, of the sovereign state of the modern era, and
of the theory of sovereignty.
1. Charles Benoist, L'Influence de Machiavel, R.A.D.I., 9 (1925),
131 sq.
2. R.A.D.I. 17 (1927), p. 128 sq.
CHAPTER II
THE MODERN ERA
1. A NEW CIVITAS MAXIMA : THE SOVEREIGN STATE AS A MEMBER
OF THE INTERNATIONAL COMMUNITY UNDER NATURAL LAW
T
HIS is the period in which the words "sovereign" and
"sovereignty" became firmly accredited in the language
of law and politics, and the sovereign state definitely
established as the subject par excellence of international law. Whilst
before the law the sovereign state was, as such, the absolute equal
of all others, great or small, its relative importance lay in the
realm of fact or, to be more precise, of power and ceremonial
not in that of legal status. This came to be the general
conception of this period regarding sovereignty. But this also
is the point where diversity of opinion begins. We now have
to address ourselves to an analysis of this evolution.
As before, we shall not confine ourselves, as too many
authors do, to the ideas of philosophers and lawyers alone.
True, philosophers and lawyers are often those who formulate
international law, but the contribution of the politicians and
men of action in general is frequently neglected. Even if they
do not themselves formulate international law (they have done
it, as everyone knows, very often), it is they, the men of action
who, together with facts or events beyond human control,
create the raw material from which rules of law are distilled
by others. It is impossible to say whose is the major share,
but both groups have their importance.
From the thirteenth century on, the spirit of individualism,
so characteristic of the Renaissance, allied to a tendency to
dissociate politics from morality, led to a paroxysm of self-
assertion in the Government of the North-Italian city-states
long before Macchiavelli gave incisive expression to t hat
(41) THE MODERN ERA 41
mentality
1
. With few exceptionsthe main being Venice and
Genoa, these cities were in the hands of a number of the
most unscrupulous tyrants the world has ever known. Having
come, in very many cases, from nowhere, with no legitimate
position and no dependable followers, their roots were shallow
and shaky their fortunes; perpetually threatened by rivals,
they defended themselves by every possible means, and good
faith or scruple counted for nothing. This orgy of power and
of attempts to seize or preserve it, whatever the means, resulted
in purest anarchy, and it may be doubted whether those city-
despots had a common code of honour such as so many criminal
societies keep as their unwritten law.
In this respect, Northern Italy of the later Middle Ages was
on a small scale what, but for the action of the great inter-
national jurists of the xvith century and their disciples,
Europe and the world might well have become as time went
on. The spirit of the Renaissance was a ferment which quickly
spread beyond the borders of Italy. Its action was fully deployed
when, from the beginning of the xvith century, a new and
powerful agent came to strengthen its individualist tendencies:
the Reformation, with its strong accent on direct and exclusive
responsibility of the individual to God, sovereigns thus being
responsible for their stewardship to no one but the Creator
alone. Secondly, the old pattern of Western tradition found
itself suddenly shaken beyond measure by the discoveries of
Africa, India and the Americas, discoveries which affected
everybody (were it only by a tremendous rise in prices)
x
and,
raising a host of brand-new problems, broadened the horizon
far beyond the confines of Christendom and Turk. A spirit
of inquiry and adventure, of individual action and self-reliance,
of international anarchy was abroad, discarding old restraints.
This was true in particular as regards the rulers of states,
freed from their now antiquated fetters of papal or imperial
1. Reference is made to the excellent lectures given on the subject by
the late M. Charles Benoist in this Academy, R.A.D.I. 9 (1925), p. 131 sq.
2. See Marjorie Grice-Hutchinson, The School of Salamanca (Oxford
1952), pp. 1-4.
supremacy, and, as a reaction, going to extremes of self-
assertion.
Those were the general tendencies, pronounced and enduring.
The attempts at giving them a rational basis were there too.
"The greatness of a prince, " said in 1576 Jean Bodin (whom
we shall meet less perfunctorily hereafter) sadly and resignedly,
"t he greatness of a prince is, to speak the truth, nothing but
"t he ruin or reduction of his neighbours, and his strength is
"merely somebody else's weakness."
1
Hear also the lugubrious
Thomas Hobbes (1588-1679), grand theorist of international
anarchy: "I t is manifest that during the time men live without
"a common power to keep them all in awe, they are in that
"condition which is called war; and such a war, as is of every
"man against every man. ... To this war of every man against
"every man, this also is consequent, that nothing can be
"unjust. The notions of right and wrong, justice and injustice
"have there no place. Force, and fraud, are in war the
"two cardinal virtues."
2
And king Charles Gustaf of Sweden
(1622-1660), who pompously declared: "I n olden times, God
"condescended to speak to the kings through prophets or
"visions; nowadays He makes His purposes known to us by
"t he favourable circumstances in which he puts us to extend
"our frontiers at the expense of our neighbours. In taking
"advant age of these opportunities, we only obey the divine
"wi l l . "
3
The tendencies to let Europe revert to the law of the jungle
were very strong. Also, the sovereign states had novel means
to assert themselves. With the disappearance of the feudal
system as a living force in human relations, the old feudal
armies also disappeared. Their place was taken first by mer-
cenaries; "in military organisation the period before Louis XI V
"may be characterized generally by saying that wars were
carried on with men and money provided by private entrepre-
1. Les Six Livres de la Rpublique (ed. of 1608), pp. 792-793.
2. Leviathan I, 13 (Mol^sworth ed. I l l , pp. 112-113 and 115).
3. Quoted by R. Dupu4, in "Aperu des Relations Internationales en
Europe", R.A.D.I. 68 (1939), 80.
"neurs."
x
Later on, the mercenaries were replaced by standing
armies: the colonel, from manager of his regiment, became
the servant of a sovereign state. Similarly, at sea the task of
the privateers and armed merchantmen was secondary to the
national navies. These armed forces, having become an integral
part of the machinery of the sovereign state and obeying
exclusively its sovereign discretion, accentuated its separateness
and made it more averse than ever from recognizing any
superior, physical or spiritual.
Yet another force should be mentioned tending to create
self-contained, rounded-off states : the desire to unite scattered
territorial possessions into one single territory without enclaves.
Telders gave a good illustration in the case of France
2
, annexing
Calais, Artois, Bresse, Bugey, Gex, Lille, Beam, Charolis,
Roussillon, Franche-comt, etc., in little more than one century.
We also know the history of Prussia. The time of the national
state came only later, although since 1640 (capitulation of
the city of Arras) there are many treaties in which the inha-
bitants of a ceded territory are granted the right to leave the
territory on condition that they sell their real property.
3
It goes without saying that all these facts and institutions
strengthened the separate individuality and dynamism of the
sovereign state, which asserted itself, driven on not only by
political ambition, but also by a desire for economic gain.
The general welfare of the international community counted
for little if anything; the welfare of the individual sovereign
state was all that mattered, and is not that, to some con-
siderable extent, the position even to-day? These things are
too well known to require comment. Let us rather see what
happened to temper the unfettered individualism of the
sovereign state.
The xinth, xivth and xvth century were the time of
1. G. N. Clark, The Seventeenth Century (1929), p. 103 (quoted by
B. M. Telders in a sketch for an essay on the rise of sovereignty, in Ver-
zamelde Geschriften vol. II, pp. 304-305).
2. Op. cit., p. 305.
3. J. L. Kunz, L'Option de Nationalit, in R.A.D.I. 31 (1930),
p. 114 sq.
44 E. N. VAN KLEFFENSSO VEREIGNTY IN INTERN. LA W (44)
its Sturm und Drang. It required a very long apprenticeship to
find its bearings and to get to know the extent and limits of
its "sovereign" power. In present-day conditions of rapid and
frequent communications between thickly populated and
closely administered states, that process would no doubt have
been much shorter. But in those centuries each sovereign lived
to a large extent in a sphere where the pressure of his equals
was not constantly felt, and although this led to the illusion
of being as much a sovereign as Charlemagne himself, it was
quite a pleasant illusion, which was not at all refuted daily
by stark reality. Only in cases of enemy invasion or of a defeat
was the pleasant illusion disturbed. No wonder that it took
sovereigns a long time to realise that they were not so sovereign
after all.
Charlemagne had been a real sovereign, sitting alone in
imperial splendour at the top of the political pyramid. But
in that unique sense, those that came after him and called
themselves sovereign were not sovereign at all. "If one state
"can determine its relation to other states, " thus wrote a
xixth century American sociologist, "then all with an equal
"sovereignty must have the same right", a remark he preceded
by declaring: "this kind of sovereignty has proved itself
"untenable; it is illogical."
1
This passage is important, because it shows that, as soon
as there was more than one sovereign calling himself sovereign,
the notion of sovereignty changed its meaning. Instead of
denoting the one and only figure with imperial authority over
everybody everywhere, "sovereign" came to refer to n more
than one out of many independent princes or commonwealths,
not subject to anybody else's authority and therefore free to
administer their state at will. But in the matter of relations
with outside powers, those sovereignsnew stylesaw their
sovereignty limited wherever it impinged upon the similar
sovereignty of someone else.
This was purely a de facto limitation, and many were the
1. John H. W. Stuckenberg, SociologyThe Science of Human Society
(New York 1903), pp. 124-125.
attempts, despite this restriction, at extending the limits by
waging war. But wars, however numerous and frequent, were
not perpetual, and in any event these sovereign states in the
new sense, being as many individually directed, but uncoor-
dinated forces, reached every time, consciously and purposely
or unconsciously and naturally, a precarious and unstable
equilibrium, unstable because the energies of these forces were
constantly shifting and changing. Such is the nature of the
balance of power, that well-known term of political science
and practice. Thus it had been in the city-states of It al y;
1
thus it was in the rest of Europe from the Middle Ages until
the First World War; thus it will always be where law, morality
or a sense of order do not speak, or do not speak loudly enough.
The balance of power is the result of a law of nature (law in
the sense of a law of physics), not a principle of law in the
legal sense. It may be consciously sought, as was done, amongst
others, by Henry vm of England, who had his portrait painted,
as described by a xvinth century author: "holding in a
pair of scales France on the one side and Spain on the other
so perfectly balanced that he alone determined, by casting a
weight he held in one hand, which scale would go up and
which down, his motto being: Cui adhaereo proest (the one I
support wins) .
2
But even if that balance is not consciously
sought, it will nevertheless always be attained, however unstable
and variable, because the mechanics of the forces in action
make it unavoidably so. To help attain it is, therefore, a wise
attempt, especially if it is done not by one Power alone in
its exclusive interest, but by a Conference of Powers for the
common good, such as was done in the treaties of Munster
(1648), of Utrecht (1713) where it was for the first time
expressly declared to be the basic purpose of the Conference,
the Congress of Vienna (1815), and numerous later ones. Far
from censuring the statesmen of the xixth century because
of their constant preoccupation with the balance of power
3
1. R. Dupuis, op. cit., p. 75.
2. Ibid., p. 76.
3. See very numerous instances in Bruns, Fontes Juris Gentium (Berlin
1932-1938), s.v. "Balance of Power".
46 E. N. VAN KLEFFENSSOVEREIGNTY IN INTERN. LA W (46)
(as has so often been done in our days, especially in America),
they deserve credit for having discerned so clearly a truth we
have, since the peace of Versailles, only too often lost sight
of,
x
offering to new Gods, with disastrous results.
In any case, what we have to remember is that the natural
tendency of sovereign states to find a balance of power is the
demonstration ad culos of the fact that they are no longer,
can no longer be, sovereign in the sense of having unlimited
authority, but that the extent of their authority is conditioned
and limited by their own factual power and the factual power
of their equals.
So far for limitations of sovereignty of a factual nature. We
shall now have to discuss limitations of an untangible, but no
less real nat ure: limitations of morality and of law.
For many centuries, there had existed the concept of a law,
immutable and perennial, implanted in the human mind and
binding everybody. This concept is much older than Roman
law. In Sophocles' Antigone,
2
the heroine says: "An edict,
"even if promulgated by a Power having the legitimate right to legislate,
"cannot have enough force to give to mortal man the capacity
"to break the divine decrees, unwritten and i mmut abl e; for
"they do not exist since to-day or yesterday; they are eternal,
"and no one can say how remote is their origin." And in
Oedipus Rex
3
he adds : "A great God dwells in them, and this
God knows of no old age. " Is it not remarkable that Sophocles
understood, and said so clearly, that these laws, engraved
upon the mind of every human being, are valid just as much
for a sovereign legislator?
This idea of a perennial universal law born with the human
race, found in the human conscience, binding all human
beings and in force among every nation, a law which no human
authority can change and from whose validity there is no
escape, has never since been lost. This concept found many a
1. See for this subject in general: O. Nippold in R.A.D.I. 2 (1924),
pp. 25 sq., and Ch. Dupuis, Le principe de l'quilibre et le concert europen
(Paris 1909).
2. V. 453 et seq.
3. V. 863 et seq.
champion in modern times ; it was dealt with at this Academy
only last year by Professor Rolando Quadri in the first chapter
of his lectures on the basis of the obligatory nat ure of public
international law (R. A. D. I. 80, 583 sq.).
I t would be far beyond the scope of these lectures to trace
the course of this law through the centuries; those who are
interested therein I would refer to a remarkable book of the
late Dr. Kosters, "Le fondement du Droit des Gens " .
1
He
traces its development from earliest times to the modern era,
through Aristotle, Cicero and Seneca, the great Roman lawyers
and the Fathers of the Church, Isidore of Seville and St. Tho-
mas. And then he reaches the sixteenth century.
This was a period in which the age-old concept of this law,
often known as natural law
2
, attracted and acquired a new
interest. The old idea of a universal empire and of a universal
Church was then out of date : the civitas maxima of the Middle
Ages had lost its organic character, and many new lands and
un-Christian nations had been discovered in various parts of
the world. But it became manifest that people continued to
feel the need of some universal principle, and the question
may be asked whether this was not, in part at least, a reaction,
conscious or unconscious, against the prevailing anarchy of
those days. It was Vitoria, the same Vitoria who dealt the
death-blow to the claims of the old civitas maxima under the
universal authority of pope and emperor, whoso far as I
knowwas the first to draw the conclusion that, if there was
one common law binding all human beings, these same human
beings are for that reason members of a community, the com-
munity where that law prevails, viz. the human community
of the law of nat ure. We see here further evidence of this
hankering after something all-embracing, something universal,
a new civitas maxima, which seemed then, as it seems now, to
fill a spiritual need of the human race, a need which, in the
1. Bibliotheca Visseriana, vol. IV (Leyden 1925).
2. The precise meaning of the term "natural law" varies greatly between
authors; Koster's book is a real Ariadne's thread in this labyrinth. But
it all comes to the same.
realm of music, has found its supreme expression in Beet-
hoven's Ninth Symphony.
We mentioned Vitoria, one of the great glories of Spain,
that humble, profound, independent, original, fearless thinker.
The passage which, for want of contrary evidence, seems to
be the origin of the concept of the human community of the
law of nature, is to be found in the thirteenth paragraph of
the third of his famous "relectiones" de Indis, where the word
societas humana occurs. Moreover, the same Vitoria, taking up
an idea already expressed, as we have seen, by Sophocles,
declared that not only human beings, but also nations are
bound by natural law
x
: a truly momentous innovation, rich
in consequences, and particularly important, as goes without
saying, in respect of sovereignty. For if a sovereign state is
subject to natural law, then sovereignty is not unlimited, but
by the nature of things subject to such rules and restrictions
as are part of, or derived from, or permitted by natural law.
And so we suddenly see clearly before us those two con-
trasting influences, opposed to one another as the two magnetic
poles, which can be discerned in the whole history of the
modern age: the tendency of states towards instinctive, un-
bridled self-assertion, and their tendency towards rational and
ethical behaviour under the rule of law. The story of the
nations is very largely the story of the conflict of these two
opposing forces.
After an interval of more than half a century, Vitoria's
pioneering work, whose very newness apparently required time
to percolate, gradually found adepts everywhere. If I may
quote a few instances at random, I wouldfollowing the
chronological orderfirst recall the French Chancellor Michel
de L'Hospital (1507-1573), who conveyed the essence of a
universal community under natural law, saying: "Just as it is
"the same sun that shines in Paris and spreads its light and
1. Rei. De Ind III, 1. The innovation consists in deliberately sub-
stituting, in a well-known passage from Justinian's Institutes, the word
gentes for homines, making it read : "that law, however, which natural reason
has established between all nations ... is called the law of nations".
"heat over Rome and Constantinople, so the divine justice
"and also natural law is no other amongst the savages of
"America than amongst the Christians of Europe."
1
The
writings of his younger contemporary and compatriot Jean
Bodin (1530-1596), about whose part in shaping a doctrine
of sovereignty more will be said hereafter, are wholly impreg-
nated with the idea of the community of the human race
2
,
and it is interesting to note that in one of his less-known works
3
he also gives an economic basis (as timely a warning in our day
as it was then) to this universal community, saying that "a
"number of important people ... believe that we can live
"happily and with a wide market without sending anything,
"or receiving anything from, abroad. But in my opinion they
"are wrong: for we have to deal with foreigners, and could
"not do without them". And, he continued, apart from moral
considerations, it should be remembered that God "has dis-
"tributed his bounty in such manner that there is not one
"country in the world so richly endowed that it does not lack
"many things. Which God appears to have done to keep all
"subjects of his republic in friendship, or at any rate in order
"to prevent them from waging war against one another for
"a long period, being always in need of each other".
4
As for Italy and England, we may perhaps point to Alberico
Gentili (1551-1608), Italian by birth but active in England as
professor in the university of Oxford. He declared that Gentium
ius situm est in generis humani societate (the law of nations has
its basis in the community of the human race),
6
and also
spoke of the humanae societatis communio,
8
the community of
human society. As to the Netherlands, my illustrious com-
patriot Grotius mentioned in his early work De iure praedae
1. Quoted by A. Gardot, Jean Bodin, R.A.D.I. 50 (1934), 560.
2. Ibid., Ch. II, para. 3: "La Communaut Humaine".
3. "Rponse aux paradoxes du sieur de Malestroit touchant renchris-
sement et la diminution des monnoies" (1568).
4. Quoted (in French) by Gardot, op. cit., pp. 607-608.
5. De Iure Belli (1588-1589), Book I, Ch. XV. In the same sense, also
in England, and quite explicitly, Thomas Hooker (Ecclesiastical Polity,
1592, I, 10, quoted by Reeves in R.A.D.I. 3 (1924), 28).
6. Ibid. Ch. XXV.
I. 1953. 4
(Prize Law), written in 1604-'05 but only published in 1868,
the communis humani generis societas which, he said, has been
established by God ;
1
it is interesting to see that, like Vitoria
and Michel de L' Hospital, he did not restrict this community
of the human race to Europeans or whites, but to all men
whichever their race, his remark being made on account of
the realm of Johore, in Malaya, whose king has asked the
Dutch for assistance; a passage, incidentally, showing how
well-informed Grotius was with regard to things that, in those
days without newspapers, took place in those remote parts.
2
It thus appears t hat the idea of a universal community of
mankind had taken firm roots in Western thought, when in
1612 Francisco Suarez (1548-1617), a Spanish member of the
Society of Jesus then teaching in the great and ancient Por-
tuguese University of Coimbra, published there his great work
De legibus ("the laws"). In this book he revived and streng-
thened the idea of his illustrious predecessor and compatriot
Vitoria of a law inter gentes (between the nations), proclaiming
with compelling logic and great clarity t hat there is not only
a universal community of all mankind, but that the various
states into which this community is subdivided are, in their
relations with one another, subject to rules of law, from whose
authority there is no escape. By speaking of states rather t han
of nations, as Vitoria had done, Suarez gave this concept a
more precise and more juridical significance. The decisive
passage referred to has exercised so great an influence
3
that,
although it has often been quoted, it richly deserves a place
here. It reads :
4
"Manki nd, although divided into various peoples and
"realms, always possesses some unity, and this not only with
"regard to species, but also in the political and moral sense
1. Ch. XI I I .
2. Grotius, when writing De Iure Praedae, was acquainted with both
Vitoria's work (which he quotes 53 times in his own book) and with the
work of Gentili, quoted 10 times (C. van Vollenhoven, Grotius and Geneva,
in Bibl. Visseriana VI, 7).
