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REPRESENTATION IN PUBLIC INTERNATIONAL ORGANS 1

The recommendation included in the Final Act of the Second Hague Conference provides for a preparatory committee to elaborate a program and adds: "This committee should further be entrusted with the task of proposing a system of organization and procedure for the Conference itself." 2

Presumably the next conference will take place in 1915 and therefore the time is ripe to consider matters which will become subjects of importance in the body of the conference. Within a comparatively few months the governments of the world will be actively engaged in studying the questions which should be brought before the conference in accordance with the above recommendation. Any suggestions on matters to be taken up by the conference should be elaborated by those who have ideas to offer before the official machinery looking toward the calling of the conference is actively in motion. It is with this purpose that the present study of the basis of representation in international organizations has been made.

1 A partial bibliography on the subject follows:

"Notes on Sovereignty in a State," by Robert Lansing, 1 this Journal, 105–128 and 297-320; "The International Congresses and Conferences of the Past Century as Forces Working toward the Solidarity of the World," by Simeon E. Baldwin, 1 JOURNAL, 565-578; "International Unions and Their Administration," by Paul S. Reinsch, 1 JOURNAL, 579-623; and the same author's work entitled "Public International Unions"; "Recommendation for a Third Peace Conference at The Hague," by James Brown Scott, 2 JOURNAL, 815-822; "International Administrative Law and National Sovereignty," by Paul S. Reinsch, 3 JOURNAL, 1-45, especially 25-26 and 26-33; "The Fourth International Conference of American Republics," Paul S. Reinsch, 4 JOURNAL, 777-793; "The Equality of States and the Hague Conferences," by Frederick Charles Hicks, 2 JOURNAL, 530–561; “Equality of Nations," paper by Frederick C. Hicks and discussion by John W. Foster, L. B. Evans, N. Dwight Harris, F. W. Aymar, Theodore P. Ion, E. C. Stowell, and Lyman Abbott, Proceedings of American Society of International Law, 1909, 238-257; Institutes of the Law of Nations, by James Lorimer, Chaps. XV and XVI; Annuaire de la Vie internationale, 1908-9, 1910-11.

* See 2 SUPPLEMENT this JOURNAL, 28; Scott's Texts of Hague Conferences, pp. 139140.

Since the close of the Second Hague Conference international administration and its problems have come much to the fore. The Office Central des Associations Internationales,3 having for its object the specific purpose of studying and promoting international organization, began its active existence in 1907. The Carnegie Endowment for International Peace has been established and the World Peace Foundation has set to work; the whole pacifist movement is more and more emphasizing internationalism as a fact and a desideratum. These and many other significant developments such as the beginning of codification by the American Society of International Law,5 the formation of the PanAmerican Commission of Jurists and of the Comité juridique international de l'aviation indicate that the time has arrived for more proficient international administrative machinery than is now provided by formal diplomatic relations between civilized countries. Such matters as the codification of international law and the drawing up of a model of a law to regulate aeronautics lose much of their force if adequate governmental machinery is not available.

Many of the most uncertain questions arising under international law have been solved or are on the way to solution by the Hague Conferences. Much more remains to be done, it is true, but it seems to the writer that it might be well to consider the organization of international administrative functions at the next conference, in addition to the questions of law which will be brought before it. And, in fact, representative organization was the very rock on which the Court of Arbitral Justice foundered; so that representation at least is a practical problem.

World-wide conditions in the last fifty years have to a remarkable extent brought the states of the four continents which are inhabited by sovereign nationalities to the necessity of meeting in diplomatic and private conferences and congresses to decide matters of importance for all. Nearly a hundred such gatherings-mostly of private associations— are held annually, and the number is constantly on the increase. Essen3 See 4 JOURNAL, 1012; Annuaire de la Vie internationale, 1908-9, 1910-11, and La Vie internationale, 1912.

4 See 5 JOURNAL, 210 and 448, and Yearbooks of the Endowment.

5 See 4 Proceedings, 27 and 193; 5 ibid., 19, 312, 320.

See H. Doc. 1343, 62d Cong., 3rd Sess.; La Revue juridique internationale de la Locomotion aérienne and 4 JOURNAL, 696.

tial to the proper conduct of their business is the establishment of a recognized code of procedure which will serve as a skeleton into which their specific discussions may be fitted so that each state or delegate may get his rights to the floor, have his vote counted justly and secure the influence in the gathering to which he is entitled. For official conferences and organizations,—which are headed by the peace meetings at The Hague and the permanent machinery established there,—the matter is of prime importance, and practice regarding the basis of representation in their case comes into direct opposition to the long-honored shibboleth of international law that sovereign states are equal and entitled to a like voice whether their sway is as large as Britain's or as small as Luxemburg's.

