Brierly - Origin and Character of International Law

viii CONTENTS IV. JURISDICTION OF STATES WITHIN

THEIR TERRITORIES § I. Jurisdiction in territorial waters . . § 2. Jurisdiction over foreign ships in ~ort

rro rro

§ 3· Jurisdiction over the air . § 4· Jurisdiction over international riv~rs § 5· Jurisdiction over inter~oceanic canals § 6. Diplomatic persons and heads of foreig~

states a

"3 rr8 I2I

126

§ 7. Jurisdiction ~ver aliens . § 8· The limits of criminal jurisdicti01;

V. JURISDICTION OF STATES ON TH~ HIGH SEAS

VI. INTERVENTION . . .

VII. TREATIES .

VIII. DISPUTES BETWEEN STATES § r. Amicable methods of settlement § 2. Arbitration and judicial settlemen~ § 3· The limits of arbitration as a method of

settlement § 4· Good offices, media~ion, c~nciliation § 5· Settlement by coercion . .

IX. INTERNATIONAL ORGANIZATION § r. Developme':'t of methods of international

co~operatwn

§ 2. Constitution of the League. of Natlons § 3· The International Labour Office § 4- The functions of the League

BIBLIOGRAPHICAL NOTE . INDEX

I 50

155

r65

176 176 '77

190

193 197

197

210

223

225

I

THE ORIGIN AND CHARACTER OF INTERNATIONAL LAW

§ I. The Rise of Modern States and of the Doctrine of Sovereignty.

Trfd;;~t;;~ft6ti~ai!tJ;:~~a~~~~r~43~:S~ action which_ are binding upon civilized~states- in theirrelations with one another. Rules-which may 6e d:esc~Illea-as-rulesoflriteri:iational law are to be found in the history both of the ancient and medieval worlds; for ever since men began to organize their common life in political communities they have felt the need of some system of rules, however rudimentary, to regulate their inter-community relations. ~u!__a~':l_<:l~_fir:ti!"_l:.>rai1C:h__ofj11fisPrudence the_sys_tf_!!l which we now know asinternationariawisessentially modern, datin.g orily from the siXteenth aiid seVejlteenth centuries, for its speda:r character has- been determined by that of the European state systen;_, which was itself shaped i!' thefermef1t of theRenaissance and the Reformation: Some understanding of the main features of this modern state system is therefore necessary to an understanding of the nature of international law.

For the present purpose what most distinguishes the modern post-Reformation from the medieval state is the enormously greater strength and concen-

3454 B

2 • LAW OF NATIONS

tratwn of the powers of o The national and territorfalv';"~mei:t in t~e former. familiar to-day in West Es a e With Which we are

h ern urope a d .

w ich are founded h ' n m countries E on, or ave adopt d W

uropean civilization . 'd e ' estern of government wh' h' IS provJ ed with institutions . IC normally en bl . Its control at all ti d . a e It to enforce nions. This type 0~~:~n h m all p~rts of its domia long and chequered h.' t ow ever, IS the product of Middle Ages the ro~t~ry; and throughout. the governments was ir/! d d bof strong centralized which difficulties ol~ e Y. m~ny obstacles, of population primit,·v ommum~ation, sparcity of b · ' e economic d' · o VIous i11ustratio B con Itwns, are

influences deserve ns; .ut two. of these retarding imprint which they h peCI~\i notice because of the modern state. ave e t even to this day on the

Q) The first of these was feudalism . . research has taught -h ---- --- · Modern h1stoncal

1 us t at while it · · spea' of a feudal .ry t h Is a mistake to

convenient way of s ;m,, t e word 'feudalism' is a . '1 . re,errmg to cert . fi d Silll! anties which · . am un amen tal

b . ' m spite of large 1 1 . . can e discerned in th . I oca vanations,

peoples of Western E e soci~ development of all the the thirteenth centuri urop;. ~om about the ninth to feudalism in the form~~· h ~ op Stubbs, speaking of Conquest, says: I a reached at the Norman

'It may be described as a co tJ_trough the medium of la,:plete org~niza~on of society kmg down to the 1 tenure, In whxch from the together by obligatio;w;st la.ndowner all are bound

o service and defence: the lord

ORIGIN AND CHARACTER 3

protect his vassal, the vassal to do service to his lord; defence and service being based on and regulated by nature and extent of the land held by the one of the

In those states which have reached the territorial stage of development, the rights of defence and service are supplemented by the right of jurisdiction. The lord judges as well as defends his vassal; the vassal does suit as well as service to his lord. In states in which feudal government has reached its utmost growth, the political, financial, judicial, every branch of public administration is regulated by the same conditions. The central authority is a mere shadow of a name.' 1

Thus to speak of a feudal 'state' is really a misuse of terms; Ior a feudal organization of society was a substitute for its organization in a state, and a perfectly feudal condition of society would be not merely a weak state, but the negation of the state altogether. Such a condition was never completely realized at any time or anywhere; but it is obvious that the tendency to disperse among different classes those powers which in modern times we regard as normally concentrated in the state, or at any rate as under the state's ultimate control, had to pass away before states in our sense could come into existence.

On the other hand there were elements in the feudal conception of society capable of being pressed into the service of the unified national states which were steadily being consolidated in Western Europe from about the twelfth to the sixteenth centuries,

l Constitutional History cif England, vol. i, p, 274·

B2

4 LAW OF NATIONS

and influential in determining the form that those states would take. Thus when its disintegrating effects on government had been eliminated, the duty ·of personal loyalty of vassal to lord which feudalism had made so prominent was capable of being transmuted into the duty of unquestioning allegiance of subject to monarch in the national state; the intimate association of this personal relationship with the tenure of land made the transition to territorial monarchy easy and natural; and the identification with rights of property of rights which we regard as properly political led up to the notions of the absolute character of government, of the realm as the 'dominion' or property of the monarch, and of the people as his 'subjects' rather than as citizens. Feudalism itself had been an obstacle to the growtltof the national state,. b11t it left a legacyof conceptions to its victoriolls riv;>l which·. strongly emphasized the absoiufe chm:acter of government . . . . .. . .. . ..

· The other influence which. retarded the growth of states in the Middle Ages was the ghu~ch. It is not necessary here to speak of the long struggle between Pope and Emperor, although one incidental effect of this was to assist the growth of national states by breaking up the unity of Christendom. More significant in the present context is the fact that never until after the Reformation was tile ciyil authority in any country regarded as supreme, Always governmental authority was divided; the Cnufcli claimed B:nd received the obed!erice of those

ORIGIN AND CHARACTER . 5 . sub' ects of the state, even m

wer; albso t~~ th~ purely spiritual sphere. ,ar eyo h ti under >)llta<·,~· •• • . land always somew at res ve

Even m Eng ' th . dea of the omni-competence papalin~e:ferenc:~ w:~ld have been unthinkable. of the CIVil p_ow actl how far the powers of Men might .dJsfut~h::itieJ' extended; but that there each of the nva au f the state that the were limits to the power o the members of the

h d me powers over b Church a .so . derived from nor held y state which It neither was certain'. States might the sufferance of, the ~tate, absolute state of the often act as a~bitran;ld ~~h:~y might struggle agair:st post-Reformatro:;t wo f the Church. but neither m this or tha~ cl~Jm o the absolute. But just as theory nor Ill fact~ere .LTi<Iatlng its power ihe'Sfate was g.radually t co~~:cies of feudalism against th.e fissiparous ae":nore resisting the cliviwithin, so 1t w~s !:;'ore a~ upon it by the Church . f authonty 1mpose

1 . t d in

swn o . . d this latter process cu mma e from without' an h' h . of its most important R f, ation w Jc m one . h . the e orm ' b 11' f the states agamst t e

asareewno h .. 1 aspects w eclared the determination of t e Civ: Church. It d . 't own territory; and Jt · t b supreme m 1 s authonty o e d . . defeat of the last rival to the resulted in the ecJSJV~ I tate Over about half

. . nified natrona s . I 1 emergmg u hellion was camp ete y of We~tern Europe ;,~: ::a even in those countries and evidently success u ' . as a religion, the

h' h · ted Protestantism w Jc reJec hak that it could no longer comChurch was so s en . . " The Peace of

. h the state as a pohtrca!,orce. --.. ·~···-· pete w1t c

6 LAW OF NATIONS

'Y estpllali_a, which brought to . an. end in I 648 th~e 15reat Th!fty Y ear8 War .. of religion, mm'ked the acceptance of the new political order in Europe.

