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INTEBNATIONAL LAW '
A TREATISE
BY
L. OPPENHEIM, LL.D.
LECTURER IN PUBLIC INTERNATIONAL LAW AT THE LONDON SCHOOL OF ECONOMIC8
AND POLITICAL SCDSNOE (UNIVERSITY OF LONDON) AND MEMBER OF THE
FACULTY OF ECONOMICS AND POLITICAL SCDSNCE OF THE UNIVERSITY
OF LONDON ; FORMERLY PROFESSOR ORDINARIUS OF LAW
IN THE UNIVERSITY OF BASLE (SWITZERLAND)
VOL. I.
PEACE
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK AND BOMBAY
1905
All rights reserved
91
TO
EDWARD ARTHUR WHITTUCK
WHOSE SYMPATHY AND ENCOURAGEMENT
HAVE ACCOMPANIED THE PROGRESS OP THIS WORK
FROM ITS INCEPTION TO ITS CLOSE
17!
PKEFACE
Although this treatise on the Law of Nations appears in two volumes, it is intended to be an elementary book for those who are beginning to study Inter- national Law. It is a book for students written by a teacher. The majority of the people in this country who take an interest in International Law are not jurists and have no legal training, as my classes at the London School of Economics and Political Science (University of London) show. For this reason, in lectures as well as in a treatise on the Law of Nations, certain truisms must be repeated again and again, and much that is obvious to the trained jurist must, to insure comprehension, be pointed out at some length.
My work endeavours to give a complete survey of the subject. All important points are discussed, and in notes the reader is referred to other books which go more deeply into the subject. And the list of treatises as well as monographs printed at the commencement of each topic will, I hope, be welcome to those who desire to look up a parti- cular point. There is no English treatise which provides such a bibliography. Naturally, my cata- logue is not exhaustive, although English, French,
Vlll PKEFACE
German, Italian, Russian, Swiss, Belgian, Portuguese, American, and Spanish-American authors are repre- sented. And as a rule I have avoided giving refer- ences to articles contained in periodicals. But my readers will find these as well as other references in the books quoted. In any case they will know where to find something on any subject in which they take a special interest. That I have everywhere quoted Phillimore, Twiss, and Hall, and have as regards the detail of many points referred my readers to these classics of international jurisprudence, was a matter of course. I should, however, specially mention that I had to quote Hall's treatise in its fourth edition (1895) because the editor of the fifth edition has abandoned the section-marks (§§) in the divisions of the book.
I have tried to the best of my power to build my system and my doctrines on a thorough jurispru- dential, which is equivalent to a positive, basis. My definitions are as sharp as possible. Readers may be assured that those definitions in my book which are more or less ambiguous have been intentionally so framed because the actualities on which they are based are not altogether clear. My system itself is, I hope, lucid in its arrangement of topics. An Intro- duction deals with the Foundation of International Law and gives a sketch of its Development and Scientific Treatment. The First Part comprises the whole matter concerning the Subjects of the Law of Nations — viz. the States and those of their relations which are derived from their very membership of the
PREFACE IX
Family of Nations. The Second Part deals with the Objects of the Law of Nations — namely, State Terri- tory, the Open Sea, and Individuals. As the States possess Organs for their International Eelations, these Organs are treated in the Third Part. The Fourth Part, which deals with International Transactions, concludes the first volume, except for an Appendix comprising the text of the Anglo-French Agreement. The second volume, which is ready in the draft and to which readers are frequently referred in the notes in this first volume, will appear next year and will deal with the Settlement of International Differences, War, and Neutrality.
As regards the method pursued, I should like to point out that I have everywhere endeavoured to let differences of opinion appear in a clear light. It is necessary that those who seek information in a treatise should find an opinion for their guidance. For this reason I have everywhere tried to establish either the opinion I approve or my own opinion as firmly as possible, but I have nearly always taken pains to put other opinions, if any, before my readers. The whole work, I venture to hope, contains those suggestive and convincing qualities which are required in a book for students. Yet I have, on the other hand, been careful to avoid pronouncing rules as established which are not yet settled. My book is intended to present International Law as it is, not as it ought to be.
I owe thanks to many friends for advice and assistance. I must specially mention Mr. W. J.
X PREFACE
Addis, M.A., Headmaster of the Holborn Estate Grammar School, to whose scholarly knowledge of language and literary insight I have been constantly indebted, and Mr. Alfred Bucknill, M.A., of the Inner Temple, J>arrister-at-Law, who has lent me his most valuable assistance in preparing the MS. for the press and reading the proofs.
L. OPPENHEIM.
The London School of Economics and
Political Science (University of London), Clare Market, London, W.C. : February 20, 1905.
Errata.
Page 88, line 19, for Fanchille read Fauchille. „ 122, note 1, line 4, for Snow read Scott. ,, 303, line 8, for 1680 read 1580.
ABBEEVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
The books referred to are, as a rule, quoted with their full titles and the date of their publication. But certain books and periodicals which are very often referred to throughout this work are quoted in an abbreviated form, as follows : —
Annuaire =
Bluntschli
Bonfils =
Bulmerincq =
Calvo =
Despagnet =s
Field =
Fiore =
Gareis =
Grotius =
Hall =
Halleck =
Hartmann =
Heffter =
Annuaire de l'lnstitut de Droit Inter- national.
Bluntschli, Das moderne Volkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 3rd ed. (1878).
Bonfils, Manuel de Droit International Public, 4th ed. by Fauchille (1904).
Bulmerincq, Das Volkerrecht (1887).
Calvo, Le Droit International etc., 5th ed. 6 vols. (1896).
Despagnet, Cours de Droit International Public, 2nd ed. (1899).
Field, Outlines of an International Code
(i872).
Fiore, Nouveau Droit International Public,
deuxieme edition, traduite de l'ltalien
et annot^e par Antoine, 3 vols. (1885). Gareis, Institutionen des Volkerrechts,
2nd ed. (1901). Grotius, De Jure Belli ac Pacis (1625). Hall, A Treatise on International Law,
4th ed. (1895). Halleck, International Law, 3rd English
ed. by Sir Sherston Baker, 2 vols. (1893). Hartmann, Institutionen des praktischen
Volkerrechts in Friedenszeiten (1874). Heffter, Das Europaische Volkerrecht der
Gegenwart, 8th ed. by Geffcken (1888).
XI 1
ABBREVIATIONS OF T1TLKS OF HOOKS, ETC.,
Heilborn, = System
Holland, =
Studies
Holland, =
.Jurisprudence
Iloltzendorff =
Kliiber =
Lawrence =
Lawrence, = Essays
Liszt =
Lorimer =
Maine =
Manning =
Martens =
Martens, G.F.=
Martens, R. Martens, N. R. Martens, N. S. Martens, N. R. G. Martens, N. R. G. Martens, =
Causes
Celebres Nys =
Perels =
Philliinore =
Heilborn, Das System des Volkerrechts entwickelt aus den volkeirechtlichen Begriffen (1896).
Holland, Studies in International Law
(1898).
Holland, The Elements of Jurisprudence,
6th ed. (1893). Holtzendorff, Handbuch des Volkerrechts,
4 vols. (1885-1889). Kliiber, Europaisches Volkerrecht, 2nd ed.
by Morstadt (1851). Lawrence, The Principles of International
Law, 3rd ed. (1900). Lawrence, Essays on some Disputed
Questions of Modern International Law
(1884). Liszt, Das Volkerrecht, 3rd ed. (1904) Lorimer, The Institutes of International
Law, 2 vols. (1883-1884). Maine, International Law, 2nd ed. (1894). Manning, Commentaries on the Law of
Nations, new ed. by Sheldon Amos
(1875)-
Martens, Volkerrecht, German translation
of the Russian original in 2 vols. (1883).
G. F. Martens, Precis du Droit des Gens
Moderne de l'Europe, nouvelle ed. by
Verge, 2 vols. (1858).
, These are the abbreviated
quotations of the different parts
^of Martens, Recueil de Trait6s
I (see p. 94 of this volume), which
2nd Seiv are in common use.
Martens, Causes Celebres du Droit des
Gens, 5 vols., 2nd ed. (1858-1861)
Nys, Le Droit International, vol. i. (1904).
Perels, Das internationale offentliche See- recht der Gegenwart, 2nd ed. (1903).
Philliinore, Commentaries upon Inter- national Law, 4 vols. 3rd ed. (1879- 1888).
QUOTED IN THE TEXT
Xlll
Piedelievre = Pradier-Fodere =
Pufendorf =
Rivier, =
R.L =
E.G. =
Taylor =
Testa =
Twiss =
Ullmann =
Vattel =
Walker =
Walker, =
History
Walker, =
Science
Westlake =
Westlake, =
Chapters
Wharton =
Wheaton =
Piedelievre, Precis de Droit International
Public, 2 vols. (1894-1895). Pradier-Fodere\Trait6 deDroit International
Public, 7 vols. (1885-1897). Pufendorf, De Jure Naturae et Gentium
(1672). Rivier, Principes du Droit des Gens, 2 vols.
(1896). Revue de Droit International et de Legisla- tion Comparee. Revue General de Droit International
Public. Taylor, A Treatise on International Public
Law (1901). Testa, Le Droit Public International Mari- time, traduction du Portugais par
Boutiron (1886). Twiss, The Law of Nations, 2 vols., 2nd ed.
(1887-1884). Ullmann, Volkerrecht, 1898. Vattel, Le Droit des Gens, 4 books in 2 vols.,
nouvelle ed. (Neuchatel, 1773). Walker, A Manual of Public International
Law (1895). Walker, A History of the Law of Nations,
vol. i. (1899). Walker, The Science of International Law,
(1893)-
Westlake, International Law, vol. i. (1904). Westlake, Chapters on the Principles of
International Law (1894). Wharton, A Digest of the International
Law of the United States, 3 vols. (1886). Wheaton, Elements of International Law,
8th American ed. by Dana (1866).
CASES CITED
Aegi. 478 Amelia Island, 180 Anna, 286 Aubespine. 440
Bass, de, 440
Brunswick, Duke of, v. King of
Hanover, 412 Belle-Isle, Marechal de, 451
Canning, George, 508 Canning, Sir Stratford, 441 Caroline, 180,483, 484 Cellamarc, 440 Constitution, 487 Cutting, 197
Danish fleet, 179 Delagoa Bay, 299 Dogger Bank, 2 1 o Dubois, 446
Exchange, 487 Tranconia, 29
Gallatin, 455 Guebriant, Madame de, 429 Gurney, 454 Gyllenburg, 440
Haggerty, 471
Jaquin, 394
Keiley, 431 Kosta, Martin, 367
; McLeod, 483
Macartney v. Garbut, 430, 448 I Mendoza, 439
Monaldeschi, 409
Monti, Marquis de, 453
I NlKITSCHENKOW, 444
I Nillins, 387
. Parkinson v. Potter, 448 Parliament Beige, 487 Platen-Hallermund, 291
Reg. v. Cunningham, 250 Ripperda, Duke of, 442 Ross, Bishop, 422
S.v, Don Pantaleon, 455 j Sackville, Lord, 436 ' Santa Lucia, 299 j Schnaebele, 492 ; Springer, 442 ! Soulie, 451
Sully, 449
Sun Yat Sen, 445
Tourville, 386
United States v. Prioleau, 122
Vexaincourt, 210 Virginius, 181
William, King of Holland, 410 Wrech, Baron de, 445
CONTENTS
OF
THE FIRST VOLUME
INTRODUCTION CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I. The Law of Nations as Laio
SECT. PAGE
i. Conception of the Law of Nations 3
2. Legal Force of the Law of Nations contested . . . . 4
3. Characteristics of Rules of Law 6
4. Law-giving authority not essential for the existence of Law . 6
5. Definition and Three Essential Conditions of Law ... 8
6. Law not to be identified with Municipal Law . . . . 9
7. The " Family of Nations " a Community . . . .10
8. The "Family of Nations" a Community with Rules of
Conduct 12
9. External Power for the enforcement of Rules of International
Conduct 12
10. Practice recognises Law of Nations as Law . . . . 13
II. Basis of the Law of Nations
1 1 . Common Consent the Basis of Law 15
12. Common Consent of the Family of Nations the Basis of
International Law 16
13. States the Subjects of the Law of Nations . . . .18
14. Equality an Inference from the Basis of International Law . 19
III. Sources of the Law of Nations
1 5. Source in Contradistinction to Cause 20
16. The two Sources of International Law 21
xvi CONTENTS OF
vm p. pA0i
17. Custom in Contradistinction to Usage 22
1 8. Treaties as Source of International Law 23
19. Factors influencing the Growth of International Law . . 24
IV. Relations between International and Municipal Law
20. Essential Difference between International and Municipal Law 25
21. Law of Nations never per se Municipal Law . . . .26
22. Certain Rules of Municipal Law necessitated or interdicted . 27
23. Presumption against conflicts between International and
Municipal Law 28
24. Presumption of Existence of certain necessary Municipal
Rules 28
25. Presumption of the Existence of certain Municipal Rules in
Conformity with Rights granted by the Law of Nations . 28
25. Case of the " Franconia " 29
V. Dominion of the Law of Nations
26. Range of Dominion of International Law controversial . . 30
27. Three Conditions of Membership of the Family of Nations . 31
28. Present Range of Dominion of the Law of Nations . . . 32
29. Treatment of States outside the Family of Nations . . 34
VI. Codification of the Law of Nations
30. Movement in Favour of Codification 35
31. Work of the Hague Peace Conference . . . . -37
32. U.S. Naval War Code $s
33. Value of Codification of International Law contested . . 38
34. Merits of Codification in general . 39
35. Merits of Codification of International Law . . . .41
36. How Codification could be realised 43
CHAPTEE II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I. Development of the Law of Nations before Grolius
37. No Law of Nations in Antiquity 44
38. The Jews 4c
39. The Greeks 48
40. The Romans 50
41. No need for a Law of Nations during the Middle Ages . .52
42. The Fifteenth and Sixteenth Century 54
THE FIRST VOLUME XV11
II. Development of the Law of Nations after Grotius
SECT. PAGE
43. The time of Grotius 58
44. The period 1648-1721 60
45. The period 1721-1789 62
46. The period 1789-1815 63
47. The period 181 5-1856 65
48. The period 1856-1874 68
49. The period 1 874- 1 899 ........ 70
50. The Twentieth Century 72
51. Five Lessons of the History of the Law of Nations. . . 73
III. The Science of the Law of Nations
52. Forerunners of Grotius 76
53. Grotius 77
54. Zouche 81
55. The Naturalists . 82
56. The Positivists 83
57. The Grotians 85
58. Treatises of the Nineteenth and Twentieth Centuries . . . S7
59. The Science of the Law of Nations in the Nineteenth Cen-
tury, as represented by treatises 90
60. Collection of Treaties 94
61. Bibliographies 95
62. Periodicals 95
PART I
THE SUBJECTS OF THE LAW OF NATIONS CHAPTEE I
INTERNATIONAL PERSONS
I. Sovereign States as International Persons
63. Real and apparent International Persons . . . .99
64. Conception of the State 100
65. Not-full Sovereign States 101
66. Divisibility of Sovereignty contested 103
67. Meaning of Sovereignty in the Sixteenth and Seventeenth
Centuries 103
68. Meaning of Sovereignty in the Eighteenth Century . .105
69. Meaning of Sovereignty in the Nineteenth Century . .106
70. Result of the Controversy regarding Sovereignty . . . 108
vol. i. a
xviii CONTENTS OF
II. Recognition of States as International Persons
FAOF
7 1 . Recognition a condition of Membership of the Family of Nations 1 08
73. Mode of Recognition no
73. Recognition under Conditions 1 1 1
74. Recognition Timely and Precipitate 112
75. State Recognition in contradistinction to other Recognitions . 113
III. Changes in the Condition of International Persons
76. Important in contradistinction to Indifferent Changes . .114
77. Changes not affecting States as International Persons . . 115
78. Changes affecting States as International Persons . . .116
79. Extinction of International Persons 117
IV. Succession of International Persons
80. Common Doctrine regarding Succession of International
Persons 119
81. How far Succession actually takes place 120
82. Succession in consequence of Absorption . . . .121
83. Succession in consequence of Dismemberment . . . . 123
84. Succession in case of Separation or Cession . . . .123
V. Composite International Persons
85. Real and apparent Composite International Persons . . .125
86. States in Personal Union . 126
87. States in Real Union 127
88. Confederated States (Staatenbund) 128
89. Federal States (Bundesstaaten) 129
VI. Vassal States
90. The Union between Suzerain and Vassal State . . . 133
91. International position of Vassal States 135
VII. States under Protectorate
92. Conception of Protectorate 137
93. International position of States under Protectorate . . . 138
94. Protectorates outside the Family of Nations . . . . 139
VIII. Neutralised States
95. Conception of Neutralised States 140
96. Act and Condition of Neutralisation . . . . .141
97. International position of Neutralised States . . . . 142
98. Switzerland 144
THE FIRST VOLUME XIX
SRCT. PAGE
99. Belgium 145
100. Luxemburg 146
101. The Congo Free State 146
IX. Non-Christian States
102. No essential difference between Christian and other States . 147
103. International position of non-Christian States besides Turkey
and Japan 148
X. The Holy See
104. The former Papal States 149
105. The Italian Law of Guaranty 150
106. International position of the Holy See and the Pope . .152
107. Violation of the Holy See and the Pope . . . .153
XL International Persons of the Present Day
108. European States 154
109. American States 156
no. African States 156
in. Asiatic States 157
CHAPTEK II
POSITION OP THE STATES WITHIN THE FAMILY OF NATIONS
I. International Personality
112. The so-called Fundamental Rights 158
113. International Personality a Body of Qualities . . . . 159
1 14. Other Characteristics of the position of the States within the
Family of Nations 160
II. Equality, Bank, and Titles
115. Legal Equality of States 161
116. Political Hegemony of Great Powers 163
117. Rank of States 164
118. The Alternat 165
119. Titles of States 166
III. Dignity
120. Dignity a Quality 167
121. Consequences of the Dignity of States 168
122. Maritime Ceremonials 169
a 2
xx CONTENTS OF
IV. Independence and Territorial and Personal Supremacy
■■OT. PACE
123. Independence and Territorial as well as Personal Supremacy
as Aspects of Sovereignty 1 70
124. Consequences of Independence and Territorial and Personal
Supremacy r 71
125. Violations of Independence and Territorial and Personal
Supremacy 172
1 26. Restrictions upon Independence . . . . . .173
127. Restrictions upon Territorial Supremacy 175
128. Restrictions upon Personal Supremacy 176
V. Self-preservation
129. Self-preservation an excuse for violations 177
1 30. What acts of self-preservation are excused . . . .178
131. Case of the Danish Fleet 179
132. Case of Amelia Island 180
133. Case of the " Caroline " 180
VI. Intervention
134. Conception and Character of Intervention . . . . 18 r
135. Intervention by Right 183
1 36. Admissibility of Intervention in default of Right . . .185
137. Intervention in the interest of Humanity 186
138. Intervention de facto a Matter of Policy . . . .187
139. The Monroe Doctrine 188
140. Merits of the Monroe Doctrine 190
VII. Intercourse
141. Intercourse a presupposition of International Personality. . 191
142. Consequences of Intercourse as a presupposition of Inter-
national Personality 193
VIII. Jurisdiction
1 43. Jurisdiction important for the position of the States within
the Family of Nations 194
144. Restrictions upon Territorial Jurisdiction 194
145. Jurisdiction over Citizens abroad 195
146. Jurisdiction on the Open Sea 195
147. Criminal Jurisdiction over Foreigners in Foreign States . 196
THE FIRST VOLUME xxi
CHAPTER III
RESPONSIBILITY OP STATES
I. On State Responsibility in General
SECT. PAGE
148. Nature of State Responsibility 198
149. Original and Vicarious State Responsibility . . . .199
150. Essential Difference between Original and Vicarious Re-
sponsibility 200
II. State Responsibility for International Delinquencies
151. Conception of International Delinquencies .... 201
152. Subjects of International Delinquencies 202
153. State Organs able to commit International Delinquencies . 203
154. No International Delinquency without Malice or culpable
Negligence 203
155. Objects of International Delinquencies 204
1 56. Legal consequences of International Delinquencies . . 204
III. State Responsibility for Acts of State Organs
157. Responsibility varies with Organs concerned . . . . 206
158. Internationally injurious Acts of Heads of States . . . 206
1 59. Internationally injurious Acts of Members of Governments . 206
160. Internationally injurious Acts of Diplomatic Envoys . . 207
161. Internationally injurious Attitudes of Parliaments . .208
162. Internationally injurious Acts of Judicial Functionaries . . 208
163. Internationally injurious Acts of administrative Officials and
Military and Naval Forces 209
IV. State Responsibility for Acts of Private Persons
164. Vicarious in contradistinction to Original State Responsi-
bility for Acts of Private Persons 211
165. Vicarious responsibility for Acts of Private Persons relative
only 211
166. Municipal Law for Offences against Foreign States . . .212
167. Responsibility for Acts of Insurgents and Rioters. . .212
xxii CONTENTS OF
PART II
THE OBJECTS OF THE LAW OF NATIONS CHAPTER I
STATE TERRITORY
I. On State Territory in General sect. "- ""FAQR
.168. Conception of State Territory 217
169. Different kinds of Territory 218
170. Importance of State Territory 219
171. One Territory, one State 220
II. The different Parts of State Territory
172. Real and Fictional Parts of Territory 222
173. Territorial Subsoil 223
174. Territorial Atmosphere 223
175. Inalienability of Parts of Territory 224
III. Rivers
176. Rivers State Property of Riparian States . . . .225
177. Navigation on National, Boundary, and not National Rivers 226
178. Navigation on International Rivers 227
IV. Lakes and Land-locked Seas
1 79. Lakes and Land-locked Seas State Property of Riparian States 230
180. So-called International Lakes and Land-locked Seas . .231
181. The Black Sea 231
V. Canals
182. Canals State Property of Riparian States .... 233
183. The Suez Canal 234
184. The Panama Canal 236
VI. Maritime Belt
185. State Property of Maritime Belt contested . . . . 239
1 86. Breadth of Maritime Belt 240
1 87. Fisheries, Cabotage, Police, and Maritime Ceremonials within
the Belt 242
188. Navigation within the Belt 242
1 89. Jurisdiction within the Belt 244
190. Zone for Revenue and Sanitary Laws 245
THE FIRST VOLUME XXlli
VII. Gulfs and Bays
SECT. PAGE
191. Territorial Gulfs and Bays 246
192. Non-territorial Gulfs and Bays ...... 247
193. Navigation and Fishery in Territorial Gulfs and Bays . . 248
VIII. Straits
194. What Straits are Territorial 249
195. Navigation, Fishery, and Jurisdiction in Straits . . . 250
196. The former Sound Dues 250
197. The Bosphorus and Dardanelles 251
IX. Boundaries of State Territory
198. Natural and Artificial Boundaries 253
199. Boundary Waters 254
200. Boundary Mountains 255
201. Boundary Disputes 255
202. Natural Boundaries sensu politico 256
X. State Servitudes
203. Conception of State Servitudes 257
204. Subjects of State Servitudes 258
205. Object of State Servitudes 259
206. Different kinds of State Servitudes 260
207. Validity of State Servitudes 261
208. Extinction of State Servitudes ...... 262
XI. Modes of acquiring State Territory
209. Who can acquire State Territory ? . 263
210. Former Doctrine concerning Acquisition of Territory . .265
211. What Modes of Acquisition of Territory there are . . . 266
212. Original and derivative Modes of Acquisition . . . 267
XII. Cession
213. Conception of cession of State Territory 268
214. Subjects of cession 268
215. Object of cession 269
216. Form of cession 270
217. Tradition of the ceded Territory 272
218. Veto of third Powers 272
219. Plebiscite and option 273
XIII. Occupation
220. Conception of Occupation 275
221. Object of Occupation 276
222. Occupation how effected 276
XXIV CONTENTS OF
» I. I'ACR
223. Inchoate Title of Discovery 277
224. Notification of Occupation to other Powers .... 278
225. Extent of Occupation 279
226. Protectorate as Precursor of Occupation .... 280
227. Spheres of influence 281
228. Consequences of Occupation 282
XIV. Accretion
229. Conception of Accretion 283
2 30. Different kinds of Accretion 284
231. Artificial formations 284
232. Alluvions 284
233. Deltas 285
234. New-born Islands 285
235. Abandoned River-beds 286
XV. Subjugation
236. Conception of Conquest and of Subjugation . . . . 287
237. Subjugation in Contradistinction to Occupation . . . 288
238. Justification of Subjugation as a Mode of Acquisition . . 288
239. Subjugation of the whole or of a part of Enemy Territory . 289
240. Consequences of Subjugation 290
241. Veto of third Powers 292
XVI. Prescription
242. Conception of Prescription 293
243. Prescription how effected 294
XVII. Loss of State Territory
244. Six modes of losing State Territory 296
245. Operation of Nature 297
246. Revolt 297
247. Dereliction 298
CHAPTER II
THE OPEN SEA
I. Rise of the Freedom of the Open Sea «— ■ ■
248. Former Claims to Control over the Sea .... 300
249. Practical Expression of claims to Maritime Sovereignty . . 302
250. Grotius's Attack on Maritime Sovereignty .... 303
251. Gradual recognition of the Freedom of the Open Sea . . 305
THE FIRST VOLUME
XXV
II. Conception of the Open Sea
NOT.