3. Yet, I agree with Barcia Trelles' reasons (R.A.D.I. 43 (1933), p.
463 sq.) for declaring that Vitoria is the greater of the two.
4. Book II, Ch. 19, para. 5 (in other ed. para. 9).
"as indicated by the natural precept of mutual love and
"compassion, a precept extending to all, even foreigners,
"and foreigners of whichever nation. It is for this reason
"that, although any full-fledged state, either republic or
"kingdom, is in itself a community in the fullest sense,
"constant for those that belong to it, nevertheless any such
"state is in addition a member, in one way or another, of
"that universe which regards the human race: for those
"communities never are self-sufficient to such a degree that
"they do not need some mutual assistance, company, and
"relationship, sometimes for their greater well-being and
"usefulness, sometimes, however, even because of their moral
"want and need, as is certain because of usage itself. For
"that reason, therefore, they are in need of some law to be
"guided and rightly directed by in this kind of relationship
"and society".
It seemed well worth while to explain these developments
at some length, inasmuch as they are fundamental, not only
in respect of international law in general, but in particular
for the concept of sovereignty. The existence of separate
sovereign states now had been clearly recognized; the fact
that they form a community under law had been given a
firm doctrinal foundation; and it could no longer be denied
that in their mutual relations, so far from being free to do as
they please, they were, on the contrary, subject to rules of
law. The contrast with medieval ideas could hardly be more
striking: here vertical subordination; there juxtaposition and
horizontal relationship. These concepts have never since been
lost.
1
Frequently ignored or denied, and at times treated with
disdainful contempteven in our own days, they proved,
1. This is not to say that there are no important theories which reject
the concept of a law binding all states and all humans whether they accept
it voluntarily or not. The whole "positivist" school, of which more will
be said later, rejects that concept. The Permanent Court of International
Justice has adhered to the theory that the rules of law binding upon states
emanate from their own free will as expressed in conventions and general
usage (Case of the "Lotus", P.C.I.J., Series A, No. 10, p. 18). British
courts have held the same view, see Brierly in R.A.D.I. 23 (1928), p. 479.
52 E.-N. VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (52)
like the British "old contemptibles" of 1914, irrepressible. There
j ust is too much "vi rt ue" in them, and the sooner this is
generally recognized and put into practice, the better for our
short-sighted human race. International law seems once again
to be in rather low esteem in our age, but there is no doubt
t hat this is only a phase which will pass, as all such phases
have passed. Those who fought the sane precepts of inter-
national law have never yet won a lasting victory. Meanwhile,
the age-old struggle between unbridled self-assertion and true
law-abiding conduct goes on, as reflected by the vicissitudes
of the notion of sovereignty.
Towards the end of the xvith century conditions and
conceptions had changed so much as compared to the end
of the Middle Ages, t hat a restatement of the theory of
sovereignty seemed long overdue, a restatement reflecting the
new ideas of an international world community ruled by law,
devoid of reminiscences of imperial or papal supremacy, exempt
from feudal overtones, and as nearly free as possible from
scholastic encumbrances. It was not long in coming, and it
came from Jean Bodin (1530-1596), the man, too, whom so
many text-books name as the initiator of the theory of sove-
reignty, often quoted, but rarely read,
x
man of religion,
statesman, practising lawyer, political philosopher, and, most
especially, champion of the central authority of the kings of
France.
For Bodin is not concerned, as St. Thomas was, with a
general synthesis of the human world, nor do his writings bear
the stamp of Vitoria' s lofty objectivity. He was one of those
ardent French patriots who appear to see France more clearly
t han the rest of the world.
2
If St. Thomas was the universal,
abstract philosopher, not bound in his thinking to any race
or nation, Bodin was the advocate of his own country' s interests
as he saw them. St. Thomas' life was as serene as Bodin's was
1. H. Heller, Die Souvernitt (Berlin and Leipzig, 1927).
2. De Republica, I, Ch. 9: "regem Francorum laudis et gloriae corona
reges omnes superare".
tumultuous, bound up as it was with the ideological and
political convulsions that shook France in the xvith century.
Yet he found time to philosophize, and his political philosophy
is, as we shall presently see, wholly imbued with the ideas
first formulated, half a century earlier, by Vitoria. Did he
know the "Relectiones" ? So far this has not been established
with certainty. What is certain, however, is that Bodin received
part of his education in a Carmelite monastery in Paris in
the years from 1544-1546,
1
twelve years at least since Vitoria
delivered his famous lecture "On the newly discovered Indies";
and his Six livres de la rpublique was only published thirty years
later, nineteen years after Vitoria's lectures were first printed
in 1557. There has, therefore, been every possibility for Bodin
to be acquainted with Vitoria's work.
However that may be, and before giving an outline of Bodin's
theory, a general remark seems in order here. It seems to me
that, when in 1936 Professor Brierly gave his admirable lectures
here on the rules of the law of peace, he quite rightly drew
attention to the fact that, as a matter of principle, the theorists
who developed the doctrine of sovereignty were not interested
in the relations of states inter se; they all thought of the single
state in abstracto, and paid comparatively little attention to
the question as to how the theory of sovereignty could be
applied in a world containing a fair number of states. The
international lawyer, on the other hand, is concerned not with
the state in abstracto, but with the states whose very co-existence
is his chief starting-point, and he therefore must require a,
theory on the nature of the state which is at least consistent
with the relations which he finds exist between them.
2
The
confusion reigning around the concept of sovereignty in inter-
national law is very largely the result of the regrettable fact
that the sovereign state was first defined by people who, what-
ever they were, were not international lawyers, people like
Hobbes, or Hegel, who did not pause to think whether their
theories fitted the facts of international relations. The older
1. Gardot in R.A.D.I. 50 (1934), p. 567.
2. R.A.D.I. 58 (1936), p. 25.
54 E. N. VAN KLEFFENSSOVEREIGNTT IN INTERN. LAW (54)
international lawyers let the opportunity go by to influence
decisively the orientation of the concept of the sovereign state,
with the result t hat their successors were hampered by many
inapplicable ideas, inconsistent with observed fact. Too often
they tried to use material they should have resolutely discarded
as unfit, the consequence being strained or untenable theories
such as that of the auto-limitation of the state, or of the fun-
dament al rights of states. But more thereof hereafter.
It is the merit of Bodin, that, having France and her king
in mind, he formulated his ideas on the sovereign state in
such manner as to make them not only applicable to other
states, but also consistent with the coexistence of other states
and with Vitoria' s conception of a universal community of
states bound by law.
Bodin is an exasperating author, chiefly because he is un-
systematic to a degree, and seems to wander from one topic
to another. Whilst this does not make a condensation of his
doctrine any easier, I hope that the following, avoiding (amongst
recent authors) both the panegyrics of the late M. Gardot
x
and the strictures of Dr. van Welie
2
, will be deemed by most
unprejudiced people to be a fair synopsis of Bodin's theory
in so far as pertaining to international lawother aspects
being left for others to discuss.
Bodin published his main work (Les six livres de la rpu-
blique) both in French and in Latin, and the two texts differ
not inconsiderably. In the French text he speaks of "souve-
rainet" and "mai est "; in the Latin edition of "majestas",
"summa potestas", "summum imperium", infrequently
3
"suve-
renitas". This sovereignty, he says in the Latin text (I, 8; the
French text is somewhat different), is not limited by superior
power; it is "t he highest power over citizens and subjects,
and is not subject to the laws". These latter wordsand this
seems a very important pointdo not mean at all that a
sovereign is above all law: Bodin makes a distinction between
1. Jean Bodin, in R.A.D.I. 50 (1934), pp. 549 sq.
2. Thomas van Aquino en Joannes Bodinus, diss. Nijmegen, 1936.
3. See his "Methodus ad Facilem Historiarum Cognitionem", Ch. VI.
law and the laws, and whilst the sovereign is, according to
Bodin, above the particular laws of the country he rules over,
yet he is subject, as a member of the general community of
the human race, to the divine or natural law and to the law
of nations:
x
"For, " Bodin says, "even is we define sovereignty
"as being free from all laws, nevertheless there is no sovereign
"to be found who has the absolute fulness of sovereign rights,
"since the divine law and the law of nature bind them all,
"as also the common law of all nations" (Les six livres de la
rpublique, I, Ch. 8), and he adds that no sovereign can alter
the divine or natural law {ibid., I, Ch. 9).
The similarity with Vitoria's ideas, and also with the ideas
of St. Thomas, is striking at this crucial point. It follows that
Bodin's theory can never fairly be construed as a doctrinal
basis for an absolute sovereignty, heedless of other sovereigns.
Always confining ourselves to topics of international law, it
should be added that Bodin paid considerable attention
2
to
the question whether states whose relationship to another state
is that of a dependent, may yet be considered sovereign, and
he indulges at this point in some casuistry. Generally speaking,
he is somewhat reluctant to deny sovereignty: a state having
succeeded in paying tribute to another so as to buy off pillage
he still considers sovereign, but not a state which has been
forced to pay tribute; also, in his opinion the acceptance of
protection need not in itself be tantamount to loss of sovereignty.
He is much less impressed by moral concepts than either
St. Thomas
3
or Vitoria or, after him, Grotius: "if a tyrant
"holds a realm by force, " he says,
4
"it is his, just as one who
1. There are in addition, according to Bodin, secondary limitations:
the sovereign can alter neither the law governing his succession, nor the
attributes of Sovereignty, nor can he dispose of public property.
2. Republica I, Ch. 9. Grotius later did the same (De Iure Belli ac
Pacis I, 3, 21-22).
3. St. Thomas and Bodin differ on numerous points, some of which
are fundamental; see van Welie. op. cit., especially part III. But in the
limited field of the theory of sovereignty, the similarities outweigh, I think,
the differences that come to the surface.
4. Ibid., I, Ch. 8.
56 E. N. VAN KLEFFENSSOVEREIGHTY IN INTERN. LAW (56)
"takes somebody else's possession by force, possesses it even
"although this happens in violation of the l aw. "
We saw, when discussing the theory of St. Thomas, t hat
this author gave a list or catalogue of the attributes of sove-
reignty, attributes which together can be enjoyed only by what
is known as a state. Bodin does the same. Many of these
attributes (he names quite a number of them) either are of
secondary interest from the point of view of international law
(though quite important from the point of view of internal
law), but the right to declare war and make peace should
be mentioned here as of the essential attributes of a sovereign
state ("qui est 1'un de plus grand poincts de la maiest",
says the French text).
2
Like Proculus, like Caramanico, like St. Thomasto name
only these by nameBodin, therefore, used the old criterium
of a sovereign, being someone who has no superior above
him. Also his notion of the sovereign being the supreme
authority within the state was not new, as we have seen in
the chapter on the Middle Ages. His originality from the point
of view of international law lay in the fact that he united these
concepts with Vitoria' s idea of a world community ruled by
natural law. That claim to legal glory will remain his for ever.
And herewith we close this Chapter. The factual limitations
of unbridled sovereignty found their parallel in legal restraints
based on the law of nature binding states and individuals alike.
The world, at the end of the XVI t h century, seemed set for
a career tempered by these moderating influences. Unfor-
tunately, there were other legal considerations which, as time
went on, tended increasingly to set these moderating influences
at naught, releasing the old illusionshighly dangerous for
international peaceof the unlimited legal power of the
sovereign state. The next section of this Chapter will show
how this came about.
1. Ibid., I, Ch. 10.
CHAPTER III
THE MODERN ERA {continued)
2 . DENATURATION AND REDRESS
NEWER THEORIES
B
ODiN died in 1596, having left us a penetrating, although
neither a wholly original, nor a highly methodical analysis
of the sovereign state. A new century was about to open. A
brilliant overture in the form of Grotius' writings heralded
an anticlimax of nearly threehundred years' duration, in the
course of which a majority of lawyers, abandoning their high
mission of being a curb on international licence, made them-
selves its willing tools and servants. Law let down the barriers
it had itself created, with the result that sovereignty could
and did follow, unchecked except by the existence of other
sovereignties, the perilous and fateful path of self-righteous
arbitrament. Let us see how this came about, and what reactions
it released.
I.
First, as has by now become our well-established method,
the facts and the institutions.
When in 1625 Grotius published his main work, there was
Armageddon all over Europe. The Eighty Years War between
the Netherlands and Spain had flared up again. The brutal
Thirty Years War in Germany had begun a few years before.
Both, as all know, ended with the Peace of Westphalia in 1648.
This was a truly momentous peace-settlement. It finally
ratified the collapse of papal and imperial authority as an
active principle of international order. It consecrated the
emergence of several individual sovereign states, and hence-
forth the individual sovereign states were the acknowledged
building-stones of the political world. Concurrently, an early
rationalism, subsequently developed, began to take the place
of the metaphysical conception of a law of nature ; sovereignty
and the other side of the same medal : independence, were
looked upon simply as realities. Soon, the law of nature, though
upheld by some, was discarded by most. Once severed from
transcendental truth, the theory concerning sovereign states
entered into partnership with politics, becoming all too often
its ready instrument by justifying this or denying that act of
statecraft, as the case might be. So it has been to the end of
the First World War in 1918
x
and beyond.
There were, of course, great institutional differences between
the various states of Europe. In England, the accent had long
lain on Parliament and the law, not at once since Magna
Chart a (1215), but finally after Richard II' s unsuccessful bid
for absolute power (1399), and in spite of leanings towards
absolute power on the part of the Stuarts. In 1628 Sir Edward
Coke said pithily: "Magna Chart a is such a fellow t hat he
will have no sovereign"; in spite of passing parliamentary
eclipses, this remained the dominant note. On the continent,
in France and Spain, in the states of Germany, in Austria,
Russia, and the Scandinavian countries, the dominating element
was, or became more and more, the monarch' s power. The
Netherlands, not a republic except in name, but a special
form of the federative state
2
, were a type apart.
But whatever the differences in internal organisation, out-
wardly all these states behaved increasingly as independent
units, unfettered by any common bond or inescapable law.
They were realistic, often macchiavellian, and being realistic
they acknowledged what was undeniable, viz. the existence of
custom and of agreements as sources of obligations. But they
set them aside with light-hearted insolence or subtle sophistry
according to circumstances, and if they spoke of international
law, that law did not seem to weigh very heavily on them,
1. For a remarkable study of the Peace of Westphalia, see A. Rapisardi-
Mirabelli in Bibliotheca Visseriana VIII, p. 5 sq. (Leyde, 1929).
2. See "La Rpublique des Provinces Unies des Pays-Bas et la Socit
des Nations" (author unnamed), in Revue de Droit International et de
Lgislation Compare, 3rd Series, vol. I, no. 2 (1920).
(59) THE MODERN ERA (continued) 59
certainly not heavily enough, in many cases, to constitute a
brake on aggression when occasion seemed to offer. Something
closely resembling the law of the jungle too often prevailed
during the period we are dealing withroughly the xvnth,
xvmth and xixth centuries, and the xxth until the year 1918.
The inherent strength of the individual sovereign state
appears all the more striking when it is remembered how in
the xvmth century, as in the Middle Ages, there was an
unusually large degree of cultural unity in Europe. "Kings
might wage war, " said a comparatively recent author
1
,
"through their nobles and their mercenaries: but even in
"wartime cosmopolitanism was the norm. National differences
"were ignored; if detected, they were spurned as provincial
"and uncouth. The enlightenment was the country of all
"minds that were not primitive. Style, manners, language
"were the same from Stockholm to Naples and Lisbon. The
"portraits of the time wear the same expression and seem to
"belong to the same race. ... This cosmopolitanism survived
"well into the nineteenth century". And yet, in spite of all
this uniformity, the sovereign states not only did not show
the slightest tendency to merge, but they continued fiercely
to assert their individuality.
About the middle of that period, i.e. towards the close of
the xvmth century, there supervened a new element which
tended to aggravate the existing maladjustment. Before the
end of the xvmth century, the sovereign state was what may
be called the territorial state: a state the supreme authority
over which was exercised in a certain territory, the accent
being, on the continent of Europe at least, on the power actually
wielding public authority : king, emperor or czar. This situation
changed greatly when some of the American colonies of Great
Britain, declaring their independence, formed the United States
of America, and when in France the revolution of 1789 broke
out. Both these movements were a mighty reaction against
1. A. Gurard, Herder's Spiritual Heritage: Nationalism, Romanticism,
Democracy, in "Annals of the American Academy of Political and Social
Science", July 1934 (Philadelphia 1934), p. 2.
authority from above : the superior power of Britain, its par-
liament and its king in the one case, and the monarch governing
by divine right
1
in the other. If the king was no longer accept-
able as the repository of authority, there was the nation to
take his place. As Auguste Comte (1789-1857) put it, the
divine right of peoples was substituted for the divine right of
kings
2
; the territorial state became the national state. The
accent, henceforth, was on the nation: the new doctrine spread
over wide areas, and both in the Americas and wherever
French influence was felt, this was the prevailing conception
of the xixth century, reinforced by liberalism with its stress
on individual autonomy. From this point it was an easy step
to arrive at the postulate of self-determination for each people
or nation which obsessed the Conference of Versailles in 1918-
1919, and is still fermenting in many areas. In many countries,
the nation thus became more and more closely welded to the
sovereign state, and it goes without saying that this process
strengthened the individuality of the sovereign state, hardening
it as a law unto itself.
Nationalism has at all times and everywhere been a very
powerful factor in consolidating the sovereign state. Besides,
nationalism incited states to attempts to incorporate within their
frontiers all those who belonged to the same nation, and the
homogeneous character of states which was thus achieved
heightened still more their consciousness of being units complete
in themselves.
In Germany, things took a different turn. In Napoleon's
day a wave of ardent nationalism engulfed the country, and
it is only necessary to read the highly inflammatory poetry
of men like von Arnim, von Kleist, Krner, and Arndt to
fathom its burning intensity. But the German nation was
subdivided into many separate states, then intent on remaining
separate, and within most of these states the people were used
to be ruled from above. There was no sudden end to an "ancien
rgime" as in France. Consequently, whilst in France it was
1. See J. N. Figgis, The Divine Right of Kings, Cambridge 1914.
2. Quoted by L. Duguit, Souverainet et Libert, Paris 1922, p. 7.
the nation which became the embodiment of sovereignty, in
Germany it was the state. And since state-authority makes
itself felt by force or coercion, the idea of the sovereign state
in Germany had overtones of might, power, "Gewalt", and
of law made by that "Gewalt", coupled with an under-estima-
tion of the people, a state of things which has cost Germany
and the world very dear.
So much for the influence of nation and state on sovereignty ;
it is a theme which really calls for illustrations, but the scope
of these lectures makes it unavoidable to resist the temptation
to give them. Moreover, this is not the place for undue develop-
ments outside the realm of law. At the same time, these things
had to be mentioned in an effort to explain the background
and breeding-place for the particular legal trends we are now
to consider. Due thought should be given to those tremendous
currents of thought which shaped the world as we know It,
and without which our countries, and even our own very life
would have developed in ways and molds very different from
those that have actually given them direction and shape.
Before, however, addressing ourselves to the ideological part
of the period under review, the time has come to draw attention,
in the interest of clarity, to the fact that we have now seen
the terms of sovereign and of sovereignty employed in a three-
fold sense:
(1) A power subject to no superior authority except to that,
in so far as acknowledged, of a Law of Nature;
(2) the supreme authority within a given state; and
(3) the incumbentking; nationof the supreme authority,
as exemplified in the English formula "our sovereign
Lord, the King".
"Now these three notions of sovereignty, different as they
are, " says M. Carr de Malberg, "have been preserved to the
"present time; they are being used as heretofore, entangled in
"one another, in the literature of our day, and this persistence
"of divergent concepts cannot, of course, but confuse and
"obscure the theory of sovereignty"
1
. All the more reason to
draw attention to it here.