The new order led naturally to a new theory of the nature of the. state, t/J.~.th5'ory of 'sover<;ignty', first perhaps exphcitly stated by Jean B0ciin in his .f2e repubhca, publish~c] in. 15 76. Accordi~g to Bodin It ~as ~f t~e~ssence ofevery state that there should ",XISt Withm It a central force, whJcJi WaS the sole ~ou~ce of laws, but \V'Is~not itself bound by them; mayest~s est su'!'ma i~ cives ac subditos legibusque soluta

potestas . . This mayestas or sovereignty was not n"ce,ssanly yes ted in an individual monarch, though ~od~n thought it best that it should be; theoretically It might equally well be in a ~nority of thecitizens, when the state would be an aristocracy or in a ':'!".igri!y> )¥hen it~<Iltld be a democracy. 'In Bodin hrmse~f the full_ rigour of the theoiy was mitigated by bemg combmed with the medieval doctrine of the law of nature; ~i~.§()vereign, though not bound l;>y t!re]'l~oftheland,was binirid by divineia"IV, byth"_l"~ofnature, and also by the laWs of nations. F~rthe~ he hel_d, though rather inconsistently with hrs mam doctrme, that even some laws of the state were so fundamental that the sovereign might not a~ter them; ~ut these mitigations of the theory drsappeared m later political speculation. The wh?l.e theory was essentially a deduction from the pol; tical facts existing at the time of its formulation, whrch ?ave been shortly described above. Everywhere m Western Europe unified national states


;ijM.erce emer~ing out of the loosely compacted and states of medieval times. Everywhere too,

'~limitecrd"vil authority of government was decisively its supremacy over the ecclesiastical

•. and every other. rival claimant of po':"er, and the ' rocess was taking the form of the nse of strong p rsonal monarchies. The doctrine exactly ex~;essed these, the most conspicuous, facts. in the political aspect of Europe at the end of the sixteenth

but it never expressed the whole truth, the truth that it expressed was not an eternal

one. It was not the whole truth because even in the age of European absolutism which followed in the seventeenth and eighteenth centuries, no monarch's power was ever wholly without limitations; and its tr:uth was not eternal, because, as we now know, the age of absolutism was only a temporary phase in European history.

The implications of such a theory in a world in which different states have to live in relations with one another were full of portent, for it led logically to the assertion of the complete separateness and irresponsibility of ev:ry state. !t ?av<:tll~cl~<lthc?low to the lingering notiOn that ChnstendoiT\, m sprte of

L;,<,'<"n··;f,·,·• quarrels, was in some sense still aunity, and the relations between states n"ot only uncontrolled

, "" "'u· as they had often been before, but uninspired anv unifying ideal. For the first time the state

seem<:d. to have become the final goal of unity. Prince, written in I5I3, though it did

not formulate a theory, is a relentless analysis of

8 LAW OF NATIONS

the art of government based on this conception of the nature of the state, as an entity absolutely self-sufficing and non-moral. But, fortunately, at the very time when European political development seemed about to justify the whole theory of sovereignty, other causeswere at work which weie to make it impass!Eiefor ~he w~rld to accept the aosen-ce"ofiiiy l:ionds between state and state which Was-its iogJcafconseguence, andto show that the n'ew-natiOnaf-states; so far from being destined to li'Ve lil1solatioitfrom one another, would be brought into far more intimate and constant relations than in the days when their theoretical unity ~"'iac:cepted everywhere. I ArrlOri&" these causes may be 1llentionea (I) the impetus to COTlUUerce and adventure caused by the discovery- of America and the new route to ·the Indies; (<i) the common intellectqal background createdby(he·R:enaissan_ce; (3) ·the sympathy which co~religionists in different states felt for one another, - creating a loyalty which tramceilclea·tne~l5ounaiiriesofstates; and (4) the co!Ilmoii fee1iiigoftevulsion againSt war, caused.py Hie savager}'" with which the wars of religion were wage<;!, All these callses eo-operated to make it certain tliaf--rhe· state, such as the theory of s"Dvereignty conceived it, could never in reality become the final . and perfect . form of human association, and that i!l the modern as in the medieval worldit would be necessaryto-recognize_ the existence of a wider unity. The rise of inter-

1 C£ Westlake, Collected Pafters, p. 55·

10 LAW OF NATIONS

ledge of what a medieval writer meant by the term is necessary if we would understand either how inter- , national law arose, or how it develops to-day.

A long and continuous history,' extending at least as far back as the political thought of the Greeks, lies behind the conception; but its influence on international law is so closely interwoven with that of Roman law that the two may here be discussed together. The early law ofthe primitive Roman city-state :was ab1e~io develop: into a law aclequate to the need~ of a . highly civilized world .empire, because it showed a peculiar capacity of expansion arid aC!ap-fation~which brobi through ilie archaic J'ormalism--wliich originally characterized it, as it characterizes all primitive law. In brief, the process of expansion and adaptation took the form of admitting side by side with the jus civile, or original law peculiar to Rome, a more liberal and progressive element, the jus gentium, so called because it was believed or fe!gnea~to be of universal application, its principles being regarded as so simple and reasonable that it was assumed they must be recognized everywhere and by every one. This prac;tical deyelopment was reinfor~ed towardsthe end of the Republic:in era hy ihephilosophical conception of a jus naturale i<fliich, as developed bythe Stoic~ inGree.ce i'nd borrowed froll1 thern by the-Romans, meant, in • effect, the sum of tho,se principles which ought to \ <;ont~oi -1ii.:ri-ri'ln cpndlJ.C::t, beqmse_ founded in the /1

very natllre of man as a.rational and social being, ' 1 Cf. Pollock, Essays in the Law, ch. ii.

12. LAW OF NATIONS

but part of the order of sovereigns were subjected ~ature t? which even ~£sovereignty, . standin fo ,2er_":,g-mnst t~e theory separation of the .states !f E:r:he. new nationalistic '![_"_]_a.":~ of nature den . . , pe? was set the theory the finality oftheir iJing then·Irresponsibility and No doubt it was im ossidepende':ce of one another. text of this Jaw, a!d d?ke to p~mt to any authentic were possible. but th I be~~nt mterpretations of it appearance th' e who] e ~ Ief that in spite of all h ' e umver d · t e relations of so . se, an mcluded in it

ruled by law re~ v_eredtgns to one another, must be d . ' ... ame . Moreov th d.ffi

Iscovering the dictates . er, e ' JCulty of to a medieval writer .~: thts law presented itself does to the mod w:- much less force than it

· ern mmd For h h d · spena] guide ready to hi h . e a m fact a . The position of Roms and '~ Roman law. .

Sixteenth century h ":' law m Europe in the beginnings of int as ~n Important bearing on the

. ernatwnal Ia Th countnes such as G . w. ere were some fR ' ermany m wh· h , . o oman Jaw h d t k ' Ic a receptwn'

driven out the Ia Ia en place; that is to say, it had oca customar ] d accepted as the b. d. y aw an had been

countries the pro~~ss I~g ~aw of the land. In other but even in these t1 ~ .not gone so far as this. held in great respec~e p~nctples of Roman Jaw wer~ no rules of local Ia an ~ere appealed to whenever i~ factl{oman law :a::~ uded them. Ev~ryw:J.lere ~ntten .rea~().n; and a m!d~r_ded as.the ratzoscripta, expound the Jaw f Ieval wnter, seeking to h. o nature had 1

tm to see actually . . on y to look about operative m the world a system

ORIGIN AND CHARACTER r 3 which was the common heritage of every

,,,,tr~. revered everywhere as the supreme triumph t h1am.an reason. Moreover, this law had a further

;fii:lailtn to respect from its close association with the j'(Jarton law of the Church.