252. Discrimination between Open Sea and Territorial Waters
253. Clear Instances of Parts of the Open Sea .
PACK
. 306
• 307
III. The Freedom of tlie Open Sea
254. Meaning of the Term " Freedom of the Open Sea
255. Legal Provisions for the Open Sea
256. Freedom of the Open Sea and war
257. Navigation and ceremonials on the Open Sea .
258. Claim of States to Maritime Flag .
259. Rationale for the Freedom of the Open Sea
• 308
• 309
• 310
• 3ii
• 3J2
• 313
260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271.
IV. Jurisdiction on the Open Sea
Jurisdiction on the Open Sea mainly connected with Flag Claim of Vessels to sail under a certain Flag
Ship Papers
Names of Vessels ....
Territorial Quality of Vessels on the Open Safety of Traffic on the Open Sea Powers of Men-of-war over Merchantmen How Verification of Flag is effected . How Visit is effected .... How Search is effected How Arrest is effected .... Shipwreck and Distress on the Open Sea
Sea
of all
Nations
315 316
3*7 3i8 3i8
319 320 322 322 323 323 324
V. Piracy
272. Conception of Piracy 325
273. Private Ships as Subjects of Piracy 326
274. Mutinous Crew and Passengers as Subjects of Piracy . . 327
275. Object of Piracy 328
276. Piracy how effected 328
277. Where Piracy can be committed 329
278. Jurisdiction over Pirates and their Punishment . . . 330
279. Pirata non mutat dominium . . . . . . . 331
280. Piracy according to Municipal Law 331
VI. Fisheries in the Open Sea
281. Fisheries in the Open Sea free to all Nations . ... 333
282. Fisheries in the North Sea 334
283. Bumboats in the North Sea 335
284. Seal Fisheries in Behring Sea 336
285. Fisheries around the Faroe Islands and Iceland . . . 337
xxvi CONTENTS OF
VII. Telegraph Cables in the Open Sea
I'AC.K
286. Telegraph Cables in the Open Sea admitted .... 338
287. International Protection of Submarine Telegraph Cables . . 339
CHAPTER III
INDIVIDUALS
I. Position of Individuals in International Law
288. Importance of Individuals to the Law of Nations . . . 341
289. Individuals never Subjects of the Law of Nations . . . 341
290. Individuals Objects of the Law of Nations .... 344
291. Nationality the Link between Individuals and the Law of
Nations 345
292. The Law of Nations and the Rights of Mankind . . . 346
II. Nationality
293. Conception of Nationality 348
294. Function of Nationality 349
295. So-called Protege's and de facto Subjects 350
296. Nationality and Emigration 351
III. Modes of Acquiring and Losing Nationality
297. Five Modes of Acquisition of Nationality 352
298. Acquisition of Nationality by Birth 352
299. Acquisition of Nationality through Naturalisation . . .353
300. Acquisition of Nationality through Redintegration . .354
301. Acquisition of Nationality through Subjugation and Cession. 355
302. Seven modes of losing Nationality 355
IV. Naturalisation in Especial
303. Conception and Importance of Naturalisation . . -357
304. Object of Naturalisation 358
305. Conditions of Naturalisation 359
306. Effect of Naturalisation upon previous Citizenship . . . 359
307. Naturalisation in Great Britain 360
V. Double and Absent Nationality
308. Possibility of Double and Absent Nationality . . . . 362
309. How Double Nationality occurs 363
310. Position of Individuals with Double Nationality . . . 364
311. How Absent Nationality occurs 365
312. Position of Individuals destitute of Nationality . . . . 366
313. Redress against Difficulties arising from Double and Absent
Nationality 366
THE FIRST VOLUME xxvii
VI. Reception of Foreigners and Bight of Asylum
SB T. paok
314. No Obligation to admit Foreigners 369
315. Reception of Foreigners under conditions 370
316. So-called Right of Asylum 371
VII. Position of Foreigners after Reception
317. Foreigners subjected to Territorial Supremacy . . . . 372
318. Foreigners in Eastern Countries 373
319. Foreigners under the Protection of their Home State . . 374
320. Protection to be afforded to Foreigners' Persons and Pro-
perty 375
321. How far Foreigners can be treated according to Discretion . 376
322. Departure from the Foreign Country 377
VIII. Expulsion of Foreigners
323. Competence to expel Foreigners 378
324. Just Causes of Expulsion of Foreigners 379
325. Expulsion how effected 381
326. Reconduction in Contradistinction to Expulsion . . . 381
IX. Extradition
327. Extradition no legal duty 382
328. Extradition Treaties how arisen . . . . . 383
329. Municipal Extradition Laws 385
330. Object of Extradition 386
331. Extraditable Crimes 387
332. Effectuation and Condition of Extradition . . . . 388
X. Principle of Non-Extradition of Political Criminals
333. How Non-extradition of Political Criminals became the Rule 389
334. Difficulty concerning the Conception of Political Crime . . 392
335. The so-called Belgian Attentat Clause 394
336. The Russian Project of 1 88 1 394
337. The Swiss Solution of the Problem in 1892 . . . . 395
338. Rationale for the Principle of Non-extradition of Political
Criminals 395
339. How to avoid Misapplication of the Principle of Non-
extradition of Political Criminals 398
340. Reactionary Extradition Treaties 400
xxvii CONTENTS OF
PART III
J
ORGANS OF THE STATE FOR THEIR INTERNATIONAL RELATIONS
CHAPTER I
HEADS OP STATES AND FOREIGN OFFICES
I. Position of Heads of States according to International Law
nor, pack
341. Necessity of a Head for every State 403
342. Recognition of Heads of States 403
343. Competence of Heads of States 405
344. Heads of States Objects of the Law of Nations . . . . 406
345. Honours and Privileges of Heads of States .... 406
II. Monarch s
346. Sovereignty of Monarchs 407
347. Consideration due to Monarchs at home .... 407
348. Consideration due to Monarchs abroad 407
349. The Retinue of Monarchs abroad 410
350. Monarchs travelling incognito 410
351. Deposed and Abdicated Monarchs 411
352. Regents 411
353. Monarchs in the service or subjects of Foreign Powers . .411
III. Presidents of Republics
354. Presidents not Sovereigns 412
355. Position of Presidents in general 412
356. Position of Presidents abroad 413
IV. Foreign Offices
357. Position of the Secretary for Foreign Affairs . . . . 414
CHAPTER II
DIPLOMATIC ENVOYS
I. The Institution of Legation
358. Development of Legations 416
359. Diplomacy 418
THE FIRST VOLUME xxix
II. Bight of Legation
8ECT. TAGK
360. Conception of Right of Legation 419
361. What States possess the Right of Legation . . . . 420
362. Right of Legation by whom exercised 421
III. Kinds and Classes of Diplomatic Envoys
363. Envoys Ceremonial and Political 422
364. Classes of Diplomatic Envoys 423
365. Ambassadors 424
366. Ministers Plenipotentiary and Envoys Extraordinary . . 424
367. Ministers Resident 424
368. Charges d' Affaires 425
369. The Diplomatic Corps 425
IV. Appointment of Diplomatic Envoys
370. Person and Qualification of the Envoy 426
371. Letter of Credence, Full Powers, Passports . . . . 426
372. Combined Legations 428
373. Appointment of several Envoys 428
V. Beception of Diplomatic Envoys
374. Duty to receive Diplomatic Envoys 429
375. Refusal to receive a certain Individual 430
376. Mode and Solemnity of Reception 43 1
yj"]. Reception of Envoys to Congresses and Conferences . . 432
VI. Functions of Diplomatic Envoys
378. On Diplomatic Functions in general 433
379. Negotiation . . 433
380. Observation . . 434
381. Protection 434
382. Miscellaneous Functions 435
383. Envoys not to interfere in Internal Politics . . . . 435
VII. Position of Diplomatic Envoys
384. Diplomatic Envoys objects of International Law . . . 436
385. Privileges due to Diplomatic Envoys 437
VIII. Inviolability of Diplomatic Envoys
386. Protection due to Diplomatic Envoys 438
387. Exemption from Criminal Jurisdiction 439
388. Limitation of Inviolability 440
IX. Exterritoriality of Diplomatic Envoys
389. Reason and Fictional Character of Exterritoriality . . . 441
390. Immunity of Domicile 44 1
XXX CONTENTS <»1
m i. r\av.
391. Exemption frotn Criminal and Civil Jurisdiction . . . 445
392. Exemption from Subpoena as witness 446
393. Exemption from Police 447
394. Exemption from Taxes and the like 447
395. Right of Chapel 448
396. Self-jurisdiction 449
X. Position of Diplomatic Envoys as regards Third States
397. Possible Cases 450
398. Envoy travelling through Territory of third State . . 450
399. Envoy found by Belligerents on occupied Enemy Territory .452
400. Envoy interfering with affairs of a third State . . . 452
XI. The Retinue of Diplomatic Envoys
401. Different Classes of Members of Retinue 453
402. Privileges of Members of Legation 454
403. Privileges of Private Servants 455
404. Privileges of Family of Envoy 455
405. Privileges of Couriers of Envoys 456
XII. Termination of Diplomatic Mission
406. Termination in contradistinction to Suspension . . .456
407. Accomplishment of Object of Mission 457
408. Expiration of Letter of Credence 457
409. Recall 458
410. Promotion to a higher Class 459
411. Delivery of Passports 459
412. Request for Passports 459
413. Outbreak of War 459
414. Constitutional Changes 459
415. Revolutionary Changes of Government too
416. Extinction of sending or receiving State .... 460
417. Death of Envoy 461
CHAPTER III
CONSULS
I. The Institution of Consuls
4 1 8. Development of the Institution of Consuls .... 463
419. General Character of Consulg 465
THE FIRST VOLUME xxxi
II. Consular Organisation
MOT. PAGE
420. Different kinds of Consuls 466
421. Consular Districts 467
422. Different classes of Consuls 467
423. Consuls subordinate to Diplomatic Envoys .... 468
III. Appointment of Consuls
424. Qualification of Candidates 469
469 470 470 471
425. No State obliged to admit Consuls
426. What kind of States can appoint Consuls .
427. Mode of Appointment and of Admittance
428. Appointment of Consuls includes Recognition
IV. Functions of Consuls
429. On Consular Functions in general 472
430. Fosterage of Commerce and Industry 472
431. Supervision of Navigation 473
432. Protection 473
433. Notarial Functions 474
V. Position and Privileges of Consuls
434. Position 475
435. Consular Privileges 476
VI. Termination of Consular Office
436. Undoubted Causes of Termination 478
437. Doubtful Causes of Termination 478
438. Change in the Headship of States no cause of Termination . 478
VII. Consuls in non-Christian States
439. Position of Consuls in non-Christian States .... 479
440. Consular Jurisdiction in non-Christian States . . . . 480
441. International Courts in Egypt 480
442. Exceptional Character of Consuls in non-Christian States . 481
CHAPTER IV
MISCELLANEOUS AGENCIES
I. Armed Forces on Foreign Territory
443. Armed Forces State Organs 482
444. Occasions for Armed Forces abroad 482
445. Position of Armed Forces abroad 483
446. Case of McLeod 483
xxxii CONTENTS OF
II. Men-of-war in Foreign Waters
SB V. TACY.
447. Men-of-war State Organs 485
448. Proof of Character as Men-of-war 485
449. Occasions for Men-of-war abroad 486
450. Position of Men-of-war in foreign waters 487
451. Position of Crew when on Land abroad 488
III. Agents without Diplomatic or Consular Character
452. Agents lacking diplomatic or consular character . . . 489
453. Public Political Agents ........ 489
454. Secret Political Agents 490
455. Spies 491
456. Commissaries 492
457. Bearers of Despatches 492
IV. International Commissions
458. Permanent in Contradistinction to Temporary Commissions
459. Commissions in the interest of Navigation
460. Commissions in the interest of Sanitation ....
461. Commissions in the interest of Foreign Creditors .
462. Permanent Commission concerning Sugar
V. International Offices
463. Character of International Offices
464. International Telegraph Office ......
465. International Post Office
466. International Office of Weights and Measures .
467. International Office for the Protection of Works of Literature
and Art and of Industrial Property ....