I n conclusion, let it be remembered t hat in the period under
review, when there was no moral or legal principle left to
restrain the sovereign state, the brake constituted by the mere
fact of the coexistence of these states and the unstable balance
resulting therefrom assumed a relatively greater importance
t han in the days when there also was the brake consisting of
the consciousness of a superior natural law. No wonder that
since the Peace of Utrecht, when the balance of power was
first mentioned as a conscious aim
2
, this principle occurs with
ever increasing frequency in treaties and in diplomatic notes
3
.
I I .
Having thus sketched, however summarily and concisely,
the factual background of the period with which we are now
concerned, the time has come to look at the realm of ideas,
notions, concepts, in particular those of the world of law. But
the legal ideas of a given period are only an elaboration in a
special field of general ideas prevailing in t hat same period.
Since this is particularly true of the period now under review,
some of those general ideas may with advantage be examined
first.
Reference has already been made to Hobbes, the man of the
"war of all men against all men" and of the theory of the
absolute, untrammeled sovereign state. I t goes without saying
how admirably this theory suited those statesmenand there
were manywho were after expansion and aggrandizement.
And Hobbes was far from being alone. Spinoza (1632-1677),
so gentle and moderate where human beings are concerned,
was, curiously enough, quite the opposite when dealing with
states in their mutual relations. Men, he says, as individuals,
should be guided by reason, which is directed towards peace,
1. R. Carr de Malberg, Contribution la Thorie Gnrale de l'Etat,
I, p. 79 (Paris, 1920-1922).
2. Rapisardi Mirabelli, op. cit., p. 93.
3. See the excellent indexes of the various vols, of Bruns' Fontes Iuris
Gentium, Berlin, 1932 and after.
and not by some natural law which prohibits neither hate nor
discord. But when speaking of sovereign states, this rationalism
aiming at peaceful relations is thrown overboard, and a fatalistic
determinism takes its place. These states, Spinoza says, are
still in a state of nature ; being each other's enemy, they have
an unlimited right to wage war and make conquests. Time
fails to go more deeply into this distressing exposition; those
who, though wishing to know more about it, are reluctant to
take up the Tractatus Politicus \ I would refer to the lectures
given by Professor Lauterpacht at this Academy in 1937
2
.
The thing to remember is that Spinoza too has had his share
in dissociating the sovereign state, in its relations with its
equals, from law and morality.
It is impossible here to give an extensive historical analysis
of these ideas, and I must be content with mentioning to you
a few main figures. In addition to Hobbes and Spinoza, I will
mention Kant and Hegel.
Kant (1724-1804) used the term "natural law", but he gave
it a meaning which was the direct opposite of its usual and
traditional significance by declaring it to be immanent in man
instead of transcendental, in other words : man-made, and not
imposed on man by a higher powera change of meaning
like that semantic tour de force decreed by the Soviet govern-
ment who call freedom what we call despotism, and democracy
what we call tyranny. Kant's hocus pocus had, necessarily,
the effect of substituting the "bon plaisir" of the individual
state for the inescapable commands of a superior order, and
thus was yet another contribution to the idea of the sovereign
state being a law unto itself.
Came the age of romanticism, an age of great importance
for the history of the notion of sovereignty, and most parti-
cularly for the emergence of excesses and abuses of its true
scope and legitimate extent. It was "made in Germany". What
was romanticism? "It was, " says Hans Kohn
1
, "a revolt
1. I l l , 2, 11, 14, 17.
2. R.A.D.I. 62, pp. 116-118.
3. The Twentieth Century (New York 1949), p. 76 sq.
"against discipline on behalf of instinct and desire ... Romant-
i ci sm was at first libertarian and individualistic. ... "Romantic
"individualism in Germany led to an anarchical conception
"of the "unique" individual and his exceptional rights, to
"irresponsibility, to the glorification of nature, instinct, the
"indomitable vitalistic forces which find their justification in
"their own strength and exuberance. Individuality in the
"Western meaning of the word, which also held good for
"Goethe's conception of individuality, gladly and willingly
"subjected itself to standards and to laws universally applicable,
"and was ready to limit liberty in free agreement and fair
"play. Romantic individualism, on the other hand, could not
"build a free and ordered society." The state stepped in, and
built, in Germany, an ordered, but not a free society, whilst
assuming itself the anarchical characteristics it had soon denied
the individual citizen. It was in this spiritual climate that
Germany gradually rose to unity and power, and that Hegel
(1770-1831) ratiocinated about the state.
His influence, whatever the merits of his logical interpretation
of history, and leaving aside the question whether his writings
have been interpreted as he intended them to be interpreted,
has been a bad influence for the international community. For
by extolling the state as the ultimate embodiment of reason,
Hegel's teaching allowed, condoned and defended the kind of
abuses of sovereignty which have caused several wars and
spread untold misery over the human race, and not in the
last place over the country of his origin.
Hegel must have been an extraordinary person, his abstract
teaching filling his German hearers with enthusiasm in spite
of a total absence on his part of the desire, and even of the
ability to please. "Converts and disciples, " says a learned
recent author
1
, "came flocking into Berlin from all parts of
"Germany and beyond. There they listened with reverence to
"the lacklustre lecturer, old before his time, sitting bowed
"over his notes, apparently ill at ease, coughing, bringing out
1. Rohan d' O. Butler, The Roots of National Socialism (1783-1933),
p. 77 (London 1941).
"every sentence with an effort, only sometimes rising to a
"natural eloquence in the most abstruse passages. The heady
"enthusiasm engendered by this pedagogue assumed extra-
ordi nary proportions. Hegel, like Herder before him, influenced
"contemporary German learning by and large; indeed he
"almost transformed it."
What was the teaching of this contagious brain? It is summed
up in paragraph 272 of his "Philosophie des Rechtes" (Philo-
sophy of Law) : "We must hence honour the state as the divine
upon earth." The state is final; above it there is nothing: no
universal superior law, no morality, no conscience, not even
the international community and its obvious interest in peace
and order. The state, adds Butler
1
, being divine, was a law
unto itself, the conduct of the self-referring state being quite
undeserving of being judged according to standard concepts
of morality. You can measure the influence of such teaching,
based on understood, not understood, or misunderstood, but
at all events highly questionable reasoning, on those in the
sovereign state who already, by its inherent dynamics alone,
were only too prone to yield to temptation when occasion
offered to bring off a smart coup.
III.
Such, then, was the general climate in which the inter-
national lawyers of the xviith, xvmth and xrxth century grew
up. Hobbes and Spinoza, Kant and Hegel and all the lesser
gods left a deep mark, and they had their counterparts in the
field of international law. That, however regrettable, is perhaps
not astonishing, considering the calibre of those great though
dangerous philosophers, and the no less corroding influence of
the behaviour of so many leaders of sovereign states. What may
well make us wonder a great deal more, is that there was a
strong minority which kept the flame of law's high mission
burning bright. First in line, and the prince of them all : Grotius.
Grotius' fame needs no comment here. His paramount place
1. Op. cit., p. 76.
I. 1953. 5
in international law is for ever assured. In particular, his
conviction that there is a transcendental law prohibiting states
and their leaders from following their "bon plaisir", and
enjoining them to observe, like ordinary mortals, the golden
rule of living uprightly, injuring no one, and giving everyone
his due
1
, is above suspicion or reproach. Yet it is no disparage-
ment to say that his treatment of sovereignty
2
is not one of
the strong points of his great work, leaving, as it does, a some-
what sketchy and meagre impression which hardly warrants
an exposition in the small space available here
3
. But in his
belief in a natural law and the golden rule just mentioned, he
inspired a gallant band of followers throughout the centuries,
gallant because they quite definitely were far from being a
majority or the leading school. Let us therefore salute in passing
such men as Pufendorf, Wolff, Barbeyrac, Thomasius and,
later on, Mancini, Pinheiro Ferreira, Wheaton, and many
modern writers and practicians
4
.
But the dominant school taught a very different creed. Its
roots are to be discerned in Grotius' day, becoming first
apparent with Gentili's successor at Oxford: Richard Zouch
(1589-1660
6
), and rapidly gained momentum. The essence of
that school was the tendencyin strict accord with the prevailing
philosophy of the periodto narrow its range of vision, con-
sidering only, or chiefly, the individual sovereign state, and
not, or much less, the international community of states. The
neglect of this element in spite of its cardinal importance led
to theories which were at variance with the undeniable existence
of that highly relevant element, and consequently no good
could come of them. Unfortunately, the majority of inter-
national lawyers everywhere, in the three centuries with which
1. Digest I, 10, 1 (Ulpian).
2. See in particular: De Iure Belli ac Pacis I, 3, 7 sq.
3. See for an analysis Le Fur, Thorie du Droit Naturel, in R.A.D.L
18 (1927), pp. 318 sq.
4. Le Fur, op. cit., p. 353 sq.
5. Juris et Judicii Fecialis, sive Juris inter Gentes et Questionum de
eodem explicatie
we are now dealing, seemed so dazzled by the pomp and
power of the individual sovereign state with its loud and far-
reaching voice, that they neglected the international com-
munity, devoid as it was of an organisation and mouthpiece
of its own to assert its right to adequate consideration. There
was an excuse: in those days, the international community
meant far less in everyday life than in our time with its manifold
intertwined economic interestsbut had not Vitoria seen it
clearly? and Grotius? In any case, it proved to be so much
of a reality that it could only be ignored at the peril of those
who ignored it, and how frightful those perils were has been
demonstrated in and after a melancholy series of increasingly
destructive wars, at the cost of everybody, victors as well as
vanquished.
Those lawyers had yet another excuse. How temptingj
indeed, that new theory which said with the voice of a siren
that we only need observe those conventions we enter into of
our own free will, and customs created, if not by ourselves,
then by our own forebears ! Away with those fetters of a bygone
age, that concept of a so-called natural law no one has ever
read! Thus consciences were lulled asleep, and the sovereign
state applaudeddid it not obtain for naught the legal con-
secration of its abolute discretion? No wonder that those who
spoke thus, obtained the widest acclaim.
Zouch, in fact, established a hierarchy between natural law
and law based on consent, as evidenced by treaties and custom.
And he arguedthat is the important pointthat the latter
was of a higher order. The floodgates, once they were thus
opened ajar, could be closed no more, and an irresistible stream
poured through the breach. "Only what suits a majority of
"nations constitutes international law, " said my compatriot
van Bynkershoek (1673-1743), "that law which results from
"tacit and supposed conventions, introduced by reason and
"usage." A voluntary element thus took the place of the
objective inescapable authority of the law of nature. It is easy
to imagine how good this sounded to those rulers of sovereign
states who were bent on increasing their power. They only
had to dissent if they wanted to be free to do as they pleased.
What a marvellous theory! Bynkershoek taught that, where
there was no general usage, reason should prevail. But whose
reason? And reason based on what? On morality? Or on
utility? The latter, of course, said Bynkershoek: and the powers
that were, applauded
1
.
I cannot possibly name, let alone discuss, all those who
reasoned like this. Let me, however, mention Emric de Vattel
(1714-1767).
Vattel, whom my learned compatriot van Vollenhoven has
utterly condemned in a small book
2
which is still well worth
reading, was that spirit who first claimed that one cannot
apply the tenets of the law of nature to states
3
. The civitas
maxima, he contended, was no more than a fiction to be dis-
carded. There are no rules in respect of a non-existent com-
munity above the sovereign state; all there is, is a number
of completely independent states.
It seems obvious that all this revolutionised the whole concept
of a law of nations. These completely independent states were
bound only by such treaties as they made or adhered to, and
to custom, in other words: by positive (as opposed to trans-
cendental) law. The xixth century was the period in which,
in strict parallelism with the self-righteous proceedings of so
many a sovereign state, this positivist theory was further
developed.
It was a mighty current, which swept many minds along,
soon dividing itself into two main branches.
The first was the Historical School, founded by Friedrich
Carl von Savigny (1779-1861), which had conspicuous success,
especially in Germany, as a reaction against the one-sided
rationalism of the xvinth century. It taught, very briefly and
1. See C. van Bynkershoek, Opera Omnia (Leyden, 1767): De Dominio
Maris, Ch. 1: De Foro Legatorum, Ch. 3 and 24; Quaestiones Juris Publia,
book I, Ch. 2.
2. The Three Stages in the Law of Nations, The Hague, 1919.
3. Le Droit des Gens (ed. Pradier-Fodr), preliminaries, paras. 5, 7,
9, 15, 16, 22 etc.
inadequately stated, that the source of all law is not to be
found in man, but in the customs and usages of the nations.
Law is not created, but arises of itself within the nation, and
it is the task of the lawyers to disengage it, as it were, from
the mass of heterogeneous manifestations of public life. This
seems a dangerous theory for the sovereign state, because
essentially it makes its actions lawful or unlawful according
to the prevailing mood and temper of the crowd, or what is
proclaimed to be that mood or temper. No wonder that, allied
in historical materialism to aprioristic economic theory, this
mercurial doctrine, wide open to abuse, led to the deleterious
theory and practice of communism. Its one-sided emphasis on
the community, with a supreme disregard for the worth and
importance of the individual in state and society, is the vul-
nerable side of communist doctrine, just as it was the vul-
nerable side of that other poisoned fruit of the same tree:
fascism and national-socialism.
Another offshoot of the Historical School (which has done
far less harm in actual practice than either communism or
national-socialism) was that which proclaimed to be law those
rules which were consciously recognized as law by the nations.
It goes without saying that this must lead to an extreme sub-
jectivism, opening the door wide to the emotions and thus to
the negation of true law. It seems particularly dangerous when
applied by a sovereign state recognizing no superior. This
school, of which Bluntschli, von Liszt and Krabbe were some
of the leading adepts, now seems to be on the wane.
Without further developments, we shall now turn to the
second branch of the broad positivist current, which proved
scarcely less noxious, and to which belonged those many who
considered law as the emanation of the power of the sovereign
state, exercised either on behalf of the happiness of the individual
(Bentham; Ihering), or on behalf of the well-being of the
community (Stuart Mill). G. F. de Martens (1756-1821) was
the first prophet of this conception, but the tendency persists
to our own days
1
. Since law is an emanation of the sovereign
state, there can be only two embodiments of law: treaties,
and custom. This seems a strange misconception, for treaties
are contracts, and custom, as a habitual or usual course of
action, is not law, but fact; both contracts and custom can
only be recognized as having significance at law if there is
some superior rule of law giving them that significance. But
such considerations did not deter the positivists, nor did they
halt the success of their theories which, exalt as they did the
unfettered sovereign state, met with the unreserved appre-
ciation and acclaim of its rulers. There was a nefarious inter-
action between rulers and pundits: they reinforced each other's
views, the net result being that inter-state anarchy was thereby
strengthened and increased.
Franois says that there should be inscribed on the credit-
side of the positive school's account the fact that it has clearly
brought out that law, to be law, must have validity
2
. There
does not appear to be much more that can be said in its favour.
There were two main concepts : that of the monists who, like
Zorn (father and son), Ihering and Bergbohm in Germany,
consider international law as being law of the same essence as
municipal law, and that of the dualists who, following Triepel
3
,
distinguish between municipal law as being imposed law, and
international law which they regard as a product of agreement
between sovereign states directed towards common ends.
Whatever their difference, both theoriesthe monist and the
dualistwere noxious in their effect on the sovereign state
which both represented as a law unto itself, thereby encouraging
international wantonness and licence. The result was a mentality
highly dangerous for international peace. Denial of a superior
law could not but lead to anarchy, and hence to conflict.
There is no doubt that the positivist theories have been a
1. See, e.g., the late professor Arrigo Cavaglieri in R.A.D.I. 26 (1929),
p. 322 sq.
2. Handboek (2nd ed.), I, 24.
3. Les Rapports entre le Droit Interne et le Droit International, in
R.A.D.I. 1 (1923), p. 77 sq.
factor contributing, albeit together with others, to the outbreak
of more than one war, particularly of World War I.
It seems hardly surprising that very soon it was felt by many
that so rigorous an interpretation of sovereignty could not and
should not be upheld. A state which, being sovereign, has only
rights and opportunities, but neither duties towards its neigh-
bours nor restraints, is a monstrosity, a public danger. Twofold
were the attempts to curb the brute.
In France, the moderate positivists made new use of an old
idea, the history of which has been told here with great clarity
in 1925 by the President of this Academy's Curatorium, Professor
Gidel
x
: the idea of there being certain fundamental rights of
states, as permanent as the state itself, absolute and inalienable,
of which the state cannot be deprived without ceasing to be
a state. The catalogue of these rights varies from author to
author, but it may be said with the late Professor Antoine
Pillet that there are five of them which have found general
recognition: the rights to preservation, to independence, to
equality, to respect, and to international commerce.
The assimilation of states to individuals is obvious: both
states and individuals are considered equal and autonomous.
Although autonomous, the state, like the individual, respects
the equal rights of his peers. In particular, agreements must
be kept because, if they are not, one or more fundamental
rights of the other partner or partners are infringed.
The whole system of international law thus rests on the
respect due to agreements. But this, for the positivists at any
rate, seems an untenable point of view, because it prsupposes
a superior rule of law which decrees this respect to be due to
treaties. For those who accept the theory of a superior natural
law, there is here, of course, no difficulty, one of the precepts
of natural law being precisely to give everyone his due. But
for those who, like the positivists, deny the existence of any
such superior rule of law, the theory seems self-contradictory,
1. Droits et Devoirs des Nations (la thorie classique des droits fonda-
mentaux des Etats), R.A.D.I. 10, p. 541 sq.
and therefore unfit as a basis for the positivist conception of
international law.
Moreover, the idea of fundamental rights rests on a form
of reasoning which is a vicious circle: these rights are an
essential part of a state, but they are only conceivable in a
society of states. So either the state, considered individually,
has these rights, but then they are anterior to the society
(which is inconceivable), or they are not anterior to the society
of states, but then it is difficult to see how the state suddenly
finds itself vested with these rights on entering that society.
This theory therefore has to be rejected.
In Germany quite a different theory was invented to take
the edge off the excessive theory of unlimited sovereignty. We
have seen that there it was not the nation, but the omnipotent
state which was the dominant element. Quite naturally and,
in fact, logically, the mitigating theory took the form of a
voluntary diminution of state sovereignty: the theory of the
auto-limitation of the state.
This doctrine, of which the Austro-German Jellinek was the
chief protagonist, taught that states, in their sovereign discre-
tion, have recognized that for the common good they ought
to accept, all of them, and quite voluntarily, a limitation of
their sovereignty by acknowledging international law as a
binding rule of conduct. It is easy to see that in this manner
the theory of absolute sovereignty is saved, whilst at the same
time the state seems (although by its own free will) subject
to international law.
It goes without saying that such a theory has a most flimsy
basis. As Duguit has remarked *, voluntary subordination is
not real subordination: states who are obligated only as long
as they want to be obligated, are not really obligated. Essen-
tially, their sovereignty remains unlimited. No international
law worthy of that name is conceivable on such a quick-sand
basis. Beside the French theory we have just discussed, it is,
1. Souverainet et Libert (New York 1922), p. 109.
(73) THE MODERN ERA (continued) Ti
in Shakespeare's words, merely "some other horrible form,
"which might deprive your sovereignty of reason, and draw
"you into madness"
1
.
