International Law
INTERNATIONAL LAW, the general term for the law governing the relations and intercourse of states with one another. The parties in its application are states (see STATE) and not nations, so that the word " international " does not accurately limit the scope of the subject. Nor do authors always confine themselves to its proper limitation. Thus the rules relating to nationality and naturalization, extradition, patents, trade marks, etc., which affect states on the one side and foreign persons on the other, are generally included among the subjectmatter of International Law. There is a special branch of International Law known as Private International Law (see INTERNATIONAL LAW, PRIVATE) which deals exclusively with the relations of persons belonging to different states, in which states as such are not parties.
The term " international " was first used by Bentham. His explanation of the new term was as follows:
" The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of " law of nations," an appellation so uncharacteristic that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor d'Aguesseau has already made, I find, a similar remark; he says that what is commonly called droit des gens ought rather to be termed droit entre les gens. There remain then the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international." ' There has been much controversy as to the aptness of the use of the word " law " in this connexion. " International law," said the 3rd marquess of Salisbury in a speech on the establishment of a Court of International Arbitration, " has no existence in the sense in which the term ' law ' is usually understood. It depends generally upon the prejudices of writers of text-books. It can be enforced by no tribunal, and therefore to apply to it the phrase ' law ' is to some extent misleading." 2 This has been more or less the view not only of most British statesmen but also of many practical English jurists. It found one of its most emphatic exponents in Lord Chief-Justice Coleridge. " Strictly speaking," he observed in his judgment on the Franconia case, 3 " international law is an inexact expression, and it is apt to mislead, if its inexactness is not kept in mind. Law implies a lawgiver and a tribunal capable of enforcing it and coercing its transgressors, but there is no common lawgiver to sovereign states, and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of states are but evidence of the agreement of nations, and do not, in England at least, per se bind the tribunals. Neither certainly does a consensus of jurists, but it is evidence of the agreement of nations on international points, and on such points, when they arise, the English courts give effect as part of English law to such agreement."
In opposition to this view may be cited the more recent one expressed by Lord Russell of Killowen, who challenged Lord Coleridge's view as " based on too narrow a definition of law, a definition which relies too much on force as the governing idea." " If," he added, " the development of law is historically considered it will be found to exclude that body of customary law which in early stages of society precedes law. As government becomes more frankly democratic, laws bear less and less the character of commands imposed by a coercive authority, and acquire more and more the character of customary law founded 1 Introduction to the Principles of Morals and Legislation (Clarendon Press edition of 1879). The Times, July 26, 1887. ' ' R. v. Keyn, 2, Ex.D. 63.
on consent. ... I claim that the aggregate of the rules to which nations have agreed to conform in their conduct towards one another are properly to be designated International Law." 1 This recalls Blackstone's definition: " The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to ensure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each." 2 The current English narrower view owes its origin chiefly to the influence of John Austin, and the current broader one to that of Sir Henry Maine. 3 The increasing popularity of references to .international arbitration (see ARBITRATION, INTERNATIONAL), the adoption of a large number of special treaties making such references compulsory in certain cases, the establishment of and increasing recourse to the court for the decision of difficulties between states created by The Hague " Convention for the pacific settlement of disputes between States " of 1899 (see PEACE), the adoption of fixed rules of law in the international conventions in 1899, 1907 and 1909 dealing with many of the most controversial questions of international usage, have so transformed the subject that if, as Lord Coleridge said, law implies a lawgiver and a tribunal capable of enforcing it, these conditions are now at any rate partly fulfilled. We shall see below to what extent it may be necessary to regard power of enforcement against transgressors as requisite to give international law the character of law properly so-called.
Sanctions. The subject of the enforcement of International Law, or its " sanctions," has given rise to much controversy. The word " sanction " is derived from the Lat. sanctio, which in turn is derived from sancire, to consecrate. In its original sense sanctio means consecration. From this followed the sense of religious obligation. Thus sancire legem is used by Roman writers as meaning that observance was made obligatory, but without reference to the idea of there being a remedy or penalty for non-observance. With the development of an organized judicial system the religious or moral obligation was displaced by the growth of remedial procedure. Cicero observes of some legal restrictions, hoc non sancitur lege civili (this is not consecrated by the civil law, i.e. with penalties). A collateral sense of the word grew up which meant ratification, as where Cicero speaks of sancire acta Caesaris or of sancire foedus.
