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citizens and domestic corporations are given preferential treatment in regard to transportation rates and monopolistic combinations and examines in this respect the laws of the United States under the four divisions of common carriers, commercial combines, unfair methods of competition proper, and customs duties. The attitude of the United States is commended, but it is not, the writer thinks, likely to have of itself a wide influence, and "no permanent results tending to bring commercial competition in international commerce within the rule of law can be looked for without some concerted action by all the states participating in the struggle for the world markets.” 7. UNIVERSITY OF PENNSYLVANIA LAW REVIEW, December, 1925 Economic Sanctions and International Security, by Amos E. Taylor (pp. 155-168), examines the provisions of Article 16 of the Covenant of the League of Nations and describes the proceedings taken by the Council and the Assembly of the League to make them effective. The powers of the Council under Article 16 are analyzed and attention is called to the fact that each member of the Council is to decide for itself whether a breach of the Covenant has been committed. In conclusion the effect of the Geneva Protocol upon the obligations incurred by Article 16 is shown and the consequent necessity which a naval power such as Great Britain is under of adjusting its naval policy to the "new conception of international law."

8. YALE LAW JOURNAL, November, 1925

Among the editorial Comments, Further Developments as to the Effect of Soviet Decrees (pp. 98-104) contains a brief survey of recent decisions with numerous references to cases in point.

Ibid., December, 1925. Sovereign Immunity-The Modern Trend, by Ernest Angell (pp. 150-168), undertakes a reëxamination of the principles and reasoning of recent decisions involving suits brought in the courts of the United States by unrecognized foreign governments or by their citizens where a right is claimed under the authority of such unrecognized government, as well as suits in which government-owned merchant vessels are being libelled for tort, repairs or salvage service. In respect to the latter class of cases the writer finds that the rulings and practices of the federal courts and the Department of State do not "gear together" and that some more logical and more practical solution must be worked out.

Ibid., January, 1926. Treaty Relations with Turkey, by Edgar Turlington (pp. 326-343), surveys the rights of the United States under past treaties with the Ottoman Empire and in their light seeks to determine the significance of the new treaty of August 6, 1923, and its adequacy for the protection of American interests in Turkey under existing conditions. In conclusion the writer points out that if the pending treaty should not be ratified an anomalous situation will exist in which the capitulations will have been abolished by all the other capitulatory powers and it will be difficult for the

United States to assert claims under treaties which Turkey has denounced because of material change of circumstances.

Ibid., February, 1926. The Obligations of Extinct States, by Thomas Baty (pp. 434-437), is a brief note reiterating the writer's previously maintained thesis that the present Austrian Republic and the Russian Soviet Republic are not the successors at law of the defunct Austrian and Russian Empires on the ground that those former states simply ceased to exist as states and have been replaced by a number of new states, the present Austria being as new as any of the others. The provisions of the peace treaties in respect to the division of the Austrian public debt do not represent the application of an established rule of law but are merely a convenient treaty stipulation.

WHAT PARTS OF INTERNATIONAL LAW MAY BE CODIFIED?

BY WILLIAM LEDYARD RODGERS

Rear Admiral, U. S. Navy

The discussions on the subject of the codification of international law at the 1926 annual meeting of the American Society of International Law made clear once more that matters as to which codification was conceivable fell into two broad classes, namely: Those affecting the international relations of states in their sovereign capacity and those affecting individuals in their international relations. It will be difficult to make law control in the first class of relations; it will be less difficult to do so in the second class.

When states in their sovereign capacity find a cause of dispute, the difference is often one which in its nature law is not apt to solve. Law is a rule of conduct enforced by the courts and by the executive. It is the proud assertion as to law that it is a rule of reason impartially applied. But it must be admitted that law is designed to operate on individuals. Its penalties are applicable to individuals. When, however, men cohere in groups to operate for a common purpose beyond the law, it becomes more and more difficult to control them by law as the size of the group increases.

As was just said, law is an affair of reason, but when men cohere in groups they are apt to be led by play upon their emotions and not by appeal to reason. The old established way of dealing with men in a state of emotion is by diplomacy, by persuasion and, finally, by force, but not by compulsion of law. If the group of men acting outside the law can not be persuaded by diplomacy to renounce their emotion and their contumacious attitude, the effective coercion to apply is not legal force, but martial force, as we see in the national dealings with strikes and riots, both in this country and abroad.

Passing from the consideration of temporary crowds to that of permanent organizations of nations, we are met by the same difficulties in the application of legal forms of control. When sovereign nations dispute, it is usually over some question in which the collective interests of the people are involved, or seem to be involved, and usually the real, if not the apparent, basis of the dispute is found to be in some economic rivalry. It is to gather the fruits of the earth in more abundance that nations clash in their sovereign capacity. As group interests excite mass-emotion, the situation passes beyond the control of reason and of law. These crowd-emotions may be reduced by skilful diplomacy until harmony is reached, or else martial methods must be held in threat or put in action to force agreement.

There are many jurists who hold that it is desirable that law should be made supreme in international relations. A layman may venture to dissent from this view. Law, in the sense that it is the ultimate, or finally fixed

recourse, is not supreme in municipal and national affairs, but it is subordinate to politics inasmuch as it is determined by, and expressive of, policies. It is not meant to disparage the rule of law nor its necessity; nor the necessity of obedience to the law of the day. But economics rules politics and politics makes the law. The chief preoccupation of every man is to earn his living and to make the conditions of his life as satisfactory as he can. For this purpose governments are established, and through politics men control governments and enact and enforce the laws which seem best to promote good order and prosperity.

As the systems of laws are subordinate to the economic and political conditions of nations, so in international relations the contracts, which, in the form of treaties, pass as international law, will remain subordinate to the economic requirements of states politically expressed through diplomacy.

It is much to be suspected that some of the great nations of the world are not anxious for a world rule of law, as we understand municipal law. They prefer freedom of diplomacy to settle matters as they arise rather than a court decision. It is the expressed purpose of the Court of International Justice to give impartial decisions. But aroused opposing nations can not both be satisfied by an impartial decision. Each disputant country wants what it wants when it wants it, and the national loser in a judicial decision will consider war (although it may reject it) as an alternative to accepting the loss. In spite of all the high sounding language of publicists and foreign ministers, nations and governments are not moral creatures, but opportunists. Morals and morality are distinctive of individuals, but not of groups of men. Collective responsibility of a people weakens both the sense of national responsibility and of national morality. So when writers suggest that governments are guided by morality, it very often is a euphemism for the government's habit of "letting I dare not, wait upon I would." However, the enlightened expediency of governments is often in accord with the moral principles of individuals.

In international matters the first duty of every government is to its own people. It exists to preserve good order among them and to promote the prosperity of all its nationals to the extent of its power. In an international dispute it very seldom yields more than it must. In private morality we recognize upon suitable occasions the duty of self-sacrifice for public good or for that of others. But it is seldom that self-sacrifice is imperative, more often it is generous. But governments are trustees of their peoples. They have no right to yield the national interest except when unavoidable or for a quid pro quo. It seems to be the present feeling of the governments of great nations that it is their duty to maintain the prosperity of their peoples by diplomatic methods rather than to accept the rigidity of law which may require them at some future time to yield they know not what. Flexible diplomacy forming suitable balances of power to meet emergencies as they arise seems to them preferable to the conservatism of law, whose enactments

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