The traditional treatment of international law has almost if not wholly dissociated it from constitutional law. International law has been conceived as concerned only with the abstractions known as states—Platonic ideas, as it were, which could not be seen or felt but had their existence in a world apart, inhabited only by other abstractions such as sovereignty, independence and equality. The extent of a state's territory, the character of its people, or its form of government was no concern of international law.“ Relative magnitude creates no distinction of right, relative imbecility whether permanent or casual, gives no additional right to the more powerful neighbor,” said Lord Stowell. “ Russia and Geneva have equal rights,” repeated Chief Justice Marshall.

Political scientists make a sharp distinction between the terms “State” and “Government.” A State is a group of individuals viewed as a politically organized unit. In the eyes of the law it appears as a corporate being possessing supreme authority and issuing commands in the form of laws addressed to those over whom it claims authority. A Government is the machinery or complexus of organs through which this state-being formulates, expresses, and enforces its will.

In my preceding paper I dealt wholly with the Prussian conception of the State and had nothing to say regarding Prussian conceptions of Government. In this paper I shall have little to say regarding the Prussian theory of the State and shall devote myself almost wholly to a consideration of the Prussian governmental system. Of this system, however, I shall speak of but one of its features, namely, its strong monarchical character. In result there should appear what justification there is for the demand of the United States and of the Entente Powers for a modification of the Prussian system.

Since the outbreak of the Great War in the summer of 1914 the conviction has deepened that whatever may have been the conflict of interests between the nations of Europe due to their efforts to maintain or increase their political influence and territorial extent, this calamitous struggle would not have been precipitated, and certainly England and the United States would not have felt forced to become parties to it, had there not existed in Germany a controlling political philosophy which marked her off from other States and made her a menace to the rest of humanity. It is true that the proximate cause that brought Great Britain into the war was the invasion of Belgium by the German army, which jeopardized her own security from invasion; and it is equally true that it was the disregard by Germany of our own commercial rights as a neutral nation that was the immediate cause of our own declaration of war. But back of these proximate or immediate causes was a real efficient cause which impelled both Great Britain and the United States to enter the contest and to pledge to its successful prosecution their entire manhood and material resources.

Perhaps no part of international law gives rise to more uncertainty and disagreement than the law which determines the resulting rights and duties of states and individuals upon a change of sovereignty, — the so-called law of succession. One group of writers holds that the. new sovereign succeeds to all the rights and obligations of the former sovereign with respect to the territory ceded. The new sovereign, it is said, like the Roman heir, is “universal successor” to the obligations as well as to the rights of the former sovereign. Grotius suggests the analogy of the Roman heir when he says: “Heredis personam, quoad dominii tam publici quam privati continuationem, pro eadem censeri cum defuncti persona, certi est juris” (Book II, Chap. IX, sec. 12). Again, he says: “Potest imperium victoria acquiti, ut est in rege alio imperante, et tune in ejus jus succeditur” (Book III, Chap. VIII, sec. 2). This analogy, suggested by Grotius when international law was in the making, has had a remarkably strong influence upon the development of the rules of international law governing a change of sovereignty. Many writers of authority, following in the footsteps of Grotius, have laid it down that the new sovereign succeeds to all the obligations as well as to the rights of the former sovereign.

This essay, stimulated by themes discussed by Harold Koh and Todd Buchwald, examines the International Criminal Court (ICC) and the amendment to the 1998 Rome Statute to include the crime of aggression within the ICC’s jurisdiction. The definition adopted in Kampala in 2010 is too long to quote in full but merits careful examination. For example, it states that the “‘crime of aggression’ means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.” It then adopts large swaths of UN General Assembly Resolution 3314 (XXIX) of 1974—the definition of aggression—as its own. Commentators recognized problems with the 1974 definition at the time. The post-Kampala Rome Statute purports to achieve objectivity with respect to aggression through removal of everything having to do with context and the totality of the circumstances. These matters surely should be—and must be—of central importance not only to nonparties but also to the parties to the Rome Statute. The fact that they are absent forms the raison d’être of this essay. Because the ICC is a permanent body, able to take jurisdiction of ongoing problems, its actions may have significant implications for world public order.