468. International Maritime Office at Zanzibar
469. International Office of Customs Tariffs ....
470. Central Office of International Transports
471. Permanent Office of the Sugar Convention .
493 494 495 495 496
496 496 496 497
497 497 497 497 498
VI. The International Court of Arbitration
472. Organisation of Court in general 498
473. The Permanent Council 498
474. The International Bureau 499
475. The Court of Arbitration 499
476. The Deciding Tribunal 500
THE FIRST VOLUME XXXlli
PAET IV
INTERNATIONAL TRANSACTIONS CHAPTER I
ON INTERNATIONAL TRANSACTIONS IN GENERAL
I. Negotiation
SECT. PAOK
477. Conception of Negotiation 505
478. Parties to Negotiation 505
479. Purpose of Negotiation 506
480. Negotiations by whom conducted 507
481. Form of Negotiation 508
482. End and Effect of Negotiation 508
II. Congresses and Conferences
483. Conception of Congresses and Conferences .... 509
484. Parties to Congresses and Conferences 510
485. Procedure at Congresses and Conferences . . . .511
III. Transactions besides Negotiation
486. Different kinds of Transaction 513
487. Declaration 513
488. Notification 514
489. Protest 515
490. Renunciation 515
CHAPTER II
TREATIES
I. Character and Function of Treaties
491. Conception of Treaties 517
492. Different kinds of Treaties 517
493. Binding Force of Treaties 519
II. Parties to Treaties
494. The Treaty-making Power
495. Treaty-making Power exercised by Heads of States
496. Minor Functionaries exercising Treaty-making Power
497. Constitutional Restrictions
498. Mutual Consent of the Contracting Parties
499. Freedom of Action of consenting Representatives .
500. Delusion and Error in Contracting Parties VOL. I.
5?r 522 523 523
524
525 525
XXXIV CONTENTS OF
III. Objects of Treaties
RIOT. J'A(.F
501. Objects in general of Treaties 526
502. Obligations of Contracting Parties only can be Object . .527
503. An Obligation inconsistent with other Obligations cannot be
an Object 527
504. Object must be physically possible 527
505. Immoral Obligations 527
506. Illegal Obligations 528
IV. Form and Parts of Treaties
507. No necessary Form of Treaties 528
508. Acts, Conventions, Declarations 529
509. Parts of Treaties 530
V. Ratification of Treaties
510. Conception and Function of Ratification 531
511. Rationale for the Institution of Ratification .... 532
512. Ratification regularly, but not absolutely, necessary . . . 533
513. Space of Time for Ratification 534
514. Refusal of Ratification 534
515. Form of Ratification 535
516. Ratification by whom effected 536
517. Ratification cannot be partial and conditional . . . 537
518. Effect of Ratification 538
VI. Effect of Treaties
519. Effect of Treaties upon Contracting Parties .... 539
520. Effect of Treaties upon the Subjects of the Parties . . . 539
521. Effect of Changes in Government upon Treaties . . . 540
522. Effect of Treaties upon Third States 541
VII. Means of Securing Performance of Treaties
523. What means have been in use 542
524. Oaths. . . 542
525. Hostages 543
526. Pledge 543
527. Occupation of Territory 543
528. Guarantee 544
VIII. Participation of Third States in Treaties
529. Interest and Participation to be distinguished . . .544
530. Good Offices and Mediation 545
531. Intervention 545
532. Accession 546
533. Adhesion 546
THE FIRST VOLUME XXXV
IX. Expiration and Dissolution of Treaties
SKCT. PAGE
534. Expiration and Dissolution in Contradistinction to Fulfil-
ment 547
535. Expiration through Expiration of Time .... 548
536. Expiration through Resolutive Condition 548
537. Mutual Consent 548
538. Withdrawal by Notice 549
539. Vital Change of Circumstances 550
X. Voidance of Treaties
540. Grounds of Voidance 553
541. Extinction of one of the two Contracting Parties . . . 553
542. Impossibility of Execution . 554
543. Realisation of Purpose of Treaty other than by Fulfilment . 554
544. Extinction of such Object as was concerned in a Treaty . .554
XI. Cancellation of Treaties
545. Grounds of Cancellation 555
546. Inconsistency with subsequent International Law . . .555
547. Violation by one of the Contracting Parties . . . • 555
548. Subsequent Change of Status of one of the Contracting
Parties 556
549- War 557
XII. Renewal, Reconfirmation, and Redintegration of Treaties
550. Renewal of Treaties 557
551. Reconfirmation . . . . . . . .558
552. Redintegration 558
XIII. Interpretation of Treaties
553. Authentic Interpretation, and the Compromise Clause . . 559
554. Rules of Interpretation which recommend themselves . . 560
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I. Important haw-making Treaties
555. Important Law-making Treaties a product of the Nineteenth
Century 563
556. Final Act of the Vienna Congress 564
557. Protocol of the Congress of Aix-la-Chapelle .... 564
558. Treaty of London of 1 83 1 564
559. Declaration of Paris 564
560. Geneva Convention . . . ' 565
561. Treaty of London of 1867 566
XXX vi CONTENTS OF THE FIRST VOLUME
noT. i-A(iK
562. Declaration of St. Petersburg 566
563. Treaty of Berlin of 1878 566
564. General Act of the Congo Conference 566
565. Treaty of Constantinople of 1888 567
566. General Act of the Brussels Anti-Slavery Conference . . 567
567. Final Act of the Hague Peace Conference .... 567
568. Treaty of Washington of 190 1 568
II. Alliances
569. Conception of Alliances 569
570. Parties to Alliances 570
571. Different kinds of Alliances 571
572. Conditions of Alliances 571
573. Casus Foederis 572
III. Treaties of Guarantee and of Protection
574. Conception and Objects of Guarantee Treaties . . . . 573
575. Effect of Treaties of Guarantee 574
576. Effect of Collective Guarantee 575
577. Treaties of Protection 576
IV. Unions Concerning Common Non-Political Interests
578. Common in Contradistinction to Particular Interests . . 576
579. Universal Postal Union 577
580. Universal Telegraph Union 578
581. Union Concerning Railway Transports and Freights . . 578
582. Convention concerning the Metric System . . . . 579
583. Union for Protection of Industrial Property . . . -579
584. Union for Protection of Works of Literature and Art . . 579
585. Union for the Publication of Customs Tariffs . . . 580
586. Conventions concerning Private International Law . . . 580
587. Phylloxera Conventions 581
588. Sanitary Conventions 581
589. Monetary Unions 581
590. Convention for Preservation of Wild Animals in Africa . . 582
591. Convention concerning Bounties on Sugar .... 582
APPENDIX
The Anglo-French Agreement of April 8, 1904
I. Declaration respecting Egypt and Morocco . . . . 585 II. Convention signed at London, April 8, 1904 . . . 588 III. Declaration concerning Siam, Madagascar, and the Neiv
Hebrides 593
INDEX 595
INTRODUCTION
FOUNDATION AND DEVELOPMENT OF THE LAW OF NATIONS
VOL. 1. B,
(UN
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS I
The Law of Nations as Law
Hall, pp. 14-16— Maine, pp. 50-53 — Lawrence, §§ 1-3 — Phillimore, I., §§ 1-12 — Twiss, I. §§ 104-5 — Taylor, § 2 — Westlake, I. pp. 1-13 — Walker, History, I. §§ 1-8— Halleck, I. pp. 46-55— Ullmann, §§ 1-2 — Hefffcer, §§ 1-5 — Holtzendorff in Holtzendorff, I. pp. 19-26 — Nys, I. pp. 133-43 — Rivier, I. § 1 — Bonfils, Nos. 26-31 — Pradier. Fod^re, I. Nos. 1-24 — Martens, I. §§ 1-5 — Fiore, I. Nos. 186-208.
§ i . Law of Nations or International Law {Droit Concep- ts gens, Volkerrecht) is the name for the body of Law of customary and conventional rules which are con- Natl0ns- sidered legally binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception is called universal International Law, in contradistinction to particular International Law, which is binding on two or a few States only. But it is also necessary to distinguish general Inter- national Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General Interna- tional Law, as for instance the Declaration of Paris of 1856, or the Hague Eegulations of 1899 concerning the law of warfare on land, has a tendency to become universal International Law.
International Law in the meaning of the term as used in modern times did not exist during antiquity
B 2
4 FOUNDATION OF THE LAW OF NATIONS
and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work " De jure belli ac pacis libri III" appeared in 1625 and became the foundation of all later development.
The Law of Nations is a law for the intercourse of States with one another, not a law for individuals. As, however, there cannot be a sovereign authority above the single sovereign states, the Law of Nations is a law between, not above, the single States, and is, there- fore, since Bentham, also called " International Law." As the distinction of Bentham between Interna- tional Law public and private has been generally accepted, it is necessary to emphasise that only the so-called public International Law, which is identical with the Law of Nations, is International Law, where- as the so-called private International Law is not. The latter concerns such matters as fall at the same time under the jurisdiction of two or more different States. And as the Municipal Laws of different States are frequently in conflict with each other respecting such matters, jurists belonging to different countries endeavour to find a body of principles according to which such conflicts can be avoided. § 2. Almost from the beginning of the science of Force of the Law of Nations the question has been discussed Nations °f whether the rules of International Law can be called contested, legally binding. Hobbes l already and Pufendorf 2 had answered the question in the negative. And during the nineteenth century Austin3 and his
1 De Cive, XIV. 4. II. c. iii. § 22.
- De Jure Naturae et Gentium, 3 Lectures on Jnrisprudonce,VI
THE LAW OF NATIONS AS LAW 5
followers take up the same attitude. They define law as a body of rules for human conduct set and enforced by a sovereign political authority. If indeed this definition of law be correct, the Law of Nations cannot be called law. For International Law is a body of rules for the relations of Sovereign States between one another. And there is not and cannot be a sovereign political authority above the Sovereign States which could enforce such rules. But this definition of law is not correct. It covers only the written or statute law within a State, that part of the Municipal Law which is expressly made by statutes of Parliament in a constitutional State or by some sovereign authority in a non-constitutional State. It does not cover that part of Municipal Law which is called unwritten or customary law. There is, in fact, no community and no State in the world which could exist with written law only. Everywhere there is customary law in existence besides the written law. This customary law was never ex- pressly enacted by any law-giving body, or it would not be merely customary law. Those who define law as rules set and enforced by a sovereign political authority do not deny the existence of customary law. But they maintain that the customary law has the character of law only through the indirect recognition on the part of the State which is to be found in the fact that courts of justice apply the customary in the same way as the written law, and that the State does not prevent them from doing so. This is, however, nothing else than a fiction. Courts of justice having no law-giving power could not recog- nise unwritten rules as law if these rules were not law before that recognition, and States recognise unwrit- ten rules as law only because courts of justice do so.
FOUNDATION OF THE LAW OF NATIONS
Character- istics of Rules of Law.
Law- giving Authority not essen- tial for
§ 3. For the purpose of finding a correct defini- tion of law it is indispensable to compare morality and law with each other, for both lay down rules, and to a great extent the same rules, for human conduct. Now the characteristic of rules of morality is that they apply to conscience, and to conscience only. An act loses all value before the tribunal of morality, if it was not done out of free will and conscientiousness, but was enforced by some external power or was done out of some consideration which lies without the boundaries of conscience. Thus, a man who gives money to the hospitals for the purpose that his name shall come before the public does not act morally, and his deed is not a moral one, though it appears to be one outwardly. On the other hand, the characteristic of rules of law is that they shall eventually be enforced by external power.1 Eules of law apply, of course, to conscience quite as much as rules of morality. But the latter require to be enforced by the internal power of conscience only, whereas the former require to be enforced by some external power. When, to give an illustrative example, morality commands you to pay your debts, it hopes that your conscience will make you pay your debts. On the other hand, if the law gives the same command, it hopes that, if the conscience has not sufficient power to make you pay your debts, the fact that, if you will not pay, the bailiff will come into your house, will do so.
§ 4. If these are the characteristic signs of morality and of law, we are justified in stating the principle : A rule is a rule of morality, if by
1 Westlake, Chapters, p. 12, seems to make the same distinc- tion between rules of law and of
morality, and Twiss, I. § 105 adopts it expressis verbis.
THE LAW OF NATIONS AS LAW 7
common consent of the community it applies to con- the.
t i Existence
science and to conscience only ; whereas, on the other of Law. hand, a rule is a rule of law, if by common consent of the community it shall eventually be enforced by external power. Without some kind both of morality and law, no community has ever existed or could possibly exist. But there need not be, at least not among primitive communities, a law-giving authority within a community. Just as the rules of morality are growing through the influence of many different factors, so the law can grow without being expressly laid down and set by a law-giving authority. Wher- ever we have an opportunity of observing a primitive community, we find that some of its rules for human conduct apply to conscience only, whereas others shall by common consent of the community be enforced ; the former are rules of morality only, whereas the latter are rules of law. For the existence of law neither a law-giving authority nor courts of justice are essential. Whenever a question of law arises in a primitive community, it is the community itself and not a court which decides it. Of course, when a community is growing out of the primitive con- dition of its existence and becomes more and more so enlarged that it turns into a State in the sense proper of the term, the necessities of life and altered cir- cumstances of existence do not allow the community itself any longer to do anything and everything. And the law can now no longer be left entirely in the hands of the different factors which make it grow gradually from case to case. A law-giving authority is now just as much wanted as a governing authority. It is for this reason that we find in every State a Government, which makes and enforces laws, and courts of justice, which administer the laws.
8 FOUNDATION OF THE LAW OF NATIONS
However, if we ask whence does the power of the Government to make and enforce laws come, there is no other answer than this : From the common consent of the community. Thus in this country Parliament is the law-making body by common con- sent. An Act of Parliament is law, because the common consent of Great Britain is behind it. That Parliament has law-making authority is law itself, but unwritten and customary law. Thus the very important fact comes to light that all statute or written law is based on unwritten law in so far as the power of Parliament to make Statute Law is given to Parliament by unwritten law. It is the common consent of the British people that Parliament shall have the power of making rules which shall be en- forced by external power. But besides the statute laws made by Parliament there exist and are con- stantly growing other laws, unwritten or customary laws, which are day by day recognised through courts of justice. Definition § 5. On the basis of the results of these previous E^sentiaf investigations we are now able to give a definition of
ditions of *aW* ^e may Sa,J ^at ^aW ™ a ^0^V °f rU^eS f0V
Law. human conduct within a community which by common consent of this community shall be enforced by external power.
The essential conditions of the existence ol law are, therefore, threefold. There must, first, be a community. There must, secondly, be a body of rules for human conduct within that community. And there must, thirdly, be a common consent of that community that these rules shall be enforced by external power. It is not an essential condition either that the respective rules of conduct must be written rules, or that there should be a law-making authority
THE LAW OF NATIONS AS LAW 9
or a law-administering court within the respective community. And it is evident that, if we find this definition of law correct, and accept these three essential conditions of law, the existence of law is not limited to the State community only, but is to be found everywhere where there is a community. The best example of the existence of law outside the State is the law of the Koman Catholic Church, the so- called Canon Law. This Church is an organised community whose members are dispersed over the whole surface of the earth. They consider them- selves bound by the rules of the Canon Law, although there is no sovereign political authority that sets and enforces those rules, the Pope and the bishops and priests being a religious authority only. But there is an external power through which the rules of the Canon Law are enforced — namely, the punishments of the Canon Law, such as excommunication, refusal of sacraments, and the like. And the rules of the Canon Law are in this way enforced by common consent of the whole Koman Catholic community.
§ 6. But it must be emphasised that, if there is Law not law to be found in every community, law in this tlfiedwith meaning must not be identified with the law of States, Law1Cipal the so-called Municipal Law,1 just as the conception of State must not be identified with the conception of community. The conception of community is a wider one than the conception of state. A State is a com- munity, but not every community is a State. Like- wise the conception of law pure and simple is a wider one than that of Municipal Law. Municipal Law is law, but not every law is Municipal Law, as, for instance, the Canon Law is not. Municipal Law is a
1 Throughout this book the State law in contradistinction to term "Municipal Law "is made International Law. use of in the sense of national or
IO FOUNDATION OF THE LAW OF NATIONS
narrower conception than law pure and simple. The body of rules which is called the Law of Nations might, therefore, be law in the strict sense of the term, although it might not possess the characteristics of Municipal Law. To make sure whether the Law of Nations is or is not law, we have to inquire whether the three essential conditions of the existence of law are to be found in the Law of Nations. The ., S 7. As the first condition is the existence of a
"Family 3 ' . . _ _
ofNa- community, the question arises, whether an inter- com- a national community exists whose law could be the munity. Law of Nations. Before this question can be answered, the conception of community must be defined. A community may be said to be the body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between the single individuals.^ This definition of community covers not only a community of individual men, but also a community of individual communities such as individual States. A Confederation of States is a community of States. But is there a universal inter- national community of all individual States in exist- ence? This question is decidedly to be answered in the affirmative as far as the States of the civilised world are concerned. Innumerable are the interests which knit all the individual civilised States together and which create constant intercourse between these States as well as between their subjects. As the civilised States are, with only a few exceptions, Christian States, there are already religious ideas which wind a band around them. There are, further, science and art, which are by their nature to a great extent international, and which create a constant exchange of ideas and opinions between the subjects
THE LAW OF NATIONS AS LAW II
of the different States. Of the greatest importance are, however, agriculture, industry, and trade. It is totally impossible even for the largest empire to produce everything its subjects want. Therefore, the productions of agriculture and industry of the different States must be exchanged with each other, and it is for this reason that international trade is an unequalled factor for the welfare of every civilised State. Even in antiquity, when every State tried to be a world in itself, States did not and could not exist without some sort of international, trade. It is international trade which has created navigation on the high seas and on the rivers flowing through different States. It is, again, international trade which has called into existence the nets of railways covering the continents, the international postal and tele- graphic arrangements, the Transatlantic telegraphic cables.
The manifold interests which knit all the civilised States together and create a constant intercourse between one another, have long since brought about the necessity that these States should have one or more official representatives living abroad. Thus we find everywhere foreign ambassadors and con- suls. They are the agents who further the current stream of transactions between the Governments of the different States. A number of International Offices, International Bureaux, International Com- missions have permanently been appointed for the administration of international business. And from time to time special international conferences and congresses of delegates of the different States are convoked for discussing and settling matters inter- national. Though the individual States are sovereign and independent of each other, though there is no
12
FOUNDATION OF THE LAW OF NATIONS
The
M Family of Na- tions " a Commu- nity with Rules of Conduct.
External Power for the En- forcement of Rules of Interna- tional Conduct.
international Government above the national ones, though there is no central political authority to which the different States are subjected, yet there is some- thing mightier than all the powerful separating factors : namely, the common interests. And these common interests and the necessary intercourse which serves these interests, unite the separate States into an indivisible community. For many hundreds of years this community has been called " Family of Nations " or " Society of Nations."
§ 8. Thus the first essential condition for the existence of law is a reality. The single States make altogether a body of States, a community of individual States. But the second condition cannot be denied either. For hundreds of years more and more rules have grown up for the conduct of the States between each other. These rules are to a great extent customary rules. But side by side with these customary and unwritten rules more and more written rules are daily created by international agreements. The so-called Law ol Nations is nothing else than a body of customary and conven- tional rules regulating the conduct of the individual States with each other.
§ 9. But how do matters stand concerning the third essential condition for the existence of law ? Is there a common consent of the community of States that the rules of international conduct shall be enforced by external power ? There cannot be the slightest doubt that this question must be affirma- tively answered, although there is no central authority to enforce those rules. The heads of the civilised States, their Governments, their Parliaments, and public opinion of the whole of civilised humanity, agree and consent that the body of rules of inter-
THE LAW OF NATIONS AS LAW 1 3
national conduct which is called the Law of Nations shall be enforced by external power, in contradistinc- tion to rules of international morality and courtesy, which are left to the consideration of the conscience of nations. And in the necessary absence of a central authority for the enforcement of the rule of the Law of Nations, the States have to take the law /into their own hands. Self-help and the help of the other States which sympathise with the wronged one are the means by which the rules of the Law of Nations can be and actually are enforced. It is true that these means have many disadvantages, but they are means which have the character of external power. Compared with Municipal Law and the means at disposal for its enforcement, the Law of Nations is certainly the weaker of the two. A law is the stronger, the more guarantees are given that it can and will be enforced. Thus, the law of a State which is governed by an uncorrupt Government and the courts of which are not venal is stronger than the law of a State which has a corrupt Government and venal judges. It is inevitable that the Law of Nations must be a weaker law than Municipal Law, as there is not and cannot be an international Government above the national ones which could enforce the rules of International Law in the same way as a national Government enforces the rules of its Municipal Law. But a weak law is nevertheless still law, and the Law of Nations is by no means so weak a law as it sometimes seems to be.
§ 10. The fact is that theorists only are divided Practice concerning the character of the Law of Nations as LawgofSeS real law. In practice International Law is constantly Nations as recognished as law. The Governments and Parlia- ments of the different States are of opinion that they
14 FOUNDATION OF THE LAW OF NATIONS
are legally, not morally only, bound by the Law of Nations, although they cannot be forced to go before a court in case they are accused of having violated it. Likewise, public opinion of all civilised States con- siders every State legally bound to comply with the rules of the Law of Nations, not taking notice of the opinion of those theorists who maintain that the Law of Nations does not bear the character of real law. And the different States not only recognise the rules of International Law as legally binding in innume- rable treaties and emphasise every day the fact that there is a law between themselves. They moreover recognise this law by their Municipal Laws ordering their officials, their civil and criminal courts, and their subjects to take up such an attitude as is in conformity with the duties imposed upon their Sove- reign by the Law of Nations. If a violation of the Law of Nations occurs on the part of an individual State, public opinion of the civilised world, as well as the Governments of other States, stigmatise such violation as a violation of law pure and simple. And countless treaties concerning trade, navigation, post, telegraphy, copyright, extradition, and many other objects exist between civilised States, which treaties altogether rest on the existence of a law between the States, presuppose such a law, and con- tribute through their very existence to the develop- ment and the growth of such a law.