Thus Roman law reduced the difficulty of finding contents of natural law almost to vanishing

and in fact the founders of internationalJilw -:;~!~~~~,:unhesitatingly to K6maii-Taw.for th~ rules

··--· system, wherever tlie -relations between seemed to them to be analogous to those of

> .. • 0rj[vat< persons. Thus, for example, the rights of a over territory, especially when governments almost everywhere monarchical and the terri

·"""" notions offeudalism were still powerful, bore an :/ oJ:>vi<)US resemblance to the rights of an individual

property, with the result that the international relating to territory are still in essentials the

rules of property. It is not difficult, thereto see how the belief in an ideal system of law

; 1,h<,rently and universally binding on the one hand, the actual existence of a cosmopolitan system of everywhere revered on the other, should have led

the founding of international law on the law nature. We have to inquire further, however,

.. wlietlller this foundation is valid for us to-day. The medieval conception of a law of nature is

-: nr>en to certain criticisms. In the first place, when allowances have been made for the aid afforded Roman law, it has to be admitted that it implied

in the rationality of the universe which seems

r4 LAW OF NATIONS

to us to be exaggerated. It is true that when medieval writers spoke of natural law as bein discoverable by reason, they meant that the bes~ human reasoning could discover it, and not, of ~ou.rs.e, th,at the results to which any and every IndiVIduals reasoning led him was natural law The .foolish criticism of Jeremy Bentham: 'a grea~ multitude of people are continually talking of the law _of nature; and then they go on giving you their sentiments about what is right and what is wrong· and these sentiments, you are to understand are s~ many chapters and sections of the law of u'ature '' me;ely showed a contempt for a great concepti~n which Bentham had not taken the trouble to understand. Medieval controversialists might use arguments drawn from natural law to support almost any case, but there was nothing arbitrary about the ~onceJ?tion itself, any more than a text of Scripture IS arbitrary, because the Devil may quote it. But what med;eval writers did not always realize was that what IS reasonable, or, to use their own terminology, what the law of nature enjoins, cannot ;eceive a final definition: it is always, and above all I? the sp?ere of human conduct, relative to conditi:ms of time and place. We realize, as they hardly did, that these conditions are never standing still. For us as for them, a rational universe even if we ca t · b ' nno prove It to e a fact, is a necessary postulate both of thought and action; and the difference between our thought and theirs is mainly that we

I Principles of 11-forals and Legislation, ch. ii.


different ways of regarding the world and society. When a modern lawyer asks wh~t

he looks only for an answer that IS

now and here, and not for one that is finally hereas a medieval writer might have said that 0;i;)tlt1le; W • • b

''''i;t;,,lti[mate truth eludes our grasp, It 1s not ecause undiscoverable, but because our reasoning ~s

Some modern writers have expressed thiS '.cii!ifferen<ce by saying that what we ?ave a ;ight to be

in to-day is a law of nature w~th a varz~ble content. the second place, when medieval.':'nters s~oke

law as able to overrule positive law m a >.~'trtao<fu<c·oa'nflict, they were introducing an a':'archical

which we must reject. But this was a which died hard, and even in the eigh

j:Jiin<:ipcleentury Blackstone could write: 'This law of

;; .. mtture being coeval with manki.nd :"'d d~cta:ed by himself is of course supenor m obligation to

; •. ;!Jouother. It is binding all over the globe in all and at all times; no human laws are of any

•••... ·.,·.va#ditv, if contrary to this." In Blackstone,.~owever, words were mere lip-service to a tradition, and

••···" S!ICHno effect on his exposition of the law. To hold, that unreasonableness can invalidate a

of law is to confuse the function of legislation with that of ascertaining what existing law is. Law

. ••cmlln never perform its proper function of .a contr<olling force in society if courts of law did not

•• · themselves bound to subordinate their own ideas of what is reasonable to an assumed superior

1 Commentaries on the Laws of England, Introduction.

II '·

z6 LAW OF NATIONS

reasonableness in the law; and evenifthat a,;sumj>ti<>n is not always well founded, it is still necessary to social security that it should be acted upon the law is altered.

These are valid criticisms, but they do not the permanent truths in the conception of a law nature, and those truths are in fact recognized and acted upon as fully to-day as they ever were. For one thing it stands for the existence of purpose in law, reminding us that law is not a meaningless set of arbitrary principles to be mechanically applied by courts, but that it exists for certain ends, though those ends have to be differently formulated in different times and places. Thus where we might say that we attempt to embody social justice in law, giving to that term whatever interpretation is current in the thought of our time, a medieval thinker might have said that positive law ought to conform to the higher law of nature. Natural law, theref?re, or a likeprinciJ>Ie under sorn•;ot!~~rii;,Jn,e, iS aii- eiisentialunderlyil1g principle of the art!)f !egisl~\i()!l~- But thaf is not all; itis a1so a pdriCiple that is necessarily admitted into the actual administration oflaw. This is so because the life with which any system of law has to deal is too complicated, and human foresight too limited, for law to be completely formulated in a set of rules, so that situations perpetually arise which fall outside all rules already formulated. Law cannot and does not refuse to solve a problem because it is new and unprovided for; it meets such situations by resorting to a

c

18 LAW OF NATIONS

seventeenth and eighteenth centuries the uuou10:va

tradition began to be distorted by later w ,-ut:rs, whose use of the old terminology in senses of own went far to justify the obloquy which has poured on the whole conception in modern But before considering this development and unfortunate effects on international law it will convenient to say something of the men w1nn,,.

writings first gave it systematic form.

§ 3· The classical writers on International Law.

The first writer of a work which canproperly be called a work on lnternati~;.,a(1aw is M6erico Gentili, . commonly known as GentiHs, who lived from '55' to I6o8. Earlier writers- had -written on some of the topics which fall within modern international law, especially on the treatment of ambassadors and on the usages of war; but they did not separate the .. legal .. from .. the . theological and etlllca!, nor the domestic froiD. the interriauon~l; aspects c)("'nchqllesJiQn;, Thus ~ide by side with questions such as whether war is ever justified, what causes for going to war are lawful and what unlaw, ful, what means of waging war are permissible, and the like, they discussed questions of tactics, of military discipline, or of the duties of a vassal to help his lord, without feeling that they were treating together topics which properly belonged to different subjects. Gentilis's service .w":s _that_ he definitely sepaJ;<tt:d_Tll.tei'!I~tional_ ··I.i£_l'rc)ll1·_ theo].,gy ."'nd ethics'!":? _m":de it a branch_ '?fj11risprudence. 'Let

20 LAW OF NATIONS

but really turning on the political question wlletheJr. the provinces of Holland should form a loose federal union or be consolidated under the House Orange. Grotius supported the former and the losing cause. He was imprisoned for over two years, escaped by the devotion of his wife in a box supposed to contain books, and eventually became ambassador of Sweden at the French Court.

Grotius wrote two works on international law, the-7Je]urepiaeifae in. r6o4, ancitlie 1Ye]ure belliac

. p{icis in r§!25· The J'oimer of these, in which he . supported the claim of the Dutch East India

Company to the capture of a prize from the Portuguese, was never published, and was only discovered in r872. It was then found that a short work which he published anonymously in r6og, the Mare liberum, contending, in opposition to the claims of the Portuguese, that the open sea could not be appropriated by any state, had been written as one of the chapters of the De jure praedae.

Few books have won so great a reputation as the De jure belli ac pacis. This was not wholly due to the merits of the book itself, though they are great; it was partly due to the time and circumstances of its publication. When he wrote it in r625 Grotius was already so eminent that anything from his pen would have attracted attention. Further, he had the advantage of belonging to the country which in the seventeenth century was in many ways the leading country in Europe. The successful war of liberation by the Dutch against'"Spaiii iidhe previous· celit!i£.~

~,,,c.-• -,co_-,-,-,-,_, __ -, -~----·-~-~'"'•'-''••'-"•'·-•-o' •-,;.,._ '-' - - '- " ,,_,,, 1 Prolegomena, 28.

22 LAW OF NATIONS

In contrast with this anarchy he proclaimed even-states ought to regard themselves as ~·"~ .. -~u~ors 6fa society; bound together by . the ,··,nrver·sa] supremacy of justice. Man, he said, is not a oureJv selfish animal, for among the qualities that beolon.g to him is an appetitus societatis, a desire for the soci<:ty of his own kind, and the need of onoservin~r ~oci,tyis the_s(}llrce '?f ~afiiral law, as:

'The dictate of right reason, indicating that an act, from its agreement or disagreement with the rational and social nature of man, has in it moral turpitude or moral necessity, and consequently that such an act is either forbidden or commanded by God the author of nature.' 1

Besides being subject to natural law, he says, the relations of peoples are subject to Jus gentium; for just as in each state the civil laws look to the good of the state, so there are laws established by consent which look to the good of the great community of which all or most states are members, and these laws make up Jus gentium. It is obvious that this is a very different meaning from that which the term bore in the Roman law; there, as we have seen, it stood for that part of the private law of Rome which was supposed to be common to Rome and other peoples; whereas in Grotius it has come to be a branch of public law, governing the relations between one people and another. It is important, Grotius tells ns, to keep the notions of the law of nature and the law

1 Book I, ch. i, §. 10 (1).

ORIGIN AND CHARACTER . . 23

(t adopt a mistranslation of JUS gentium) o . makes almost necessary

't new meanmg . If Nor 1 s £ f doing so h1mse .

b;rt he is .':_ t~o~ so, as is apparent from it possrble for hi f how their respective conten:s own statement o H d he tells us the testr-

d' ered e use ' ' to be I~cov h . historians, poets, and orato::s,

of phrlosop ers, themoelves conclusive wrt-they were " ~ d to be

h they were ,oun but because w en ld only be ex-

their agreement cou . d s. either what they sar

in one of two w~y · fi om the principles of be a correct ted~~~~~a; of nature; or ~lse it

and so a ru e o . on consent existed, be a matter in winch fcom':' Thus in effect

1 f the law o natwns. h so a ru e o h 1 eady seen are still t e ti as we ave a r ' .d

two no ons, . 1 . des of the same 1 ea. he<Jretlc":' and the practrca S1 t understand the

all thinkers who gy ti o s had to meet the ·~anirlg and bases oflaw, ro u f those who ·" 1 'ble arguments o

and p ausr . Tty His answer identify justice wrth mert: utlhle s~;d is indeed

·· Jusrce ~, clear and convmcmg. 1 ' that ground Tt and mere y on

highest utr 1 y, 't of states can be a state nor the comn:un; y also more than

'thout it But rt rs . f bec:~se it is p~rt of the true so~~~;~tu~~~.