And so it is seen that neither the French theory of the funda-
mental rights of states, nor the German doctrine of the auto-
limitation of the state provided a sound foundation for recon-
ciling the concept of the absolute sovereign state with inter-
national law. They are, however, valuable as an indication
that there were many, in various countries, who felt that this
concept could not be upheld. There is other evidence pointing
to the same conclusion: the general acceptance, both in theory
and in practice, of the principle of international responsibility
of states. It goes without saying that the absolute sovereign
state, because of its absolute sovereignty, cannot be held
responsible by anyone for its acts even if they are contrary
to international law. Accordingly, in the beginning of this
century, when there still were many votaries of the absolute
sovereign state, and although international responsibility of
states had been acknowledged by many writers and by quite
a number of arbitral awards
2
, statements may be found
absolving them from all responsibility. As an example I quote
Funck-Brentano and Sorel's "Prcis de droit des gens", the third
edition of which, published in 1906, says on p. 224: "States
"are the sole judges of their responsibility", and "The concept
"of a mutual responsibility of states is incompatible with the
"concept of sovereignty"
3
. It is interesting also to note that
in 1900 the Institute of International Law, always in the forefront
where the development of healthy notions in its special field
of activity is concerned, expressed the wish that states refrain
from inserting in treaties clauses of reciprocal absence of
responsibility. Statements of these kinds soon thereafter became
obsolete or unnecessary as, parallel to the wane of the doctrine
of absolute state sovereignty, the theory of the international
1. Hamlet I, 4, 73.
2. For instance: the famous Alabama-award of 1872, and the notorious
Costa-Rica Packet-award of 1897.
3. Quoted by Ch. Rousseau, L'Indpendance de l'Etat dans l' Ordre
International, R.A.D.I. 73 (1948), p. 189.
responsibility of states became generally accepted ; they would
seem preposterous in our days. Here is an instance of quite
definite progress in international relations, thanks largely to
the work of a number of international lawyers, of whom I
should perhaps mention Triepel, Anzilotti, Ch. de Visscher
and Ch. Dupuis.
I have dealt at some length with the theory of absolute
state or national sovereignty. The reason is this: there have
been, and are, as we shall presently see, many other theories
concerning the sovereign state, but whilst they may be a
lawyer' s delight, there is not one amongst them which has
influenced the general public to the same extent as the theory
of absolute state-or national sovereignty. This theory has been
in vogue, and dominant, for about three centuries, in accord
as it was with the normal behaviour of many statesmen in
their interpretation of the will of the sovereign state as a member
of the unorganized international community.
I V
Towards the outbreak of the First World War, the times
seemed ripe for a drastic revision of the theory of sovereignty,
and it was not slow in coming. A great French jurist, L. Duguit,
of the University of Bordeaux, led the vanguard with great
brilliance. His work was the first of a great many in this field,
giving various completely new impulses and orientations to
the old concept of sovereignty. On reading Dugui t
1
, one would
think t hat there are only three theories of the sovereign state :
t hat of national sovereignty, that of state sovereignty, and the
theory of M. Duguit himself. Nothing could be more inexact
or incomplete. First, I recall the old theory of the sovereign
state being subject to the law of nature. But then, in addition
to M. Duguit' s own theory, there is first of all that of Professor
Kelsen, as you know one of the leading theorists of public
1. Especially his Trait de Droit Constitutionnel, 2nd ed., vol. I, para.
13 & 62.
law in this century. You will have the benefit of hearing
Professor Kelsen expound personally his theory in its newest
form at this Academy in two weeks time
l
, and I think it
would be presumptuous on my part to try and do so in advance;
you will, moreover, find a printed exposition in Professor
Kelsen's recent book under the title "Principles of International
Law"
2
. What in a spirit of objectivity I think I should mention
without unfairness to him, and doing my duty to you, is that
the theory has its critics; as an example I refer to the opinion
of Professor le Fur, very moderate and fair, but also quite
incisive, which you will find in his lectures delivered here
in 1935
3
. A variant of Professor Kelsen's theorybut varying
a good dealwas explained here by Professor Verdross whom
you will also be privileged to hear later in this session *.
Further, you will find quite an extensive and critical presenta-
tion of a number of other modern theories in the lectures of
Professor le Fur to which I have just referred. In spite of their
importance and obvious relevance to my subject, I cannot
discuss them in detail: time fails me. Let me just mention
them: the theories of M. Duguit, of M. Scelle, the indefatigable
secretary-general of this Academy, of M. Alvarez, M. Spiro-
poulos and Professor Whitton, and several others, amongst
whom M. le Fur himself who, in the footsteps of St. Thomas,
revives the old and respected theory of the sovereign state
bound by the law of nature.
But if time fails me to discuss the theories of these eminent
jurists, there is one thing I feel it is my duty to say here in
their honour. It is that, by refusing to follow the positivists
in their sustained although futile attempt to write an apology
of the unfettered sovereign state, and by reverting to the search
of truth for its own sake, they have restored to the study of
international law the integrity and dignity it had, without
necessity, so long abandoned. That will be their undying glory,
1. He gave an earlier exposition in 1926 (R.A.D.I. 14, pp. 231 sq.).
2. New York, 1952.
3. R.A.D.I. 54 (1935), pp. 33-44.
4. R.A.D.I. 16 (1927), p. 251 sq., and 30 (1929), p. 275 sq.
and for this service to true science they deserve an admiration
and respect which our and future generations will not deny them.
If I do not pay any more particular attention to the fascist
or national-socialist conception of the sovereign state and to
that of the Soviet Union, it is simply because, in spite of verbiage
or dialectics, they are nothing but a revamped theory of the
sovereign state whose presumed interest is its sole guide in its
dealings with other nations.
Let me add that some of these newer theories, like those of
MM. Duguit and Scelle, deny the existence of sovereignty
altogether. This may be a natural reaction to the doctrine of
absolute sovereignty, but it seems scarcely less extreme. I do
believe the sovereign state is a reality which cannot be denied
1
.
And so, almost imperceptibly, I find myself tempted to state
my own credo, which I do with considerable hesitation in
view of the many illustrious jurists who have done the same
before me.
V
First of all, let me say by way of preliminary remark that
much is to be said, I think, for what may perhaps be called
the Anglo-American approach to such matters. On the con-
tinent of Europe, there has been of old a strong tendency to
rationalize complex social phenomena of all kinds in an attempt
to show that their essence can be proved to fit some general
and categorical formula which seems a convincing truth. This
method has its obvious dangers, for such generalizations, being
a product of the human mind with its well-known limitations,
are all too often one-sided or in some other sense inadequate,
and the value of theories construed on such a basis is cor-
respondingly questionable. The Anglo-American approach is
different. In international law as in other fields, it is less
dogmatic than that usually followed on the continent of Europe,
and more pragmatic in the sense that each problem is dealt
with on its own merits in the light of established principles
1. See on this point G. Andrassy, La Souverainet et la Socit des
Nations, in R.A.D.I. 61 (1937), p. 656 sq.
of law and method. The appreciation by the late Charles
Dupuis of the rules of law applied by British prize courts may
well be extended to British and American treatment of inter-
national law in general; he wrote: "That treatment is remark-
"able especially because of a clear and precise understanding
"of the conditions and needs of international life. They state
"the essential terms of a problem and make the relevant
"elements clear, trying to find in scrutiny of the facts the
"source and motives of the rules of law" ... "We are thereby
"brought face to face with the realities lawyers always should
"keep in mind lest they lay their system open to continual
"refutation by experience"
1
. This is a line of approach I like
to try to follow, and many of my compatriots with meit
agrees with our realistic Dutch outlook.
My second remark is this. If we want to remain on solid
ground, our argument must evidently have some solid basis.
Otherwise our reasoning floats in the air, and we cannot hope
to get anywhere. Now it seems to me that we have a choice
of three distinct foundations, listed here under 1, 2 and 3.
1. There are people who, like Duguit for instance, choose
as a basis some fact which they regard as fundamental, in
Duguit's case the fact that, owing to present-day developments,
there exists between nations a large degree of solidarity in
their pursuit of happiness.
I doubt very much, however, whether a factany fact,
however important, can ever be the basis of law, in our case
the law governing the relations of sovereign states, that is : of
international law itself. It seems to me quite impossible to
deduct law from a mere fact. Law is a command, or, if you
prefer, the imperative result of a choice between what should
and what should not be. A fact is nothing like thatit is
just something there is, or was, or will be one day, without
implying any choice or command. How, then, can any law
1. La Guerre Maritime et les Doctrines Anglaises contemporaines (Paris,
1898), p. IX.
be derived from something which contains no law? I, for one,
therefore must reject any fact as a possible basis for our further
inquiry.
Then, there are the peopleand I am one of themwho
recognize that any legal rule can derive its legal character
only from some higher rule which invests it with that character.
That, to me and many others, sounds unassailable.
But then, amongst those who think like that, there is a
parting of the waystwo different ways.
2. There are those who, like Kelsen, proclaim as the ultimate,
fundamental rule of international law a hypothesis or fiction, in
Kelsen's words "a hypothesis of juristic thinking, the funda-
"mental condition under which our juristic propositions are
"possible"
a
, and he suggests that this hypothesis "might be
"formulated as follows: The states ought to behave as they
"have customarily behaved"
2
.
Now quite apart from this formula (whichunless you want
to absolve the state from observing any kind of morality
seems very unconvincing, considering how relatively mean has
been the customary behaviour of states in the light of any
ethical standard), I readily admit that it may sometimes be
necessary to work on the basis of a mere hypothesis, but only
when there is nothing more definite and certain to go by. In
this respect, there is a fundamental difference between the
function of hypotheses in the exact sciences and the hypothesis
we are now discussing, for in science a hypothesis is an anti-
cipation, used in the hope that it will prove to be possible to
demonstrate that the hypothesis is founded on fact; whereas
hypotheses such as that of Kelsen, being ultimate undemon-
strable fictions, are destined for ever to remain hypotheses.
3. However that may be, I am firmly convinced that in law
as elsewhere we are only justified in using a hypothesis for
want of something better. And in our case it seems to me
1. H. Kelsen, Principles of International Law (New York, 1952), p. 412.
2. Ibid., p. 418.
beyond a shadow of doubt that there r something better.
That is the old, but far from worn idea of natural law in the
sense of those simple rules with reference to what should be
done in all human relations which, as I have recalled before
1
,
the digest has so admirably summed up in Ulpian' s words:
"Live uprightly, injure no one, and give every-one his due. "
This is, I feel sure, the ultimate command, the golden rule
graven in every human heart and conscience quite apart from
race, religion or nationality, of evident transcendental origin,
objective and the same for all, and binding not only on individual
human beings, but also on human institutions and therefore
on sovereign states. For to assume this not to be so, is t ant amount
to believing t hat states (which after all are human, and not
diabolical, institutions) may freely live treacherously, injure
each other, and refuse to give others their due. No more
monstrous insult to the divine ordinances regarding men and
their institutions can be imagined.
Let me add at once that I am impervious to the remark
that, speaking like this, I am overstepping the boundaries of
strict jurisprudence. I know I am, but it is not at all my aim
and purpose to confine myself to a mere description of legal
preceptsI try to understand. And it is my contention that no
one should be afraid, where basic things are concerned, to
indulge in metaphysics. In fact, as Emile Meyerson has rightly
said
2
, "any science supposes a minimum of metaphysics". If
we do not, we shall never get to rock-bottom, and condemn
ourselves to the perpetual risk of going astray by mere human,
i.e. fallible, logic. I also remind you here of what I said in
the beginning of these lectures, about the sciences all being
related, and about the various headings under which they are
known to us being convenient labels rather t han compartments
rigorously separated from others by watertight bulkheads.
Therefore, if we cannot understand law without making an
excursion into, e.g., sociology, by all means let us make t hat
excursion.
1. P. 66.
2. De l'Explication dans les Sciences (Paris, 1922), p. 6.
On this basis, then, I offer you the following theory:
Human beings are the repositories of mental power, will-
power. What is this power? It is energy, energy being, according
to the generally accepted definition, anything which, under the
influence of a cause of some appropriate kind, is capable of
setting off a certain force. As long as the energy is not released,
setting off no force, the energy is potential. Will-power is
potential energy.
What is necessary to let this potential energy discharge itself?
As we said: an appropriate cause, and this appropriate cause
is either a reaction to something, or a conscious idea the person
concerned has formed in his mind of an aim he wishes to attain.
This desired result is undoubtedly caused by an attraction
of the desired thing, corresponding to a striving, an "appetitus"
in the person attracted. And since there is an infinity of desired
things, from the things most essential in life to luxuries and
things spiritual, there is an infinity of attractions and strivings.
Now it stands to reason that as soon as two or more persons
are attracted by one and the same thing, there is a conflict of
forces, and this conflict is adjusted by the greater force repressing
the lesser whilst being itself deflected by that lesser force to a
greater or lesser extent from its original course.
This is not to say that the greater physical force always wins.
Not at all. We are speaking of forces of the mind, which may
see their impetus increased when sustained by physical force,
but which may command spiritual forces powerful enough to
overcome mere brawn. The question as to whose energy wins,
that of A or that of B, depends on a multitude of factors,
amongst which ethical and esthetical considerations or their
opposite counterpart are important.
All these human beings, thus radiating energy in a multitude
of directions, form together what we call a society, large or
small. It may be assumed without seeming unnatural like
Rousseau's "social contract", that early in the beginning of
each society some specially gifted or specially strong individual
came, by a natural process of selection, to exert power over
the other members in the sense that they endorsed his volitions
by directing their energies as he prescribed. Thereupon, his
power or authority came to be considered as something desirable,
something that gave protection, something the members of the
group more or less consciously experienced as a result they
wished to attain, again directing their energies as the authority
prescribed, but this time not because they had to, but because
they wanted to. Thus, within a society there grew up what
we know as the Government, and it is clear that there must
be a balance of forces between the Government and the citizens.
This pattern of unstable equilibrium is constantly changing in
detail, as determined by the constant shifts of balance between
the nationals individually and between the nationals and the
Government. So long, however, as there is enough support
for the Government, the Government endures. But as soon
as that support diminishes to a point when groups within the
community (which in its organized form we call state), grow
too strong in relation to such authority as the Government is
still able to muster, then the state or its Government or both
may well disappear. This process is what is known as revolution.
When repeatedly expressed, the will of the community,
determined by a variety of forces, one of which is a desire for
stability by uniform results in similar situations, tends to create
such uniformity whenever possible. An expression of the com-
munity's will to see a decision accepted as binding for an
indefinite number of future similar cases is known as law. If
in an integrated society there is, either on the part of the
rulers or on the part of the governed, or on the part of both
groups, a desire sufficiently strong to ensure compulsory enfor-
cement of rules of law, measures can be taken accordingly.
But it seems impossible to assume that the possibility of com-
pulsory enforcement is an essential attribute of law. There are
many laws without sanction; they derive their legal nature
from the fact that society wants them to be observed as law.
This explanation may be extended to the community or
society of states. For states, as a group of human beings and
being directed by human beings, have aims they wish to attain,
and their life in juxtaposition is just as much a perpetual
I. 1953. 6
interplay of forces and perpetual shifting of resulting balances
as the community of human beings. This explains the constant
change we witness on the international scene. And inasmuch
as the state, though directed by human beings, is to some
considerable extent a result of various human energies acting
as an independent force, and therefore not directly influenced
by the individual human consciousness of what is right and
what is wrong, the power of ethical or esthetical considerations
is weaker in the state than in individual human beings. Further-
more, it is to be observed that there have been times when
the international community was subjected to the will of one
particularly strong or gifted being or state. But apart from
such periods, the individual states have led the largely un-
coordinated existence of individuals. Not that each of them
could ever do as it pleased, being held in check by the forces
radiating from the others. But it was, like all human groups,
in a state of constantly changing unstable equilibrium. And
only lately, in the Coal and Steel Community and in the
European Defence Community, have we seen attempts, based
on a conscious desire to see a common superior authority
established, at creating a common supranational authority.
As far as law in the community of states is concerned, the
presence of law should be acknowledged there as elsewhere
whenever there is evidence of the community's will to see a
decision regarded as binding for an indefinite number of future
similar cases. The fact that often in the community of states
there is no sanction is, as we have seen, irrelevant. The evidence
is constituted by treaties, long general usage, or generally
acknowledged standards of behaviour which the community
desires to see observed as law.
What, then, does all this mean with regard to sovereignty?
It means that the sovereign state in the sense of an omnipotent,
completely self-determining entity does not exist and has never
existed, hemmed in as it is by a variety of forces which, partly
in the form of the co-existence of other states and partly in
that of other factors of the most diverse kinds, deny it both
omnipotence and complete self-determination. What remains
is a number of entities habitually called sovereign states which
can do as they like in so far as there are no forces (of whatever
kind, accepted law being one of them) which restrain them.
The existence of a body of law determining sovereignty and
regulating its exercise must be presumed, for sovereignty is
not only a factual, but also a legal concept, having to do with
rights and duties, and it is therefore clear that there must be
norms of law governing it. We here join the adepts of the
school of natural law. The adjective "sovereign" in the sense
of omnipotent and self-determining may be explained as a
historical delusion, the result of a reaction against the over-
lordship of popes and emperors, as a result of the pride and
ambition of kings and republics, of unsound philosophical and
legal reasoning, and of former slow, cumbersome and infrequent
means of communication, but it has never had a foundation
in actual fact, nor can itas results from the foregoingever
have such a foundation.
I should like to submit that here is a theory which is strictly
in accord with observed fact. In this respect, it differs com-
pletely from any theory based on such unproven and presumably
undemonstrable, artificial conceptions as the contrat social. It
requires nothing in the way of subtle but highly questionable
expedients such as the doctrine of fundamental rights of the
states, or, worse still, that of their auto-limitation. And it gives
its due place to international law, explaining its relative weak-
ness in a society of states living together on a basis of juxta-
position without a supra-national authority over them.
CHAPTER IV
SPECIAL QUESTIONS WITH REGARD TO
SOVEREIGNTY
(In the light of judicial and arbitral decisions, in particular of
the Permanent Court of International Justice and of the Inter-
national Court of Justice)
W
E have now arrived at the end of a long journey.
Along the road, we met with quite a lot of interesting
material. On examination, some of it proved worthless.
But there also were precious stones to be picked up. Amongst
them, there was Proculus' definition of sovereign powers as not
being subject to another state. And you remember the work of
the medieval lawyers with its strong accent on the full authority
of a sovereign within the state. We were impressed by the stress
laid by St. Thomas on the sovereign state's high moral purpose
in ensuring the common good, avoiding arbitrariness and op-
pression. And then there was Francisco de Vitoria, teaching that
not only human beings, but also nations are subject to that law
which natural reason has established between them, a law which
is above the community of states, with full authority over them.
These elements enable us to give a definition of the sovereign
state. It is not our task to define the statethat does not come
within the purview of these lectures. I am concerned here with
the sovereign state, in other words: the question is, when is a
state a sovereign state? I would suggest the following reply:
A sovereign state is a state subject to no other state, and
having full and exclusive authority within its jurisdiction,
without prejudice to the limits set by applicable law.
And now, armed with this definition, let us examine a number
of points which will place the sovereign state in its proper
perspective from the point of view of international law.
(85) SPECIAL POINTS WITH REGARD TO SOVEREIGNTY 85
1.
"Sovereignty, " proclaimed the French constitution of Septem-
ber 3, 1791, "is one, indivisible, inalienable, imprescriptible."
This was written down not only in view of internal conditions
in France, but also in respect of France's relations with other
states. Four characteristics of sovereignty : its one-ness or exclu-
sive nature, its indivisibility, the contention that it cannot be
alienated, and the contention that it is not subject to prescription.
Of these characteristics, the first three have stood the test of
time, and a few words will presently be said about them. But
the fourththe idea that sovereignty is not subject to prescrip-
tionhas not been retained, at least not in international law.
Though there still are writters who uphold that idea
1
, the
majority rejects it. Prescription, both in its extinctive and in its
acquisitive form, plays a role in international law (1) with
regard to rights deriving from contract; (2) in respect of title to
territory. It is with this second category of cases that we are
here concerned, being cases relating to the acquisition or loss
of sovereign rights, i.e. rights which only a sovereign state can
have. The reason why prescription should be admitted as a
mode of loss or acquisition of sovereign rights has been stated
very lucidly by the Supreme Court of the United States in a
case between Rhode Island and Massachusetts
2
. The Supreme
Court explained that "no human transactions are unaffected by
"time. Its influence is seen on all things subject to change...