Violations of this law are certainly frequent. But the violators always try to prove that their acts do not contain a violation, and that they have a right to act as they do according to the Law of Nations, or at least that no rule of the Law of Nations is against their acts. Has ever a State confessed that it was going to break the Law of Nations or that it
THE LAW OF NATIONS AS LAW 1 5
ever did so ? The fact is that States, in breaking the Law of Nations, never deny its existence, but recognise its existence through the endeavour to interpret the Law of Nations in such a way as is favourable to their act.
n
Basis op the Law of Nations
§ ii. If law is, as denned above (§ 5), a body of Common rules for human conduct within a community which the Basis by common consent of this community shall be en- of Law* forced through external power, common consent is the basis of all law. What, now, does the term " common consent " mean ? If it meant that all the individuals who are members of a community must at every moment of their existence expressly consent to every point of law, such common consent would never be a fact. The individuals, who are the members of a community, are successively born into it, grow into it together with the growth of their intellect during adolescence, and die away successively to make room for others. The community remains unaltered, although a constant change takes place in its members. " Common consent " can therefore only mean the express or tacit consent of such an over- whelming majority of the members that those who dissent are of no importance whatever and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction to its single members. The question where such a common consent is to be stated, is not a question of theory, but of fact only. It is a matter of observa- tion and appreciation, and not of logical and mathe-
i6
FOUNDATION OF THE LAW OF NATIONS
Common Consent of the Family of Nations the Basis of Inter- national Law.
matical derision, just as the celebrated question, how many grains make a heap ? Those legal rules which come down from ancestors to their descendants remain law so long only as they are supported by common consent of these descendants. New rules can only become law if they find common consent on the part of those who constitute the community at the time. It is for that reason that custom is at the background of all law, whether written or un- written.
§ 12. What has been stated with regard to law pure and simple applies also to the Law of Nations. However, the community for which this Law of Nations is authoritative consists not of individual human beings, but of individual States. And where- as in communities consisting of individual human beings there is a constant and gradual change of the members through birth, death, emigration, and immigration, the Family of Nations is a community within which no such constant change takes place, although now and then a member disappears and a new member steps in. The members of the Family of Nations are therefore not born into that community and they do not grow into it. New members are simply received into it through express or tacit recognition. It is therefore necessary to scrutinise more closely the common consent of the States, which is the basis of the Law of Nations.
The customary rules of this law have grown up by common consent of the States — that is, the different States have acted in such a manner as includes their tacit consent to these rules. As far as the process of the growth of a usage and its turning into a custom can be traced back, customary rules of the Law of Nations came into existence
BASIS OF THE LAW OF NATIONS 1 7
in the following way. The intercourse of States with each other necessitated some rules of inter- national conduct. Single usages, therefore, gradually grew up, the different States acting in the same or in a similar way when an occasion arose. As some rules of international conduct were from the end of the Middle Ages urgently wanted, the theory of the Law of Nations prepared the ground for their growth by constructing certain rules on the basis of religious, moral, rational, and historical reflections. Hugo Grotius's work, "De jure belli ac pacis libri III" (1625), offered a systematised body of rules, which recom- mended themselves so much to the needs and wants of the time that they became the basis of the following development. Without the conviction of the Govern- ments and of public opinion of the civilised States that there ought to be legally binding rules for international conduct, on the one hand, and, on the other hand, without the pressure exercised upon the States by their interests and the necessity for the growth of such rules, the latter would never have grown up. When afterwards it became apparent that customs and usages alone were not sufficient or not sufficiently clear, new rules were created through treaties being concluded which laid down rules for future international conduct. Thus con- ventional rules gradually grew up side by side with customary rules.
New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct in existence at the time of their admittance. It is therefore not necessary to prove for every single rule of Inter- national Law that every single member of the Family
vol. 1. c
1 8 FOUNDATION OF THE LAW OF NATIONS
of Nations consented to it. No single State can say on its admittance into the Family of Nations that it desires to be subjected to such and such a rule of International Law, and not to others. The admit- tance includes the duty to submit to all the existing rules, with the only exception of those which, such as the rules of the Geneva Convention for instance, are specially stipulated for such States only as have concluded or later on acceded to a certain inter- national treaty containing the respective rules.
On the other hand, no State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations. The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one State. This applies not only to customary rules, but also to such con- ventional rules as have been called into existence through a treaty for the purpose of creating a permanent mode of future international conduct without a right of the signatory powers to give notice of withdrawal. It would, for instance, be a violation of International Law on the part of a signatory Power of the Declaration of Paris of 1856 to declare that it would cease to be a party. But it must be emphasised that this does not apply to such conventional rules as are stipulated by a treaty which expressly reserves the right to the signatory Powers to give notice, states the § 1 3. Since the Law of Nations is based on the oaheLaw common consent of individual States, and not of of Nations, individual human beings, States solely and exclusively are the subjects of International Law. This means that the Law of Nations is a law for the international
BASIS OF THE LAW OF NATIONS 1 9
conduct of States, and not of their citizens. Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively. An in- dividual human being, such as a king or an ambas- sador for example, is never directly a subject of Inter- national Law. Therefore, all rights which might necessarily be granted to an individual human being according to the Law of Nations are not inter- national rights, but rights granted by Municipal Law in accordance with a duty imposed upon the respec- tive State by International Law. Likewise, all duties which might necessarily be imposed upon individual human beings according to the Law of Nations are not international duties, but duties imposed by Municipal Law in accordance with a right granted to or a dut}r im- posed upon the respective State by International Law. Thus the privileges of an ambassador are granted to him by the Municipal Law of the State to which he is accredited, but such State has the duty to grant these privileges according to International Law. Thus, further, the duties incumbent upon officials and subjects of neutral States in time of war are imposed upon them by the Municipal Law of their home States, but these States have, according to Inter- national Law, the duty of imposing the respective duties upon their officials and citizens.1
§ 14. Since the Law of Nations is based on the Equality common consent of States as sovereign communities, encefrom the member States of the Family of Nations are equal JJ ej^is to each other as subjects of International Law. national
Law.
1 The importance of the fact It should, however, already be
that subjects of the Law of Nations mentioned here that this assertion
are States exclusively is so great is even nowadays still sometimes
that I consider it necessary to contradicted ; see, for instance,
emphasise it again and again Kaufmann, Die Rechtskraft des
throughout this book. See, for Internationalen Rechts (1899),
instance, below, §§ 289, 344, 384. yasaim.
c 2
20 FOUNDATION OF THE LAW OF NATIONS
States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may other- wise exist. This is a consequence of their sovereignty and of the fact that the Law of Nations is a law between, not above, the States.1
Ill Sources of the Law of Nations
Hall, pp. 5-14 — Maine, pp. 1-25 — Lawrence, §§ 61-66 — Phillimore, I. §§ 17-33— Twiss, I* §§ 82-103— Taylor, §§ 30-36 — Westlake, I. pp. 14-19 — Wheaton, § 15 — Halleck, I. pp. 55-64 — Ullmann, § 7 — Hefffcer, § 3 — Holtzendorff in Holtzendorff, I. pp. 79-158 — Rivier, I. § 2— Nys, I. pp. 144-165— Bonfils, Nos. 45-63— Pradier-Fodere\ I. Nos. 24-35 — Martens, I. § 43 — Fiore, I. Nos. 224-238— Calvo, I. §§ 27-38 — Bergbohm, " Staatsvertrage und Gesetze als Quellen des Volkerrechts " (1877) — Jellinek, " Die rechtliche Natur der Staats- vertrage " (1880).
Source in § IS- The different writers on the Law of Nations tincJoYto disagree widely with regard to kinds and numbers Cause. 0f sources of this law. The fact is that the term " source of law " is made use of in different meanings by the different wfiters on International Law. It seems to me that most writers confound the concep- tion of " source " with that of " cause," and through this mistake come to a standpoint from which certain factors which influence the growth of International Law appear as sources of rules of the Law of Nations. This mistake can be avoided by going back to the meaning of the term " source" in general. Source means a spring or well, and has to be defined
1 See below, §§ 11 5-1 16, where it will also be shown that not-full
the legal equality of States in Sovereign States are not equals to
contradistinction to their political full Sovereign States, inequality is discussed, and where
SOURCES OF THE LAW OF NATIONS 21
as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term " source of law," the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does ; they rise from facts in the historical development of a community. Thus in this country a good many rules of law rise every year from the Acts of Parliament. " Source of Law " is therefore the name for an historical fact out of which rules^of conduct rise into existence and legal force.
§ 1 6. As the basis of the Law of Nations is the The two common consent of the member States of the Family f™™ea °f of Nations, it is evident that there must exist, and can national
Lnw
only exist, as many sources of International Law as there are facts through which such a common con- sent can possibly come into existence. Of such facts there are only two. A State may, just as an indi- vidual, give its consent either directly by an express
2 2 FOUNDATION OF THE LAW OF NATIONS
declaration or tacitly by conduct which it would not follow in case it did not consent. The sources of International Law are therefore twofold — namely : (i) express consent, which is given when States con- clude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, which is given through States having adopted the custom of submitting to certain rules of international conduct. Treaties and custom are, therefore, ex- clusively l the sources of the Law of Nations. Custom in § 17. Custom is the older and the original source Unction to °f International Law in particular as well as of law Usage. m generai. Custom must not be confounded with usage. In e very-day life and language both terms are used synonymously, but in the language of the jurist they have two distinctly different meanings. Jurists speak of a custom, when a clear and con- tinuous habit of doing certain actions has grown up under the aegis of the conviction that these actions are legally necessary or legally right. On the other hand, jurists speak of a usage, when a habit of doing certain actions has grown up without there being the conviction of their legal character. Thus the term " custom " is in juristic language a narrower concep- tion than the term "usage," as a certain conduct may be usual without being customary. A certain conduct of States concerning their international relations may therefore be usual without being the outcome of customary International Law.
As usages have a tendency to become custom, the question presents itself, at what time a usage turns
1 Westlake, I. p. 15, states cus- agree to reason being a source,
torn and reason to be the sources of Reason is a means of interpreting
International Law. Why he does law, but it cannot call law into
not recognise treaties as a source, existence. I cannot understand, and I cannot
SOURCES OF THE LAW OF NATIONS 23
into a custom. This question is one of fact, not of theory. All that theory can point out is this : Wherever and as soon as a certain frequently adopted international conduct of States is considered legally necessary or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law.
<S 18. Treaties are the second source of Inter- Treaties
fLS Source
national Law, and a source which has of late become 0f inter- of the greatest importance. As treaties may be Law?™1 concluded for innumerable purposes,1 it is necessary to emphasise that such treaties only are a source of International Law as either stipulate new rules for future international conduct or confirm, define, or abolish existing customary rules. Such treaties must be called law-making treaties. Since the Family of Nations is no organised body, there is no central authority which could make law for that body as Parliaments make law by statutes within the States. The only way in which International Law can be made by a deliberate act, in contradistinction to custom, is that the members of the Family of Nations conclude treaties in which certain rules for their future conduct are stipulated. Of course, such law- making treaties create law for the contracting parties solely. Their law is universal International Law only then, when all the members of the Family of Nations are parties to them. Many law-making treaties are concluded by a few States only, so that the law which they create is particular International Law. On the other hand, there have been many law-making treaties concluded which contain general Inter- national Law, because the majority of States, includ- ing leading Powers, are parties to them. General
1 See below, § 492«
Law.
24 FOUNDATION OF THE LAW OF NATIONS
International Law has a tendency to become universal because such States as hitherto did not consent to it will in future either expressly give their consent or recognise the respective rules tacitly through custom.1 But it must be emphasised that, whereas custom is the original source of International Law, treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations, that treaties are binding upon the contracting parties.2 Factors § 1 9. Thus custom and treaties are the two
dng the exclusive sources of the Law of Nations. When ?nt°wth of writers on International Law frequently enumerate national other sources besides custom and treaties, they con- found the term " source " with that of " cause " by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the his- torical facts out of which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers on International Law, decisions of prize courts, arbitral awards, instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Municipal Laws, decisions of Municipal Courts. All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct.
A factor of a special kind which also influences the
1 Law-making treaties of world- below, §§ 556-568. wide importance are enumerated - See below, § 493.
SOURCES OF THE LAW OF NATIONS 25
growth of International Law is the so-called Comity Comity of (Comitas Gentium, Convenance et Courtoisie Inter- nationale, Staatengunst). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and good- will. Such rules of international conduct are no rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly the contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a rule of present International Comity will in future become one of International Law.
IV
Eelations between International and Municipal Law.
Holtzendorff in Holtzendorff, pp. 49-53, 117-120 — Nys, I. pp. 185-189 — Taylor, § 103 — Holland, Studies, pp. 176-200 — Kaufinann, " Die Bechtskraft des internationalen Kechts " (1899) — Triepel, " Volkerrecht und Landesrecht " (1899).
§ 20. The Law of Nations and the Municipal Law Essential of the single States are essentially different from each j^uveen06 other. They differ, first, as regards their sources. Inter-
o o ■**■ • • i T national
sources of Municipal Law are custom grown up and Muni- within the boundaries of the respective State and cipa Law' statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties con- cluded by the members of that family.
26 FOUNDATION OF THE LAW OF NATIONS
The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. Municipal Law regulates relations between the indi- viduals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations.
The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their law : whereas Municipal Law is a law of a Sovereign over indi- viduals subjected to his sway, the Law of Nations is a law not above, but between Sovereign States, and therefore a weaker law.1 Law of § 2 1 . If the Law of Nations and Municipal Law differ
nev^per as demonstrated, the Law of Nations can neither as a se Mum- foody nor [n parts be per se a part of Municipal Law.
cipal Law. J t±t * r *
Just as Municipal Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Municipal Law. If, according to the Municipal Law of an individual State, the Law of Nations as a body or in parts is considered the law of the land, this can only be so either by municipal custom or by statute, and then the respective rules of the Law of Nations have by adoption 2 become at the same time rules of Municipal Law. Wherever and whenever such total or partial adoption has not taken place, municipal courts cannot be considered to be bound by Inter- national Law, because it has, per se, no power over municipal courts. And if it happens that a rule of Municipal Law is in an indubitable conflict with a rule
1 See above, §9- Smith, 5 Wheaton, 153; The
2 This has been done by the Scotia, 14 Wallace, 170; The United States. See The Nereide, Paquette Habana, 175 United 9 Cranch, 388; United States v. States, 677. See also Taylor, § 103
INTERNATIONAL AND MUNICIPAL LAW 27
of the Law of Nations, municipal courts must apply the former. If, on the other hand, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly being adopted by Municipal Law, municipal courts cannot apply such rule of the Law of Nations.
§ 22. If Municipal Courts cannot apply unadopted Certain rules of the Law of Nations, and must apply even Municipal such rules of Municipal Law as conflict with the Law Law ne/
, r t cessitated
of Nations, it is evident that the different States, in or inter- order to fulfil their international obligations, must possess certain rules, and must not have certain other rules as part of their Municipal Law. It is not necessary to enumerate all the rules of Municipal Law which a State must possess, and all those rules it must not have. It suffices to give some illustrative examples. Thus, on the one hand, the Municipal Law of every State must, for instance, possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punish- ment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Municipal Law of every State is prevented by the Law of Nations from having rules, for instance, con- flicting with the freedom of the high seas, or pro- hibiting the innocent passage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Municipal Law as it is prevented from having by the Law of Nations, or if it does not possess such Municipal rules as it must have accord- ing to the Law of Nations, it violates an international
28 FOUNDATION OF THE LAW OF NATIONS
legal duty, but its courts cannot by themselves alter the Municipal Law to meet the requirements of the Law of Nations. Presump- § 23. However, although Municipal Courts must against apply Municipal Law even if conflicting with the between ^aw °f Nations, there is a presumption against the inter- existence of such a conflict. As the Law of Nations
national . , _ .
and Muni- is based upon the common consent of the different cipa aw. gtateSj jt js improbable that a civilised State should intentionally enact a rule that conflicts with the Law of Nations. A part of Municipal Law, which osten- sibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict. Presump- § 24. In case of a gap in the statutes of a civilised
Existence State regarding certain rules necessitated by the Law necessary °^ Nations, such rules ought to be presumed by the Municipal Courts to have been tacitly adopted by such Muni- cipal Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Municipal Law to be deficient in such rules. If, for instance, the Municipal Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted. Presump- § 25. There is no doubt that a State need not Existence6 make use of all the rights it has by the Law of MunteTai Nations, and that, consequently, every State can by Rules in its laws expressly renounce the whole or partial use fo°rmity of such rights, provided always it is ready to fulfil Rights sucn duties, if any? as are connected with these rights, granted by However, when no such renunciation has taken Nations, place, Municipal Courts ought, in case the interests of justice demand it, to presume that their Sovereign has tacitly consented to make use of such rights.
coma.'
INTERNATIONAL AND MUNICIPAL LAW 29
If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sove- reign has tacitly consented to that wider range of its jurisdiction.
A remarkable case illustrating this happened in Case this country in 1876. The German vessel "Franconia," « Fran- while passing through the British maritime belt within three miles of Dover, negligently ran into the British vessel " Strathclyde," and sank her. As a passenger on board the latter was thereby drowned, the commander of the " Franconia," the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Eeserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.1 To provide for future cases of such kind, Parliament passed, in 1878, the " Territorial Waters Jurisdiction Act." 2
1 L.R. 2 Ex. Div. 63. See diction over foreign vessels that
Phillimore, I. § 198 B; Maine, merely pass through its maritime
PP- 39-45. See also below, § 189, belt, where the controversy is discussed 2 41 and 42 Vict. c. 7$. whether a riparian State has juris-
3Q
FOUNDATION OF THE LAW OF NATIONS
Range of Dominion of Inter- national Law con- troversial.
Dominion op the Law of Nations
Lawrence, § 44— Phillirnore, I. §§ 27-33 — Twiss, I. § 62 — Taylor, §§ 61-4— Westlake, I. p. 40— Bluntschli, §§ 1-16— Heffter, §' 7— Holtzendorff in Holtzendorff, pp. 13-18 — Nys, I. pp. 1 16-132— Rivier, I. § 1 — Bonfils, Nos. 40-45 — Martens, I. § 41.
§ 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable — that is, those States between which International Law finds validity. The range of the dominion of the Law of Nations is controversial, two extreme opinions concerning this dominion being op- posed. Some publicists l maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or non- Christian, civilised or uncivilised, is a subject of In- ternational Law. On the other hand, several jurists2 teach that the dominion of the Law of Nations ex- tends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no con- stant intercourse existed in former times between Christian and Buddhistic States. But from about
1 See, for instance, Bluntschli, § 8. - See, for instance, Martens, § 4L
DOMINION OF THE LAW OF NATIONS 31
the beginning of the nineteenth century matters gradually changed. A condition of perpetual enmity between whole groups of nations exists no longer either in theory or in practice. And although there is still a broad and deep gulf between Christian civilisation and others, many interests, which knit Christian States together, knit likewise some non- Christian and Christian States.
§ 27. Thus the membership of the Family of Three Nations has of late necessarily been increased and the ^"s1 range of the dominion of the Law of Nations has ex- ?f M1f.m- ,
T • ••it* mi • • bership of
tended beyond its original limits. This extension the has taken place in conformity with the basis of the Nations0 Law of Nations. As this basis is the common con- sent of the civilised States, there are three conditions for the admission of new members into the circle of the Family of Nations. A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations. Such State must, secondly, expressly or tacitly con- sent to be bound for its future international conduct by the rules of International Law. And, thirdly, those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member.
The last two conditions are so obvious that they need no comment. Eegarding the first condition, however, it must be emphasised that not particularly Christian civilisation, but civilisation of such kind only is conditioned as to enable the respective State and its subjects to understand and to act in con- formity with the principles of the Law of Nations. These principles cannot be applied to a State which is not able to apply them on its own part to other States. On the other hand, they can well be applied
32 FOUNDATION OF THE LAW OF NATIONS
to a State which is able and willing to apply them to other States, provided a constant intercourse has grown up between it and other States. The fact is that the Christian States have been of late obliged by pressing circumstances to receive several non- Christian States into the community of States which are subjects of International Law. Present §28. The present range of the dominion of Inter-
DonunSon national Law is a product of historical development of the within which epochs are distinguishable marked by Nations, successive entrances ot various States into the Family of Nations.
(1) The old Christian States of Europe are the original members of the Family of Nations, because the Law of Nations grew up gradually between them through custom and treaties. It is for this reason that this law was in former times frequently called "European Law of Nations." But this name has nowadays historical value only, as it has been changed into " Law of Nations " or " International Law " pure and simple.