· . and that is its real ti~~ ~ i~~~;vapplica~on of (:lrc•titts-8 work then consrs e . fi he says:

t 1 rinciples to war' or fundamen a p d r't as some imagine,

f b -0 g right to a m ' b so far rom el th ought never to e in war all rights cease, at war

24 LAW OF NATIONS undertaken except to obtain a right; nor, when taken, ought it to be carried on except within the h""'~"of right and good faith. . . . Between enemies laws which nature dictates or the consent of """UJOS institutes are binding.' 1

The_ first book,. therefore, inquires can" evel:"1ie}usium, lawfUl or reguhir; ancl as lTJ:otim was ofopillion.that one requirement necessary make a war lawful was that it should be waged the authority of one who held supreme power the state, he was led to inquire into the natm·e of sovereignty. His treatment of this subject was confused and unsatisfactory, because for . reasons it was necessary for him, writing when did, to admit the lawfulness of wars waged by princes who were sometimes far from being independent. In the second book he dealt with the causes wars;-and-iri effect reduced the causes oflawful fo t"'o, the defence ()f person or propertyanc!the punishment . of. ()ffe!lc:Jers. This necessitated an examination both of what constituted the property of a state, for example, how far the sea may do so, and how property is acquired and lost, and of many other questions which a modern writer would either place under the international law of peace, or e)\clude from international law altogether. In the third bookhe dealt with topics which fallunder th"emodern laws ofwar~that)sto say, with th~ question what acts are permissible . and what are forbidden iri the conduct.()[ war. Here his plan

1 Prolegomena, Q5, 26.


to state the strict laws of w_ar,_ but to not onlhe called temperamenta, allevtatwns or what . d k war more humane. · .. ,dlifi<catiotl~ designe to rna e . t

1C • 1 in estimating the work of Grotms ~ IS us_ua k ble and instantaneous success'

of 1ts remar a · h" fi years . . of of success that wit m a ew .

iflt IS a pro h his book had become a um-author s cleat . t has since been often

text-book, that 1 · that it to in international controversies, .

bl" hed and translated scores of times, been repu IS riter treats his name that every subsequent V:d 1 he may depart

however WI e Y d reverenc~, h Grotius must be accounte his teachmg, t en . nt that the doc-

But if by success lS mea epted bv state& f Grotius as a whole were ace . . h"

o f h law which has smce IS became part o t e . his work was . lated their relations, then f

regu £ il It is true that some o almost complete ~ ureb. me established law. d · 8 have since eco

octrme d . that the open sea cannot instance, the octrme . of any state, and

subjected to the so~ere~gn~r that he suggested of the temperamen ~ 0

":' · a1 Jaw· hut been incorporated mto mJ~~n:~~~:ast as ~uch

articular changes were . . d in h.P es in the character of navigation . an At

c ang ti ly as to Grotius. . technique. of war relspetch v.:tt .. empt to .distinguish

h t fh1s system ay e ,c.- - ··· I 1 ear o . . -C.···. • ..• ••••. ·r·.· ... ·.· .. · t .. ·.c.war. he saw c ear Y . · and un aw u . '

1 h t

. --· . , -- o~d~r- is -precarious un ess t a

stiiiction can be established, jus~ a~ n:~~:!t~r~~~ be precarious if the law Withm

LAW OF NATIONS

not distinguish between the lawful and the unJa,vtiJ1

1 use of force. Yet this distinction never "c~'""!~ ,J:!,<!I of actual inte;il~ilo.-iar law; and even in the ofthe subject it w~; retained by most of Grotius's successors more as an ornament to their theme than as a doctrine in which they seriously believed. Finally it disappeared even from theory, and international law cam~ frankly to recognize that~alfw~rs ire eq~ail)')~Jiful. As the most authoritative of modern English writers on the subject says:

'International law has no alternative but to accept war, independently of the justice of its origin, as a rela. tion which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation. Hence both parties to every war are regarded as being in an identical legal position, and consequentlyas being possessed of equal rights.' 1

It was not until the foundation of the League of i Nations in rgrg that any real attempt was made ! to falsify this confession of weakness and to embody

in actual law the cardinal principle of Grotius's system.

(?r?ti':s supp[ied then, 11ot a Sfste!U of Ia~, but a philosophy of inter-state relations which could .he set against Machiav~Ili's brutal description of those relations as they often were, and he is great enough to dispense with the undiscriminating adulation which is often showered upon him. This adulation has done disservice to international law by encouraging a servile imitation of his methods. It was natural

I W. E. Hall, International Law, 8th ed., p. 82.

28 LAW OF NATIONS

Admiralt~, ~~~~JJr()lifie writer. o11legal suiJjeocts.: among hrs works being one on international ~he Jus.[eciqle, published in r6so. Without <tu:~~!~rt< ~ngth~ I""' of n"t11re as one of the oases ~-a~on~I l::_t;~'- ZoUche'S main interest·-·-waf-iiiactual practice of st":i:es: ... tife Ceniilishetoi-e he -,vas therefore a. precursor of the . sci.IIO<Jl of international lawyers, who regard states as the only source of law. Zouche iritrc>ditced one important .·improvement of method was the first writer to make a clear divisionn 2' ;e.t-,v<:en the law ofpeace mid the law of war. :; necessary before war could be regarded, as it ought to be, as an abnormal relation between states.

Samuel Pufendorf, 1632-94, Professor at Heidelberg, and afterwards at Lund in Sweden lished his [Jejure 'faturae e( gentium in r67;, and "\Va~.t~~ Jo1111~er of the so,called 'naturalist'. school _of Wfrters.: .. H~ d"_nied. all binding_ lOree to the ]Jractice ofJ1ationsand based. hls system 'Yholly on 11atural Iaw,but on :tnaturai law in new and deba~ed fo:lllofalaw supposed to be . . . • ... ~en ~nan rma~inary state of nature. ·There are of thrs conception in 9rotius, but it had little influence on his system; "ro!'.])is law of narure was a 1,"\V_()freaS(m directing men a fall 'i.iines~ whether ?rgan~zed in political societies or not, and only m .t~rs sense has the conception any permanent vahdrty.

. Cornelius van Bynkershoek (r673-1743), a Dutch Judge, was the author of works on special parts of


terJnattioJnal law, of which the most important was Quaestiones juris publici, published in I ?37·

had an intimate knowledge of ql!estrons · commercial.pia~~"G~, ~!fg:_)le=:na.s · in the dev!'_)ppll)entof tlmt §i.!iv

He belongs to the 'positive' · · ··· writers, ]:,~si!lg!h~J~'Y~O!L£!!~NI!l; b11the held that custom_ml!st be explained,=~ c.or:·

-fly. reason, whrc~ ~e ref:rs to as ratw ;urzs magistra' .' In grvmg thrs twofold baSIS to

terJnatlOI"'! law he anticipated the best modern I He rightly held also that the recent

of states was more valuable evidence of th= the illustrations from ancient history

which his predecessors had generally adorned works, since, 'as customs chaJJge, so the Ia~ ~f

chaJJges'; 2 but he attache~ more ~erg t stipulations of particular treatres as evrder;ce existence of custom than modern practice allow. .

Vattel (I7I4-6g), whose work Le droit ~~;~~w:a~:s:;~published in I 758, was a Swiss who

in the diplomatic service of Saxony. ,[!~ his work as a manual for men ofa£falrs, a popuhtrizer or other rii.e'n~s W~iisrather original thinker; . yet he .. has probably a greater perman~ntinflucence.than, agy

"' ''·-'•~· on intern~tiona] law, andhrs \Vork1s co:nstanny cited a,;-ar11u1tlwrlty in international

He "~cepted the doctrine of the ~ Ibid., Ad lectorem.