Bentham, who worked out the theory of legal sanctions as applied to modern law, describes them as equivalent to pleasures and pains derived from four different sources. These are physical, political, moral and religious. The first three belong to experience in the present life, the fourth to that in the present life or hereafter. 4 Austin's analysis of this vague subdivision led him to a more precise determination of the relationship of sanctions to law, viz. that a law properly so-called is a command and its sanction is the power to enforce obedience to it. Stated briefly, any other kind of law according to Austin is not positive law but merely called so by analogy. Applying this test to International Law he concludes that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. The law obtaining between nations is only law set by general opinion, 1 Address at Saratoga Springs, N.Y., 1896 (Law Quarterly Review, October 1896).
2 Commentaries on the Law of England, 4th ed., iv. 66.
* Austin's view, as set out in the Province of Jurisprudence Determined, is that laws proper, or properly so-called, are commands; laws which are not commands are laws improper or improperly so-called. A command implies a definite superior in a position to enforce the command. Where there is no superior to impose obedience there is no law. Rules which " are imposed among nations or sovereigns by opinions current among nations are usually styled the law of nations or international law. Now, a law set or imposed by public opinion is a law improperly so-called " (p. 147). For Sir H. Maine's views see below.
1 Introduction to the Principles of Morals and Legislation (Oxford, 1879), pp. 24 et seq.
with duties which are only enforced by moral sanction; by fear on the part of nations, or by fear on the part of a sovereign, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally respected. 5 Sir H. Maine's somewhat indirect answer to Austin may now be taken as the view held at least by British theoretical writers, " Austin, "he said, " has shown, though not without some straining of language, that the sanction is found everywhere, in positive law, civil and criminal. This is, in fact, the great feat which he performed, but some of h's disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously, from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be inflicted if they are violated, but, compared with the mass of men in each community, this class is but small; probably it is substantially confined to what are called the criminal classes, and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds of thousands who refrain without a thought on the subject." 6 The view, however, that a law is not devoid of binding character because there is no authority to enforce its observance hardly requires justification at the present day. The fact that any well-established international usage is observed, and that states invariably endeavour to answer any reproach of departing from such usage by explanations showing that the incriminated act is justified by recognized rules of International Law, is evidence of its binding character. As the late Professor Rivier, one of the leading authorities on Roman Law, as well as an international jurist of eminence, has expressed it: " The law of nations is positive law because states wish it to be so. They recognize its compulsory character and proclaim it. As they are their own legislators and make their common laws by express or tacit consent, they attest explicitly and implicitly their conviction that its principles are binding upon them, as judicial principles, as law. Innumerable public acts, affirmations, declarations and conventions are there to prove it. On the other hand, never in any published official act of the present age, verbal or written, has a state dared to declare that it did not consider itself bound by the law of nations and its principles." 7 States, as Professor Rivier says, have again and again solemnly declared their determination to abide by the principles of International Law. Witness the Declaration of Aix-la-Chapelle of November 15, 1818, in which the representatives of five powers, Austria, France, Great Britain, Russia and Prussia, solemnly stated that " the sovereigns in forming this august union have regarded as its fundamental basis their unchangeable resolution never to depart, either amongst themselves or in their relations with other states, from the strictest observance of the principles of the law of nations, principles which, in their application to a permanent state of peace, can alone effectively guarantee the independence of each government and the stability of the general association." In the negotiations for the Treaty of London concerning the Black Sea (March 13, 1871), at which seven powers were represented, Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey, a resolution on the sanctity of treaties was annexed to the first protocol, stating that the plenipotentiaries recognize that it is an essential principle of the law of nations that " no power can liberate itself 5 Province of Jurisprudence Determined (1861), p. 177; Austin explains his view more fully at p. 127.