Theoretically sovereign equality was absolute as between states when the system of international law under which we exist came into being, that is, after the Peace of Westphalia. But, like many another legal theory, it has never been actually realized, for complete isolation alone would permit the perfectly free operation of all sovereign functions. The fiction was therefore altered as to its phraseology, and instead of a claim to actual equality respecting sovereign functions only the right to sovereign equality was asserted, and remains to-day as the basis of international law. That theory is workable, and not until the world becomes a governmental unit—if that ever comes-can the theory itself be discarded. For as a theory it simply means that sovereign functions are the normal attribute of the state, and it puts the burden of proof against change affecting them; in no way does it prevent any of them-the functions of existence, independence, equality, jurisdiction, property and intercourse-from being constructively or actually diminished; but, to use a military term, the principles of sovereignty are always entrenched, and the effort to dislodge them always has the disadvantage of the attack with which to reckon. Even the most cursory glance at treaty literature will indicate to the technical mind that sovereign attributes are in some slight degree restricted by every agreement of a state to do anything. In practice, and even by servitudinous or protectorate treaties, absolute equality has been so diminished; but in general equality, especially in respect to voting power, has been the most jealously guarded of sovereign attributes. Perhaps the explana

tion is that it has been less affected by practical considerations than other attributes, the attacks on it being mostly academic or reformatory in character. Yet the recurring Hague Conferences render the examination of juridic equality itself a practical question, and the acceptance of the Convention for the Establishment of an International Prize Court in 1907, involving inequality, undoubtedly showed a trend in diplomatic affairs. Though the Court of Arbitral Justice failed to reach the convention stage, record of its desirability was unanimously made in the Final Act and it is significant that the only scheme for selecting judges that received seriously sustained attention provided for disregard of strict juridic equality. The Prize Court Convention-already accepted by the signatures of 32 states-provides for as great a departure from the strict interpretation of the equality principle. The belief is widespread that attempts will be made at the Third Hague Conference on the part of the larger states to secure a voice approximating their actual stake in international affairs. It is therefore a pertinent inquiry to investigate objectively the character of representation already existing in diplomatic or semi-diplomatic organs.

When the co-operative work of the sovereign states in diplomatic and administrative matters was non-existent or very small, the unit rule of sovereignty was a very satisfactory solution of the problem of precedence. With the increase of international relations and the emergence of the definite ideas and plans of internationalism, however, the latent objections to the unit rule have come into prominence. This rule has heretofore been accepted by the mere fact of its existence and the lack of material with which to make a practical attack upon it; for it has long been irksome to the great enlightened Powers to find themselves thwarted in international matters by backward states. The successful states have usually become so large in area and so diversified in interests that the rule of one vote to each sovereignty is now rather a rule of inequality than of equality. Moreover, in the developments of recent years such large aggregations of territory as the British Empire have shown a tendency to break up into self-governing dominions; and by the technical rules of international law the sovereignty of these divisions of the empire is only perceptibly inchoate, even if it is optional. The Dominion of Canada, for instance, is probably quite as much entitled

to fall within the definition of a sovereign state-though it prefers its membership in the British Empire-as was Montenegro entitled to fall within that definition before the Balkan War, notwithstanding the numerous servitudes placed upon it by the Ottoman Empire from which it was separated and by Austria-Hungary to which it was adjacent. The emergence of these inchoate sovereignties constitutes a new fact which diplomacy must face.

In 1907 the representatives of the members of the British Empire met in London for their periodic Colonial Conference. As a result thereof the Dominion of Canada, the Commonwealth of Australia, and New Zealand secured an increase of their dignity and are known at present as self-governing dominions, the South African Union now figuring in the same class. In 1911 what was really another colonial conference convened under the name of the Imperial Conference, the change in title indicating in some degree the increase of dignity gained by the self-governing members of the empire. At this conference the following resolution was unanimously adopted:

That this conference, after hearing the Secretary of State for Foreign Affairs, cordially welcomes the proposals of the Imperial Government, viz.:

(a) That the Dominions shall be afforded an opportunity of consultation when framing the instructions to be given to British delegates at future meetings of the Hague Conference, and that conventions affecting the Dominions provisionally assented to at that Conference shall be circulated among the Dominion Governments for their consideration before any such Convention is signed (sic, ratified);

(b) That a similar procedure where time and opportunity and the subject matter permit shall, as far as possible, be used when preparing instructions for the negotiation of other international agreements affecting the Dominions. [Imperial Conference, 1911. (Dominions, No. 7) Cd. 5745. Resolution at page 15; discussions at 89-90, 97-100, 113-116, 120, 125, 129–132.]

Even granting that the reference to dominion approval before signing a convention is a technical error and that such approval before ratification was the intention of the conference,-as seems to be the case,the resolution and its acceptance by the British Government is of great significance. It probably will result that the British delegation to the Third Hague Conference will include representatives of the self-governing

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