"For the security of rights, whether of states or individuals, long
"possession under a claim of title is protected. And there is no
"controversy in which this great principle may be invoked with
"greater justice and propriety than in a case of disputed boun-
da r y" . This view is upheld in various arbitral decisions, of
which I name the Chamizal-award (1903) in a dispute between
Mexico and the United States of America
3
, and two awards
1. See "note doctrinale" by the late baron Albric Rolin with reference
to the Macedonian-case, in Lapradelle and Politis, Recueil des Arbitrages
Internationaux, II, p. 205 (Paris 1923).
2. 4 Howard 591, 639, 11 L. Ed. 1116.
3. Proceedings of the International (Water) Boundary Commission
(Washington 1903), I, p. 42 sq.
86 E.N. VAN KLEFFENSSO VEREIGNTY IN INTERN. LAW (86 )
made in the Permanent Court of Arbitration: that in the
matter of the maritime boundary dispute between Norway and
Sweden (1909), and another, particularly explicit and important,
in the controversy between the Netherlands and the United
States of America concerning the sovereignty of the Island of
Palmas or Miangas (1928)
1
. All this to show that international
law cannot be said to admit the imprescriptibility of sovereignty.
On the other hand, the one-ness, the indivisibility and the
inalienable nature of sovereignty have, as I said, stood the test
of time.
As to one-ness, the idea, born in revolutionary France, was
soon adopted by the Supreme Court of the United States. In
1812, chief justice Marshall delivered a decision in the case of
the schooner Exchange (v. McFaddon, 1812) in which he
stated: "The jurisdiction of the nation within its own territory
"is necessarily exclusive and absolute V There cannot be two
captains on one ship. To prove it, Duguit suggested: "Let us
"suppose that, in one and the same territory, there are two
"sovereignties... If we suppose that the two sovereigns give
"contrary orders, these orders either will not be carried out,
"and then there will be no sovereignty at all, because these two
"alleged sovereignties obstruct each other, thereby ceasing to be
"independent. Or, of these two contradictory orders, one only
"is carried out, in which case the sovereign who has given the
"order is the only sovereign; the other is not sovereign, being
"restricted, obstructed by the first
3
."
If sovereignty is one and exclusive, it follows that others
states and individualsmust respect it. "Between independent
"states, " said the International Court of Justice, "respect for
"territorial sovereignty is an essential foundation of international
"relations *." Previously, the Permanent Court of International
Justice had declared in more general terms that "the first and
"foremost restriction imposed by international law upon a
1. American Journal of International Law, 1928, p. 867 sq.
2. 7 Cranch, 116.
3. Souverainet et Libert (Paris 1922), p. 80.
4. Corfu Channel-case (Merits) (1949), I.C.J. Reports No. 15, 35.
"state is that, failing the existence of a permissive rule to the
"contrary, it may not exercise its power in any form in the
"territory of another state
1
." This dictum quite naturally leads
to a discussion of the doctrine of intervention as an exception to
the rule just stated. It is too vast a subject to be dealt with here,
so that I must regretfully confine myself to referring you to the
abundant literature on the subject.
Next, there is the thesis that sovereignty is indivisible. It can-
not be cut up in fragments which belong to more than one
depository. Sovereignty, as we have seen, is energy, and it is
clear that the single forces which this energy releases can only
emanate from one single unit, and not from a number of scat-
tered entities.
There are some who think that this concept gives rise to diffi-
culties in the case of composite states, in so far as the possibility
is admitted that there are two sovereign authorities on one
territory : that of the federal Government, and that of the state
Government. To elude those difficulties, some writers have made
a distinction between the substance and the exercise of sover-
eignty, the substance being indivisible, but not the exercise of
sovereignty
2
. It seems simpler to accept the fact that the sover-
eignty of a state which has delegated for ever essential elements
of its sovereignty to a federation, if not extinguished
3
, is at least
in abeyance.
Thirdly, sovereignty is inalienable, not in the sense that it
cannot be ceded (history is full of examples of cessions of sove-
reignty, as many peace-treaties attest), but in the sense that a
sovereign power which divests itself of its sovereignty, ipso facto
ceases to be a sovereign.
Treaties by their nature very often constitute a voluntary
limitation of the exercise of sovereignty, and the limitation may
1. "Lotus"-case (1927), P.C.I.J., Series A, No. 10, p. 18.
2. Le Fur, Etat Fdral et Confdration d'Etats (Paris, 1896), p. 361.
Similarly, Makowski distinguishes between sovereignty per se and its attri-
butes (La Situation Juridique du Territoire de la Ville Libre de Dantzig,
Paris 1925, p. 190).
3. Kelsen (Principles of International Law, New York 1952, p. 113)
expresses the opinion that "states" in a federative State "lose their quality
of states in the sense of international law".
go very far. Yet, the Permanent Court of International Justice
declined "to see in the conclusion of any treaty by which a state
"undertakes to perform or refrain from performing a'particular
"act an abandonment of sovereignty
1
". Whether this is not too
sweeping a statement inasmuch as it also seems to cover irrevo-
cable acts whereby sovereignty may be seriously and permanently
impaired, seems to us a legitimate question. Yet, for revocable
acts or acts of a temporary character, the dictum seems unas-
sailable.
The same high tribunal ruled that encroachments on sove-
reignty cannot be inferred
2
or presumed
3
; and that in case of
doubt a limitation of sovereignty must be construed restric-
tively. *
2.
If such reflections and statements concerning the nature of
sovereignty tend to deepen our understanding of that notion,
the same purpose may further be served by comparing sove-
reignty with two other notions : that of independence, and that
of equality.
(1). Independence. Many writers deal with sovereignty and
independence as if they were synonyms, and there are judicial
decisions based on this view. The award in the Palmas (Mian-
gas) arbitration (1928), states that "sovereignty in the relations
"between states signifies independence". And the Permanent
Court of International Justice recalled in the matter of the
Austro-German Customs Regime
5
that the independence of
Austria, according to the treaty of St. Germain, must be under-
stood to mean the continued existence of Austria within the
present frontiers as a separate state with sole right of decision in
1. "WimbledoiT-case, P.C.I.J., Series A, No. 1, p. 25.
2. Interpretation of the Statute of the Memel Territory, P.C.I.J., Series
A/B, No. 71, pp. 104-105.
3. Case of the s.s. "Lotus", P.C.I.J., Series A, No. 10, p. 18; Asylum-
case, I.C.J. Reports 1950, pp. 274-275.
4. Case of the Free Zones of Upper Savoy and the District of Gex
(order), P.C.I.J., Series A, No. 24, p. 12; id. (judgment), P.C.I.J., Series
A/B, No. 46, p. 167.
5. Series A/B (1931), No. 41, p. 45.
(89) SPECIAL POINTS WITH REGARD TO SOVERIEGNTY 89
all matters economic, political, financial or otherall these
points being characteristics of sovereignty no less than of inde-
pendence.
Others maintain that there is a larger or smaller measure of
difference between the two concepts. As an extreme example
I should mention Professor Ch. Rousseau who, five years ago,
defended here the view that, whilst sovereignty is to be rejected
as a legal criterium of the state, independence is that criterium
a picture all in black and white
1
.
I believe neither opinion to be entirely correct. As a reflection
of pure fact, it is obvious that much is to be said for Ralston's
statement that independence "to-day is an absurd notion, and
"devoid of reality"
2
: no state can do, e.g., without imports
from other states. But here we are concerned with legal con-
cepts, and as such independence is, it seems to me, sovereignty
in its relative aspet, the aspect of not being dependent on the
authority of another state. That, however, independence and
sovereignty are not identical becomes very clear when it is
supposed for a moment that all separate states merge into one
single new state. There is no doubt that such a state would be
sovereign; but there would be no one left to be conceivably
dependent upon. In other words : independence presupposes the
presence of at least two states, whereas sovereignty is not so
conditioned; it is an absolute term, whilst independence has a
relative quality. But this much having been said, I readily
concede that, to all practical intents and purposes, the terms
are very largely interchangeable, although independence would
seem to emphasize the negative side of the term somewhat
more than does the word sovereignty.
(2) Equality. In spite of all inequality, however great and
glaring, in point of fact, at law sovereign states are considered
equal. The latest consecration of this well-established principle
is to be found in the Charter of the United Nations which
proclaims not only "the principle of equal rights of peoples"
(art. 1, para. 1), but "the principle of the sovereign equality of
1. R.A.D.I. 73 (1948), pp. 171 sq.
2. Quoted by W. Sukiennicki, op. cit., p. 81 note.
"all its members"a looseness of drafting no one will be able to
admire
1
.
In 1925 M. Gidel, now President of this Academy's Cura-
torium, recalled with how much insight and understanding
M. Charles Dupuis has analysed the process by which equality has
become a principle of international law
2
. "Rupture of political
"unity and the relaxation of moral ideas resulted in there being
"states whose sovereigns, intoxicated by their omnipotence,
"refused to acknowledge any authority above their own, any
"limitation of their independence. If powerful, these sovereigns
"could not but be tempted to increase their might at the expense
"of their neighbours; they were, and they yielded to the temp-
"tation. But, having asserted their independence against the
"supremacy of pope and emperor, they were unable to deny
"those who were in the same position that sovereignty and
"independence which they claimed for themselves. Between
"sovereign and independent states, freed from a previous com-
"mon inferiority, there could exist no relations of either supe-
ri ori t y or subordination. The equality of states was the natural
"and necessary consequence of their sovereignty and indepen-
dence. Thus, the principle of equality before the law was
"proclaimed between states before it was admitted by municipal
"law in respect of individuals, and at a time when the triumph
"of absolutism gave the sovereign little incentive to grant to
"their subjects that liberty and equality which they asserted for
"themselves
3
."
It seems quite unnecessary to emphasize that this equality
before the law stands out in striking contrast with the facts of
international relations. The great powers have, by their mere
factual power, a tremendous advantage over the smaller powers,
and that advantage makes itself felt even when it is not being
1. The latter term is apparently derived from the Moscow Declaration
made by the heads of the American, British and Soviet Governments on
October 30, 1943 (U.S. Senate Document No. 123, 81st Congress, 1st ses-
sion, p. 12). The Bogota Charter of the Organisation of American States
(1948, art. 6) is very precise: "States are juridically equal".
2. R.A.D.I. 10 (1925), p. 548.
3. Ch. Dupuis, Le Droit des Gens et les Rapports entre les Grandes
Puissances et les autres Etats, Paris 1921, pp. 21-22 (translation by v. K.)
used on purpose. I cannot, and surely need not, give examples
herethey are known to everyone. What I want to say, however,
is that it all shows that, whilst nearly all states preach demo-
cracy these days (whatever each of them means by that term),
they apparently are not ready to practise it in international
relations, where the rule of the few prevails to a considerable
extent. If I may quote here from a letter I addressed in 1943
to the editor of the (London) Times
1
, the following illustrates
my point:
"I venture to submit that, in a world dedicating itself anew
"to democracy, this is an antiquated conception. In national
"affairs we have advanced well beyond the stage when
"wealth gave political power. The poor worker has as good a
"voice and a vote as the rich man. It is difficult to see how,
"in things international, democratically minded people can
"feel justified in attaching more weight to the voice of the
"greater powers than to that of the smaller onesnot neces-
sari l y small ones. Might and influence in national and inter-
nat i onal affairs are one thing: opinions and views are
"another. The great powers, according to the "Big Four"
"theory, seem desirous of benignly ruling the community of
"nations; the lesser powers (whose very life depends on wise
"international cooperation) wish to serve the common good,
"and I venture to suggest that this is a more valuable
"because a more unselfishapproach to claiming a vote at
"the council table.
"It is sometimes said that the great powers are entitled to
"the last word because they make the greater sacrifice and
"carry the heavier burden. I doubt whether that considera-
"tion should be decisive. The smaller powers suffer fqr the
"mistakes made by the big ones on the strength of their
"power, mistakes often made against the express advice of the
"lesser states whose existence, as a result of such errors, is
"sometimes endangered to an even greater degree than that
"of their more powerful friends. Nor should the importance of
1. To be found in the issue of that newspaper of March 25.
"the smaller powers be underrated. What, to give only one
"example, would have happened to Britain and, more indi-
rectly, to the United States, Russia and China, had Poland,
"Norway, the Netherlands, Belgium, Yugoslavia and Greece
"meekly submitted to German aggression? The pace of the Ger-
"man, Italian and Japanese advance would have quickened
"to a degree which might well have caused disastrous
"results to small and great countries alike, the tonnage of the
"allies would be many millions less, and vast resources would
"have fallen to the enemy which now are available to the
"allies.
"If we are to be true to the democratic idea, these ideas
"should prevail. We cannot proclaim democracy, and prac-
t i s e the rule of the few."
There is, in other words, a wide gap between what many
preach on the subject of democratic equality before the law, and
its application in international relations. Worse, this has found
an express sanction in point of law, in the shape of a special
privileged position for certain great powers in the United
Nations. Everyone knows to what absurd situations the so-called
"veto" has given rise by its free use on the part of the Soviet
Union. As a statement of fact, a witty observer of the old League
of Nations once said that this institutionwhere the great
powers had no more privilege than a permanent seat on the
councilwas an organisation for the settlement of important
disputes between the smaller states, and for the adjustment of
unimportant disputes between the great powers
1
. It seems to
me that it was bad statesmanship to give this situation a foun-
dation in law in the Charter of the United Nations.
All this has been done, wrongly I think, in defiance of the
well-established principle of the equality of states before the
law, one of the fundamental principles of the law of nations:
time and again, this principle has been upheld in international
treaties, interstate correspondence, and international arbitra-
1. James Brown Scott, Le Principe de l'Egalit Juridique, R.A.D.I. 42
(1932), p. 582.
tions. Proclaimed by the American Institute of International
Law in 1916, by the "Union Juridique Internationale" in 1919,
and by the Institute of International Law in 1921, the principle
has been maintained in many arbitral awards (the International
Court of Justice and its predecessor have not, so far at least,
been called upon to give a clear pronouncement on this impor-
tant point)
i
. "Both parties, " says an award rendered in the
Permanent Court of Arbitration in 1922 in a dispute between
Norway and the United States, "both parties come before the
"tribunal on a footing of perfect equality", just as four years
later a tribunal established to settle disputes between Great
Britain and the United States, expressly mentioned "the funda-
"mental principle of the juridical equality of states"
2
.
Herewith I have to terminate the discussion of this point, one
of the basic principles of international law.
It remains for me to call attention to an important conse-
quence of the principle of the equality of sovereign states before
the law, viz. that no sovereign state is subject to the jurisdiction
of another. Par in parem non habet imperium, is the time-honoured
formula. This only refers to cases in which a sovereign state has
acted in that capacity, but it is generally acknowledged that it
does not apply when a sovereign state acts in a private capacity,
e.g. as the beneficial owner of a limited company engaged in
commercial pursuits. But where a sovereign state has acted in
its sovereign capacity, the courts of another state are not compe-
tent to call the acts thus performed into question.
3.
Sovereignty is one of those invisible quantities which, for
being invisible, are none the less very real. It is, as we have seen,
1. In his dissenting opinion in the Lotus-case before the Permanent
Court of International Justice, Judge Moore (U.S.A.) mentioned "the
principle of the equality of independent states".
2. Anglo-American Special Agreement of Aug. 18, 1910; report of
U.S. Commissioner Nielsen, Washington 1926, p. 524.Other arbitral
awards in the same sense in A. M. Stuyt, The General Principles of Law
as applied by International Tribunals, The Hague 1946, p. 175. See also
E. D. Dickinson, The Equality of States in International Law, Cambridge
(Mass.), 1920.
subject to the action of time, by which it can be lost through
inaction
1
or acquired through unopposed exercise or display
of the intention and will to act as a sovereign
2
. It, furthermore,
manifests itself in a threefold way: in respect of territory, in
respect of persons, and in respect of subject-matter. A few
remarks seem to be in order here with regard to each-of these
three aspects.
No state, sovereign or non-sovereign, is conceivable without
a population or without a territory. But whilst a sovereign state
must have a population and a territory, its authority is by no
means confined to that territory and to its permanent popula-
tion. A sovereign state has authority over ships flying its flag and
those on board wherever they are, on the high seas, and even
in the homewaters and ports of other countries. Its consuls
exercise their public functions in other states' territory. These
examples may suffice to make it clear that the authority of a
state is by no means confined to its territory in the narrower
sense. How is this to be explained from the point of view of
international law?
1. Territory. Under the influence of Roman law, sovereignty
with regard to territory was long regarded and interpreted in
terms of property
3
. "Until the xixth century, " says Schn-
born
4
, "this legal interpretation met with no serious opposition
"based on principle", and in modern times it still has had its
votaries in various countrieslet us name Fauchille
5
in France,
Schcking in Germany, Donati in Italy, and in England Hall
6
,
who called territorial sovereignty "property". It is easy to
understand that this way of looking at territory gave rise to the
concept that such "property" could be encumbered by "servi-
"tudes" on behalf of other states, such as the right to let troops
1. Palmas (Miangas) Arbitration (loc. cit.).
2. Eastern Greenland-case, P.C.I.J., Series A/B, No. 53, pp. 45-46.
3. See for this subject generally W. Schoenborn, La Nature Juridique
du Territoire, R.A.D.I. 30 (1929), 85 sq.
4. Loc. cit., p. 102.
5. Trait de Droit International Public (1925), I, p. 450.
6. Treatise on International Law (1924), p. 125 sq.
pass, or to establish a foreign garrison, or a prohibition to con-
struct fortresses. Whether servitudes in the sense of Roman law
and of the law-systems derived from it may be held to exist in
international law is at least doubtful
1
; their existence was
denied by at least two authoritative pronouncements : the award
in the North Atlantic Fisheries Arbitration (1910) between
Great Britain and the United States
2
, and a decision of the
Council of the League of Nations, guided by a commission of
eminent lawyers, in the lands-Islands Dispute (1921). The
Permanent Court of International Justice has given no definite
opinion on this point; in the "Wimbledon" case (1923) it
merely remarked that the question is "of a very controversial
"nature, whether in the domain of international law there
"really exist servitudes analogous to the servitudes of private
"law
3
."
However this may be, the theory which proclaims territory to
be the property of a state is open to serious objections which
explain its present disfavour. Why should a concept derived
from Roman law guide a relationship between states and terri-
tory even in countries which have entirely different ideas as to
real property? Secondly, how could territory in a federal state
be at one and the same time the property of the federation and
of one of the federated states? Finally, if territory is an essential
attribute of the state, without which it simply is a state no
longer, how can one conceive of territory as something having
an existence apart from the state, something it owns, something
outside it? These questions find no satisfactory solution on the
basis of the proprietary theory.
Another theory has been proposed to take care of these
objections. It suggests that territory, an essential element of the
state, is merely the state itself in what is called its territorial
aspect. Aggression, according to that theory (and in this respect
it seems incontrovertible) is a violation of the personality of the
1. See G. Krusen, Les Servitudes Internationales, R.A.D.I. 22 (1928),
p. 5 sq.
2. American Journal of International Law, 1910, p. 948.
3. P.C.I.J., Series A, No. 1, p. 24.
state attacked. This theory has a great many variants
1
. But
these are all subject, to a greater or lesser degree, to considerable
criticism. If the territory of a state is of its essence, any modifi-
cation of that territory would result in that state losing its
identity. After all, a state cannot be imagined as divesting itself
of particles of its identity ! The whole theory seems to belong to
biology rather than to law.
Lastly, there is what may be called the jurisdictional theory.
It appears to have been formulated for the first time by
E. Radnitzky
2
in 1905, and was developed and incorporated by
Kelsen in his systematization of international law
3
. Territory,
in this way of thinking, is that space within which in principle
one sovereign state only is entitled to exercise its legal power,
to the exclusion of all other states
4
. Thus understood, sove-
reignty in respect of a certain territory is perfectly compatible
with private ownership on the part of someone else ; it also is
consistent with the existence of federal states, the federation and
each of the individual states having their own jurisdictional
sphere. This theory has been strongly attacked by Donati
5
,
but his onslaught was repulsed by Verdross
6
. It is undoubtedly
the most satisfactory legal theory with regard to territory in the
field of international law.