6 International Law, p. 50.
7 Droit des gens (1896), i. 22. Compare Savigny: "A community of judicial conscience can be formed among nations like that which positive law creates in the bosom of one people. The foundations of that intellectual community are constituted partly by a community of race, partly and especially by a community of religious convictions. Such is the basis of the law of nations which exists principally among European Christian states, but which was not known to the peoples of antiquity. We are entitled to look upon this law as a positive law, although it is an incomplete judicial formation " (eine unvollendete Rechtsbildung), System des heutigen romischen Rechts (1840), i. n.
from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement." Even in 1908, when Austria-Hungary proceeded to the annexation of BosniaHerzegovina without obtaining the prior assent of the high contracting powers, who under the treaty of Berlin of 1878 had granted her temporary occupation of the annexed provinces, the protests of the powers concerned were answered by Austria-Hungary declaring that she had done nothing contrary to the law of nations or affecting the sanctity of treaties, because the powers had given their tacit consent to the practical transformation of her temporary into a permanent occupation.
The public opinion of the civilized world, in fact, plays in an ever-increasing degree the part of a sanctioning authority. With the growth of international intercourse and international interdependence the danger of isolation or of discredit or even of " boycotting " becomes a matter of increasing importance in the conduct of states. The national press and periodical literature, with exceptions no doubt, are among the chief factors in the development of this public opinion, but it is by no means dependent upon them. Personal intercourse among citizens of the same country, and between statesmen, politicians and citizens of different countries has a still greater effect in the creation of the mental attitude of nations towards each other. This exposes any departure from recognized usage or any disregard for international obligations to such reprobation throughout the whole world, that, far from taking advantage of the absence of any coercive method of enforcing obedience to the principles of international law, states compete with each other in asserting their strict fidelity to such principles. And now successive diplomatic conferences have codified many of the chief branches of international usage, thus diminishing the possible cases in which states can take advantage of the uncertainty of the law and, by quibbling over its interpretation, escape from its obligations.
Sources and Foundations. It is usual, following Wheaton's classification, 1 to enumerate the sources of International Law in the following groups: text- writers of authority as witnesses of usage; treaties of peace, alliance and commerce; ordinances of particular states, prescribing rules for the conduct of their commissioned cruisers and prize tribunals; adjudications of international tribunals; written opinions of official jurists given confidentially to their own government; history of wars, negotiations, treaties and other transactions relating to the public intercourse of nations. It is in these different classes of opinions and precedents that writers have been in the habit of searching for those arguments and analogies on which have been built up the system and principles called International Law.
Wheaton, it is seen, regarded text-writers as witnesses of the usage of nations. He explains his meaning as follows: " Without wishing to exaggerate the importance of these writers, or to substitute in any case their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles." This distinguished writer's quasi-explanation of the sources of International Law is extremely vague. He masses together cause and effect, private and public opinions, usage and exceptions. Professor Oppenheim has endeavoured to give a more scientific explanation of the growth and development of International Law, and objects to calling sources of International Law what are mere factors influencing its growth:
"... Custom and treaties," he observes, " are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties 1 Elements (London, 1885), pp. 22 et seq.
Precedents.
they confound the term ' source ' with that of ' cause ' 2 by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical 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 the special kind which also influences the growth of International Law is the so-called comity (Comitas gentium, Convenance et courtoisie Internationale, Staatengunat). 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 goodwill. 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." ' We prefer to regard International Law as deriving the rules composing it from practically the same sources as domestic law, and to attribute to text-writers more or less the same value in its development as in that of the private law of nations. The same primary rules of conduct are appealed to between states as between individuals, and precedents play exactly the same part wherever human actions are concerned. In both cases what has been done before commends itself when the responsibility of taking steps pledging the future is concerned. Statesmen on whom great responsibility impends, on whom the conduct of momentous negotiations has devolved, and who will have to render an account of their work to the sovereign or nation they represent, preserve an argument in their own favour in departing as little as possible from any course taken in previous similar circumstances. Precedents, moreover, are arguments for acceptance by their adversaries or counter-negotiators. In fact, in diplomacy even more than in matters of domestic government precedents play a dominant part in the growth of usage. These precedents are often in themselves originally local usages, such as grew up in the intercourse of the Italian communities. Italy, in fact, served as a laboratory ltallaa for early diplomatists and writers. It was in the influence. intercourse of these active and ambitious states that grew up the very notion of a foreign diplomacy and the necessity of rules of conduct in this miniature Europe, with its perpetual antagonisms and jealousies, its balance of power, its idea of a state distinct from a nation and of a community of 1 " It seems to me," says Professor L. Oppenheim, " that most writers confound the conception 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 denned as the rising from the ground of a stream of water; and, wanting 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 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 " (International Law, London, 1905, sec. 15.).