30 LAW OF NATIONS state qf nature; 'nations being composed naturally free and independent, and who before establishment of civil societies lived together in state of nature; .t;lations or sovereign states must regarded as so many free persons living together the state of nature'; and since men are natmcall!y equal, so are states; 'strength or weakness pnod11ce in this regard no distinction. A dwarf is as a man as a giant is; a small republic is no less sovereign state than the most powerful KJJag,aom· (Introduction). Thus the doctrine of the ~m11alitv states, a misleading deduction from unsound pr,erndse:s and not found in Grotius, was introduced theory of international law.

According to Vattel the law of nations in its origin is merely the law of nature applied to nations, it is not subject to change, and treaties or cu.st<Jms•, contrary to it are unlawful. But other el<,ments have been admitted into the law; for, says natural law itself establishes the freedom and pendence of every state, and therefore each is the sole judge of its own actions and accountable for its observance ofnaturallaw only to its own consc:ieJaC<,. Other states may request it to reform its conduct; bnt what they may actually demand from it is some' thing much less. Thi0_ower standard of enfo'E!!I!.le duties Vattel_c:,•Jls_, the -voluntary· law-of nati<Jllh !)(;~":use !tis t_o be presumed that states have agE~~;d to it, in contrast' with the other dement of natural or;· as'he calls it1 necessary Ia;v. 'Let each sov;,'~cig~ make the necessary law the constant rule of his

ORIGIN AND CHARACTER 3' he must allow others to take advantage

luntmy law of nations' (Book III, ch. 12). voexaggerated emphasis on the independe':'ce

had the effect in Vattel's system of reducmg natural law, which Grotius had use:J as a

barrier against absolute conceptlons of to little more than an aspiration after

relatroilS between states; yet for th~ voluntary h' h was the only part of Vattel s system

w h~d a real relation to the practice of states, he no sound basis in theory, for he was unable

rov,u<.u the source of the obligation of st~t~s. to i. el<pla.J .. tn The results of this unsatisfactory diVISIOn

n~o~tunate. For instance, Vattel tells u~ th~t u h duty to mamtam necessary Jaw a state as a , . d

of commerce, because this IS for the a -of the human race; but by the ~oluntary_ l~w

iffipose such restrictions upon It ~s suit Its i.nveniience, for its duties to itselfaremoreimportant

its duties to others (Book II, ch. 2). By 1 W again there are only three lawful a ' ' f · · and of war self-defence, redress o lllJUry,

of offences; but by voluntary law we always assume that each side has a lawful for going to war, for 'princes may hav~ ha.

and just reasons for acting thus, and t at IS at the tribunal of the voluntary law of

(Book II, ch. r8). some respects, however, Vattel's system was

d ce on those of his predecessors. He stood avan h 'ht fwar He a humaner view of t e ng s o .

h \, 'II i, l!l II I'

II I' ,,

32 LAW OF NATIONS

\ emphatically rejected the patrimonial theory of

I nature ?f government; 'this pretended right ownership attnbuted to princes is a chi"r ne:t·,

, begotten of an abqse of the laws relating to ' inheritances of individuals. The state is not, cannot be a patrimony, since a patrimony exists the good of the owner, whereas the prince appointed. only for the good of the state' (I. He recogmzed in certain circumstances the right part of a nation to separate itself from the (I. I7), a doctrine which partly explains his popularity in the United States, where a copy the work was first received in I 775· Professor Lapradelle has justly written of him that,

' before the great events of I 776 and 1789 occurred had written an international law based on the ' of public law which two Rev~lutions, the A1~~:~~~~: and the French, were to make effective. . . . Law of Nations is international law based on the ciples of 17~9 ... the projection upon the plane law of natwns of the great principles of legal viduaJism. That is what makes Vattel's work irn:no•rt<mt.

what accounts for his success, characterizes;~hi~·~s~~~:~~·~; and eventually, likewise, measures his Grotius had written the international law Vattel has written the international law liberty.' 1

None the less the survival of Vattel'ss'~:~~~~~~·.··· !nt~ an age when the 'principles of legal i1 ISm are no longer adequate to international needs,

1 Introduction to Carnegie edition ofVattel, 1916.


cr were has been a disaster for international ev ' h ' t 1' state By making independence t e na u:a .

he made it impossible to explam or JUSnath.nci>ur"s'ubjection to law; yet their independence

':nore 'natural' than their interdepen~ence. are facts of which any true theory of mte~

relations must take account; the former IS a more conspicuous, but not a more real, fact

latter. It is true that in Vattel's o":n day of states was less conspicuous

drtte:rmm<m<u practice than it is to-day.; and this excuses the one-sidedness of his syst~m.

the less by cutting the frail moorinp .which international law to any sound prmciple of

he did it an injury which has not yet

repaired.

Modem Theories of the Basis of Obligation in 4· International Law.

traditional division between: the naturali~t . the positivist schools above re:erred ~o IS

in the current literature of mternatwnal un1:aBirutetd.a purely naturalist view, lik~ tha.~.,of fendQfl,i:leriyiri·g any obliga(OJ:Y foJ;C~!f> :1 positive

law of nations is pra,~tica]ly o]Jsolete; naturalist school generally adopts an position, and recognize~ a twofold

in natl1ral and positive Ia": .. This school. has called the 'eclectic' school; It IS also sometimes . as the 'Grotian' school, on the ground th~t

too based his system on the twofold basis D

32 LAW OF NATIONS

l emphatically rejected the pa~rimonial theory of nature of government; 'thrs pretended ownership attributed to princes is a

[ begotten of an abuse of the laws relating to the ' inheritances of individuals. The state is not,

cannot be a patrimony, since a patrimony exists the good of the owner, whereas the prince appointed only for the good of the state' (I. 5), He recognized in certain circumstances the right part of a nation to separate itself from the (I. r7), a doctrine which partly explains his great popularity in the United States, where a copy of the work was first received in I 775· Professor De Lapradelle has justly written of him that,

' before the great events of r 776 and I 789 occurred, he had written an international law, based on the principles of public law which two Revolutions, the American and the French, were to make effective . ... Vattel's Law of Nations is international law based on the principles of 1789 ... the projection upon the plane of the law of nations of the great principles of legal in(Ji. vidualism. That is what makes Vattel's work important, what accounts for his success, characterizes his influence, and eventually, likewise, measures his shortcomings. Grotius had w~itten the international law of absolutism, Vattel has wntten the international law of political liberty.' •

None the less the survival of Vattel's influence into an age when the 'principles of legal individualism' are no longer adequate to international needs,

• Introduction to Carnegie edition ofVattel, rgr6,


ever were, has been a disaster for international By making independence the 'natu:al' s~ate

ations he made it impossible to explam or JUS· n ' h' 'd d their subjection to law; yet t err m epen ence

more 'natural' than their interdependence. are facts of which any true theory of inte~

iialtioJaal relations must take account; the former IS

a more conspicuous, but not a more real, fact latter. It is true that in Vattel's own day

interdependence of states was less conspicuo':s international practice than it is to-day; and this

excuses the one-sidedness of his system. the less by cutting the frail moori~gs .which international law to any sound prmcrple of

he did it an injury which has not yet repaired.

§ 4· Modern Theories of the Basis of Obligation in International Law.

The traditional division betweeU: the naturali~t · the positivist schools above re:erred :o IS

'ml>intmnea in the current literature of mternatwnal But a . 11aturalist view, likt: tha,t.Pf

?ufen,d0irt,.ae··r1· Y.ing· any obligatory f<;>rc.e. to a P\'~itive volm1t<try jaw ofnaiions is. pra,~tisally. obsqlete;

m<)dt'rn naturalist school generally adopts an position, and recognizes a twofold

in natural and positive law. This school has called the 'eclectic' school; it is also sometimes

Kno"'n as the 'Grotian' school, on the ground that too based his system on the twofold basis

D

34 LAW OF NATIONS

of jlfl_Jlafurae and jus gentium. But the claim of this school to carry- on ·tne Grotian tradition cannot be sustained, because it is not to the Grotian law of nature, but to Pufendorf's and Vattel's debased version of it that the school generally appeals. Minor differences of doctrine must here be disregarded but it may be said that on the whole the field i~ divided fairly equally between writers who agree in recognizing an element of natural law in this sense by the side of a positive law element, and those who profess to recognize nothing but positive law. Almost all English and American writers belong to the positivist school. Most ofthe adherents ofboth schools are agreed in co~ceiying of international law. as a law between states only; states are 'internatwrial persons', the only true 'subjects' of the law, and individuals are merely 'objects' of the law, with a status comparable to that of an animal in municipal law. The two views which may be regarded as in the orthodox tradition of international legal theory are therefore ( r) a naturalist view, __ holding that the principlesof the!aw or-li,fleastthe most fundamental of ihem . can be .. deduced. fr~m the ~i;sentia] nature. of state-persons;and ( 2) -~ positivist view which regards the law mer~lyas the .. sum of t/;le rules by which these state,pers(}ns h:we. consented to be bound, Either view involves a conception of the n~ture of the state which is tending to .disappear from progressive political thought, and ne1ther affords an adequate explanation of the fact for which it professes to account, namely, inter-


national law as it may be observed in actual operation in the intercourse of states.