Kelsen has rendered another service to international law by
making a distinction between territory in a narrower and in a
wider sense. We have already seen what he understands by the
territory of the state in a narrower sense : that space within which
in principle one state only, the state to which the territory
belongs, is entitled to exercise its legal power, and especially to
carry out coercive acts, a space from which all the other states
1. See Schoenborn, op. cit., pp. 115-116.
2. Schoenborn, op. cit., p. 117. See also G. Gidel, Le Droit International
Public de la Mer, Paris 1932, pp. 226 sq.
3. Principles of International Law (New York 1952), pp. 207 sq.
4. Kelsen does not seem to have freed himself entirely of all vestiges
of the proprietary theory, for he speaks (p. 213) of "the state to which
the territory belongs".
5. Stato e Territorio (1924).
6. Niemeyer's Zeitschrift fr Internationales Recht, vol. 37, 1927,
p. 293 sq.
are excluded. This space also contains the interior and territorial
waters, whatever their recognized width. Always bearing in mind
the idea of territory being the space where a state exercises its
jurisdiction, it is then stated that there are areas, territory in
the wider (though rather more abstract) sense, where states
exercise only part of their authority: the high seas (where
states have jurisdiction over vessels sailing under their flag), and
"no man's land", where the same holds good until it is acquired
by some state as part of its territory in the narrower sense. The
space above the territory in the narrower sense and the soil
beneath it, are now generally acknowledged as belonging to
that territory.
Very many questions arise in respect of the sovereign state's
jurisdiction in interior and coastal waters of its own and of other
states, the marginal belt adjoining these coastal waters, and the
high seas. Lately, the earth underneath the coastal waters and
under the marginal belt adjoining them has given rise to contro-
versy, particularly in the United States, in connection with oil-
deposits which are, or are supposed to be found under that part
of the territory of several states of the Union, and it is not
impossible that difficulties will arise in international relations, in
which case they will have to be dealt with in the light of inter-
national law. But however important and interesting these cases
may be, I have to refrain for lack of space from going into them
here, referring my audience to special works on the subject
l
.
Let me therefore confine myself to saying that if I call attention
to these matters, it is merely to show the richness of the subject
of sovereignty as evidenced by the many and variegated pro-
blems that arise in connection with it. The Permanent Court of
International Justice has given several decisions which have a
bearing on the subject of territory, both as regards land and as
regards sea
2
. The air has not, so far at least, been the object of
1. In so far as international law with regard to the sea in its widest
sense is concerned, see particularly Gilbert Gidel's great work: Le Droit
International Public de la Mer, Paris 1932 and subsequent years.
2. See, e.g., the "Lotus"-case (1927), P.C.I.J., Series A, No. 10, p. 20:
the East Greenland-case (1933), P.C.I.J., Series A/B, No. 53, pp. 45-47;
the Corfu Channel-case (merits) (1949), I.C.J. Reports, No. 15, pp. 22
and 35; the Anglo-Norwegian Fisheries-case (1951), I.C.J. Reports, No. 55,
p. 132, and others.
I. 1953. 7
litigation before the International Court of Justice ; it constitutes,
however, a rich chapter by itself, and the index of the Recueil
des Cours of this Academy bears witness to the fact that it has
received considerable attention at this forum.
2. Persons. No sovereign state without territory; no sovereign
state without persons falling under its jurisdiction and residing
on a permanent basis in that territory. Gypsies have never
formed a state; they are a people without territory and even
without a fixed abode. To be a sovereign state, a territory and
persons residing therein permanently are both indispensable; at
the same time the territory, as the place of permanent residence, ,
determines to a large extent who are the nationals of the state
in question.
Innumerabl e questions arise under domestic law with regard
to the legal position of these nationals, both human beings and
corporations. As far as international law is concerned, its rules
do not extend, except accessorily, to the relations between a
sovereign state and its own nationals. It is vitally concerned,
however, with the relationship between sovereign states and
aliens, and very numerous indeed have been the disputes which
in the course of time have arisen between sovereign states on
t hat subject, which may be said to be the daily bread of every
Ministry for Foreign Affairs. As a result, the number of submis-
sions of such disputes to some impartial agency for purposes of
settlement has likewise been considerable
1
.
There are, roughly speaking, two groups of aliens : the non-
privileged, and the privileged.
The non-privileged (persons or corporations) are those i n
respect of whom international law gives no rules according them
a privileged position. When admitted into the territory of
another sovereign state than their own, they must observe its
laws, whilst the receiving state is to accord them protection i n
their person and property, seeing to it that justice is not denied
them. They may be subject to certain permissive disabilities,
1. See Stuyt, Survey of International Arbitrations (The Hague, 1939),
passim, and the reports of the Permanent Court of International Justice
and of the International Court of Justice.
(99) SPECIAL POINTS WITH REGARD TO SOVERIEGNTY 99
such as the denial of the right to vote or to own real estate, and
even of the right to work, but their personal safety and the
security of their possessions must be assured by the receiving
state, in default of which that state incurs a corresponding
responsibility. The subject is very extensive, and cannot here be
dealt with in detail.
The privileged group (chiefly persons exercising some public
function) consists of those in respect of whom international law
has given rules according them a privileged position. Long
usage has established a set of rules, universally accepted as valid
international law, for several categories. For details I must refer
to special treatises on this subject. Let me only name: heads of
states when abroad ; diplomatic representatives and persons who
(like the President and Members of the International Court of
Justice) are assimilated to such representatives; consular officials;
personnel of foreign armed forces on peaceful missions. Other
than persons: foreign warships and military aircraft, as well as
other foreign state-owned ships and aircraft employed for non-
commercial purposes.
With regard to aliens, important questions also arise in connec-
tion with extradition and asylum. I can only mention them pro
memoria, and note that the International Court of Justice has had
to deal rather extensively with asylum in the Haya de la Torre-
case
1
, whilst extradition does not appear to have led to much
international litigation
2
.
3. Jurisdiction "Legislation, " said the Permanent Court of
international Justice in the Eastern Greenland-case
3
, "is one
"of the most obvious forms of the exercise of sovereign power",
and since any sovereign state may make laws on anything so long
as it does not thereby contravene international law, the range
of matters which a sovereign state may deal with by way of
legislation is enormous. When discussing territory, we have
1. Reports I.C.J., 1949, Nos. 23 and 29; 1950, 'Nos. 40 and 50.
2. No case concerning extradition is mentioned in Stuyt's Survey of
International Arbitrations (The Hague, 1939), and none has come before
the Permanent Court of International Justice or the International Court
of Justice.
3. Series A/B, No. 53, p. 48.
already noted that the effect of the national legislation of a
sovereign state may extend well beyond the borders of its own
territory, and apply, e.g., to ships flying its flag or to its nationals
elsewhere. International law sets the limits to which this power
is subject.
A great variety of problems falls under this heading, which I
have regretfully to pass by. There is, however, one question
pertaining to the delimitation of the domain of international
and of national law I should like to mention. Let me start by
mentioning that there is no matter whichgiven the consent
of all concerned where neededcannot be regulated by inter-
national law
1
; but there are matters which, it is now recognized,
are "essentially" (as the Charter of the United Nations says) or
"solely" (as the Covenant of the League of Nations had it)
within the domestic jurisdiction of a sovereign state. This thorny
subject came into existence when the League of Nations was
being established in 1919; it first arose in the United States,
where it was feared that the Covenant would not be accepted
by the Senate if it were not made clear that such matters as
tariffs and immigration were left to the discretion of the national
legislation and administrationa typical concession of inter-
national legislation to politics.
The Covenant (art. 15, para. 8) referred in this respect to
matters "which by international law (are) solely within the domes-
"tic jurisdiction of a state". The Charter (art. 2, para. 7) omits
the reference to international lawa characteristic example of
the decline (temporary, no doubt) respect for international law
has suffered as a result of the Second World War
2
; it also
substitutes the word "essentially" for "solely", which seems to
extend rather than to restrict the reserved domain.
Which matters are "solely" or "essentially" within the domes-
tic jurisdiction of a sovereign state? The question has arisen
both in the Permanent Court of International Justice and in its
1. Kelsen, op. cit., p. 202 does not mention that such consent may be
needed.
2. Other examples in E. de Marees van Swinderen, Volkenbond en
Verenigde Naties (The Hague, 1946), pp. 38-41.
successor Court. In the first-named Court, it was held that those
words "seemed rather to contemplate certain matters which,
"though they may very closely concern the interests of more
"than one state, are not, in principle, regulated by international
"law". And the Court continued: "The question whether a
"certain matter is or is not solely within the jurisdiction of a
"state is an essentially relative question; it depends upon the
"development of international relations. Thus, in the present
"state of international law, questions of nationality are, in the
"opinion of the Court, in principle within this reserved domain.
"... It may well happen that, in a matter which, like that of
"nationality, is not, in principle, regulated by international law,
"the right of a state to use its discretion is nevertheless restricted
"by obligations which it may have undertaken towards other
"states. In such a case, jurisdiction which, in principle, belongs
"solely to the state, is limited by rules of international law"
1
.
It is tempting to quote more from this carefully drafted decision,
but I must resist the temptation. Let me remark, however, that
if Professor Rousseau gives us a catalogue of matters which he
feels belong exclusively within the domestic jurisdiction of a
state
2
, that catalogue can only have a very relative and tempo-
rary valuewhen international law changes, the catalogue may
have to change too.
In its turn, the International Court of Justice declared in a
case concerning the interpretation of the peace treaties with
Bulgaria, Hungary and Rumania: "The interpretation of the
"terms of a treaty for this purpose could not be considered as a
"question essentially within the domestic jurisdiction of a state.
"It is a question of international law which, by its very nature,
"lies within the competence of the Court
3
."
This knotty problem has been very admirably explained at
this Academy in 1949 by Professor L. Preuss of the University
of Michigan *. I would refer you to his lectures for further
1. Tunesian-Moroccan Nationality Decrees-case (1921), Series B, No. 4,
pp. 23-24.
2. Op. '/., pp. 239 sq.
3. Reports 1950, pp. 70-71.
4. R.A.D.I. 74, pp. 553 sq.
102 E. N. VAN KLEFFENSSOVEREIGNTT IN INTERN. LAW (102)
particulars, adding only a few of my own. The first is, that the
plea of domestic jurisdiction is likely to be put forward, as it has
been put forward, in all sorts of cases where it is clearly out of
order. But that is no reason to condemn it altogether. In the
national courts, various pleas are often heard in like manner,
but nobody has ever thought of prohibiting them altogether for
that reason. In such matters the possibility of some abuse must
be taken into the bargain, because nobody should be unduly
restricted in his defence, and there may quite well be, as there
have been, cases in which an appeal to article 2, para. 7 of the
Charter is an entirely valid defence.
My second remark is this. What I have witnessed and read
with regard to the practice of the Security Council of the
United Nations has left with me the distinct impression that this
august body does not always heed the provision of article 2,
para. 7 of the Charter as it should. The first time this seemed to
me patent was when Spain was accused in 1946 to present a
potential threat to the peace. In art. 2, para. 7, the Charter
gives jurisdiction to the Security Council, even in matters which
are essentially within the domestic jurisdiction of a state, in
cases of intervention by enforcement measures. There was, in
the Spanish case, no question of enforcement measures. Nor had
the Council any jurisdiction by reason of a threat to the peace
on the part of Spain, because although it was endeavoured to
construe such a threat, it could not be proved to exist; the
Council was guided by the report of a sub-committee which was
explicit in that sense'
1
. The Council nevertheless dealt with the
matter. The same happened in the Indonesian case (1947).
In both cases, I still believe, the Council exceeded its jurisdiction.
This is how it happened :
There was at the San Francisco Conference a tendency, of
whom the chairman of the Australian delegation Dr. Evatt was
the principal spokesman, to paint a picture all in black and
white; either a matter was essentially within the domestic juris-
diction of the sovereign state concerned, or it was, what Austra-
1. 44th Meeting, Official Records, 1st year, 1st series, No. 2, p. 315.
lian representatives have called with great pertinacity, "a matter
"of international concern"
1
, and they have consistently argued
that, when a matter is of international concern, the Security
Council may take action.
I have, as the representative of my country when it was a
member of the Security Council, warned against this concep-
tion, by pointing out
2
that the term "matter of international
"concern" is to be found nowhere in the Charter, and that it is
dangerous to base such a grave decision as one to take inter-
national action on a concept which is extraneous to the Charter.
I am not alone in thinking along these lines. Professor Paul
Hasluck, of the University of Perth, himself an Australian and a
former acting representative of his country on the Security
Council, wrote in 1948 that although "the Council did at least
"make out a case ... to the effect that the Franco regime was a
"potential menace to international peace and security", and thus
"created a situation which was "likely to endanger" the main-
"tenance of international peace and security" ..., "the case for
"intervention was extremely doubtful". "But, " he proceeds,
"at least the Security Council did try to pay some respect to the
"principle. In the case of Indonesia, however, where the same
"matter of domestic jurisdiction was raised and a proposal made
"to refer the matter to the International Court of Justice for
"determination, the Council was apparently prepared to decide
"the matter offhand without any prior examination of the facts
"or prior determination of the question whether or not this was
"a case in which enforcement measures under Chapter VII were
"necessary or might become necessary"
3
, which is putting things
very mildly indeed.
I believe that it is a grave mistake to interpret the Charter on
the theory that, whatever is not essentially a matter within the
domestic jurisdiction of the state concerned, is a proper matter
for Security Council intervention. There are, in my opinion,
1. Security Council, Official Records, 1st year, 1st series, No. 2, pp. 195,
216, 317, 318, 319.
2. Ibid., p. 225.
3. Workshop of Security (Melbourne & London, 1948), p. 55.
areas which are neither. The Charter gives the Security Council
a number of prerogatives which are as many exceptions to
general international law, and, as exceptions, should, according
to well-settled principles of interpretation, be construed restric-
tively
x
. What the Council may do is stated in Chapters VI and
VII, and that is all conditioned by there being at least a dispute
the continuance of which is likely to endanger the maintenance
of international peace and security. The real meaning of art. 2,
para. 7 seems to me to be this : if a matter is essentially within
the domestic jurisdiction of a state, nothing the Charter says
shall authorize the United Nations (as the text states expressly)
to intervene in that matter, except when it is a matter of apply-
ing enforcement measures under Chapter VII; this therefore
applies even if the matter presents a danger to international
peace. There may be many people who do not like this, but the
text of the Charter seems to me too clear to admit of any doubt.
Only in extreme cases, when enforcement measures are in order
on the basis of Chapter VII, does the principle of abstention in
domestic matters have to yield. And there seems to me no doubt
whatever that Professor Hasluck was right when he warned
especially against the introduction into Security Council proce-
dure of an arrogation of jurisdiction on the pleawhich finds
no basis in the Charterthat a matter is "of international
"concern". "The United States fiscal policy is a matter of the
"liveliest international concern at the moment, " wrote Professor
Hasluck
2
, "but it is still a matter of domestic jurisdiction";
surely the Security Council should not meddle with such a
matter, in whatever country. The example can easily be multi-
plied. If the Security Council does not observe a wise restraint
in this respect, overstepping the limits of its jurisdiction, it will
become a nuisance, a danger, and the cause of its own and the
United Nations' undoing. For no public body will endure that
1. Remember also that the Permanent Court of International Justice
ruled (case of the Free Zones of Upper Savoy and Gex, 1930) that in
case of doubt a limitation of sovereignty must be construed restrictively
(Decisions, Series A, No. 24, p. 12).
2. Loc. cit.
oversteps the limits of its jurisdictionin this case limits clearly
defined in the carefully chosen wording of a Charter on whose
drafting a great deal of labour was spent.
Of course, the Security Council has the right to discuss any
case in a preliminary way, as long as it does not go beyond what
is necessary to determine whether or not the issue is essentially
within the domestic jurisdiction of the state concerned. Other-
wise, how can it establish whether or not that case is a matter
belonging essentially to the domestic jurisdiction of the state
concerned, and if so, whether enforcement measures are called
for under Chapter VII? That in itself is an exceptional right,
which, as an exception, should be handled with discretion, all
the more since discussion may very easily by itself become a
method of bringing pressure to bear, even if the Council, true
to the Charter, does not, as art. 2, para. 7 says, "intervene" in
the stricter sense of that term. But there is, in my opinion, no
question that due preliminary discussion is always allowed.
We have, in an earlier phase, seen that sovereignty is subject
to the action of time. Time also plays a part in the sense of:
when does a sovereign state come into being? When does it stop
being a sovereign state? How is it admitted as such into the
community of states? What is the law concerning its succession?
Each of these important points, however, would require develop-
ments of some considerable length, and it is for this reason that
I feel constrained to confine myself to this short and rather
incomplete enumeration, referring my. readers to the extensive
special literature on these interesting topics.
I hope I have succeeded in giving you an impression of the
wealth of legal problems that may arise in connection with
sovereignty, and perhaps even some understanding (in so far as
you still need it) of their nature. International law is usually
dealt with in handbooks as a sort of map on which various
contours are drawn, a great many details being filled in within
the contours. I wonder if a handbook, more lively and more
interesting, could not be written taking the sovereign state and
the community of sovereign states as the two central living
I
entities of international law, each having its rights and its duties.
In any case, the human race can only prosper and progress if a
wise balance is struck between the needs of the individual sove-
reign states and of the international community, and it seems to
to me to be the task of international law to ascertain and indicate
that balance.
CHAPTER V
THE ERA OF INTERNATIONAL ORGANISATION
RECENT TENDENCIES
I.
W
E have had occasion to draw attention to the fact that,
owing to present-day developments, there has come to
exist between nations a large degree of solidarity. And
although we had to reject that solidarity as the basis of inter-
national law, nobody can deny that it has had important
consequences for the development of international law in general,
and of the sovereign state in particular.
No one, in my opinion, has described the genesis and extent
of this solidarity better than Professor Bourquin in the course
of the brilliant lectures he delivered at this Academy in 1931 *.
"A hundred years ago, " he said
2
, "neither railways nor steam-
ship-lines, nor electrical telegraphs, nor telephones, nor sub-
"marine cables, nor aircraft, nor wireless communications"
(nor, he would add now, television) : "stage-coaches, wooden
"sailing-ships, interminable journeys, full of difficulties and,
"sometimes, dangers. ... Industry was still in its infancy; the
"machine had been introduced only recently; there were small
"workshops with modest equipment serving a local or regional
"public whose needs, limited and well-known, determined
"production; industry demanded little capital investment,
"occupying in general only a secondary place in the economy
"of the country, of which agriculture still was the main basis ...
"Political organisation corresponded to economic needs ...
"international life was still rudimentary and, on the whole,
"of secondary importance. By and large, every state could
1. R.A.D.I. 35 (1931), pp. 5 sq.
2. Ibid., pp. 23 sq.
"provide for its essential needs; if absolutely necessary, it could
"live on its own resources without straining its existence to
"breaking-point. Hence, in order to solve the main problems
"besetting it, no more was necessary as a rule than taking
"counsel with itself, guided only by a consideration of its own
"interests, The state machine had enough power and differen-
"tiation to cope ..with the requirements of the life of the
"community, and the notion of "sovereignty" (Professor
Bourquin obviously means absolute sovereignty) "found some
"considerable support in the independence each national entity
enjoyed."
And now? Let us go on listening to M. Bourquin. "Now, in
"the economic and social field there is no question of any
"importance which can be settled outside the international
"sphere. It is here that a civitas maxima has come about which
"is an undeniable fact. ... This "community of mankind"
"which in Grotius' work had, after all, no more than an ideal
"existence, became a tangible, living, inescapable reality ...