* International Law (London, 1905) sec. 19.
Grotlus.
states elbowing each other in their daily contact. It was there that grew up the institution of passports, the distinction between armed forces and civilians, international comity, and in fact the very notion that states have an interest in the observance of law and order among them. In the same way the active commercial intercourse in the Mediterranean led, in the common interest, to the development of rules of the sea in time of peace, and later to others in time of war.
In the north of Europe, again, out of the active commercial intercourse among the Baltic and North Sea communities grew rules of the sea in the same common interest. It was tne Tnirt y Years' War, with its revolting cruelty, War. which brought out the contrast between the more humane practice of war as an art in Italy and the mere bludgeonry which prevailed in the brutal struggle which disgraced the first half of the lyth century. The brutality of the struggle turned thinkers' attention to the need of formulating rules for the protection in time of war of non-combatants and the innocent subjects of absolute sovereigns, the treatment of the sick and wounded, the prohibition of wanton pillage and the other horrors which shocked the awakening conscience of northern Europe. It was the starting-point of the age of text-books.
The first effective work, the one which was the first to influence sovereigns and statesmen, was Grotius's De jure belli ac pads (Paris, 1625), which practically exhausted the theoretical arguments in favour of the new subject. Nobody has in fact since brought to light any new conception of the foundations of international law. An exhaustive and masterly treatise having been published, no further subsequent treatise was necessary to show what all men were beginning to feel. He sublimated the feelings of his age, and having arrived at the pure substance, the work of proving the need of his subject was disposed of for all time. Pufendorf (1632-1697), who, in the sequence of effective text-writers, succeeded Grotius, dorf endeavoured to base international law on an ethical basis accepted by all peoples without necessity for a common creed or standard of morals, but it is doubtful, whatever may have been the extent to which he stimulated the study of jurisprudence, whether he did much in advancing the practical development of the law of nations. His book De jure naturae et gentium (1672), as its name indicates, based international law on what he called the law of nature, a subject which has much exercised the minds of jurists searching for an ethical basis for existing law.
The scientific mind of Leibnitz (1646-1716) revolted against this theoretical and doctrinaire tendency of Pufendorf and other writers, who were following with feeble tread in the giant footsteps of Grotius. He saw that the practice of nations was taking a course dictated by the current moral standards of civilized society, and that the philosophizing of the text-book writers was leading them away from that actual practice which they should use as data for their conclusions. Natural science, moreover, had taught him the risk of theorizing on imperfect data, and while writing a history of Brunswick it occurred to him that treaties and diplomatic documents generally were the substances and tests of the publicist's laboratory. His codex juris gentium diplomaticus (1693-1700) gave a more precise direction to speculations on the subject.
The next great writer of authority united all the qualities of a practical lawyer and jurist. This was Bynkershoek (1673- 1743). He was the first writer on international law shoek^ wno dealt with public maritime law as a matter demanding special treatment and involving a set of principles not called into action in territorial warfare. A magistrate administering the law in a great commercial country, whose interests were on or across the high seas rather than within the narrow European limits of Holland, Bynkershoek, like Leibnitz, searched for his data in the actual practice of nations in their- intercourse with one another. He applied his clear legally trained mind to deriving principles from practice instead of endeavouring to build up a practice on abstract principles. It was he who first generalized the different isolated usages l.cihnitz.
which had grown up at different spots in northern Europe in the interest of maritime defence, and evolved from practice the principle that dominion seawards was limited to the extent to which it was possible to enforce it (cannon-shot range), a principle which not only created the legal institution of territorial waters, but has since been imported into other branches of International Law, and has indirectly influenced the suppression of fictitious blockades and more recently of fictitious occupations of territory.