The former of these twodoctrinesh()lds that every state;oy the very fact that it is a stat~, is endowed with certain fundamental, or inherent, or natural, rights. Writers differ in enumerating what .these dghts are, but generally five rights are cla1m;d, namely, self-preservation, independence,eguaJity, respect, ancqntercoiirse: It is obvious that the Cloctrine ·-of -fundamental rights is merely the old doctrine of the natural rights of man transferred to states. That doctrine has played a great part in history; Locke justified the English Revolution by it and from Locke it passed to the leaders of the American Revolution and became the philosophical basis of the Declaration of Independence. But hardly any political scientist to-day would regard it as a true philosophy of political relations, and all the objections to it apply with even greater force when it is applied to the relations of states .. It implies that men or states, as the case may be, bnng with them into society certain primordial rights not derived from their membership of society, but inherent in their personality as individuals, and that out of these rights a legal system is formed; whereas the truth is that a legal right is a meaningless phrase unless we first assume an objective legal system from which it gets its validity. Further, the doctrine implies that the social bond between man and man or between state and state, is somehow less natu;al, or less a part of the whole personality,

D2

36 LAW OF NATIONS

than is the individuality of the man or the state, and that is not true; the only individuals we know are individuals-in-society. It is especially misleading to apply this atomistic view of the nature of the social bond to states. In its application to individual men it has a certain plausibility because it seems to give a philosophical justification to the common feeling that human personality has certain claims on society; and in that way it has played its part in the development of human liberty. But in the society ?f s.t~tes the need is not for greater liberty for the mdrVIdual states, but for a strengthening of the social bond between them, not for the clamant assertion of their rights, but for a more insistent reminder of their obligations towards one another. F!~ally, the doctrine is really a denial of the possibrhty of development in international relations· when it asserts that such qualities as independenc~ and equality are inherent in the very nature of states, it overlooks the fact that their attribution to states is merely a stage in an historical proc~ss · we know that until modern times states were ' not regarded either as independent or equal and we have no right to assume that the process of develop~ent has stopped. On the contrary it is not Improbable, and it is certainly desirable, that there should be a movement towards the closer interdependence of states, and therefore away from the state of things which this doctrine would stabilize as though it were part of the fixed order of nature.

T~~:'is:_~~ctE~":~_rigllt!y_lo_o!<~t()t!r"prac;tic~


of states and not to a priori deductions . for the ~ofi_11ternati,.;~a.I-ia,;;, _ b;rt\tgenerally also ;;:!tempts to explain -th~-b!ll.dingfgrcegfj:hoserules as arising:Jrom the .. supposed fact that sj:ates have z.;;,sent~d t~ be bound by them, and this latter part of the doctrine is both untrue in its assumptions and inadequate as an explanation. Law by i!s __ yery

· nature is imperative; there must eX!s:Can ooli~ation to obeyjt, h()wever we may exphiin the origin gf that- sentirne11t .. But to say that a man or state is o6rifidonly by what he or it consents to is meaningless; no obligation can arise in such a case. If we say, as of course most positivist writers imply, that consent once given cannot be retracted, we are deserting our premises and calling to our aid an unacknowledged source of obligation, which, whatever it may be, is certainly not the consent of the state, for that may have ceased to exist. Modern German writers do not shrink from facing the full consequences of the theory of a purely consensual basis for the law; they have inherited from Hegel a doctrine known as the 'auto-limitation of sovereignty', which teaches that states are sovereign persons, possessed of wills which reject all external limitation, so that if we find, as we appear to do in international law, something which limits their wills, this limiting something can only proceed from themselves. Most of these writers admit that a self-imposed limitation is no limitation at all; and they conclude therefore that so-called international law is nothing but 'external public law' (iiusseres Staatsrecht),

3s LAW OF NATIONS

binding the state only because, and only so long as, it consents to be bound. There is no flaw in this argument; the flaw lies in the premises, because these are not derived, as all positivist theory professes to be, from an observation of international facts.

It is quite impossible to fit the facts into a consistently consensual theory. Every positivist writer has to admit that we cannot point to an express consent ?Y every state to every rule of international law; it IS necessary to rely on an implied or tacit consent in order to establish most of the rules. But this may mean either of two things: it may mean that a state has in fact consented to a certain rule, but that it has done so not in express words but by conduct fro':' which we are justified in inferring consent; or It may mean that although there has been no consent in fact we must presume consent, and treat the state in question as though it had consented. If 'implied consent' has the former meaning, then the doctrine does not fit the facts; international practice habitually treats a state as bound by rules of international law, though it may be clear that it has never consented to them in any way whatever, for example, a state newly come into existence. If the phrase has the latter meaning, we are entitled to ask why, for the sake of supporting an untenable theory, we should be asked to import a fiction into our attempt to find the true nature of international rules. In actual fact, states do not regard their international legal relations as resulting from


consent, except when the consent is express;' and what gives a certain plausibility to the consensual t],eory is merely the fact that, in the absence of any international machinery for legislation by majority vote, a new rule of law cannot be imposed upon a state merely by the will of other states. Obligations may arise from consent, as in a contract or a treaty, but only witliin a legal system which has already, somehow or other, binding force; the system cannot be founded on a consensual basis.

Both the doctrines of tlie nature of international Jaw which we have considered proceed by making certain assumptions about tlie nature of-states; the naturalist that they have certain rights inherent in their statehood, the positivist tliat they are incapable of being 'bound' by anything outside their own wills. These assumptions we shall examine later.> In the meantime we shall consider from what sources the rules and principles of law which states actually observe towards one another in their intercourse are derived.

§ 5· Sources if Modern International Law. The sources of international law are custom and

reason. To these we are probably now justified in adding treaties.

(a) Custom as a source if the law. Custom in its legal sense means something more

&an mere habit or usage; it is a usage felt by those who follow it to be an obligatory one. There must

l Cf. Reeves, La Communaute internationale, p. 40. a Infra, p. 62.

40 LAW OF NATIONS

be present a feeling that if the usage is departed from some sort of evil consequences will probably, or at any rate ought to, fall on the transgressor- in technical language there must be a 'sancti~n' t~o';'gh the e:ract natur~ of this need not be ver; distmctly envisaged. Evidence that a custom in this sense exists in the international sphere can be found only by examining the practice of states; that is to say, we must look at what states do in their relations with m;e ano~her a';'d attempt to understand why they do. It, and m particular whether they recognize an obligation to adopt a certain course. Such evidence ":ill obviously be very voluminous and also very diverse. There are multifarious occasions on which persons who act or speak in the name of a state do ~cts or make. declarations which either express or Imply some view on a matter of international law. Any such act or declaration may so far as it goes b 'd ' ' e some eVI ence that a custom and therefore that a rule of inte;national law, doe~ or does not exist; but of c;ourse Its value as evidence will be altogether determmed by the occasion and the circumstances. ~tates, like individuals, often put forward contentions for. the purpose of supporting a particular case which do not necessarily represent their set~ed or impartial opinion; and it is that opinion which has to be ascertained with as much certainty as the nature of the case allows. Particularly important as sources of evidence are diplomatic correspondence; official instructions to diplomatists consuls, naval and military commanders ; acts of


legislation and decisions of state courts, which, may presume, will not deliberately contravene

any rule regarded as a rule of internatio';'al law by the state; opinions of law officers, e.speCially w~en these are published, as they are m the ymted States. The decisions of international tnbunals are becoming a more and more important source of evidence of what the rules of international law are,

, though they do not possess the binding force as precedents which English law ascribes to the decisions of English courts.