(2) The next group of States which entered into the Family of Nations is the body of Christian States which grew up outside Europe. All the American States which arose out of colonies of European States belong to this group. And it must be emphasised that the United States of America have largely contributed to the growth of the rules of International Law. The Christian Negro Eepublic of Liberia in West Africa and of Haiti on the island of San Domingo belong to this group.
(3) With the reception of the Turkish Empire into the Family of Nations International Law ceased to be a law between Christian States solely. This reception has expressly taken place through Article 7
DOMINION OF THE LAW OF NATIONS 33
of the Peace Treaty of Paris of 1856, in which the five Great European Powers of the time, namely, France, Austria, England, Prussia, and Eussia, and besides those . Sardinia, the nucleus of the future Great Power Italy, expressly " declarent la Sublime Porte admise a participer aux avantages du droit public et du concert europeenV" Since that time Turkey has on the whole endeavoured in time of peace and war to act in conformity with the rules of International Law, and she has, on the other hand, been treated accordingly by the Christian States. No general congress has taken place since 1856 to which Turkey was not invited to send her delegates.
(4) Another non-Christian member of the Family of Nations is Japan. Some years ago one might have doubted whether Japan was a real and full member of that family, but since the end of the nineteenth century no doubt is any longer justified. Through marvellous efforts, Japan has become not only a modern State, but an influential Power. Since her war with China in 1895, sne must be. considered one of the Great Powers that lead the Family of Nations.
(5) The position of such States as Persia, Siam, China, Korea, Abyssinia, and the like, is doubtful. These States are certainly civilised States, and Abyssinia is even a Christian State. However, their civilisation has not yet reached that condition which is necessary to enable their Governments and their population in every respect to understand and to carry out the command of the rules of International Law. On the other hand, international intercourse has widely arisen between these States and the States of the so-called Western civilisation. Many treaties have been concluded with them, and there
vol. 1. D
34 FOUNDATION OF THE LAW OF NATIONS
is full diplomatic intercourse between them and the Western States. All of them make efforts to educate their populations, to introduce modern institutions, and to raise thereby their civilisation to the level of the Western. They will certainly succeed in this regard in the near future. But as yet they have not accomplished this task, and consequently they are not yet able to be received as full members into the Family of Nations. Although they are, as will be shown below (§ 103), for some parts within the circle of the Family of Nations, they remain for other parts outside. But the example of Japan can show them that it depends entirely upon their own efforts to be received as full members into that family.
(6) It must be mentioned that a State of quite a unique character, the Congo Free State,1 is, since the Berlin Conference of 1884, a member of the Family of Nations. Treatment § 29. The Law of Nations as a law between States outsideeS based on the common consent of the members of Family of ^e family °f Nations naturally does not contain Nations, any rules concerning the intercourse with and treat- ment of such States as are outside that circle. That this intercourse and treatment ought to be regulated by the principles of Christian morality is obvious. But actually a practice frequently prevails which is not only contrary to Christian morality, but arbitrary and barbarous. Be that as it may, it is discretion, and not International Law, according to which the members of the Family of Nations deal with such States as still remain outside that family.
1 See below, §101.
CODIFICATION OF THE LAW OF NATIONS
VI
Codification of the Law of Nations
Holtzendorff in Holtzendorff, pp. 136-152— Ullmann, § 9 — Despagnet, Nos. 67-68 — Nys, I. pp. 166-183— Kivier, I. § 2— Fiore, I. Nos. 124-127 — Martens, I. § 44 — Holland, Studies, pp. 78-95 — Berg- bohm, " Staatsvertrage und Gesetze als Quellen des Volkerrechts " (1877), pp. 44-77 — Bulmerincq, "Praxis, Theorie, und Codification des Volkerrechts" (1874)— Roszkowski in R.I. XXI. (1889), p. 520.
« § 30. The lack of precision which is natural to the Movement majority of the rules of the Law of Nations on ofCodifi- account of its slow and gradual growth has created catl0n- a movement for its codification. The idea of a codification of the Law of Nations in its totality arose at the end of the eighteenth century. It was Bentham who first suggested such a codification. He did not, however, propose codification of the positive existing Law of Nations, but thought of a Utopian International Law which could be the basis of an everlasting peace between the civilised States.1
Another Utopian project is due to the French Convention, which resolved in 1792 to create a Declaration of the Eights of Nations as a pendant to the Declaration of the Eights of Mankind of 1789. For this purpose the Abbe Gregoire was charged with the drafting of such a declaration. In 1795, Abbe Gregoire produced a draft of twenty-one articles, which, however, were rejected by the Con- vention, and the matter dropped.2
It was not before 1861 that a real attempt was
1 See Bentham's Works, ed. full text of these twenty-one articles Bowring, VIII. p. 537 ; Nys, in is given. They did not contain a The Law Quarterly Review, XI. real code, but certain principles (1885), p. 225. only.
2 See Rivier, I. p. 40, where the
d2
36 FOUNDATION OF THE LAW OF NATIONS
made to show the possibility of a codification. This was done by an Austrian jurist, Alfons von Domin- Petruch^vecz, who published in that year at Leipzig a " Precis d'un Code de Droit International."
In 1862, the Eussian Professor Katschenowsky brought an essay before the Juridical Society of London (Papers II. 1863) arguing the necessity of a codification of International Law.
In 1863, Professor Francis Lieber, of the Columbia College, New York, drafted the Laws of War in a body of rules which the United States published during the Civil War for the guidance of her army.1
In 1868, Bluntschli, the celebrated Swiss inter- preter of the Law of Nations, published "Das moderne Volkerrecht der civilisirten Staaten als Eechtsbuch dargestellt." This draft code has been translated into the French, Greek, Spanish, and Eussian languages, and the Chinese Government produced an official Chinese translation as a guide for Chinese officials.
In 1872, the great Italian politician and jurist Mancini raised his voice in favour of codification of the Law of Nations in his able essay " Vocazione del nostro secolo per la riforma e codificazione del diritto delle genti."
Likewise in 1872 appeared at New York David Dudley Field's "Draft Outlines of an International Code."
In 1873 the Institute of International Law was founded at Ghent in Holland. This association of jurists of all nations meets periodically, and has pro- duced a number of drafts concerning various parts of International Law, and in especial a Draft Code of the Law of War on Land (1880).
Likewise in 1873 was founded the Association for
1 See below, Vol. II. § 68.
CODIFICATION OF THE LAW OF NATIONS 37
the Keform and Codification of the Law of Nations, which also meets periodically and which styles itself now The International Law Association.
In 1874 the Emperor Alexander II. of Russia took the initiative in assembling an international conference at Brussels for the purpose of discussing a draft code of the Law of Nations concerning land warfare. At this conference jurists, diplomatists, and military men were united as delegates of the invited States, and they agreed upon a body of sixty articles which goes under the name of the Declaration of Brussels. But the Powers have never ratified these articles.
In 1880 the Institute of International Law pub- lished its " Manuel des Lois de la Guerre sur Terre."
In 1890 the Italian jurist Fiore published his " II diritto internazionale codificato e sua sanzione giuridica," of which a second edition appeared in 1898.
§ 31. At the end of the nineteenth century the Work of so-called Peace Conference at the Hague, convened peace*8 ( on the personal initiative of the Emperor Nicholas II. ^efer" of Russia, has shown the possibility that parts of the Law of Nations may well be codified. Apart from three Declarations of minor value and of the Con- vention concerning the adaptation of the Geneva Convention to naval warfare, this conference has succeeded in producing two important conventions which may well be called codes — namely, first, the "Convention for the Pacific Settlement of Inter- national Disputes," and, secondly, the "Convention with respect to the Laws and Customs of War on Land." Whereas the future will still have to show whether the first-named convention will be of great practical importance, there can, on the other hand, not be denied the great practical value of the second-named convention. Although the latter
38 FOUNDATION OF THE LAW OF NATIONS
contains many gaps, which must be filled up by the customary Law of Nations, and although it is in no way a masterpiece of codification, it represents a model, the very existence of which teaches that codification of parts of the Law of Nations is practicable, provided the Powers are seriously in- clined to come to an understanding. The Hague Peace Conference has therefore made an epoch in the history of International Law. u.s.Navai § 32. Shortly after the Hague Peace Conference ar ° e* the United States of America took a step with re- gard to sea warfare similar to that taken by her in 1863 with regard to land warfare. She published on June 27, 1900, a body of rules for the use of her navy under the title " The Laws and Usages of War at Sea" — the so-called "United States Naval War Code." This code, which was drafted by Captain Charles H. Stockton, of the United States Navy, contains fifty-five articles which are divided into nine sections under the following titles : — " Hostili- ties ; " " Belligerents ; " " Belligerent and Neutral Vessels ; " " Hospital Ships — the Shipwrecked, Sick, and Wounded ; " " The Exercise of the Eight of Search;" "Contraband of War;" "Blockade;" " The Sending in of Prizes ; " " Armistice, Truce, and Capitulations, and Violations of Laws of War." I have no doubt that this American code will be the starting-point of a movement for a Naval War Code to be generally agreed upon by the Powers, similar to the Hague Kegulations concerning land warfare. Value of § 33. In spite of the movement in favour of codi- tion^r fication of the Law of Nations, there are many national emment jurists who oppose such codification. They argue that codification would never be possible on
CODIFICATION OF THE LAW OF NATIONS 39
account of differences of languages and of technical Law con- juridical terms. They assert that codification would cut off the organic growth and future development of International Law. They postulate the existence of a permanent International Court with power of executing its verdicts as an indispensable condition, since without such a court no uniform interpretation of controversial parts of a code could be possible. They, lastly, maintain that the Law of Nations is at present not yet, and will not be for a long time to come, ripe for codification. Those jurists, on the other hand, who are in favour of codification argue that the customary Law of Nations lacks to a great extent precision and certainty, that writers on International Law differ in many points regarding the latter's rules, and that, consequently, there is no broad and certain basis for the practice of the States to stand upon.
§ 34. I am decidedly not a blind and enthusiastic Merits of admirer of codification in general. It cannot be Son in* maintained that codification is everywhere, at all 8eneral- times, and under all circumstances opportune. Codi- fication certainly interferes with the so-called organic growth of the law through usage into custom. It is true that a law, once codified, cannot so easily adapt itself to the merits of the individuality of single cases which come under it. It is further a fact, which cannot be denied, that together with codification there frequently enters into courts of justice and into the area of juridical literature a hair-splitting tendency and an interpretation of the law which clings often more to the letter and the word of the law than to its spirit and its principles. And it is not at all a fact that codification does away with controversies altogether. Codification certainly clears up many questions of law which have been
40 FOUNDATION OF THE LAW OF NATIONS
hitherto debatable, but it creates at the same time new controversies. And, lastly, all jurists know very well that the art of legislation is still in its infancy and not at all highly developed. The hands of legislators are very often clumsy, and legislation does often more harm than good. Yet, on the other hand, the fact must be recognised that history has given its verdict in favour of codification. There is no civilised State in existence whose Municipal Law is not to a greater or lesser extent codified. The growth of the law through custom goes on very slowly and gradually, very often too slowly to be able to meet the demands of the interests at stake. New interests and new inventions very often spring up with which customary law cannot deal. Circumstances and conditions frequently change so suddenly that the ends of justice are not met by the existing customary law of a State. Thus, legislation, which is, of course, always partial codification, becomes often a necessity in the face of which all hesitation and scruple must vanish. Whatever may be the disadvantages of codification, there comes a time in the development of every civilised State when it can no longer be avoided. And great are the advantages of codifi- cation, especially of a codification that embraces a large part of the law. Many controversies are done away with. The science of Law receives a fresh stimulus. A more uniform spirit enters into the law of the country. New conditions and circumstances of life become legally recognised. Mortifying prin- ciples and branches are cut off with one stroke. A great deal of fresh and healthy blood is brought into the arteries of the body of the law in its totality. If codification is carefully planned and prepared, if it is imbued with true and healthy conservatism, many
CODIFICATION OF THE LAW OF NATIONS 4 1
disadvantages can be avoided. And interpretation on the part of good judges can deal with many a fault that codification has made. If the worst comes to the worst, there is always a Parliament or another law-giving authority of the land to mend through further legislation the faults of previous codification.
§ 35. But do these arguments in favour of codifi- Merits of cation in general also apply to codification of the thnlT Law of Nations ? I have no doubt that they do In*?r- .
J national
more or less. If some of these arguments have no Law. force in view of the special circumstances of the existence of International Law and of the peculiarities of the Family of Nations, there are other arguments which take the place of the former.
When opponents maintain that codification would never be practicable on account of differences of languages and of technical juridical terms, I answer that such argument is only as much as and no more in the way of codification than it is in the way of contracting international treaties. The fact that such treaties are every day concluded shows that difficulties which arise out of differences of languages and of technical juridical terms are not at all in- superable.
Much more than this weighs the next argument of opponents, that codification of the Law of Nations would cut off the latter's organic growth and future development. It cannot be denied that codification always interferes with the growth of customary law, although the assertion is not justified that codification does cut off such growth. But this disadvantage can be met by periodical revisions of the code and by its gradual increase and improvement through enact- ment of additional and amending rules according to the wants and needs of the days to come.
42 FOUNDATION OF THE LAW OF NATIONS
When opponents postulate an international court with power of executing its verdicts as an indispen- sable condition of codification, I answer that the non- existence of such a court is quite as much or as little an argument against codification as against the very- existence of International Law. If there is a Law of Nations in existence in spite of the non-existence of an international court to guarantee its realisation, I cannot see why the non-existence of such a court should be an obstacle to codifying the very same Law of Nations. It may indeed be maintained that codification is all the more necessary as such an international court does not exist. For codification of the Law of Nations and the solemn recognition of a code by a universal law-making international treaty would give more precision, certainty, and weight to the rules of the Law of Nations than they have now in their unwritten condition. And a uniform interpretation of a code is now, since the Hague Peace Conference has instituted a permanent Court of Arbitration, much more realisable than in former times, although this court has not and will never have the power of executing its verdicts.
But is the Law of Nations ripe for codification? I readily admit that there are certain parts of that law which would offer the greatest difficulty in codi- fication, and which would therefore better remain untouched for the present. But there are other parts, and I think that they constitute the greater portion of the Law of Nations, which are certainly ripe for codification. There can be no doubt that, whatever can be said against codification of the totality of the Law of Nations, partial codification is possible and comparatively easy. The work done by the Institute of International Law, of which the
CODIFICATION OF THE LAW OF NATIONS 43
" Annuaire de lTnstitut de Droit International " gives exhaustive evidence, affords a stepping-stone towards such partial codification.
§ 36. From the basis of this work of the Institute HowCodi- of International Law a partial codification of the COuid°be Law of Nations must be considered practicable. reahsed- Nevertheless, codification could hardly be realised at once. The difficulties, though not insuperable, are so great that it would take the work of perhaps a generation of able jurists to prepare draft codes for those parts of International Law which may be considered ripe for codification. The only feasible way in which such draft codes could be prepared consists in the appointment on the part of the Powers of an international committee composed of a sufficient number of able jurists, whose task would be the preparation of the drafts. Public opinion of the whole civilised world would, I am sure, watch the work of these men with the greatest anxiety, and the Parliaments of the civilised States would gladly vote the comparatively small sum of money neces- sary for the costs of the work. If a noble-minded monarch of far-reaching influence would take a personal interest in the matter, the different Govern- ments would hardly refuse to send delegates to an international conference for the purpose of discussing the ways and means for the appointment of an inter- national committee for the preparation of draft codes.
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I
Development of the Law of Nations before Grotius
Lawrence, §§ 20-29 — Manning, pp. 8-20 — Halleck, I. pp. 1-11 — Walker, History, I. pp. 30-137— Taylor, §§ 6-29— Holtzendorff in Holtzendorff, I. pp. 159-386 — Nys, I. pp. 1-18 — Martens, I. §§ 8-20 — Fiore, I. Nos. 3-31 — Calvo, I. pp. 1-32 — Bonfils, Nos. 71-86 — Despagnet, Nos. 1-19 — Ward, " Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795) — Osenbriiggen, "De jure belli ac pacis Eomanorum" (1876) — Muller-Jochmus, "Ge- schichte des Volkerrechts im Alterthum" (1848) — Hosack, "Rise and Growth of the Law of Nations " (1883), PP- 1-226 — Nys, " Le droit de la guerre et les precurseurs de Grotius " (1882) and " Les origines du droit international " (1894).
No Law of § 2>7- International Law as a law between Sove- TnUqufty!1 reign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations. But it is well known that the conception of a Family of Nations did not arise in the mental horizon of the ancient world. Each nation had its own religion and gods, its own language, law, and morality. International interests of sufficient vigour to wind a band around all the civilised States, bring them nearer to each other, and
LAW OF NATIONS BEFORE GROTIUS 45
knit them together into a community of nations, did not spring up in antiquity. On the other hand, however, no nation could avoid coming into contact with other nations. War was waged and peace concluded. Treaties were agreed upon. Occa- sionally ambassadors were sent and received. Inter- national trade sprang up. Political men whose cause was lost often fled their country and took refuge in another. And, just as in our days, criminals often fled their country for the purpose of escaping punishment.
Such more or less frequent and constant contact of different nations with one another could not exist without giving rise to certain fairly congruent rules and usages to be observed with regard to external relations. These rules and usages were considered under the protection of the gods ; their violation called for religious expiation. It is of interest to throw a glance upon the respective rules and usages of the Jews, Greeks, and Eomans.
§ 38. Although they were monotheists and the The Jews, standard of their ethics was consequently much higher than that of their heathen neighbours, the Jews did not in fact raise the standard of the international relations of their time except so far as they afforded foreigners living on Jewish territory equality before the law. Proud of their monotheism and despising all other nations on account of their polytheism, they found it totally impossible to recognise other nations as equals. If we compare the different parts of the Bible concerning the relations of the Jews with other nations, we are struck by the fact that the Jews were sworn enemies of some foreign nations, as the Amalekites, for example, with whom they declined to have any relations whatever in peace. When
46 SCIENCE OF THE LAW OF NATIONS
they went to war with those nations, their practice was extremely cruel. They killed not only the warriors on the battlefield, but also the aged, the women, and the children in their homes. Eead, for example, the short description of the war of the Jews against the Amalekites in i Samuel xv., where we are told that Samuel instructed King Saul as follows : (3) "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass." King Saul obeyed the injunction, save that he spared the life of Agag, the Amalekite king, and some of the finest animals. Then we are told that the prophet Samuel rebuked Saul and " hewed Agag in pieces with his own hand." Or again, in 2 Samuel xii. 31 we find that King David, " the man after God's own heart," after the conquest of the town Eabbah, belonging to the Ammonites, "brought forth the people that were therein and put them under saws, and under harrows of iron, and made them pass through the brick- kiln. . . ."
With those nations, however, of which they were not sworn enemies the Jews used to have inter- national relations. And when they went to war with those nations, their practice was in no way exceptionally cruel, if looked upon from the stand- point of their time and surroundings. Thus we find in Deuteronomy xx. 10-14 the following rules : —
(10) " When thou comest nigh unto a city to fight against it, then proclaim peace unto it.
(11) "And it shall be, if it make thee answer of peace and open unto thee, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.
LAW OF NATIONS BEFORE GROTIUS 47
(12) "And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.
(13) " And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword.
(14) "But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee."
Comparatively mild, like these rules for warfare, were the Jewish rules as regards their foreign slaves. Such slaves were not without legal protection. The master who killed a slave was punished (Exodus ii. 20) ; if the master struck his slave so severely that he lost an eye or a tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, further, allowed foreigners to live among them under the full protection of their laws. " Love . . . the stranger, for ye were strangers in the land of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is the command : " You shall have one manner of law, as well for the stranger as for one of your own country."
Of the greatest importance, however, for the Inter- national Law of the future, are the Messianic ideals and hopes of the Jews, as these Messianic ideals and hopes are not national only, but fully inter- national. The following are the beautiful words in which the prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah shall have appeared :
(2) " And it shall come to pass in the last days, that the mountain of the Lord's house shall be established in the top of the mountains, and shall be
48 SCIENCE OF THE LAW OF NATIONS
exalted above the hills; and all nations shall flow unto it.