"But was it a reality all along the line? Certainly not; for the
"political organisation of the world continued, on the whole,
"to be based on the particularism of states; and it is that
"which results in the un-balance we suffer from, the malad-
justment modern society came to feel more and more acutely.
"An economic pattern on an international scale; a political
"pattern of a chiefly national texture." That, it seems to me,
is an admirable summing up of the condition the world grew
into as the xixth century progressed.
New needs and new realities call for new forms and institu-
tions. Fast-growing interdependence confronted states with
problems they either could not solve alone, or could solve
better by cooperation. It. is most revealing to see the increase
in the number of treaties made each year before and after,
say, 1870, and even more after the First World War, an increase
reflecting the evergrowing solidarity of states in our time.
More striking still in this respect, because illustrating the
advent of international collective organisations comprising a
larger number of sovereign states pursuing common ends, were
(109) THE ERA OF INTERNATIONAL ORGANIZATION 109
those multilateral treaties which were concluded throughout
the xrxth century and thereafter for a variety of purposes.
The earliest treaties belonging to this group had to do with
international rivers
1
, their navigation, conservancy, and water-
power. The first in line was the so-called "Octroi"-Convention
regarding navigation on the Rhine (1804). Thereupon, the
Congress of Vienna inserted in articles 108-117 of its final act
(1815) a veritable general charter of international navigable
waterways; in addition, the same final act contained special
provisions in respect of the Rhine, the Neckar, the Main, the
Moselle, the Meuse and the Scheldt. Many collective treaties
have subsequently been concluded with regard to international
waterwayslet us name the Rhine, the Scheldt, the Meuse,
the Parana, the Uruguay, the Danube, the Congo-river, the
Niger, the Elbe, the Oder, and the Niemen (to name only
those rivers), and, in the matter of canals, those of Suez, of
Panama and of Kiel. For some rivers (Rhine ; Danube ; Congo)
commissions have been instituted with some considerable
authority of their own, being a corresponding restriction of
the sovereign rights of the states concerned.
At a later time, a different group of collective treaties for
common purposes came into existence, often establishing
"unions": multilateral conventions for the furtherance of some
specific common interest, chiefly in the economic sphere. They
mushroomed since the second half of the xrxth century, one
of the first, and one of the most beneficial and best-known
being the Universal Postal Union (1874). They dealt with
such variegated questions as communications, public health,
weights and measures, industrial and literary property, geo-
detics, slavery, agriculture, monetary arrangements, conflicts
of laws, bills of exchange, maritime law, narcotics, fisheries,
protection of animal life, white slave traffic, obscene publica-
tions, migration, andvery importantlabour conditions. The
international organisations thus created show all kinds of
organisational forms: some lack almost all machinery; others
1. See for this subject "Les Fleuves et Canaux Internationaux", by
Jonkheer W. J. M. van Eysinga (Bibliotheca Visseriana II, pp. 123 sq.).
have a common administrative office or "bureau", a third
group has organs with a greater or lesser degree of directing
authority
1
. Some constituted restrictions of some importance
on their members' sovereignty.
In the early years of this century, the number of these unions
a
already was as large as the degree of solidarity of the nations'
peaceful interests, of which they were, so to speak, the index.
But they dealt, each of them, with some special subject. Peace,
although everywhere every person in his right senses acknow-
ledges peace as being the supreme general interest of all, then
remained without any world-wide organisation worthy of that
name. The Peace Conferences held at The Hague in 1899
and in 1907 had not been enabled by the participating states
to establish such an organisation. At the turn of the century,
the largest inter-state organisation for peace was that of the
American republics, whose origin lies in the days following
their liberation; the first Pan-American Conference was held
in 1889, and we all remember the ninth Conference, held at
Bogota in 1948, the result of which was the Charter of the
Organisation of American states. Elsewhere, war retained an
essential place in inter-state relations, because as long as these
relations remain unorganized, opposition between states can
find no solution except by the use of physical force : war
3
.
War came, in 1914, and it shook the world. Tendencies
towards permanent international peace there had been ever
since Pierre Dubois, in 1306, published "De recuperatione
terrae sanctae"
l
, but they had a more or less Utopian character,
1. I would overstep the boundaries of international law if I included
in this lecture another manifestation of international solidarity : the agree-
ments between producers from various countries which, whatever their
legal nature, are private organisations. Let me, however, not neglect to
mention them in this connection, referring to professor Roger Picard's
lectures held at this Academy in 1939 (R.A.D.I. 67, pp. 539 sq.).
2. For an analysis of "unions" of an economic nature see W. Kaufmann,
Les Unions Internationales de Nature Economique, in R.A.D.I. 3 (1924),
pp. 181 sq.
3. Chr. Lange, Histoire de la Doctrine Pacifique, in R.A.D.I. 13 (1916),
p. 184.
4. Chr. Lange, op. cit., passim. See also Wynner and Lloyd, Search-
light on Peace Plans, New York 1944.
(Ill) THE ERA OF INTERNATIONAL ORGANIZATION 111
and (with the qualified exception of the Holy Alliance of 1815,
which Castlereagh dubbed "sublime nonsense and mysticism")
no practical results of importance were thereby obtained. After
the outbreak of the 1914-1918 war, however, things were
different. We cannot here analyse in detail why that was so.
The terrible hecatombs on the battlefield, natural pacifist
tendencies, particularly of the then fully emancipated middle-
classes, and of labour, the improved position of women (generally
be it said to their honouragainst war), perhaps also a
better understanding of things as a result of improved education,
all these elements converged to form an irresistible movement
towards the organization of peace, manifesting itself on both
sides of the Atlantic (North and South) and in the British
dominions elsewhere, with the sceptical and lukewarm adhesion
of Japan, some support of westernized Chinese, and a following
amongst leading Asians elsewhere.
It has been said that the world in its history has oscillated
between the principle of domination by a single power, and
the principle of cooperation: Pax Romana, and free asso-
ciation *. I believe that very often there was neitherjust
chaos. It was precisely this chaos people in very many lands,
under the impact of war, wanted to do something about. The
challenge : chaos. The method : organized cooperation to remove
causes of war. The coveted prize : peace.
"At the time of the Armistice of November 1918, " says
Mr. Frank P. Walters, formerly Deputy Secretary-General of
the League of Nations and its most competent historian
a
, "the
"great mass of opinion, in belligerent and neutral countries
"alike, was passionately convinced that a League of Nations
"must be set up without delay in order to make war impossible
"for the future
3
." We all remember the League of Nations,
with its annual General Assembly, its Council meeting fre-
quently, its remarkable international secretariat, and its
numerous accessory organs. And if I may once more quote
1. W. Sukennicki, op. cit., p. 23.
2. A History of the League of Nations (London 1952), 2 vols.
3. Ibid., I, p. 4.
112 E. N VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (112)
Mr. Walters, it is to recall, as he put it
1
, that the League
"experienced growth, success and power; it inspired love and
"hatred; it met with failure and defeat... Although the League's
"span of life was short and troubled, its success transitory, and
"its end inglorious, it must always hold a place of supreme
"importance in history. It was the first effective move towards
"the organisation of a world-wide political and social order...
"It was revolutionary in the sense that it involved a forward
"leap of unprecedented extent and speed, accompanied by
"extraordinary changes in the conduct of international relations
"changes of principle, changes of method, changes even in
"the general convictions which form the basis of public opinion".
How these changes affected the concept of sovereignty will be
examined here presently.
The League failed, not by reason of any major defect inherent
in its constitution or machinery, but by failure on the part of
some of its key members to use it as an agency for peace,
driven on as they then were by aggressive designs. It thus
became an object-lesson for the truth that setting up machinery
for peace is not enoughit is the spirit in which the machinery
is used, or left unused, that is all-important; this being a general
truth, it applies to the new United Nations just as much as
it did to the older League.
Around 1930, the economic crisis which, originating in the
United States in 1929, had severe repercussions in Europe,
coupled with the menace of communism, and a good deal of
uneasiness, suspicion and rivalry amongst the states of Europe,
had given new vitality to an old idea : that of European inte-
gration. Sully (1559-1641) 's "Grand Design"
2
, William Penn
(1644-1718) 's Essay on the establishment of a European
parliament
3
, the European federation schemes of the Abb de
St. Pierre (1658-1743) * and of Rousseau (1712-1778)
8
to
1. Ibid., I, p. 1.
2. Published by the Grotius Society.
3. Everyman's Library No. 724 (London 1915).
4. Published by the Grotius Society (1927).
5. English translation by C. E. Vaughan (London 1917).
name only thesehad all been highly theoretical individual
exhortations to greater European unity. In the nineteen-
twenties the first general movements for that purpose were
launched. Count Coudenhove-Kalergi founded the "Pan-
Europe movement" in 1922, of which the late Aristide Briand
became honorary President five years later ; besides a European
group he contemplated four other groups: the British Com-
monwealth of Nations, the Soviet Union, the Pan-American
Union, and a Far-Eastern group. "History, " he wrote with
considerable foresight, "gives Europe the following alternative:
"either to overcome all national hostilities and consolidate in
"a federal union, or sooner or later to succumb to a Russian
"conquest." In spite of some derision, the movement proved
to have considerable powers of attraction, enlisting the support
of many prominent people in various countries.
Count Coudenhove-Kalergi's movement was by no means
the only one. In 1924, M. Edouard Herriot publicly advocated
European Union when he was Prime Minister of France. In
a speech he made in the Chambre des Dputs in 1925, he
said: "It is my greatest wish to see the realization of the United
"States of Europe. And if I have devoted my energies ... to
"the League of Nations, I have done so because in this great
"institution I have seen the first rough draft of the United
"States of Europe." Dr. Stresemann, then German Foreign
Minister, welcomed these ideas
1
.
There also were a number of organisations whose aims were
more restricted, and more specially directed towards economic
integration in the interest of freer trade. The idea of a Customs
Union embracing a larger or smaller number of European
states, was once again in the air. Following in the footsteps of
Lon Faucher (1837), G. de Molinari (1879), and Paul Leroy-
Beaulieu (1879)
2
, there were established organisations such as
the International Committee for a European Customs Union
(1925), with a number of national sub-committees; the various
1. S. D. Bailey, United Europe (London 1948), p. 27.
2. See L'Union Douanire Europenne, by H. Truchy, in R.A.D.I. 48
(1934), p. 581.
I. 1953. 8
114 E.N.VANKLEFFENSSOVEREIGNTY IN INTERN. LAW (114)
leagues for human rights and a number of pacifist organisations
were active for the same purpose *. Unfortunately, the prevailing
current of history was in quite another direction. Instead of
more restrictions on sovereignty in the interest of peace, there
was in at least three crucial spots more self-assertion in the
interest of contemplated war.
The most statesmen-like approach of those days to proceed
to the integration of Europe (Europe, in this case, minus
Turkey and the Soviet Union) was undertaken by M. Briand
(1862-1932) during the tenth Assembly of the League of
Nations in 1929. What M. Briand had in mind was "federation
"based on the idea of union, and not of unity". After some
preliminary exchanges of views, he sent to the Governments
of Europe a memorandum outlining his ideas (May, 1930).
In it he said: "No one to-day doubts that the lack of cohesion
"in the grouping of the material and moral forces of Europe
"does in fact constitute the most serious obstacle to the develop-
"ment and efficiency of all political or judicial institutions on
"which the foundations of any universal organisation of peace
"tend to be based... The danger of such division is still further
"increased by the extent of the new frontiers (more than 20.000
"kilometers of custom barriers) which the peace-treaties have
"had to create in order to satisfy national aspirations in Europe
"... The proposed European organization could not be opposed
"to any ethnographical combination outside the League of
"Nations, either in Europe itself or in other continents, any
"more then it could be to the League itself." And then he
added a few paragraphs which are very important from the
point of view of the subject of these lectures, dealing as they
did with sovereignty: "In no case and in no degree may the
"formation of the federal union desired by the European
"Governments affect in any way any of the sovereign rights of the
"states which are members of such a de facto association. It is
"on the plane of absolute sovereignty and of entire political inde-
pendence that the understanding between European nations
1. E. Milhaud, L'Organisation Economique de la Paix, in R.A.D.I. 15
(1916), pp. 339 sq.
"must be brought about." In this respect M. Briand's ideas
were the same as those of Count Coudenhove-Kalergi's Pan-
European movement, whose Congress in 1935 stated that it
aimed at "the creation of a European confederation based on
"equality, sovereignty and security." This declaration of scrupu-
lous attachment to national sovereignty was reflected in many
of the answers that were given by each of the 26 states to
whom M. Briand's memorandum was sent: no fewer than 11
of them contained a faithful echo of that statement, whilst
only my own government showed a somewhat more realist^
sense by declaring that "the coordination of the economic and
"moral forces of Europe ... cannot be successful unless states
"are ready to limit the exercise of their sovereign rights to
"some extent"
x
.
M. Briand's proposals were discussed by the eleventh Assem-
bly of the League of Nations (1930), which decided to have
their study continued by a commission. "Soon the original idea
"was lost in a maze of sub-committees and technical reports...
"The Japanese conquest of Manchuria, the economic depres-
si on, the rise of Hitlerism, German territorial claims, the
"Italian invasion of Ethiopia, civil war in Spain, these and a
"host of other pressing problems demanded the attention of the
"world's statesmen, and the idea of European unity was removed
"from the international agenda. It was not forgotten
2
." Soon
after the war of 1939-1945 it was taken up again. But first there
was that cruel interlude with all its incalculable consequences.
And then the establishment of the United Nations claimed the
lime-light.
In object and in form, and in spite of no inconsiderable diffe-
rences, it was largely a revival of the League of Nations-idea,
perhaps the chief difference being that this time the United
States of America joined the organisation
3
. Students at the
Hague Academy of International Law may be presumed to be
1. Full text in Scelle and Mirkine-Guetzevich, L'Union Europenne
(Paris 1931), p. 75.
2. Bailey, op. cit., pp. 34-35.
3. For other differences, see de Marees van Swinderen, op. cit., passim.
116 E. N. VAN KLEFFENSSOVEREIGNTY IN INTERN LAW (116)
familiar with the structure and procedure of this organisation,
designed (as stated in the preamble) primarily "to save succeed-
i n g generations from the scourge of war". Some of the main
legal aspects will be discussed hereafter.
The realities of the political situation were such, however,
t hat other organisational work, of a far less universal nature,
proved to be necessary, both inside and outside Europe. We
shall not try to give a full catalogue, nor can we go into the
various factors which called each of these organisations _of
sovereign states into being. In Europe, recovery, defence and a
growing desire for integration were the main elements; else-
where, the pattern comprises defence, development, welfare, and
regional organisation. To begin outside Europe, mention may be
made of various arrangements between the United States and
Canada for their joint defence (1940 and 1949), the Canberra
Pact between Australia and New Zealand (1944), the Covenant
of the Arab League (1944), the agreements establishing the
Caribbean Commission (1946) and the South Pacific Commis-
sion (1947), the Inter-American Treaty of Reciprocal Assis-
tance (same year), and the Bogota Charter of the Organisation
of American states (1948). In and around Europe, there were the
Brussels Treat y on economic, social and cultural Collaboration
and collective Self-defence (1948), the network of treaties be-
tween the United States and a number of European countries
on Economic and Defence Cooperation (1948 and following
years), the Convention for European economic cooperation
(same year), the Intra-European Payments- and Compensa-
tion Agreement (do.), the important North-Atlantic Treaty of
1949; the Statute of the Council of Europe (same year), the
Agreement- on the European Payments Union (1950), the
c
Treat y establishing the European Coal and Steel Community
(1952), and the (as yet unratified) Treaty establishing the
European Defence Community (1952), whilst a treaty establish-
ing a European Political Community is in the making.
So far for the facts and the institutions.
I I .
What , now, does all this mean from the point of view of inter-
national law, in particular with regard to the notion of sover-
reignty?
As a starting-point for our considerations, let us recall the
conclusion we arrived at earlier that the fully sovereign, in the
sense of the unfettered state, bound by nothing but its own
discretion, does not exist. Apart from factual limitations, states
are always bound by international law, whose rules limit its
liberty of action in a variety of ways.
Next, let us agree for the sake of convenience to use the word
"organisation" in a very wide sense, from a mere consultative
body for limited purposes to a full-fledged state.
All the organisations we have named take away something
more, if not of the sovereignty of their members itself, then of
its free exercise, than do the general rules of international law.
But are there amongst those organisations who annihilate
sovereignty?
To arrive at an acceptable conclusion, let us first of all
remember that the mere fact of making a treatyall those
organisations we are here concerned with are based on trea-
tiesdoes not destroy sovereignty, a view expressly endorsed by
the International Court of Justice
1
.
Now all those treaties that establish an international organisa-
tion are treaties as to form, but they differ from other treaties
as to results. For, whilst other treaties result in the parties
directly acquiring certain rights and duties, the main result of
treaties creating an organisation is precisely t hat it is the organi-
sation created which is to acquire rights and duties, and often
rights and duties which are as many restrictions of the sove-
reign rights of the founders
2
.
If the organisation created is a new state (either federal or
unitary) into which two or more pre-existing states merge, then
1. See p. 88 (Ch. IV).
2. See for a general disquisition on this interesting subject A. Rapisardi-
Mirabelli, La Thorie Gnrale des Unions Internationales, in R.A.D.I. 7
(1925), pp. 345 sq.
118 E. N. VAN KLEFFENSSOVEREIGHTT IN INTERN. LAW (118)
these pre-existing states lose their individual sovereignty whilst
creating a new collective one. England and Scotland became a
single Kingdom by the name of Great Britain in 1707 (with
which Ireland was united in 1801)
x
; they agreed on a text
which was then adopted by the Parliament of either country,
substantially a Treaty, though known as the Act of Union.
There was no question here of merely merging the exercise of
sovereigntyit was a case of two sovereignties becoming ex-
tinguished to form a new one.
The intention of the parties is here conclusive. Should the new
unit be meant to be only of a temporary nature, then the
sovereignty of the partners would be merely dormant, but
essentially retainedthe exercise of sovereignty would be
pooled, not sovereignty itself.
It is very difficult to say exactly which or how many attributes
of sovereignty should be ceded to an organisation before a state
loses its sovereign character. Where is, for instance, the exact
borderline between a mere confederation of states and a federa-
tion, the latter in the accepted sense of a single state? T. J.
Lawrence has rightly remarked that it is sometimes exceedingly
difficult to refer a given composite state to either of these types
2
.
"The Swiss Confederation, " he said, "was at its inception a
"union of the looser kind. Since the last revision of its constitu-
"tion in 1874 it can be regarded as a Federal Union or Bundes-
st aat . But at certain periods of its history it could hardly be
"called the one or the other with any regard to strict accuracy."
"Political reality, " said MM. Mirkine-Guetzevich and Scelle in
their book we have already referred to
3
, "does not allow itself
"to be imprisoned in classifications *." All we can say is that a
confederation pertains to the domain of international law, since
it does not create a new state distinct from its sovereign mem-
bers; a federation, on the other hand, pertains, as far as its
1. F. W. Maitland, The Constitutional History of England, Cambridge
1911, pp. 331 sq.
2. The Principles of International Law, 6th ed. (1915), para. 40.
3. P. 28.
4. A classification has been attempted by M. Pilotti in Les Unions
d'Etats (R.A.D.I. 24, 1928, pp. 447 sq.).
relations with its members are concerned, to constitutional law,
the members (even if called states) having ceased to be sovereign
states. But the exact borderline is hard to tracein practice
there are too many intermediate possibilities.
In our day we hear much about integration. Some people say
they are in favour of it (we may ask whether they all know
exactly what it means), but many others are afraid ofthat term,
perhaps because they believe that by taking part in integration
the state to which they belong and to which they are attached
ceases to be a sovereign state. It is therefore pertinent to remark
that "integration" is a very imprecise term which nowadays is
used to denote any transfer, large or small, of sovereign rights to
some international organisation, be it a state (think of the
"Federal Union"movement) or something much more mo-
dest, and either temporary or permanent. Integration may go
to the length of destroying sovereignty, but it need not involve
more than a temporary merger on some very insignificant point.