Besides these more or less direct forms of evidence of the practice of states, the writings of text-writers of repute are useful for the same purpose. No textwriter can create international law, but what he says , may be valuable evidence of ~hat the l~w is. This function is universally recogmzed, and It has been expressed by Mr. Justice Grey, delivering the judgement of the Supreme Court of the United States, in these words:

'International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questio~s of rig~t depending upon it are duly presented f?r theu determ1~ nation. For this purpose, where there IS no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and as evidence of these, to the works of jurists and commentators who by years of labour, research, and experience have made themselv~s peculiarly well acquainted with the subjects of wh1ch they treat. Such works are resorted to by judicial tribunals,

4·2 LAW OF NATIONS

not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.' 1

This function of text-writers is unfamiliar to lawyers trained in the English common law. Our system is based on the authority of judicial decisions, and any system which attaches great weight to the words of judges almost inevitably comes to attach very little to what is said by the writers of textbooks. But the converse of this is true also: where little weight is given to judicial utterances, much tends to be given to text-writers. This was the position in the classical Roman law; it is the position that is instinctively taken by lawyers trained in those systems which derive from Roman law· and it

' is the position in international law, where hitherto no competition for influence between judges and text-writers has been possible.

Text-writers, however, have another function in international law. What Mr. Justice Grey in the passage cited above calls 'their speculations concerning what the law ought to be' may also have a great, though a different, importance; for they may help to create opinion which may influence the conduct of states and thus indirectly in the course of time help to modify the actual law. Whether the speculations of any particular author are likely to have this active influence depends mainly on his prestige, and on the persuasiveness witl1 which he presents his arguments. But it is important not to

1 Paquete Habana, (18gg) American Prize Cases, p. 1938.


confuse these two functions, the providing of evidence of what the law is, and the exercise of influence on its development. Continental writers draw the distinction less clearly than English and American, partly because the training of the l~t~er leads t?em to be cautious in accepting the opmwns of wnters of text-books, and partly because English is the only great language which has two different words. to express the ideas of 'law', i.e. the rules tha~ do e;nst: and 'right', i.e. the rules that ought to exiSt. Jus in Latin, 'droit' in French, 'Recht' in German, combine both these meanings, and it is therefore easy for writers in these languages to pass unconsciously from the idea of international law to what seems to us the very different idea of international right. ?n the other hand, language makes it easy for En~hs~ writers to treat the difference as greater than It IS

in fact, and to forget that there is a necessary connexion between the two ideas in international, even more than in national, law. For even if law and right are sometimes separated in fact, law _ca:' only be true to its purpose if it is perpetually assimilating what is felt to be right.

In applying the forms of evidence ~hich hav.e been enumerated above in order to establish the existence of an international custom what is sought for is a general recognition among states of a certain p;actice as obligatory. It would hardly ever be pracuca?l?, and even the strictest of positivists admits that It IS

not necessary, to show that every state has recognized a certain practice, just as in English law the

44 LAW OF NATIONS

existence of a valid local custom or custom of trade can be established without proof that every individual Jiving in the locality, or engaged in the trade, has practised the custom. This test of general recognition is necessarily a vague one; but it is of the nature of customary law, whether national or international, not to be susceptible of exact or final for"';ul.ation. When a system of customary law is admm1stered by courts, which perpetually reformulate and develop its principles, as in England, its uncertainty is so much reduced that it is hardly, if at all, greater than the uncertainty which attaches :ven to enacted or to codified law; but the clarifying mfluence of courts has as yet hardly begun to be felt i? international law. It is therefore even less possible to formulate its principles dogmatically than those of a national system of law. The difference, however, is not one between uncertainty and certainty in formulation, but merely between a greater and a less degree of uncertainty.

(b) Reason as a source if the law.

In our discussion of natural law we saw that no system of law consists only of formulated rules, for these c~n never be .sufficiently detailed or sufficiently foreseemg to proVJde for every situation that may call for a legal decision; those who administer law must meet new situations not precisely covered by a formulated rule by resorting to the principle which medieval writers would have called natural law, and which we generally call reason. Reason


hi this context does not mean the unassiste~. re~s?n: ing powers of any intelligent man, but a JUdicial

ason which means that a principle to cover the ~:w situation is discovered by applying methods f reasoning which lawyers everywhere accept as

~alid; for example, the consideration of precedents, the finding of analogies, the di~en?agement fr?m

ccidental circumstances of the prmCip!es underlymg :ules oflaw already established: This source of new rules is accepted as valid and IS ~onstantly ~-;sorted to in the practice of states, both m the deciSions of international tribunals and in the legal arguments conducted by foreign offices with on: a:'-other, so th.at a positivism which refuses to accept It IS untrue to Its own premises. As Lord Mansfield, perhaps the greatest judge who ever sat on the English bench, s~id, when giving his opinion as a law officer on th~ queshon raised by Frederick the Great's sequestratiOn of the Silesian loan: 'The law of nations is founded. on justice, equity, convenience, and the reason if the thzng, and confirmed by long usage.'

(c) Treaties as a source if the law. . Treaties are not always treated as an mdependent

source of international law, and certainly it is o~ly a very special class of treaty which has any cla;m to be so regarded. The ordinary treaty by. which

. two or more states enter into engagements w1th one another for some special object can very rarely be safely used 'as evidence to establish the existence of a rule oflaw; it may well be that the very reason of

LAW OF NATIONS

the treaty was to create an obligation which-would not have existed by the general law, or to exclude an existing rule which would otherwise have applied. Still !ess can such treaties be regarded as actually creahng new law. The only class of treaties which it is admissible to treat as a source of law are those which a large number of states have concluded for the purpose either of declaring their understanding of what the law is on a particular subject, or of laying down a new general rule for future conduct or of . . ' creatmg some mternational institution. Such treaties are conveniently referred to as 'law-making' tre~ties, and their .number is increasing to-day so rapidly that the conventional law of nations' which ~s th~ n~me given to the law which the; create, IS takmg Its place beside the older customary law an~ perhaps already surpasses it in importance. There IS, however, an objection of theory to these terms, 'law-making treaties' and 'conventional law of nations'. For any treaty is essentially a contract between states, and the stipulations of a contract do not ?ind persons or states not parties to it. Thus, ~xcept m the almost impossible event of every state m the world becoming a party to one of these treaties, i~s terms will not be law for every state. So':'e wnters attempt to meet this difficulty by sa)'lng that the law which these treaties create is 'general', but not 'universal', international law· but the terminology is not very happy, nor do~s it ~eal.ly n;eet the cr~x. ·of the difficulty. The real JUstificahon for ascnbmg a law-making function to


these treaties is a practical one. , They do in fact perform the function which a legislature performs in a state, though they do so only imperfectly; and so long as there is no form of majority rule among states, they are the only machinery which exists for the purposive adapting of international law to new conditions and in general for strengthening the force of the rule of law between states. Moreover, there is something artificial in saying, even if it is strictly true in theory, that such important institutions of international life as the Postal and Telegraph Unions, or the European Danube Commission, or the International Court of Justice, or the League of Nations with its multifarious activities, are nothing but contractual arrangements between certain states. We have to look below the form of these treaties to their really substantial effect, which is the tentative laying of the foundations of a constitution for the society of states, and, in some spheres, of a rudimentary international government or administrative system.

§ 6. General Character of the Modern System. It is sometimes suggested that international law

ought properly to be classified as a branch of ethics rather than of law. The question is partly one of words, because its solution will clearly depend on the definition of law which we choose to adopt, and will not affect the value of the subject one way or the other. But in fact it is both practically inconvenient and also contrary to the best juristic thought to deny its legal character. It is incon-

LAW OF NATIONS

venient because if international law is nothing but international morality, it is certainly not the whole of international morality, and it is difficnlt to see how we are to distingnish it from those other , admittedly moral standards which we apply in forming onr jndgements on the conduct of states. For ordinary usage certainly uses two tests in judging the 'rightness' of a state's act, a moral test and one which is somehow felt to be independent of morality. For instance, from rgrg to rg22 Great Britain, contrary to her usual policy in imperial affairs, imposed a differential export duty on palm kernels from British West Africa to all countries outside the Empire, with the declared object of monopolizing an essential raw material, and with the incidental effect of forcing the native producer to sell for less than he could obtain in the open market. The action was not contrary to international law; but we do not necessarily judge it for that reason to have been 'right'. It is confusing and pedantic to say that both these tests are moral. Moreover, it is the pedantry of the theorist and not of the practical man; for questions of international law are invariably treated as legal questions by those who conduct our international business and in the courts, national or international, before which they are brought; legal forms and meth0ds are used in diplomatic controversies and in judicial and arbitral proceedings, and authorities and precedents are cited in argument as a matter of course. In this connexion also it is a significant fact that when a breach of


