[28.] The proposed constitution, further, makes no inroad at all on the equality of states. This equality is the indispensable foundation of international society. The idea of equality merely expresses the fact that in all resolutions of the international society every state, whatever may be its size and political importance, obtains one voice and no more than one, that every state can be bound by a resolution only with its consent, and that no state can exercise jurisdiction over another state. It does not and cannot express more. In no circumstances is it to be asserted that unanimity is a condition for all resolutions of the Conferences, and that all resolutions are void to which one or more states refuse their consent. Of course, such resolutions bind those only who assent to them, and of course unanimous resolutions alone can be considered to be universally binding. But nothing should hinder the Conferences—and so it happened in the two first Conferences—from passing majority resolutions. It must never be lost sight of that such majority resolutions do not go to form a universal but only a general law of nations. Only he who repudiates the necessary distinction between a particular and a general and a universal law of nations can demand unanimity. Now the development which up to the present has taken place in the law of nations has shown the necessity of this distinction. It would be extremely difficult to enumerate any large number of universally accepted rules of the law of nations—apart from those which have obtained recognition as customary law. We have only to think of the Declaration of Paris, to which some states still refuse assent. History also teaches us that the general law of nations has a tendency gradually to become the universal law of nations. It is therefore permissible, when a forward step which fails to gain unanimous approval has become a practical matter, for that majority of states which is ready for it to take the step by themselves; the dissenting states will give in their adhesion in course of time. And if and when this should turn out not to be the case, such a majority resolution would anyhow represent, in a narrower circle of international society, a step forward from which there is no obligation to forbear merely because others are unwilling to join in taking it.
Absence of any executive power.
[29.] This constitution, finally, makes no provision for any kind of executive power, and so it avoids the proposal to set up in international society an organization resembling that of a state. All proposals for an international executive authority run counter not only to the idea of sovereignty, but also to the ideal of international peace and of international law. The aim of this development is not the coercion of recalcitrant states, but a condition of things in which there are no recalcitrant states because every state has freely submitted to the obligation to refer disputes to the international tribunals and to abide by their decision. It is just in this respect that the international community of states differs for all time from the community of individuals who are united into a state, the latter requiring as ultima ratio executive compulsion on the part of a central power, while the former consistently with its nature and definition can never possess such a central power. It will, we must confess, call for a long development before such a condition of things is realized, and, until this realization is effected, war will not disappear but will remain an historic necessity.
CHAPTER II
INTERNATIONAL LEGISLATION
Quasi-legislation within the domain of international law.
[30.] When we speak of legislation we have in view as a rule a state, wherein there is a law-making power which acts without reference to the consent of individual subjects. For even if in a constitutional state an individual does anyhow exercise so much influence upon legislation as comes from voting at the election of members of parliament, still he has no direct influence, and must submit to a law that has been enacted whether he approves of it or not. That is why it is asserted that there cannot be any talk of legislation in the domain of international law. And, in fact, that is so if we adhere rigorously to the meaning of the concept 'legislation', as developed in the domain of internal state life. The nature of the case does not, however, demand so rigid an adherence as this; legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom. And it is an admitted fact that, side by side with international law developed in this latter way, there is an international law which the members of the community of states have expressly created by agreement. We might therefore quite well substitute the term agreeing a law for the term decreeing a law,—but why introduce a new technical term? This international 'agreeing a law' does consciously and intentionally create law, and it is therefore a source of law. And provided that we always bear in mind that this source of law operates only through a quasi-legislative activity, there is no obstacle to speaking, in a borrowed sense, of international 'legislation'. Nevertheless, agreeable and apt as this term is, it must not lead us to assimilate the internal legislation of a state and international legislation save in the one respect that in both law is made in a direct, conscious and purposive manner, in contrast to law that originates in custom.
Hague Peace Conferences as an organ for international legislation.
[31.] International law of the legislative kind existed before the law of the Hague Peace Conferences; it issued from the conventions drawn up from time to time at congresses and conferences. It was a great step forward that the Congress of Vienna was able, for the first time, to create general international law by agreement, and that thereby general international law of the legislative kind could come into existence side by side with the customary law of nations. But the nineteenth century introduced international legislation only occasionally. If, as sketched above, success attends the attempt to make the Hague Peace Conferences a permanent institution, there would be evolved for the society of states a legislative organ corresponding to the parliaments of individual states. A wide field opens thus for further international legislative activity. Even if the time be not ripe for a comprehensive codification of the whole law of nations, there is nevertheless a series of matters in need of international regulation; for example, extradition, the so-called international private law and international criminal law, acquisition and loss of nationality, and a series of other matters, not to mention matters of international administration. Matters which are already governed by customary law might also be brought within the domain of enacted law, and at the same time could be put as regards details upon a surer basis. I have in mind the law of ambassadors and consuls, the law concerning the open sea and territorial waters, the law about merchantmen and men-of-war in foreign territorial waters, and more of this kind.