Between these two extremes, all shades and gradations are
conceivable. As Professor G. van Hecke has observed, "in
"every international institution, part of the sovereignty of its
"members is ceded by them to international organs. The mea-
s ur e of intensity of that cession determines the degree of inte-
grat i on attained in the international institution. Various crite-
"ria may be applied to measure the intensity of integration.
"First, the object of the cession of sovereign rights, which may
"be narrower or wider, more or less important.... Then, the
"nature of the powers transferred: the task of the international
"organs may be limited to taking measures for carrying out
"certain provisions laid down in the basic treaty, or else they
"are entitled themselves to establish new rules. Thirdly, the
"manner in which the collective will takes shape. This may be
"subject to the assent of all the states concerned (rule of unani-
"mity), or it may assert itself against the will of a particular
"state (majority rule). In the fourth place, there is the criterion
"of the measure of binding force the collective will has vis--vis
"the states. Does it express itself in drafts which the states are
"free to endorse, or in recommendations constituting some moral
"engagement, or in decisions which bind the member-states?
"Lastly, there is the criterion of the entities which are subject to
"the will of the collectivity. Traditionally, they are only states,
"each state being responsible for carrying out the collective will
"internally. It is, however, conceivable that the collective will
"should bind the citizens directly, without formally being re-
ceived into the law of the country concerned
1
." You see that
all kinds of grades of integration are possible.
But, when exactly does integration result in the extinction of
sovereignty? It seems to me that, when a state desires to take
part in an integration of sovereign rights, ceding some of its own,
and especially if it does so of its own free will, there cannot
be said to be extinction of sovereignty so long as the integration
is either partial, or stipulated' for a given period of time, or
conditional, in the sense that, from the beginning of the integra-
tion, sovereignty is meant to revive at the end of the term
stipulated, or when the condition laid down materializes. In
other words, there can only be said to be extinction of sove-
reignty if the integration is (a) total, or at least so extensive that
such sovereign rights as the participants retain amount to very
little; (b) irrevocable; (c) unconditional. In all other cases,
integration necessarily has a decreasing effect on sovereignty,
but not that of extinguishing it: according to the larger or
smaller degree of integration, the sovereignty of the partici-
pating states may become wholly dormant for a specified or
unspecified time, or it may merely be reduced to a greater or
lesser extent and for a definite or indefinite period.
These are the main points to be taken into account when the
question is to determine whether a particular case of integration
must be deemed to result in extinction of sovereignty, or merely
in a reduction thereof beyond the limits prescribed for sove-
reignty by general international law. There are other points
which may be helpful in arriving at a well-founded conclusion.
Is the new organisation, fruit of integration, universal, and is
participation obligatory? Are decisions taken by a unanimous
1. Mededelingen van de Nederlandse Vereniging voor Internationaal
Recht, No. 31 (1952), pp. 29-30. Translation by v. K.
vote, or by a majority, simple or qualified? Is the organisation
empowered to determine its own jurisdiction? Do its decisions
bind the partner states automatically
x
? In every case, all these
questions have to be weighed very carefully if a true answer is
to be obtained as to whether sovereignty is or is not extinguished
by integration. It certainly cannot be lightly assumed, the
natural tendency of all states being to retain, rather than to do
away with sovereign rights.
I hope all this places integration in its true perspective, and
may perhaps be of some help to take away some of the prejudice
which at present still surrounds this notion here and there. For
to understand is to take away unreasonable apprehension, all the
stronger because it is unreasonable. Here too, let us, in President
Roosevelt's words, fear nothing but fear itself.
We are now well equipped to give a reply to the question
whether, and if so to what extent, such international organisa-
tions as are in existence to-day, or have been planned so far,
extinguish the sovereign rights of their members.
I think not. There is only one (the European Political Com-
munity as now planned) which has been designed in such a way
that members cannot give notice of withdrawal, and even that
community, if established as planned, does not, as we shall
presently see, extinguish the sovereignty of its members; there is
not one which takes away so much of the sovereign rights of its
members that in comparison that which remains is insignificant.
There is not one which is both universal and, as to membership,
obligatory for all states. Most of them only know unanimous
decisions safeguarding the sovereign quality of members ; where
majority decisions are allowed (such as in the United Nations),
members are freewith the sole exception of the projected
European Political Communityto withdraw from the organi-
sation, either at any time
2
or at the end of the period deter-
1. See Andrassy, op. cit., pp. 757-758.
2. The Charter of the United Nations contains no provision on with-
drawal, but the San Francisco Conference (1945) where it was drafted
adopted a declaration according to which each member may withdraw
at will (document 1210, P/20, pp. 5-6, 8-9).
122 E.N.VANKLEFFENSSOVEREIGNTY IN INTERN. LAW (122)
mined in the treaty establishing the organisation in question.
This is, of course, of special importance where decisions of the
organisation bind the partner states automatically. Lastly,
there is no international organisation in being or planned which
may determine its own jurisdiction.
Let us now take a few specific examples. It cannot be my aim
to give a complete analysis of the constitution of these organisa-
tions; what I want to do is to examine to what extent they
affect their members' sovereignty. Beginning with the League
of Nations, I should like to point out that the League, chiefly by
instituting certain obligatory procedures for the settlement of
international disputes, limited the sovereignty of its member-
states beyond the limits set by general international law. But
these member-states retained a number of very important
sovereign prerogatives: let us name that to maintain at will
their own direct relations with one another, that to make
treaties, even that to declare war in certain circumstances. No
wonder, therefore, that in an opinion expressed in the Perma-
nent Court of International Justice by MM. Adatci, Kellogg,
Jonkheer van Eysinga, Baron Rolin-Jaequemyns, Sir Cecil
Hurst, Schticking and Wang, these learned judges declared:
"The difference between the alienation of a nation's indepen-
dence and a restriction which a state may agree to on the
"exercise of its sovereign power, i.e. of its independence, is
"clear. This latter is, for instance, the position of states which
"become members of the League of Nations. It is certain that
"membership imposes upon them important restrictions on the
"exercise of their independence, without it being possible to
"allege that it entails an alienation of that independence
1
."
That, to me, seems irrefutable.
The same appliesto take a second example to the United
Nations. As compared to the League, its predecessor, it is true
that there are differences, and even important differences, from
the point of view of sovereignty, one of the most striking being
that the rule of unanimity has very largely been discarded,
1. Austro-German Customs Regime, Permanent Court of International
Justice, Series A/B, No. 41, p. 77.
except for five great powers in the Security Council; we all
remember the famous quip that, although members of the
United Nations are supposed to be equal, some are more equal
than others. But the member-states retain very important rights,
such as the right to maintain at will their own direct relations
with one another, and to make treaties; in other words: the
extent of the restrictions on their sovereignty which have been
incorporated into the Charter of the United Nations is not such
that too little remains of the member-states' sovereignty to
continue looking upon them as sovereign states. Also, there is
art. 2, para. 7 of the Charter, denying the organisation the right
to intervene in matters essentially within the domestic jurisdic-
tion of states.
It stands to reason that, if there is every ground to assert and
maintain that neither membership of the League of Nations nor
that of the United Nations destroys sovereignty, membership of
less restrictive organisationsas for instance of one of the in-
numerable unions we have named at an earlier stage, or of the
International Labour Office, or of an economic union such as
that between Belgium and Luxemburg, or of Benelux (to name
only these) does not destroy the sovereignty of its members
either. On the contrary, more than enough of that sovereignty
remains to entitle the states concerned to the epithet of sovereign
states.
A word is here called for to beware of inexact terminology.
We have seen that in M. Briand's scheme for a European con-
federation it was claimed that "absolute sovereignty" of the
member-states was to be the keystone. Apart from the fact that,
even in an unorganized community of states, absolute sovereignty
cannot and does not exist, it is clear that a confederation must
take away a little more of the absolute discretion of individual
states than does general international law; to assume the con-
trary is tantamount to claiming that the establishment of a
confederation leaves all the rights and duties of the members
of that confederation exactly as they were before, which is
clearly absurd. The desire to recommend an idea for adoption
may induce statesmen to use language which is not wholly
consistent with the facts. Such is salesmanship in all branches of
human activity.
It is clearly impossible for us to examine in detail every
organisation mentioned earlier in this exposition. Let me make
an exception, however, for NATO because of its exceptional
importance. Does NATO destroy the sovereignty of its mem-
bers?
Certainly not, and this by every test mentioned above. The
degree of integration obtained by the NATO-t reat y of 1949 is
very far from being totalit only extends to a very limited
(although politically and militarily important) field. Member-
ship is of a temporary nature (20 years). The scope of the treaty
is not at all universal, nor is its membership obligatory. The
parties retain a considerable measure of freedom of appreciation,
and decisions are to be unanimous. The organisation is not
entitled to establish its own jurisdiction, and its decisions do not
bind members automatically.
So far for NATO. But lately we have heard much about new
"supranat i onal " organisations: the Coal and Steel Community,
the European Defence Community, and that community.which
is now in the making and is meant ultimately to take under its
wing the two previously named: the Political Community of
Europe. What do they mean, or may they be expected to mean,
in respect of the sovereignty of the participating states
1
?
Let me first of all point out that, although they are a fresh
departure in the direction of the establishment of communities
possessing certain sovereign rights in a limited field, they are
not, as a class, altogether new. The German Zollverein (1834-
1871) was a predecessor of note, at least from 1867 on, when
decisions, which previously had to be taken unanimously, were
taken by a majority vote of collective organs. The Coal and Steel
Community can do likewise, and the same is contemplated
in respect of the European Defence Community as planned
at present.
1. In 1952, these Communities were discussed at length in two courses
of lectures at the Hague Academy of International Law by prof. P. Reuter
("The European Coal and Steel Community") and prof. F. Dehousse
("Legal Questions raised by supranational Organisation in Europe").
The Coal and Steel Community can oblige those that come
under its jurisdiction to do certain things even if, as to form,
the decisions are called recommendations ; sanctions of various
kinds are at its disposal. The European Defence Community
will be entitled to act in matters which hitherto were the exclu-
sive concern of individual sovereign states. The Political Com-
munity of Europe is to have the right to adopt, in those fields to
which its jurisdiction is to extend, laws by a simple majority vote
which will be binding on its members and their nationals.
Does all this, or does it not, do away with the sovereignty of
the member-states belonging to these communities?
I quite definitely think not. Both the Coal and Steel Com-
munity and the proposed European Defence Community have
been designed for a given period of time : 50 years ; at the end
of that period the restrictions on sovereignty established by these
communities are to lapse (unless, of course, the members freely
agree to continue them). The sovereign rights concerned are
therefore dormant, or, if you like, their exercise only is suspen-
ded, but the rights themselves are not abolished.
It is true that the Community of Europe is to be indissoluble;
but apart from the fact that objections have been raised against
this design, there, as in the case of the other two communities,
so much of the sovereign rights of members is retained that it
cannot be reasonably held that their sovereignty is impaired to
the point of being annihilated. For as to their relations with
non-member states, the sovereign condition of member-states
remains exactly as it was before, except insofar as, in the limited
fields assigned to the Political Community of Europe, certain
tasks would be exclusively entrusted to the latter as regards
third parties. And as to the relations of member-states inter se
t hat community and its rights do not extend beyond the field
or fields specifically assigned to it, with the result that a truly
enormous domain remains in which the states concerned are just
as sovereign as they can be under general international law.
Is this a desirable state of things, or is it the opposite? This
depends on the general point of view of the person who asks
him-or herself that question. Whoever is in favour of an ever
extending measure of integration, will probably be pleased, but
not yet satisfied. The ardent nationalist, on the other hand, will
be dissatisfied and would like to see the clock turned back. All
will agree, however, that, on the continent of Western Europe
at least, the tendency is towards increasing integration. But
these are questions of policy, not of law, and as such fall outside
the scope of these lectures.
Our conclusion, then, must be t hat such organisations in the
realm of international law other t han unitary or federal states,
as the world has hitherto seen, have not destroyed the sove-
reignty of their members. The supra-national communities of
recent origin are new only in the sense that they are entities
other t han states, having what may be called sovereign
rights in a strictly limited field; as a recent writer has
expressed it, they "stand midway between inter-national and
federal organs"
1
. We are reminded here of what was said earlier
about integration and the very variable degrees in which it may
manifest itself. And let us remember above all that, as follows
clearly from all t hat has been said, integration may (at least
theoretically) be of such intensity that it destroys the sove-
reignty of the integrated elements, but that this need not at all
be so, and that hitherto, except in the case of a new unitary or
federal state absorbing a number of states which previously had
an individual sovereign existence, there is no example on record
of so vast a degree of integration that the sovereignty of the
integrated parts is destroyed thereby. In other words: integra-
tion and continued sovereignty of the parties thereto are not
necessarily mutually exclusive. Far from it.
1. Josef L. Kunz, Supra-national Organs, in American Journal of Inter-
national Law, vol. 46, no. 4 (1952).
EPILOGUE
T
HIS epilogue will consist of a conclusion and a suggested
answer to a question.
The conclusion is, that the notion of sovereignty in inter-
national law has shown throughout the ages the vitality, the
perennial vigour, of a reality of the first order. It came into
being and maintained itself, as we have seen, in the most adverse
circumstances. Destroy one sovereign entity, and you will see
one of two things happen : either a new one arises, or an existing
one is increased. Try to argue it out of existence, and it makes
itself felt with all its accustomed pristine force. Federation or
very close integration only results in the creation of a new
sovereignty; in other words: sovereignty and integration are not,
as so many seem to think nowadays, contrasting notions, or
notions that are mutually exclusive.
In 1937, Professor Andrassy has given here a remarkable
explanation of the strength of the notion of sovereignty
1
. First,
he said, sovereignty is an undeniable fact, the expression of a
situation having a very real existence which has not arisen out
of the speculations of scholars, but developed by age-old state
practice. Secondly, he pointed out that, if it is not easy to give
a definition of sovereignty, irrefutable experience proves that
it is even more difficult to get rid of it. In the third place, the
notion of sovereignty is an indispensable element in interna-
tional law, and here M. Andrassy quotes Kant, who said in
"Zum ewigen Frieden" : "the idea of international law presup-
"poses the individual existence of many neighbouring states
"which are independent inter se". Fourth, it is to be observed
that attacks on the notion of sovereignty are very often based
on its assumed absolute character, whilst there really is nothing
1. Op. cit., pp. 656 sq.
128 E. N VAN KLEFFENSSOVEREIGNTY IN INTERN. LAW (128)
t hat justifies this assumption, and everythingas we have seen
against it.
I n any case, as long as the communist block of states, integra-
ted or not, exists side by side with a Western group, together
with a number of Asian states, sovereign states will remain in
being. Our present occidental inclination, in so far as it exists,
is to give up a larger or smaller part of our own state's sovereign-
ty, ceding it to what in some cases are supranational organisa-
tions. On the other hand, the sovereignty of outside states is to
remain undiminished. If we go far enough on the road towards
federation or integration, the result will be the emergence
of new, larger sovereign units, coupled or not with the consti-
tution of autonomous organisations for. special purposes, like
the Coal and Steel Community. But sovereign states there will
remain.
The notion of sovereignty is not at all a ghost we can exorcise
at will. It is a spirit which is very much alive, and very wide
awake. Some may regret it, but if they fail to recognize this fact,
they abandon the firm foundation of reality. Not even in case
one day a single state were established embracing the whole
world, would it be possible for us to discard the notion of sove-
reignty and to send it to the museum of antique historical
phenomena, for that world-state would then be the sovereign
state par excellence.
So far for the conclusion I should like to draw from what was
said before. And now the question I finally .have to ask, and the
reply thereto I would suggest. The question is: has sovereignty
been, in the course of history, a good, or a bad thing? It is
looked upon askance nowadays by some of the more ardent
champions of federation and of integration. Is this bad opinion
deserved?
Let me first of all recall that the doctrine of absolute, un-
fettered sovereignty has very few adherents left in our day,
with the sole exception of extremists of the left and of the right,
who seem incapable of discerning historical reality. Otherwise,
however, that conception has been generally discarded, and to
(129) EPILOGUE 129
that extent the notion of sovereignty has lost a very large part
of its dangerous possibilities.
But in addition, I should like to point outwhilst at the same
time being warmly in favour, on the continent of Western
Europe at least, of increasing integration as a condition of
survival of our form of civilisation and way of lifehow very
many good and beautiful things have come into being under the
regime of individual sovereign states. Under their various roofs,
far from perfect as no doubt they were, but yet giving protec-
tion, our diverse nationalities have had an excellent (perhaps
we should say: the best conceivable) opportunity to be or to
become themselves, to develop their own particular genius, and
to show, by cultivating the arts and sciences, of what they are
capable in their highest manifestations. It is that which sove-
reignty has allowed and promoted. Should it be contended that
all this could have happened just as well, if not better, under a
more integrated regime, then my reply would be that this is no
more than a pure hypothesis which cannot be proved to be
correct, and that moreover this objection by-passes the main
thesis, which is that all those remarkable results have been
achieved under the regime of sovereign states living in unorga-
nized juxtaposition. Remember too, in this connection, that in
the middle ages the arts and sciences withered under the in-
fluence of too rigid concepts of unity, and that they only flowe-
red again when, with the Renaissance, the sovereign state finally
asserted itself.
Secondly, I should like to point to the great psychological
significance and value of the element of healthy competition
inherent in sovereignties freely existing side by side. Whether a
more integrated regime will be able to afford the same salutary
stimulus, is not merely an open questionprobability is against
it. For wherever there is unity without a sufficient measure of
competition, there is social stiffening, and listlessness, and
atrophy of spiritual life.
Thirdly, and lastly, a purely human argument. We all feel
sovereignty to be the chief political and legal attribute of our
country, of our own nation, to which we feel ourselves bound
I. 1953. 9
by hundreds of ties, that of language not in the last place. Now
we can feel ourselves a good Western European, but ask our-
selves at the same time this question : What is stronger : the ties
which bind us to Western Europe, or those that bind us to our
own country? I, for one, believe that a great deal of water will
flow under the bridges before we come to feel that our sentiments
for country and nation are no more than a kind of provincialism,
above which there towers a stronger Western European alle-
giance.
In other words : the notion of sovereignty continues to be a
dominating element in the treasure-house of our heart and mind;
we are strongly affected by it, and it is part of nearly every-
body's being. To ignore this fact would be silly. One has to take
the human race as it is, and not as we should like it to be.
If, then, for our own salvation, we of Western Europe try to
federate or integrate, we do so because with our mind (not
always in our heart) we recognize that this is necessary for our
survival. For most people it is a cerebral radier than an emotio-
nal process. That is one of the reasons why it is so difficult.
But what will always remain in the world, are one or more
sovereign states. That is why international lawyers will always
have to gain an understanding of the notion of sovereignty. May
that be the justification of these lectures. If in addition they have
been of some use to you, I shall be well content.
SUMMARY
INTRODUCTION. ETYMOLOGY OF THE WORD
SOVEREIGNTY" 5-12
CHAPTER /.Antiquity and Middle Ages 13-39
1.The East.
2.Greece.
3.Rome.
4.The Middle Ages.
a.Facts and Institutions.
b.Law and Doctrine.
CHAPTER ILThe Modern Era 40-56
1.The Sovereign State as a Member of the International
Community under Natural Law.
CHAPTER IIIThe Modern Era {continued) 57-83
2.Denaturation and Redress. Newer Theories.
CHAPTER IV.Special Questions (in the light of judicial and
arbitral decisions): 84-106
1.Legal Characteristics of Sovereignty.
2.Sovereignty versus Independence and Equality.
3.Sovereignty in its relation to territory, population,
and jurisdiction.
CHAPTER V.The Era of International Organization.
Recent Tendencies 107-126
1.Facts and Institutions.
2.Their effect on Sovereignty.
EPILOGUE 127-130

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