A contemporary of Bynkershoek was Christian de Wolff (1670-1754), a philosopher, mathematician, theologian, lawyer and disciple of Leibnitz. Wolff's great work on the Institutions of the Law of Nature and Nations is a learned and accurate treatise drawn from all the well-known sources of knowledge, and, just as Grotius based his demonstrations on the then imperfect knowledge of public events of his time, Wolff based his on the more accurate sources of information which had grown up under the influence of Leibnitz, and created a connected system out of the scattered fragments available. But his book was written in Latin at a period when scholarship had declined, and its influence was only felt after Vattel (1714- 1767) wrote his Droit des gem, ou principes de la loi naturelle appliquees A la conduite et aux a/aires des nations et des souverains (1758). His book had all the charm, although Vattel was a Neufchatelois, of the French writers of his time, and y . he it was who popularized the study of International Law. His book was based chiefly on the work of Wolff, but in it he gave what was best amongst his predecessors without attempting to add anything original of his own. It became the handbook of statesmen and jurists, and has never ceased to be quoted by them down to the present day.
But the opinions of jurists in International Law can have little more than the value of criticism and co-ordination. They have seldom served to make law, though they have the weight of all statements made by those who have made a special study of any branch of law, as to what they had gathered to be the existing practice at the time when they wrote, or as to the trend which they showed that practice might be taking. Great lawyers and writers like those we have mentioned, and such as Lord Mansfield, Sir William Scott, Chief-Justice Marshall and others, have done the work of classifying facts, deducing conclusions from them and connecting rules with psychological and ethical motives, and have thus sent a current of higher intelligence through the subject which has raised it to its present methodical form. Still International Law remained a wide field for controversy. Authors were agreed on general principles, but when these general principles were applied in practice, the shortcomings of unwritten usage often caused as much difficulty as that which the appeal to principles was intended to overcome.
What may be called the first enactment of rules of International Law was the Declaration of Paris of 1856, but the great work of codification, or rather of reducing into writing Haguean d the rules which had been floating as an unwritten law London in the conscience of Europe, was undertaken by the ConferHague Conferences, which may be said to be and to * have created an entirely new factor in the domain of International Law. Two of the conventions adopted in 1899 completed work which had already been commenced long before, viz. those on the usages of war and on the adaptation of the Geneva Convention to naval war. The third established methods for the pacific settlement of international difficulties, including the formation of the Hague Court of Arbitration. Recourse to the latter was purely optional, but the other two conventions have been absorbed into the national law of the ratifying countries, and thus have also the domestic sanction states give to their own laws. The work of the Conference of 1907 was of a much wider and more exhaustive character than that of 1899. It comprised, besides revised conventions on the matters dealt with in 1899, new Conventions on the following subjects: Opening of hostilities; Position in naval war of enemy's merchant ships at beginning of hostilities; Conversion of merchant vessels into warships; Rights and duties of neutral states in naval war; The laying of automatic submarine contact mines; The bombardment of undefended places by naval forces; Treatment of fishing vessels, postal correspondence and capture generally in maritime war; and Recovery by force of contract debts. It also adopted a convention for the creation of an International Prize Court of Appeal, which led to the calling of a fresh Conference on Prize Law. This conference sat in London from December 4, 1908, to February 26, 1909, and was confined to representatives of the following countries: Great Britain, France, Germany, United States of America, Italy, AustriaHungary, Russia, Japan, Holland and Spain. It adopted a series of rules on naval warfare relating to Blockade in time of war; Contraband of war; Unneutral service; Destruction of neutral prizes; Transfer to neutral flag; Enemy character; Convoy; and Resistance to search and Compensation.