(3) "And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob, and he will teach us of his ways, and we will walk in his paths ; for out of Zion shall go forth the law, and the word of the Lord from Jerusalem.
(4) " And he shall judge among the nations, and shall rebuke many people : and they shall beat their swords into plowshares, and their spears into pruning- hooks : nation shall not lift up sword against nation, neither shall they learn war any more."
Thus we see that the Jews, at least at the time of Isaiah, had a foreboding and presentiment of a future where all the nations of the world should be united in peace. And the Jews have left this ideal to the Christian world. It is the same ideal which has inspired in bygone times all those eminent men who have laboured to build up an International Law. And it is again the same ideal which inspires nowa- days all lovers of international peace. Although the Jewish State and the Jews as a nation have practically done nothing to realise that ideal, yet it sprang up among them and has never disappeared. The § 39- Totally different from this Jewish contribu-
Greeks. tjon t0 a future International Law is that of the Greeks. The broad and deep gulf between their civilisation and that of their neighbours neces- sarily made them look down upon these neighbours as barbarians, and thus prevented them from raising the standard of their relations with neighbouring nations above the average level of antiquity. But the Greeks were before the Macedonian conquest never united into one powerful national State. They
LAW OF NATIONS BEFORE GROTTUS 49
lived in numerous more or less small city States, which were totally independent of one another. It is this very fact which, as time went on, called into existence a kind of International Law between these independent States. They could never forget that their inhabitants were of the same race. The same blood, the same religion, and the same civilisation of their citizens united these independent and — as we should nowadays say — Sovereign States into a com- munity of States which in time of peace and war held themselves bound to observe certain rules as regards the relations between one another. The consequence was that the war practice of the Greeks in their wars among themselves was a very mild one. It was a rule that war should never be commenced without a declaration of war. Heralds were in- violable. Warriors who died on the battlefield were entitled to burial. If a city was captured, the lives of all those who took refuge in a temple had to be spared. War prisoners could be exchanged or ransomed; their lot was, at the utmost, slavery. Certain places, as for example the temple of the god Apollo at Delphi, were permanently inviolable. Even certain persons in the armies of the belligerents were considered inviolable, as the priests, for instance, who carried the holy fire, and the seers.
Thus the Greeks left the example to history that independent and sovereign States can live, and are at the same time obliged to live, in a community which provides a law for the international relations of the member States, provided that there exist some common interests and aims which bind these States together. It is very often maintained that this kind of International Law of the Greek States could in no way be compared with our modern Inter- vol. 1. E
50 SCIENCE OF THE LAW OF NATIONS
national Law, as the Greeks did not consider their international rules as legally, but as religiously binding only. We must, however, not forget that the Greeks never made the same distinction between law, religion, and morality as the modern world makes. The fact itself remains unshaken that the Greek States have set an example to the future that independent States can live in a community in which their international regulations are governed by cer- tain rules and customs based on the common consent of the members of that community. The § 40. Totally different again from the Greek
Romans, contribution to a future International Law is that of the Eomans. As far back as their history goes, the Eomans had a special set of twenty priests, the so- called fetiales, for the management of functions regarding their relations with foreign nations. In fulfilling their functions the fetiales did not apply a purely secular but a divine and holy law, a jus sacrale, the so-called jus fetiale. The fetiales were employed when war was declared or peace was made, when treaties of friendship or of alliance were con- cluded, when the Eomans had an international claim before a foreign State, or vice versa.
According to Eoman Law the relations of the Eomans with a foreign State depended upon the fact whether or not there existed a treaty of friendship be- tween Eome and the respective State. In case such a treaty was not in existence, persons or goods coming from the foreign land into the land of the Eomans, and likewise persons and goods coming from the land of the Eomans into the foreign land, enjoyed no legal protection whatever. Such persons could be made slaves, and such goods could be seized and became the property of the captor. Should such an enslaved
LAW OF NATIONS BEFORE GROTTOS 5 1
person ever come back to his country, he was at once considered a free man again according to the so-called jus postliminii. An exception was made as regards the ambassadors. They were always considered inviolable, and whoever violated them was handed over to the home State of those ambassadors to be punished according to discretion.
Different were the relations when a treaty of friendship existed. Persons and goods coming from one country into the other stood then under legal protection. So many foreigners came in the process of time to Rome that a whole system of law sprang up regarding these foreigners and their relations with Roman citizens, the so-called jus gentium in contra- distinction to the jus civile. And a special magistrate, the praetor per egrinus, was nominated for the adminis- tration of that law. Of such treaties with foreign nations there were three different kinds, namely, of friendship (amicitia), of hospitality (hospitiitm), or of alliance (foedus). I do not propose to go into details about them. It suffices to remark that, although the treaties were concluded without any such provision, notice of termination could be given. Very often these treaties used to contain a provision according to which future controversies could be settled by arbitration of the so-called recuperatores.
Very precise legal rules existed as regards war and peace. Roman law considered war a legal institution. There were four different just reasons for war, namely: (1) Violation of the Roman dominion; (2) violation of ambassadors; (3) violation of treaties; (4) support given during war to an opponent by a hitherto friendly State. But even in such cases war was only justified if satisfaction was not given by the Foreign State. Four fetiales used to be sent as
B 2
52 SCIENCE OF THE LAW OF NATIONS
ambassadors to the foreign State who asked for satisfaction. If such satisfaction was refused, war was formally declared by throwing a lance from the Eoman frontier into the foreign land by one of the fetiales. For warfare itself no legal rules existed, but discretion only, and there are examples enough of great cruelty on the part of the Eomans. Legal rules existed again for the end of war. War could be ended, first, through a treaty of peace, which was then always a treaty of friendship. War could, secondly, be ended by surrender (deditio). Such surrender spared the enemy their lives and property. War could, thirdly and lastly, be ended through conquest of the enemy's country {pccupatio). It was in this case that the Eomans could act according to discretion with the lives and the property of the enemy.
From this sketch of their rules concerning external relations, it becomes apparent that the Eomans gave to the future the example of a State with legal rules for its foreign relations. As the legal people par excellence, the Eomans could not leave their inter- national relations without legal treatment. And though this legal treatment can in no way be com- pared to the modern International Law, yet it con- stitutes a contribution to the Law of Nations of the future, in so far as its example furnished many arguments to those to whose efforts we owe the very existence of our modern Law of Nations. No need §41. The Eoman Empire gradually absorbed the
of Nations whole civilised ancient world, so far as it was known Middle the t0 tne Romans. They did not know of any indepen- Ages- dent civilised States outside the borders of their empire. There was, therefore, neither room nor need for an International Law as long as this empire
LAW OF NATIONS BEFORE GROTTTJS 53
existed. It is true that at the borders of this world- empire there were always wars with barbarous tribes, but these wars gave opportunity for the practice of a few rules and usages only. And matters did not change when under Constantine the Great (313-337) the Christian faith became the religion of the empire and Byzantium its capital instead of Rome, and, further, when in 395 the Eoman Empire was divided into the Eastern and the Western Empire. This Western Empire disappeared in 476, when Romulus Augustus, the last emperor, was deposed by Odoacer, the leader of the Germanic soldiers, who made himself ruler in Italy. The land of the extinct Western Roman Empire came into the hands of different peoples, chiefly of Germanic extraction. In Gallia the kingdom of the Francs springs up in 486 under Chlodovech the Merovingian. In Italy, the kingdom of the Ostrogoths under Theoderich the Great, who defeated Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in 507. The Vandals had, as early as in 429, erected a kingdom in Africa, with Carthage as its capital. The Saxons had gained a footing in Britannia already in 449.
All these peoples were barbarians in the strict sense of the term. Although they had adopted Christianity, it took hundreds of years to raise them up to the standard of a more advanced civilisation. And likewise hundreds of years passed before dif- ferent nations came to light out of the amalgamation of the various peoples that had conquered the old Roman Empire with the residuum of the population of that empire. It was in the eighth century that matters became more settled. Charlemagne built up his vast Frankish Empire, and was, in 800, crowned Roman Emperor by Pope Leo III. Again the whole
54 SCIENCE OF THE LAW OF NATIONS
world seemed to be one empire, headed by the Emperor as its temporal, and by the Pope as its spiritual master, and for an International Law there was therefore no room and no need. But the Frankish Empire did not last long. According to the Treaty of Verdun, it was, in 843, divided into three parts, and with that division the process of development set in, which led gradually to the rise of the different States of Europe.
In theory the EmjDeror of the Germans remained for hundreds of years to come the master of the world, but in practice he was even not master at home, as the German Princes step by step succeeded in esta- blishing their independence. And although theoreti- cally the world was well looked after by the Emperor as its temporal and the Pope as its spiritual head, there were constantly treachery, quarrelling, and fighting going on. War practice was the most cruel possible. It is true that the Pope and the Bishops succeeded sometimes in mitigating such practice, but as a rule there was no influence of the Christian teaching visible. TkeFif- § 42- Tne necessity for a Law of Nations did not suteenth* a™se unt^ a multitude of States absolutely indepen- centmy. c|ent of one another had successfully established themselves. The process of development, starting from the Treaty of Verdun of 843, reached that climax with the reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was the last of the emperors crowned in Eome by the hands of the Popes. At that time Europe was in fact divided up into a great number of independent States, and thenceforth a law was needed to deal with the international relations of these Sovereign States. Six factors of importance prepared the ground for
LAW OF NATIONS BEFORE GROTIUS 55
the growth of principles of a future International Law.
(1) There were first the Civilians and the Ca- nonists. Koman Law was in the beginning of the twelfth century brought back to the West through Irnerius, who taught this law at Bologna. He and the other glossatores and post-glossatores considered Koman Law the ratio scripta, the law par excellence. These Civilians maintained that Eoman Law was the law of the civilised world ipso facto through the emperors of the Germans being the successors of the emperors of Eome. Their commentaries to the Corpus Juris Civilis touch upon many questions of the future International Law which they discuss from the basis of Eoman Law.
The Canonists, on the other hand, whose influence was unshaken till the time of the Eeformation, treated from a moral and ecclesiastical point of view many questions of the future International Law concerning war.1
(2) There were, secondly, collections of Maritime Law of great importance which made their appearance in connection with international trade. From the eighth century the world trade which had totally disappeared in consequence of the downfall of the Eoman Empire and the destruction of the old civi- lisation during the period of the Migration of the Peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of Maritime Law, which were collected into codes and gained some kind of inter- national recognition. The more important of these collections are the following: The Consolato del Mare, a private collection made at Barcelona in Spain
1 See Holland, Studies, pp. 40-58; Walker, History, I. pp. 204-212.
j
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in the middle of the fourteenth century ; the Laws of Oleron, a collection, made in the twelfth century, of decisions given by the maritime court of Oleron in France ; the Rkodian Laws, a very old collection of maritime laws which partly date back as far as the eighth century ; the Tabula Amalfitana, the maritime laws of the town of Amalfi in Italy, which date at latest from the tenth century ; the Leges Wisbuenses, a collection of maritime laws of Wisby on the island of Gothland, in Sweden, dating from the fourteenth century.
The growth of international trade caused also the rise of the controversy regarding the freedom of the high seas (see below, § 248), which indirectly in- fluenced the growth of an International Law (see below, §§ 248-250).
(3) A third factor was the numerous leagues of trading towns for the protection of their trade and trading citizens. The most celebrated of these leagues is the Hanseatic, formed in the thirteenth century. These leagues stipulated for arbitration on controversies between their member-towns. They acquired trading privileges in foreign States. They even waged war, when necessary, for the protection of their interests.
(4) A fourth factor was the growing custom on the part of the States of sending and receiving permanent legations. In the Middle Ages the Pope alone had a permanent legation at the court of the Frankish kings. Later on, the Italian Eepublics, as Venice and Florence for instance, were the first States to send out ambassadors, who took their residence for several years in the capitals of the States they were sent to. At last, from the end of the fifteenth centurv, it became a universal custom that the
LAW OF NATIONS BEFORE GROTIUS 57
kings of the different States kept permanent lega- tions at one another's capital. The consequence was that an uninterrupted opportunity was given for discussing and deliberating common international interests. And since the position of the ambassadors in foreign countries had to be taken into considera- tion, international rules as regards such position grew gradually up.
(5) A fifth factor was the custom of the great States of keeping standing armies, a custom which dates from the fifteenth century also. The uniform and stern discipline in these armies favoured the rise of more universal rules and practices of warfare.
(6) A sixth factor was the Kenaissance and the Eeformation. The Eenaissance of science and art in the fifteenth century, together with the resurrec- tion of the knowledge of antiquity, revived the philo- sophical and aesthetical ideals of Greek life and trans- ferred them to modern life. Through their influence the spirit of the Christian religion took precedence of its letter. The conviction awoke everywhere that the principles of Christianity ought to unite the Christian world more than they had done hitherto, and that these principles ought to be observed in matters international as much as in matters national. The Eeformation, on the other hand, made an end to the spiritual mastership of the Pope over the civilised world. Protestant States could not recognise the claim of the Pope to arbitrate as of right in their conflicts either between one another or between them- selves and Catholic States.
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II
Development of the Law of Nations after grotius
Lawrence, §§ 29-53— Halleck, *• PP« 12-45— Walker, History, I. pp. 138-202 — Taylor, §§ 65-95 — Nys, I. pp. 19-46 — Martens, I. §§ 21-33 — Fiore, I. Nos. 32-52 — Calvo, I. pp. 32-101— Bonfils, Nos. 87-146 — Despagnet, Nos. 20-27 — Wheaton, "Histoire des progres du droit des gens en Europe " (1841) — Pierantoni, " Storia del diritto internazionale nel secolo XIX." (1876) — Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 227-320 — Brie, "Die Fortschritte des Volkerrechts seit dem Wiener Congress " (1890).
The time § 43. The seventeenth century found a multitude of independent States established and crowded on the comparatively small continent of Europe. Many interests and aims knitted these States together into a community of States. International lawlessness was henceforth an impossibility. This was the reason for the fact that Grotius's work "De Jure Belli ac Pacislibri III.," which appeared in 1625, won the ear of the different States, their rulers, and their writers on matters international. Since a Law of Nations was now a necessity, since many principles of such a law were already more or less recognised and appeared again among the doctrines of Grotius, since the system of Grotius supplied a legal basis to most of those international relations which were at the time considered as wanting such basis, the book of Grotius obtained such a world-wide influence that he is correctly styled the "Father of the Law of Nations." It would be very misleading and in no way congruent with the facts of history to believe that Grotius's doctrines were as a body at once universally accepted. No such thing happened, nor could have happened. What did soon take place was that whenever an international question of legal
LAW OF NATIONS AFTER GROTIUS 59
importance arose, Grotius's book was consulted, and its authority was so overwhelming that in many cases its rules were considered right. How those rules of Grotius, which have more or less quickly been recognised by the common consent of the writers on International Law, have gradually received similar acceptance at the hands of the Family of Nations is a process of development which in each single phase cannot be ascertained. It can only be stated that at the end of the seventeenth century the civilised States consider themselves bound by a Law of Nations the rules of which were to a great extent the rules of Grotius. This does not mean that these rules have from the end of that century never been broken. On the contrary, they have frequently been broken. But whenever this occurred, the States concerned maintained either that they did not intend to break these rules, or that their acts were in harmony with them, or that they were justified by just causes and circumstances in breaking them. And the development of the Law of Nations did not come to a standstill with the reception of the bulk of the rules of Grotius. More and more rules were gradually required and therefore gradually grew. All the historical important events and facts of inter- national life from the time of Grotius down to our own have, on the one hand, given occasion to the manifestation of the existence of a Law of Nations, and, on the other hand, in their turn made the Law of Nations constantly and gradually develop into a more perfect and more complete system of legal rules.
It serves my purpose to divide the history of the development of the Law of Nations from the time of Grotius into six periods — namely, 1 648-1 721,
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I72I-I789, 1789-1815, 1815-1856, 1856-1874, 1874-1899. ?6h4e8-Criod § 44- The ending of the Thirty Years' War through 1 72 1. the Westphalian Peace of 1648 is the first event of great importance after the death of Grotius in 1645. What makes remarkable the meetings of Osnaburg, where the Protestant Powers met, and Miinster, where the Catholic Powers met, is the fact that there was for the first time in history a European Congress assembled for the purpose of settling matters international by common consent of the Powers. With the exception of England, Kussia, and Poland, all the important Christian States were represented at this congress, as were also the majority of the minor Powers. The arrangements made by this congress show what a great change had taken place in the condition of matters international. The Swiss Con- federation and the Netherlands were recognised as Independent States. The 355 different States which belonged to the German Empire were practically, although not theroetically, recognised as independent States which formed a Confederation under the Emperor as its head. Of these 355 States, 150 were secular States governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 were free-city States, and 123 were ecclesiastical States governed by archbishops and other Church dignitaries. The theory of the unity of the civilised world under the German Emperor and the Pope as its temporal and spiritual heads was buried for ever. A multi- tude of recognised independent States formed now a community on the basis of equality of all its members. The conception of the European equili- brium made its appearance and became an implicit principle as a guaranty for the independence of
LAW OF NATIONS AFTER GROTIUS 6 1
the members of the Family of Nations. Protestant States took up their position within this family along with Catholic States, as did republics along with monarchies.
In the second half of the seventeenth century the policy of conquest initiated by Louis XIV. of France led to numerous wars. But Louis XIV. always pleaded a just cause when he made war, and even the establishment of the ill-famed so-called Chambers of Eeunion (i 680-1 683) was done under the pretext of law. There was no period later in history in which the principles of International Law were more frivolously violated, but the violation was always cloaked by some excuse. Five treaties of peace between France and other Powers during the reign of Louis XIV. are of great importance. (1) The Peace of the Pyrenees, which ended in 1659 the war between France and Spain, which had not come to terms at the Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 another war between France and Spain, commenced in 1667 because France claimed the Spanish Netherlands from Spain. This peace was forced upon Louis XIV. through the triple alliance between England, Holland, and Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war originally commenced by Louis XIV. in 1672 against Holland, into which, however, many other European Powers were dragged. (4) The Peace of Eyswick, which ended in 1697 the war that existed since 1688 between France on one side, and, on the other, England, Holland, Denmark, Germany, Spain, and Savoy. (5) The Peace of Utrecht and the Peace of Eastadt and Baden, which in 171 3 and 17 14 respectively ended the war of the Spanish Succession since 1701 between France and Spain on the one
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side, and, on the other, England, Holland, Portugal, Germany, and Savoy.
But wars were not only waged between France and other Powers during this period. The following treaties of peace must therefore be mentioned : — (i) The Peaces of Roeskild (1658), Oliva (1660), Copen- hagen (also 1660), and Kardis (1661). The con- tracting Powers were Sweden, Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz of 1699, between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, between Sweden and Russia under Peter the Great in 1721.
The year 1721 is epoch-making because with the Peace of Nystaedt Russia enters as a member into the Family of Nations, in which she at once held the position of a Great Power. The period ended by the year 1721 shows in many points progressive ten- dencies regarding the Law of Nations. Thus the right of visit and search on the part of belligerents over neutral vessels becomes recognised. The rule " free ship, free goods," rises as a postulate, although it was not universally recognised till 1856. The freedom of the high seas, claimed by Grotius and others, begins gradually to obtain recognition in practice, although here too it did not meet with universal acceptance till the nineteenth century. The balance of power is solemnly recognised by the Peace of Utrecht as a principle of the Law of Nations.
Theperiod g ^ Before the end of the firgt half of the
J789- eighteenth century peace in Europe was again disturbed. The rivalry between Austria and Prussia, which had become a kingdom in 1701 and where Frederick the Great had ascended the throne in 1740, led to several wars in which England, France, Spain,
LAW OF NATIONS AFTER GROTIUS 63
Bavaria, Saxony, and Holland took part. Several treaties of peace were successively concluded which tried to keep up or re-establish the balance of power in Europe. The most important of these treaties are: (1) The Peace of Aix-la-Chapelle of 1748 between France, England, Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of Hubert sburg and the Peace of Paris, both of 1763, the former between Prussia, Austria, and Saxony, the latter between England, France, and Spain. (3) The Peace of Versailles of 1783 between England, the United States of America, France, and Spain.