. I . s alleged by one party to a con-internahonal a~ i u ned is literally never defen~ed trovers_r, ~e a~~i::t hf of private judgement, which by clmmmg t g I defence if the issue concen;ed would be ~he ~at~ra act. but always by attemptmg the morahty o t r:le has been violated. This. was to prove that n~ a! able breaches of international true even o~suc. p ~Belgium in rgr4, or the bornlaw as the Invaswn .o

bardment _of ?orfu mt~.;2{~gal character of inter-The objeCtiOn to fi the followers of those

national law comes b:om d Austin who regard writers, such as ~o h ~s n~~ the will' of a politi~al nothing as Ia':" wh iC er is a misleading and m-

. r This owev ' f t t . i.t supeno . ? . n of the law o a sa e, adequate desc;iptwn eveccount for the existence of does not, for mstance,L a . but even if it were true the English Common . aw' ld still be true that that

: law of the state, it wou . Professor . of a Wlder genus.

is only one species d I s 'a body of rules , Oppenheim has defin~ h" a;; c:mmunity which by

',••<• human conduct Wit. m nit shall be en-, <• <. consent of t~s' co:U':'t~e -loman Catholic >~;~~~~~byexternal po~er. ~ch has its body of rules " is a commumty w Catholics feel thatthese

,.< the Canon law,Ia~~~~:~~rtheprivatejudgementf, not mere Y r d by the power o

, < h ght to be en,orce that t ey ?u. I h bod of states forms a comChurch. Similar y t e I y I knit by common

not of cours~ so c ose y as is a single state, and regular mtercourse

'inter<eSTE I International Law, vol. i, p. 6.

E

50 LAW OF NATIONS

but tending to become closer by the growth of all those moral and material influences such as religion, science, trade, railways, posts, and the like, which bring states into contact with one another. It is true, of course, that this community has not yet like the state, developed regular machinery for th~ enforcement of its law, but its imperative character, as has been mentioned, is never denied by any of the members. The imperative character of national law is so strongly felt that national law has developed a machinery of enforcement or 'sanctions', which generally work smoothly, though never so smoothly as to make violations of law impossible. If the imperative character of international law were equally strongly felt, the institution of definite international 'sanctions' would easily follow. But this contrast only means that national law in modern times is generally a strong, whereas international law is still a weak form of law; it does not justify us in denying the fundamental similarity of the two. The difference is one of the stage of development which has been reached; international law is merely law at an earlier stage than the law of a wellordered modern state.

International law is in fact just a syst~m of E_nStoiiiary -Ew;~--upoil~wllich lla:s·been-erected" _ ~lllf§si enfirely:::;vit1J§.-tlle._-~1aif""·two .• geue~~!i(,~ ~uperstr~cture of C()nventioni'll law in the SC)J.[e 11:lready e){plained.- By what ·process a sen;-,; of obligation·. comes to be attached to certain usages and not to others, whether and if so on what ground

ORIGIN AND CHARACTER 5'

of obligation is valid, are questions to nc•u•c6 , .. philosophers will return varying answers;

they are questions which apply not especially international law, but to all law, and for that

to all morality also. The lawyer is entitled take a pragmatic standpoint and to assume that

a certain course of conduct is generally felt those to whom it applies to be obligatory, it is

for him; in such an assumption he does any ultimate truth or even anything

l)]}jectively valid outside the system with which he concerned. At any rate the international lawyer

no special explanation of the obligatory force of jn1:enoa1im1allaw, beyond the explanation, whatever >r<u«•v be, of the obligatory force oflaw in general.

The defects of international law are precisely which the history of law teaches us to expect

system of customary law. It is a common mist;tke to suppose that among those defects is the

of its violation. Violations of the law are extremely rare in any customary system, and they are so in international law. The common impression to the contrary arises from the unfortunate concentration of popular interest on the laws of war, and a consequent failure to observe that the less sensational but far more important part of the system, the laws of peace, is constantly and unobtrusively observed in the daily intercourse of states. It follows that the efforts of those who would seek to cure the defects of international law merely by devising a better system of sanctions to secure

E2

52 LAW OF NATIONS

its enforcement are misdirected; it is not the existence of a police force that makes a system of law strong and respected, but the strength of the law that causes a police force to be organized.

(' !h.e weakness of international law lies deeper than thrs; rtmay be Slimmed up by saying that a customary

~ law can never be adequate to the needs of any but a most primitive society, and the international society of to-day is not, except in the matter of its law, at the primitive stage. More explicitly we may say that the inadequacy of the present law manifests itself in three ways, all of which are characteristic of customary law in general: in the smallness of its ~ange, in the uncertainty of many of its rules, and m the slowness of its development.

The first of these defects may be illustrated by the weakness of the institutional side of international law. Thus there is no international legislature to keep the law abreast of new needs in international society. There is no international executive power to enforce the law. There have been created with-. ' m the last two generations, certain international administrative bodies, important in themselves but still quite inadequate to the mass of administr~tive business which ought to be treated to-day as of international concern. There have also been brought · into existence in recent years international courts of justice, but their range of action is limited because resort to them is not yet compulsory. The same defect may be further illustrated by noting that far the greater part of international relations does not


within the regulating influence of international · at all. The conduct of a state is not brought

international law merely because it may affect interests of other states; this may be true and yet matter in question may fall within what is called 'domestic jurisdiction' of a single state. For

.f:xarrLpl•e, legislation restricting immigration into the ;n,,it.·rl States is not a matter which affects American in1:en"ts only; on the contrary it has created m~>St '.ller:ioiiS difficulties for countries such as Italy whrch

a surplus of population. This latter fact, ;ltr>W<,ver, is irrelevant from a legal point of view, for intmigration, though it is only one side of a problem

great international concern, the proble~ of migration of population, is a matter entirely

the control of international law. Other of matters which at present belong to

.'dlonae,;uc jurisdiction' and not to international law a state's treatment of its own subjects, its choice

a form of government, its naturalization laws, its action on any of these matters may

repercussions on the interests of other But the most serious limitation on the range

international law is that practically the whole of international economic relations, except \

a few cases where mutual concessions have been \ ; ~;:~r:,:~~ by treaty, belongs to domestic jurisdiction. 1 ::::-:_· bounties, preferences, raw materials, markets \,

the like are the matters which generally underthe rivalries of modern states and provide the

if not the occasions, of their disputes; yet

54 LAW OF NATIONS

international law can very rarely interpose its regulating influence here. Law will never play a really effective part in international relations until it can annex to its own sphere some of the matters which at present lie within the 'domestic jurisdictions' of the several states; for so long as it has to be admitted that one state may have its reasonable interests injuriously affected by the unreasonable action of another, and yet have no legal basis for complaint, it is inevitable that the injured state, if it is strong enough, will seek by other means the redress that the law cannot afford it. At the best the present state of things leads to the maintenance by powerful states of policies outside the law, conceived in their own interests, and paying only so · much regard to the interests of the other states as pr~dence dictates. Such policies cannot even, as thmgs are, be wholly condemned, because the interests which they protect are often perfectly reasonable interests such as any really adequate system of law would recognize and safeguard; but, unfortunately, there is at present no securitywhatever that these policies will be confined to the protection of the reasonable interests of the states concerned.

The uncertainty of many of the rules of international law is an inevitable consequence of the absence of any authoritative law-declaring machinery. It is not in the nature of any law to provide mathematically certain solutions of problems which may be presented to it; for uncertainty cannot be eliminated from law so long as the possible


of facts remain infinitely various. the difficulty of formulating the rules of inter

Jaw with any precision will be apparent the discussion in § 5 above of the kinds of

)id,enc:e upon which we have to rely in order to ,talbli,;h them; and a further cause of uncertainty,

Jet;m.•a• to international law, lies in the persistence traditions, the Anglo-American and the

Z:o1ntineJJta.l, which often assert conflicting rules on same matter.

two defects which we have considered would Jess serious if the means of developing the law

more adequate than they are. The growth of custom is inevitably an exceedingly slow and the hope of advance must lie mainly

a of the conventional element in law. In this direction the machinery of the

of Nations has already led to results of great but international law is inevitably and

permanently at a great disadvantage in respect as compared with a national system,

the law-making treaty is an ineffective instrufor developing the law compared with a

egisiatwl·~ acting by majority vote. But perhaps an greater handicap is the general failure to appre

not so much that it is necessary to substitute for anarchy in international relations, as that a process cannot be carried through without great apparent, though not on a long view real,

ac1·ifi•ces of special national interests.

Brierly - Origin and Character of International Law

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