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By P. J. BAKER, M.A.,

Fellow of King's College, Cambridge, late Whewell Scholar in

International Law.

It may well appear to the general student of international law IT that the present study is no more than a controversy about the use of words which, while it may be of academic interest, is of no practical importance. This may seem still more to be so when the main propositions which will be put forward have been stated.

A certain number of years ago it would, perhaps, have been true that the doctrine of the legal equality of States, as set forth in text-books of international law, was not of practical importance. But in the last few decades this doctrine has passed from the sphere of pure theory into that of legal actuality. As long ago as 1887 it was used by Geffcken in the discussions of the Institute of International Law to demonstrate the illegality of pacific blockade.1 In 1897 it was the basis of the protest made by Greece against the action taken by the Concert of the Powers. In 1902 it was used by the Foreign Minister of the Argentine as the basic principle of his famous doctrine about debt. In 1907and this is certainly the occasion when it was of most practical importance-it constituted the whole foundation of the case made by the Brazilian delegate to the Hague Conference against the constitution proposed for a Permanent Court of International Justice. The result of his appeal to the doctrine of equality was that it proved impossible to secure agreement on the vital question of representation in the proposed Court, for the smaller Powers rallied to his support, and united in declaring that they would reject any proposal put forward by the Great Powers that was not based on absolute equality of representation. This was a severe set-back to the whole movement towards international organisation, of which the Hague Conferences were but a part.

Since the creation of the League of Nations and of the international political institutions of which the League consists, it is surely 1 Annuaire de l'Institut de Droit International 9me Année (1887–88), p. 293.

self-evident that such a doctrine of legal equality, if it is made to bear the meaning attached to it by Geffcken, Drago and Barbosa, has now become of real and pressing importance. We are, moreover, on the threshold of a great new creative period in international law, and clear thinking, even on its scientific theory, is therefore particularly necessary. It may conduce to clarity if an attempt is made to define exactly what is meant by the doctrine of legal equality and to lay down the main propositions which will be put forward in this study.

The definition of what is meant by the doctrine of legal equality is vital, if any clear thinking on the subject is to be done. For authors on international law have, generally speaking, used the phrase with the greatest laxity. They have, indeed, troubled so little to inquire what they meant by it that almost all of them have fallen into an elementary confusion, which may fairly be held to vitiate the whole of their writings on the subject. This drastic conclusion, at which the present writer arrived after a careful examination of the works of almost every author from the Roman lawyers onwards, is confirmed by Professor Dickinson, of Michigan University, who has covered the same ground with great care.1 Professor Dickinson asserts that it is" an almost universal error among writers to confound legal equality" with "equality before the law "; in other words, to confound equality of rights with equality of protection by the law for rights.


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The error is a serious one. It is therefore worth while, even at the risk of appearing pedantic, to state what must be meant by anyone who holds that under international law all States are legally equal. Such an assertion necessarily involves two distinct propositions: first, that every rule of international law gives equal rights to every individual person to whom it applies-that every rule is, in other words, a general rule, and not one that provides particular solutions; and second, that every rule of that law applies to every person.

It is evident that the first of these two propositions is true, and must be admitted to be true by everyone who believes in a law of nations. To say that the rules of international law are general rules, and confer rights for which there is general protection for every 66 person " of international law to whom they

1 In his work, The Equality of States in International Law: Harvard University Press, 1920.

apply, is no more than to say that they are law. A rule which provides a series of particular solutions for one given relation is not a rule of law within the ordinary acceptation of terms; in other words, if the subjects of a law are not equal before it, it is not law in the proper sense of the word.

But it does not follow from this that every rule of international law applies to every individual person, and that every individual person has therefore identically the same rights as every other individual person. In fact it may easily be shown, and it will be shown later on, that the individual persons of international law have often had different, and sometimes widely different, rights. The same thing is, of course, true of any national system of law. In English law everyone is equal before the law, but the second proposition does not therefore hold good. On the contrary, women, children, dukes, bachelors, doctors and idiots respectively have rights conferred upon them under English law, by rules which apply to them only, and create for them special privileges, duties or disabilities. Rules are no less general because they apply to a class only. But the fact that many rules apply to a class only does make strict legal equality an unrealised ideal. And legal equality, in the sense that every subject has the same identical rights as every other subject, is such an unrealised ideal in international law, and an ideal as little related to fact as it has always been in every other system of human law. Indeed, in international law it is doubtful whether it is even an ideal.

It may be permissible once more to urge that it is really important to keep clearly in mind the definition of legal equality given above, which is the only definition that will bear examination.

An attempt will now be made to state plainly and simply the main propositions which will be put forward in this study. They are as follows:

(a) The doctrine of the legal equality of every State in international law is a redundant theoretical abstraction.

(b) All the rights and rules which are usually classified by publicists under the title of equality cannot really be explained by the doctrine of equality as defined above; and therefore the conception of equality is not useful in the scientific system of international law either in the form of a fundamental right of a rule or of a principle from which rules can be deduced.

(c) These rights and rules, which have always been attributed

to the principle of equality, can only adequately be explained by the principle of independence; in other words, it is only in so far as they have been independent that States have been really equal; or, as Westlake expresses it, "the equality of sovereign states is merely their independence under a different name." This is the central argument on which is based the view that is here put forward, and it is an argument which has the full support of Westlake's great authority.

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(d) If there is no valid principle of equality in international law, there can be no analogical deductions from it, such as were made by Barbosa at The Hague in 1907.

(e) In particular, there can be no valid analogies drawn from the principle of equality in the rudimentary but important branch of international law which is beginning to develop around the international political institutions of the League of Nations. This new branch of international law, which it is perhaps not absurd to designate as "international constitutional law," is being built up by a series of new obligations, many of which in a greater or lesser degree narrow and restrict those typical rights of sovereign States which are properly classified under the heading of independence. It would, therefore, be peculiarly absurd to allow in such a branch of international law analogies from an alleged principle of equality which in fact is no more than a facet of the independence which this new branch of international law is restricting.

(f) Even if such analogies from the principle of equality were theoretically permissible they would be dangerous, undemocratic and retrogressive, for they would necessarily lead to such absurd results as that suggested by Barbosa at The Hague.

To sum up, the doctrine of equality has only served heretofore to divorce the theoretical system of international law as set forth in text-books from the facts of international life; but now, since the establishment of international political institutions, it has become a positive political danger.

It must be said at once that the above rather sweeping propositions constitute a direct attack on the views of almost every writer of authority on international law. There are indeed few topics on which writers have shown such unanimity of opinion; it is almost true to say that only Westlake and Lawrence differ 1 Westlake: International Law, 1st. ed., Part I, Peace, p. 308. See also Collected Papers, p. 89.

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