These wars gave occasion to disputes as to the right of neutrals and belligerents regarding trade in time of war. Prussia became a Great Power. The so-called First Armed Neutrality * made its appear- ance in 1780 with claims of great importance, which were not generally recognised till 1856. The United States of America succeeded in establishing her independence and became a member of the Family of Nations, whose future attitude fostered the growth of several rules of International Law.
§ 46. All progress, however, was endangered, and The period indeed the Law of Nations seemed partly non-existent, 1815. during the time of the French Eevolution and the Napoleonic wars. Although the French Convention resolved in 1792 (as stated above, § 30) to create a " Declaration of the Eights of Nations," the Eevolu- tionary Government and afterwards Napoleon I. very often showed no respect for the rules of the Law of Nations. The whole order of Europe, which had been built up by the Westphalian and subsequent treaties of peace for the purpose of maintaining a
1 See below, Vol. II. §§ 289 and first and second armed neutrality 290, where details concerning the are given.
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balance of power, was overthrown. Napoleon I. was for some time the master of Europe, Eussia and England excepted. He arbitrarily created States and suppressed them again. He divided existing States into portions and united separate States. The kings depended upon his goodwill, and they had to follow orders when he commanded. Especially as regards Maritime International Law, a condition of partial lawlessness arose during this period. Already in 1793 England and Eussia interdicted all navigation with the ports of France, with the intention to subdue her by famine. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to the ports of the enemy or carrying enemy goods. And again Napoleon, who wanted to ruin England by destroying her commerce, announced in 1 806 in his Berlin Decrees the boycott of all English goods. England answered with the blockade of all French ports and all ports of the allies of France, and ordered her fleet to capture all ships destined to any such port.
When at last the whole of Europe was mobilised against Napoleon and he was finally defeated, the whole face of Europe was changed, and the former order of things could not possibly be restored. It was the task of the European Congress of Vienna in 1 8 1 4 and 1 8 1 5 to create a new order and a fresh balance of power. This new order comprised chiefly the following arrangements: The Prussian and the Austrian monarchies were re-established, as was also the Germanic Confederation, which consisted hence- forth of thirty-nine member States. A kingdom of the Netherlands was created out of Holland and Belgium. Norway and Sweden became a Eeal Union. The old dynasties were restored in Spain, in Sardinia,
LAW OF NATIONS AFTER GROTIUS 65
in Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen cantons of the Swiss Con- federation were added those of Geneva, Valais, and Neuchatel, and this Confederation was neutralised for all the future. But the Vienna Congress did not only establish a new political order in Europe, it also settled some questions of International Law. Thus, free navigation was agreed to on the so-called inter- national rivers, which are rivers running through the land of different States. It was further arranged that henceforth the diplomatic agents should be divided into three classes (Ambassadors, Ministers, Charges d' Affaires). Lastly, a universal prohibition of the trade with negro slaves was agreed upon.
§ 47. The period after the Vienna Congress begins The period with the so-called Holy Alliance. Already on {f^' September 26, 181 5, before the second Peace of Paris, the Emperors of Eussia and Austria and the King of Prussia called this alliance into existence, the object of which was to make it a duty upon its members to apply the principles of Christian morality in the administration of the home affairs of their States as well as in the conduct of their international relations. After the Vienna Congress the sovereigns of almost all the European States had joined that alliance with the exception of England. George IV., at that time prince-regent only, did not join, because the Holy Alliance was an alliance not of the States, but of sovereigns, and therefore was concluded with- out the signatures of the respective responsible Ministers, whereas according to the English Constitu- tion the signature of such a responsible Minister would have been necessary.
The Holy Alliance had not as such an importance for International Law, for it was a religious, moral,
vol. 1. F
66 SCIENCE OF THE LAW OF NATIONS
and political, but scarcely a legal alliance. But at the Congress of Aix-la-Chapelle in 1818, where the Emperors of Eussia and Austria and the King of Prussia attended in person, and where it might be said that the principles of the Holy Alliance were practically applied, the Great Powers signed a De- claration,1 in which they solemnly recognised the Law of Nations as the basis of the international relations, and in which they pledged themselves for all the future to act according to its rules. The leading principle of their politics was that of legitimacy, as they endeavoured to preserve everywhere the old dynasties and to protect the sovereigns of the dif- ferent countries against revolutionary movements of their subjects. This led in fact to a dangerous neglect of the principles of International Law re- garding intervention. The Great Powers, with the exception of England, intervened constantly with the domestic affairs of the minor States in the interest of the legitimate dynasties and of an anti-liberal legisla- tion. The Congresses at Troppau 1820, Laibach 1 82 1, Verona 1822, occupied themselves with a deliberation on such interventions.
The famous Monroe Doctrine (see below, § 139) owes its origin to that dangerous policy of the European Powers as regards intervention, although this doctrine embraces other points besides interven- tion. As after the Vienna Congress a number of Spanish colonies in South America had fallen off from the mother country and declared their indepen- dence, and as Spain thought of reconquering these States with the help of other Powers who upheld the principle of legitimacy, President Monroe delivered his message on December 2, 1823, which pointed out
1 See Martens, N. R. IV. p. 560.
LAW OF NATIONS AFTER GROTIUS 67
amongst other things, that the United States could not allow the interference of a European Power with the States of the American continent.
Different from the intervention of the Powers of •the Holy Alliance in the interest of legitimacy were the two interventions in the interest of Greece and Belgium. England, France, and Eussia intervened in 1827 in the struggle of Turkey with the Greeks, an intervention which led finally in 1S30 to the independence of Greece. And the Great Powers of tha time, namely, England, Austria, France, Prussia, and Eussia, invited by the provisional Belgian Government, intervened in 1830 in the struggle of the Dutch with the Belgians and secured the'forma- tion of a separate Kingdom of Belgium.
It may be maintained that the establishment of Greece and Belgium inferred the breakdown of the Holy Alliance. But it was not till the year 1848 that this alliance was totally swept away through the disappearance of absolutism and the victory of the constitutional system in most States of Europe. Since, shortly afterwards, in 1852, Napoleon III. became Emperor of France, who adopted the prin- ciple of nationality and exercised a preponderant influence in Europe, one may say that this principle of nationality superseded in European politics the principle of legitimacy.
The last event of this period is the Crimean War, which led to the Peace as well as to the Declaration of Paris in 1856. This war broke out in 1853 between Eussia and Turkey. In 1854, England, France, and Sardinia joined Turkey, but the war continued never- theless for another two years. Finally, however, Eussia was defeated, a Congress assembled at Paris' where England, France, Austria, Eussia, Sardinia,'
p 2
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Turkey, and eventually Prussia were represented, and peace was concluded in March 1856. In the Peace Treaty, Turkey is expressly received as a member into the Family of Nations. Of greater importance, however, is the celebrated Declaration of Paris regarding maritime International Law which was signed on April 16, 1856, by the delegates of the Powers that had taken part in the Congress. This declaration abolished privateering, recognised the rules that enemy goods on neutral vessels and that neutral goods on enemy vessels cannot be confiscated, and stipulated that a blockade in order to be binding must be effective. Together with the fact that at the end of the first quarter of the nineteenth century the principle of the freedom of the high seas x became universally recognised, the Declaration of Paris is a prominent landmark of the progress of the Law of Nations. The Powers that had not been represented at the Congress of Paris were invited to sign the Declaration afterwards, and the majority of the members of the Family of Nations did sign it before the end of the year 1856. The few States, such as the United States of America, Spain, Mexico, and others, which have not signed,2 have in practice since 1856 not acted in opposition to the Declaration, and one may therefore, perhaps, maintain that the Declaration of Paris has already become or will soon become universal International Law through custom. Theperiod § 4-8. The next period, the time from 1856 to 1874, ^56_ is of prominent importance for the development of
1 See below, § 251. Declaration of Paris because it
2 Japan signed in 1 886. It did not go far enough, and did not should be mentioned that the interdict capture of private enemy United States did not sign the vessels.
LAW OF NATIONS AFTER GROTIUS 69
the Law of Nations. Under the aegis of the principle of nationality, Austria turns in 1867 into the dual monarchy of Austria-Hungary, and Italy as well as Germany becomes united. The unity of Italy rises out of the war of France and Sardinia against Austria in 1859, and Ttaly ranges henceforth among the Great Powers of Europe. ^The unity of Germany is the combined result of three wars : that of Austria and Prussia in 1864 against Denmark on account of Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, and that of Prussia and the allied South German States against France in 1870. The defeat of France in 1870 had the consequence that Italy took possession of the Papal States, whereby the Pope disappeared from the number of governing sovereigns. ^The United States of America rise through the successful termination of the Civil War in 1865 to the position of a Great Power. Several rules of maritime International Law owe their further develop- ment to this war. "And the instructions concerning warfare on land, published in 1 863 by the Govern- ment of the United States, represent the first step towards codification of the Laws of War. In 1864, the Geneva Convention for the amelioration of the condition of soldiers wounded in armies in the field is, on the initiation of Switzerland, concluded by nine States, and in time almost all civilised States became parties to it. In 1868, the Declaration of St. Peters- burg, interdicting the employment in war of explosive balls below a certain weight, is signed by many States. »/[n 1871, the Conference of London, attended by the representatives of the Powers which were parties to the Peace of Paris of 1856, solemnly proclaims " that it is an essential principle of the
70 SCIENCE OF THE LAW OF NATIONS
Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrange- ment. " V/The last event in this period is the Conference of Brussels of 1874 for the codification of the rules and usages of war on land. Although the signed code was never ratified, the Brussels Conference was nevertheless epoch-making, since it showed the readiness of the Powers to come to an understanding regarding such a code. The period § 49. After 1 874 the principle of nationality con- 189^7 tinues to exercise its influence as before. Under its aegis takes place the partial decay of the Ottoman Empire. The refusal of Turkey to introduce reforms regarding the Balkan population led in 1877 to war between Turkey and Kussia, which was ended in 1878 by the peace of San Stefano. As the conditions of this treaty would practically have done away with Turkey in Europe, England intervened and a Euro- pean Congress assembled at Berlin in June 1878 which modified materially the conditions of the Peace of San Stefano. The chief results of the Berlin Con- gress are : — (1) Servia, Roumania, Montenegro become independent and sovereign States ; (2) Bulgaria be- comes an independent principality under Turkish suzerainty; (3) the Turkish provinces of Bosnia and Herzegovina come under the administration of Austria-Hungary ; (4) a new province under the name of Eastern Rumelia is created in Turkey and is to enjoy great local autonomy (according to an arrangement of the Conference of Constantinople in 1 885-1 886 a bond is created between Eastern Rumelia and Bulgaria by appointing the Prince of Bulgaria governor of Eastern Rumelia) ; (5) free
LAW OF NATIONS AFTER GROTIUS 7 1
navigation on the Danube from the Iron Gates to its mouth in the Black Sea is proclaimed.
In 1897 Crete revolted against Turkey, war broke out between Greece and Turkey, the Powers interfered, and peace was concluded at Constantinople. Crete becomes an autonomous half-Sovereign State under Turkish suzerainty and under Prince George of Greece as governor.
In the Far East war breaks out in 1895 between China and Japan, in which China is defeated and out of which Japan rises as a Great Power. That she must now be considered a full member of the Family of Nations becomes apparent from the treaties con- cluded by her with: other Powers for the purpose of abolishing their consular jurisdiction within the boundaries of Japan.
In America the United States intervene in 1898 in the revolt of Cuba against the motherland, whereby war breaks out between Spain and the United States. The defeat of Spain secures the independence of Cuba through the Peace of Paris of 1898.
An event of great importance during this period is the Congo Conference of Berlin, which took place in 1 884-1 885, and at which were represented England, Germany, Austria-Hungary, Belgium, Den- mark, Spain, the United States of America, France, Italy, Holland, Portugal, Eussia, Sweden-Norway, Turkey. This conference stipulated freedom of commerce, interdiction of slave-trade, and neutrali- sation of the territories in the Congo district, and secured freedom of navigation on the rivers Congo and Niger. The so-called Congo Free State was recognised as a member of the Family of Nations.
A second fact of great importance is the establish- ment of numerous international unions with special
72 SCIENCE OF THE LAW OF NATIONS
international offices for various non-political purposes. A Universal Telegraphic Union was established in 1875, a Universal Postal Union in 1878, a Union for the Protection of Industrial Property in 1883, a Union for the Protection of Works of Literature and Art in 1886, a Union for the Publication of Custom Tariffs in 1890.
A third fact of great importance is that in this period a tendency has arisen to settle international conflicts more frequently than in former times by arbitration. Numerous arbitrations have actually taken place, and several treaties have been concluded between different States stipulating the settlement by arbitration of all conflicts which would arise in future between the contracting parties.
The last fact of great importance which is epoch- making for this period is the Peace Conference of the Hague of 1899. This Conference produced, apart from three Declarations of minor importance, a Convention for the Pacific Settlement of Inter- national Conflicts, a Convention regarding the Laws and Customs of War on Land, and a Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It also formulated, among others, the three wishes (1) that a conference should in the near future regulate the rights and duties of neutrals, (2) that a future conference should contemplate the declaration of the inviolability of private property in naval warfare, (3) that a future conference should settle the question of the bombard- ment of ports, towns, and villages by naval forces. The § 50. Soon after the Hague Peace Conference, in
c«ieturyth October 1899, war breaks out in South Africa between Great Britain and the two Boer Eepublics, which leads to the latter's annexation at the end of
LAW OF NATIONS AFTER GROTIUS J 3
1 90 1. The assassination of the German Ambassador and the general attack on the European legations in Peking in 1 900 lead to a united action of the Powers against China for the purpose of vindicating this violation of the fundamental rules of the Law of Nations. In December 1 902 Great Britain, Germany, and Italy institute a blockade against the coast of Venezuela for the purpose of making her comply with their demands for indemnification of their subjects wronged during civil wars in Venezuela, and the latter consents to pay indemnities to be settled by a mixed commission of diplomatists. But as other Powers than those who had instituted the blockade likewise claim indemnities, the matter is referred to the permanent Court of Arbitration at the Hague, which, in 1904, gives its verdict in favour of the blockading Powers. In February of 1904 war breaks out in the Far East between Eussia and Japan on account of Manchuria and Korea. In November of 1904 the United States of America make prepara- tions for the convoking of another Peace Conference at the Hague.
§51. It is the task of history, not only to show Five Les- how things have grown in the past, but also to nStoiy of extract a moral for the future out of the events of the t^TL*w
ofNations.
past. Five morals can be said to be deduced from the history of the development of the Law of Nations : (1) The first and principal moral is that a Law of Nations can exist only if there is an equili- brium, a balance of power, between the members of the Family of Nations. If the Powers cannot keep one another in check, no rules of law will have any force, since an over-powerful State will naturally try to act according to discretion and disobey the law. As there is not and never can be a
74 SCIENCE OF THE LAW OF NATIONS
central political authority above the Sovereign States that could enforce the rules of the Law of Nations, a balance of power must prevent any member of the Family of Nations from becoming omnipotent. The history of the times of Louis XIV. and Napoleon I. shows clearly the soundness of this principle.
(2) The second moral is that International Law can develop progressively only when international politics, especially intervention, are made on the basis of real State interests. Dynastic wars belong to the past, as do interventions in favour of legitimacy. It is neither to be feared, nor to be hoped, that they should occur again in the future. But if they did, they would hamper the development of the Law of Nations in the future as they have done in the past.
(3) The third moral is that the principle of natio- nality is of such force that it is fruitless to try to stop its victory. Wherever a community of many millions of individuals, who are . bound together by the same blood, language, and interests, become so powerful that they think it necessary to have a State of their own, in which they can live according to their own ideals and can build up a national civilisation, they will certainly get that State sooner or later. What international politics can do and should do is to enforce the rule that minorities of individuals of another race shall not be outside the law, but shall be treated on equal terms with the majority. States embracing a population of different nationalities can exist and will always exist, as many examples show.
(4) The fourth moral is that every progress in the development of International Law wants due time to ripen. In Utopia the projects of an eternal
LAW OF NATIONS AFTER GROTIUS 75
peace and of an undisturbed fraternity of States and nations may be realised, but the rude reality of practical international life in our times does not pro- vide any possibility of the realisation of such fanciful ideas. The presupposition of an eternal peace would at least be that the whole surface of the earth would be shared between nations of the same standard of civilisation, of the same interests, aims, and of the same strength, a fact which will never be realised so far as we can see. Eternal peace is an ideal, and in the very term " ideal " the conviction is involved of the impossibility of its realisation, although it is a duty to aim constantly at such realisation. The permanent Court of Arbitration at the Hague, now established by the Hague Peace Conference of 1899, is an institution that can bring us nearer to such realisa- tion than ever could have been hoped. And codi- fication of parts of the Law of Nations, following the codification of the rules regarding land warfare, will in due time arrive and so make the legal basis of international intercourse firmer, broader, and more prominent than before.
(5) The fifth, and last, moral is that the pro- gressive development of International Law depends chiefly upon the standard of public morality on the one hand, and, on the other, upon economic interests. The higher the standard of public morality rises, the more will International Law progress. And the more important international economic interests grow, the more International Law will grow. For, looked upon from a certain standpoint, International Law is, just like Municipal Law, a product of moral and of economic factors, and at the same time the basis for a favourable development of moral and economic interests. This being an indisputable fact,
76 SCIENCE OF THE LAW OF NATIONS
it may therefore fearlessly be maintained that an immeasurable progress is guaranteed to International Law, since there are eternal moral and economic factors working in its favour.
Ill The Science of the Law of Nations
Phillimore, I., Preface to the first edition — Lawrence, §§ 31-36 — Manning, pp. 21-65 — Halleck, I. pp. 12, 15, 18, 22, 25, 29, 34, 42 — Walker, History, I. pp. 203-337, and " The Science of International Law" (1 893), passim— Taylor, §§ 37-48— Wheaton, §§ 4-13— Rivier in Holtzendorff, I. pp. 337-475— Nys, I. pp. 213-328— Martens, I. §§ 34-38— Fiore, I. Nos. 53-88, 164-185, 240-272— Calvo, I. pp. 27- 34,44-46,51-55,61-63,70-73, 101-137— Bonfils, Nos. 147-153— Despagnet, Nos. 28-35 — Kaltenborn, "Die Vorlaufer des Hugo Grotius" (1848)— Holland, Studies, pp. 1-58, 168-175— Westlake, Chapters, pp. 23-77— Ward, " Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795) — Nys, " Le droit de la guerre et les precurseurs de Grotius" (1882), "Notes pour servir a l'histoire . . . du droit international en Angleterre " (1888), " Les origines du droit international" (1894) — Wheaton, " Histoire des progres du droit des gens en Europe " (1841) — See also the biblio- graphies enumerated below in § 61.
Fore- § 52. The science of the modern Law of Nations
Grotius3.0 commences from Grotius's work, " De Jure Belli ac Pacis libri III.," because in it a fairly complete system of International Law was for the first time built up as an independent branch of the science of law. But there are many writers before Grotius who wrote on special parts of the Law of Nations. They are therefore commonly called "Forerunners of Grotius." The most important of these fore- runners are the following: (1) Legnano, Professor of Law in the University of Bologna, who wrote in 1360 his book "De bello, de represaliis, et de duello," which was, however, not printed before 1477 » (2) Belli, an Italian jurist and statesman, who
SCIENCE OF THE LAW OF NATIONS 77
published in 1563 his book, "De re militari et de bello ; " (3) Brunus, a German jurist, who published in 1548 his book, "De legationibus ; " (4) Victoria, Professor in the University of Salamanca, who published in 1557 his " Eelectiones theologicae," * which partly deals with the Law of War ; (5) Ayala, of Spanish descent but born in Antwerp, a military judge in the army of Alexandro Farnese, the Prince of Parma. He published in 1 582 his book, " De jure et officiis bellicis et disciplina militari ; " (6) Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 16 j 2 his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8) for the first time the attempt is made to found a law between the States on the fact that they form a community of States ; (7) Gentilis, an Italian jurist, who became Professor of Civil Law in Oxford. He published in 1585 his work, "De legationibus," in 1588 and 1589 his " Commentationes de jure belli," in 1598 an enlarged work on the same matter under the title "De jure belli libri tres,"2 and in 161 3 his " Advo- catio Hispanica." Gentilis's book " De jure belli " supplies, as Professor Holland shows, the model and the framework of the first and third book of Grotius's " De jure belli ac pacis." " The first step " — Holland rightly says — "towards making International Law what it is was taken, not by Grotius, but by Gen- tilis."
§ 53. Although Grotius owes much to Gentilis, he Grotius- is nevertheless the greater of the two and bears by right the title of " Father of the Law of Nations." Hugo Grotius was born at Delft in Holland in 1583.
1 See details in Holland, Studies, Studies, pp. 1--391 ; Westlake pp. 51-52. Chapters, pp. 33-36; Walker,
2 Re-edited in 1 877 by Professor History, I. pp. 249-277. Holland. On Gentilis, see Holland,
7$ SCIENCE OF THE LAW OF NATIONS
He was from his earliest childhood known as a "wondrous child" on account of his marvellous intellectual gifts and talents. He began to study law at Ley den when only eleven years old, and at the age of fifteen he took the degree of Doctor of Laws at Orleans in France. He acquired a reputation, not only as a jurist, but also as a Latin poet and a philologist. He first practised as a lawyer, but afterwards took to politics and became involved in political and religious quarrels which led to his arrest in 1618 and condemnation to prison for life. In 1 62 1, however, he succeeded in escaping from prison and went to live for ten years in France. In 1634 he entered into the service of Sweden and became Swedish Minister in Paris. He died in 1635 at Eostock in Germany on his way home from Sweden, whither he had gone to tender his resig- nation.
Even before he had the intention of writing a book on the Law of Nations Grotius took an interest in matters international. For in 1 609, when only twenty- four years old, he published — anonymously at first — a book under the title " Mare liberum,' l in which he contended that the open sea could not be the pro- perty of any State, whereas the contrary opinion was generally prevalent.1 But it was not before fourteen years later that Grotius began, during his exile in France, to write his " De Jure Belli ac Pacis libri III.," which was published, after a further two years, in 1625, and of which it has rightly been maintained that no other book, with the single exception of the Bible, has ever exercised a similar influence upon human minds and matters. The whole development
1 See details with regard to the dom of the open sea below, §§ 248- controversy concerning the free- 250.
SCIENCE OF THE LAW OF NATIONS 79
of the modern Law of Nations itself as well as that of the science of the Law of Nations takes root from this for ever famous book. Grotius's intention was originally to write a treatise on the Law of War, since the cruelties and lawlessness of warfare of his time incited him to the work. But thorough investi- gation into the matter led him further, and thus he produced a system of the Law of Nature and Nations. In the introduction he speaks of many of the authors before him, and he especially quotes Ayala and Gentilis. Yet, although he recognises their influence upon his work, he is nevertheless aware that his system is fundamentally different from those of his forerunners. There was in truth nothing original in Grotius's start from the Law of Nature for the purpose of deducing therefrom rules of a Law of Nations. Other writers before his time, and in especial Gentilis, had founded their works upon it. But no- body before him had done it in such a masterly way and with such a felicitous hand. And it is on this account that Grotius bears not only, as already men- tioned, the title of " Father of the Law of Nations," but also that of " Father of the Law of Nature."
Grotius, as a child of his time, could not help starting from the Law of Nature, since his intention was to find such rules of a Law of Nations as were eternal, unchangeable, and independent of the special consent of the single States. Long before Grotius, the opinion was generally prevalent that above the positive law, which had grown up by custom or by legislation of a State, there was in existence another law which had its roots in human reason and which could therefore be discovered without any know- ledge of positive law. This law of reason was called Law of Nature or Natural Law. But the system of
So SCIENCE OF THE LAW OF NATIONS
the Law of Nature which Grotius built up and from which he started when he commenced to build up the Law of Nations, became the most important and gained the greatest influence, so that Grotius appeared to posterity as the Father of the Law of Nature as well as that of the Law of Nations.
Whatever we may nowadays think of this Law of Nature, the fact remains unshaken that for more than two hundred years after Grotius jurists, philosophers, and theologians firmly believed in it. And there is no doubt that, but for the systems of the Law of Nature and the doctrines of its prophets, the modern Constitutional Law and the modern Law of Nations would not be what they actually are. The Law of Nature supplied the crutches with whose help history has taught mankind to walk out of the institutions of the Middle Ages into those of modern times. The modern Law of Nations in especial owes its very existence to the theory of the Law of Nature. Grotius did not deny that there existed in his time already a good many customary rules for the inter- national conduct of the States, but he expressly kept them apart from those rules which he considered the outcome of the Law of Nature. He distinguishes, therefore, between the natural Law of Nations on the one hand, and, on the other hand, the customary Law of Nations, which he calls the voluntary Law of Nations. The bulk of Grotius's interest is concen- trated upon the natural Law of Nations, since he considered the voluntary of minor importance. But nevertheless he does not quite neglect the voluntary Law of Nations. Although he mainly and chiefly lays down the rules of the natural Law of Nations, he always mentions also voluntary rules concerning the different matters.
SCIENCE OF THE LAW OF NATIONS 8 1
Grotius's influence was soon enormous and reached over the whole of Europe. His book l went through more than forty- five editions, and many translations have been published.
§ 54. But the modern Law of Nations has an- zouche. other, though minor, founder besides Grotius, and this is an Englishman, Eichard Zouche (1 590-1 660), Professor of Civil Law at Oxford and a Judge of the Admiralty Court. A prolific writer, the book through which he acquired the title of "Second founder of the Law of Nations," appeared in 1650 and bears the title : " Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem expli- catio, qua, quae ad pacem et bellum inter diversos principes aut populos spectant, ex praecipuis histo- rico jure peritis exhibentur." This little book has rightly been called the first manual of the posi- tive Law of Nations. The standpoint of Zouche is totally different from that of Grotius in so far as, according to him, the customary Law of Nations is the most important part of that law, although, as a child of his time, he does not at all deny the existence of a natural Law of Nations. It must be specially mentioned that Zouche is the first who used the term jus inter gentes for that new branch of law. Grotius knew very well and says that the Law of Nations is a law between the States, but he called it jus gentium, and it is due to his influence that until Bentham no- body called the Law of Nations Twternational Law.
The distinction between the natural Law of Nations, chiefly treated by Grotius, and the customary or voluntary Law of Nations, chiefly treated by Zouche,2
1 See Rivier in Holtzendorff, 2 It should be mentioned that
I. p. 412. The last English trans- already before Zouche, another
lation is that by William Whewell Englishman, John Selden, in his
of 1854. De jure naturali et gentium
VOL. I. G
ralistK.
82 SCIENCE OF THE LAW OF NATIONS
gave rise in the seventeenth and eighteenth centuries to three different schools of writers on the Law of Nations — namely, the " Naturalists," the " Positivists," and the " Grotians." TheNatu- § 55. « Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny- that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain that all Law of Nations is only a part of the Law of Nature. The leader of the Naturalists is Samuel Pufendorf (163 2- 1694), who occupied the first chair which was founded for the Law of Nature and Nations at a University — namely, that at Heidel- berg. Among the many books written by Pufendorf, three are of importance for the science of Inter- national Law: — (1) "Elementa jurisprudentiae uni- versalis," 1666; (2) "De jure naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. 4, that Natural Law is to be divided into Natural Law of individuals and of States, and that the latter is the Law of Nations, Pufendorf1 adds that outside this Natural Law of Nations no voluntary or positive Law of Nations exists which has the force of real law {quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superior e profecta string at).
The most celebrated follower of Pufendorf is the German philosopher Christian Thomasius (1 655-1 728), who published in 1688 his " Institutiones juris-
secundum disciplinam ebraeorum concerning questions of maritime
(1640), recognised the importance law and in especial prize law,
of the positive Law of Nations, were of the greatest importance
The successor of Zouche as a Judge for the development of maritime
of the Admiralty Court, Sir international law.
Leoline Jenkins (1625-1684) ought l De jure naturae et gentium,
also to be mentioned. His opinions II. c. 3, § 22.
SCIENCE OF THE LAW OF NATIONS 8$
prudentiae divinae," and in 1705 his "Fundamenta juris naturae et gentium." Of English Naturalists may be mentioned Francis Hutcheson (" System of Moral Philosophy," 1755) and Thomas Eutherford ("Institutes of Natural Law ; being the Substance of a Course of Lectures on Grotius read in St. John's College, Cambridge," 1754). Jean Barbeyrac ( 1674- 1744), the learned French translator and commentator of the works of Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui (1 694-1 748), a native of Geneva, who wrote the " Principes du droit de la nature et des gens," ought likewise to be mentioned.
§ 56. The " Positivists " are the antipodes of the The Posi- Naturalists. They include all those writers who, in tmsts' contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as the outcome of custom or international treaties, but consider it more important than the natural Law of Nations, the very existence of which some of the Positivists deny, thus going beyond Zouche. The positive writers had not much influence in the seven- teenth century, during which the Naturalists and the Grotians carried the day, but their time came in the eighteenth century.
Of seventeenth-century writers, the Germans Eachel and Textor must be mentioned. Eachel published in 1676 his two dissertations, " De jure naturae et gentium," in which he defines the Law of Nations as the law to which a plurality of free States are sub- jected, and which comes into existence through tacit or express consent of these States (Jus plurium liberalium gentium facto sive placito expression aut tacite initum, quo utilitatis gratia sibi in vicem obli- gantur). Textor published in 1680 his "Synopsis juris gentium."
G 2
84 SCIENCE OF THE LAW OF NATIONS
In the eighteenth century the leading Positivists, Bynkershoek, Moser, and Martens, gained an enormous influence.
Cornelius van Bynkershoek (i 673-1 743), a cele- brated Dutch jurist, never wrote a treatise on the Law of Nations, but gained fame through three books dealing with different parts of this Law. He published in 1702 "De dominio maris," in 172 1 "De foro legatorum," in 1737 " Quaestionum juris publici libri II." According to Bynkershoek the basis of the Law of Nations is the common consent of the nations which finds its expression either in international custom or in international treaties.
Johann Jakob Moser (1 701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned : (1) "Grundsiitze des jetzt ublichen Volkerrechts in Friedenszeiten," 1750; (2) "Grundsiitze des jetzt ublichen Volkerrechts in Kriegszeiten," 1752; (3) "Versuch des neuesten europaischen Volkerrechts in Friedens- und Kriegszeiten," 1 777-1 780. Moser' s books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. Moser never fights against the Naturalists, but he is totally indifferent towards the natural Law of Nations, since to him the Law of Nations is positive law only and based on international custom and treaties.
Georg Friedrich von Martens (1 756-1 821), Pro- fessor of Law in the University of Gottingen, also published many books concerning the Law of Nations. The most important is his " Precis du droit des gens moderne de l'Europe," published in 1789, of which William Cobbett published in 1795 at Philadelphia an English translation, and of which as late as
SCIENCE OF THE LAW OF NATIONS 85
1864 appeared a new edition at Paris with notes by Charles Verge. Martens began the celebrated collection of treaties which goes under the title " Martens, Eecueil des Traites," and is continued to our days.1 The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, and since he sometimes refers to the latter in case he finds a gap in the positive Law of Nations. But his interest is in the positive Law of Nations, which he builds up historically on international custom and treaties.
§ 57. The "Grotians" stand midway between the The Naturalists and the Positivists. They keep up the Grotians- distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, their interest to both alike. Grotius's influence was so enormous that the majority of the authors of the seventeenth and eighteenth centuries were Grotians, but only two of them have acquired a European reputation — namely, Wolff and Vattel.
Christian Wolff (1679-17 54), a German philosopher who was first Professor of Mathematics and Philosophy in the Universities of Halle and Marburg and after- wards returned to Halle as Professor of the Law of Nature and Nations, was seventy years of age when, in 1 749, he published his " Jus gentium methodo scientifica pertractatum." In 1750 followed his " Institutiones juris naturae et gentium." WohTs conception of the Law of Nations is influenced
1 Georg Friedrich von Martens author of the Causes celebres de is not to be confounded with his droit des gens and of the Guide nephew Charles de Martens, the diplomatique.
86 SCIENCE OF THE LAW OF NATIONS
by his conception of the Civitas gentium maxima. The fact that there is a Family of Nations in existence is strained by Wolff into the doctrine that the totality of the States forms a world-State above the com- ponent member-States, the so-called civitas gentium maxima. He distinguishes four different kinds of Law of Nations — namely, the natural, the voluntary, the customary, and that which is expressly created by treaties. The latter two kinds are alterable, and have force only between those single States between which custom and treaties have created them. But the natural and the voluntary Law of Nations are both eternal, unchangeable, and universally binding upon all the States. In contradistinction to Grotius, who calls the customary Law of Nations " voluntary," Wolff names " voluntary " those rules of the Law of Nations which are, according to his opinion, tacitly imposed by the civitas gentium maxima, the world- State, upon the member-States.
Emerich de Vattel (17 14-1767), a Swiss from Neuchatel, who entered into the service of Saxony and became her Minister at Berne, did not in the main intend any original work, but undertook the task of introducing Wolff's teachings concerning the Law of Nations into the courts of Europe and to the diplomatists. He published in 1758 his book, " Le droit des gens, ou principes de la loi naturelle appliques a la conduite et aux affaires des Nations et des Souverains." But it must be specially mentioned that Vattel expressly rejects Wolff's conception of the civitas gentium maxima in the preface to his book. Numerous editions of Vattel's book have appeared, and as late as 1863 Pradier-Fodere re-edited it at Paris. An English translation by Chitty ap- peared in 1834 and went through several editions.
SCIENCE OF THE LAW OF NATIONS 87
His influence was very great, and in diplomatic circles his book still enjoys an unshaken authority.
§ 58. Some details concerning the three schools of Treatises the Naturalists, Positivists, and Grotians were neces- Nine* sary because these schools are still in existence. I do T^tieto not, however, intend to give a list of writers on special Centuries, subjects, and the following list of treatises comprises the more important ones only.
(1) British Treatises.
William Okc Manning : Commentaries on the Law of Nations,
1839 ; new ed. by Sheldon Amos, 1875. Archer Poison : Principles of the Law of Nations, 1848 ; 2nd
ed. 1853. Richard Wildman : Institutes of International Law, 1850. Sir Robert Phillimore : Commentaries upon International Law,
4 vols., 1854-1861 ; 3rd ed. 1879-1888. Sir Travers Twiss : The Law of Nations, etc., 2 vols. 1861-1863 ;
2nd ed. 1875-1884; French translation, 1887-1889. Sheldon Amos : Lectures on International Law, 1874. Sir Edward Shepherd Greasy : First Platform of International
Law, 1876. William Edward Hall : Treatise on International Law, 1880 ;
5th ed. 1904 (by Atlay). Sir Henry Sumner Maine International Law, 1883; 2nd ed.
1894 (Whewell Lectures, not a treatise). James Lorimer : The Institutes of International Law, 2 vols.
1 883-1 884 ; French translation by Nys, 1885. Leone Levi : International Law, 1888. T. J. Lawrence : The Principles of International Law, 1895 >
3rd ed. 1900. Thomas Alfred Walker : A Manual of Public International
Law, 1895. Sir Sherston Baker : First Steps in International Law, 1899. F. E. Smith : International Law, 1900. (One of the Temple
Primers.) John Westlake: International Law, vol. I. (Peace) 1904.
(2) North American Treatises.
James Kent : Commentary on International Law, 1826 ; English edition by Abdy, Cambridge, 1888.
88 SCIENCE OF THE LAW OF NATIONS
Henry Wheaton : Elements of International Law, 1836; 8th
American ed. by Dana, 1866; 3rd English ed. by Boyd,
1889 ; 4th English ed. by Atlay, 1904. Theodore D. Woolsey : Introduction to the Study of International
Law, i860 ; 5th ed. 1879. Henry W. Halleck: International Law, 2 vols. 1861 ; 3rd
English ed. by Sir Sherston Baker, 1893. Francis Wharton: A Digest of the International Law of the
United States, 3 vols., 1886. (An official publication.) George B. Davis : The Elements of International Law, 1887 ;
revised ed. 1899. Hannis Taylor: A Treatise on International Public Law, 1901.
(3) French Treatises.
Funck-Brentano et Albert Sorel : Precis du Droit des Gens,
1877 ; 2nd ed. 1894. P. Pradier-Foderc : Traite de Droit International Public, 7 vols.
1885-1897. Henry Bonfils : Manuel de Droit International Public, 1894 ;
4th ed. by Faichille, 1904. Frantz Despagnet : Cours de Droit International Public, 1894 ;
2nd ed. 1899. Bobert Pi&dclicvre : Precis de Droit International Public, 2 vols.
1894-1895.
(4) German Treatises.
TJieodor Schmalz : Europaisches Volkerrecht, 1816.
Johann Ludwig Klilber: Droit des Gens moderne, 1819 ; German ed. under the title of Europaisches Volkerrecht in 1 82 1 ; last German ed. by Morstadt in 185 1, and last French ed. by Ott in 1874.
Friedrich Saalfeld : Handbuch des positiven Volkerrechts,
1833-
August Wilhelm Heffter : Das europaische Volkerrecht der Gegenwart, 1844 ; 8th ed. by Geffcken, 1888 ; French trans- lations by Bergson in 1851 and Geffcken in 1883.
Heinrich Bernliard Oppcnhcim : System des Volkerrechts, 1845 > 2nd ed. 1866.
Johann Caspar Bluntschli : Das moderne Volkerrecht der civilisirten Staaten als Eechtsbuch dargestellt, 1868; 3rd ed. 1878; French translation by Lardy, 1869 ; 5th ed. 1895.
Adolf Hartmann : Institutionen des praktischen Volkerrechts in Friedenszeiten, 1874 ; 2nd ed. 1878.
SCIENCE OF THE LAW OF NATIONS 89
Franz von Holtzendorff: Handbuch des Volkerrechts, 4 vols.
1 885- 1 889. Holtzendorff is the editor and a contributor
but there are many other contributors. August von Bulmerincq : Das Volkerrecht, 1887. Earl Gareis : Institutionen des Volkerrechts, 1888 ; 2nd ed.
1901. E. Ullmann : Volkerrecht, 1898. Franz von Liszt : Das Volkerrecht, 1898 ; 3rd ed. 1900.
(5) Italian Treatises.
Luigi Casanova : Lezioni di diritto internazionale, published
after the death of the author by Cabella, 1853; 3rd ed. by
Brusa, 1876. Pasquale Fiore : Trattato di diritto internazionale publico,
1865 ; 2nd ed. in 3 vols. 1 879-1 884 ; French translation by
Antoine, 1885. Giuseppe Carnazza-Amari : Trattato di diritto internazionale di
pace, 2 vols. 1 867-1 875 ; French translation by Montanari-
Pevest, 1 88 1. Antonio del Bon : Institutioni del diritto publico internazionale,
1868. Giuseppe Sandona : Trattato di diritto internazionale moderno,
2 vols. 1870. Gian Battista Pertille : Elementi di diritto internazionale,
2 vols. 1877. Augusto Pierantoni : Trattato di diritto internazionale, vol. I.
1 88 1. (No further volume has appeared.)
(6) Spanish and Spanish-American Treatises.
Andres Bello : Principios de derecho de gentes (internacional)
1832, last ed. in 2 vols, by Silva, 1883. Jose Maria de Pando : Elementos del derecho internacional,
published after the death of the author, 1843- 1844. Antonio Biquelme : Elementos de derecho publico internacional
etc. ; 2 vols. 1849. Carlos Calvo : Le Droit International etc. (first edition in
Spanish, following editions in French), 1868 ; 5th ed. in
6 vols. 1896. Amancio Alcorta : Curso de derecho internacional publico, vol. I.
1886; French translation by Lehr, 1887. Marquis de Olivart : Trattato y notas de derecho internacional