The revolution effected in the relations of states by the Hague and London Conferences, however, is not confined to the reduction into writing of more or less vague usages nor to the elaboration of details which no usage can possibly determine. Until a machinery was provided for the reform of the law it was futile to speculate on the advantages or disadvantages of any rule admitted by the majority of civilized nations. The territorial waters 3 m. limit, for instance, had its origin in the distance seawards of cannon-range in a past period. Its almost universal recognition only came long after the range of coast-guns had far exceeded this distance. This superannuated rule has now no legal basis at all except the so-called " common consent of nations," a boon no doubt which outweighs any consideration of absolute fitness still unrecognized, but of which the learned Barbeyrac truly said, 1 " Ce commun consentement des peuples que Ton suppose avoir force de loi est une chose qu'on ne prouvera jamais." The institution of the Hague Conferences has now provided a method of obtaining the consent of nations, not only to existing rules, but to their reform and to the introduction of new rules. It is now an understanding among the states of the world, that these conferences shall be held periodically. It is, of course, possible for one great state to hold aloof and thus wreck the chances of universal agreement, but even then we have the power of the majority as against that of the minority. A case actually arose in a recent war between non-signatories of the declaration of Paris of 1856. Neither the United States nor Spain was a party to that declaration, yet neither ventured to disregard it.
The chief source of International Law will, therefore, in all probability for the future be that " Parliament of mankind," the Hague Conferences. The Hague Court and its adjunct in time of war, the proposed International Prize Court of Appeal, will form the Judicature applying and construing the enactments of the Conferences acting as a sort of international Legislature.
Fundamental Principles. Underlying the details of both the new International Legislature and the new International Judicature are certain principles which may some day have to be officially defined. These principles have conduct, necessarily fluctuated with the standard of morals of each period. With the contemporary development of the public conscience, they are undergoing changes and a betterment which it is not desirable to check by yet nailing them up as immutable articles of faith. Till quite recently it was usual to speak of the common standard of right conduct prevailing throughout the Christian world, a standard to which responsible statesmen tried to adjust their direction of the affairs of state. The admission of Japan into the councils of the great powers has introduced a non-Christian element whose standard of conduct was not identical with nor based upon Christian morals. Turkey, though admitted in 1856 to European Councils, remained rather the occasion of their deliberations than a deliberating party. Her new position as a constitutional state, with a code of morals at any rate in some essentials distinct from that of Christian peoples, will add a further new non-Christian element into the moral foundations of international conduct. The influence of western Europe, however, in both Japan and Turkey, has hitherto in all external development been paramount. Japan, 1 Note 8 to Grotius, L., ii. c. iii. 3.
after examining all the existing systems, has even adopted the best she found in Western morals, and in her schools inculcates Christian ethics as a subject per se without reference to divine revelation or authority. Turkey too has the advantage of possessing a code of morals which produces so high a standard of right conduct in private life that very little in the way of moral lessons will have to be learned by the Ottomans from Western civilization. As regards practice, it is unreasonable to expect that the high estimate of the moral standard of west European civilization, which is cherished by those who profess its principles, should be accepted by other peoples with unqualified assent. Are not the nations of western Europe still vaguely influenced by the instincts of their conquering ancestors, and by the traditions of "... the good old rule, . . . The simple plan, That they should take who have the power And they should keep who can " ? There is nothing essentially different between many recent wars and military enterprises undertaken by Western nations against heathen peoples, and wars and conquering enterprises undertaken by the Northmen of a thousand years ago. In his Northern Antiquities Mallet 2 describes the primitive feeling of the Northmen in the following passages :
11 The rules of justice, far from checking their prejudices, had been themselves warped and adapted to their bias. It is no exaggeration to say that all the Teutonic nations entertained opinions on this subject quite opposite to the theory of our times. They looked upon war as a real act of justice, and esteemed it an incontestable title over the weak, a visible mark that God had intended to subject them to the strong. They had no doubt but the intentions of this divinity had been to establish the same dependence among men which there is among animals, and setting out from the principle of the inequality of men, as our modern civilians do, from that of their equality, they inferred thence that the weak had no right to what they co.uld not defend. This maxim which formed the basis of the law of Nations among the ancient inhabitants of Europe being dictated by their most darling passion, we cannot wonder that they should so steadily act up to it in practice. And, which after all is worst, to act and think as they did, or, like the moderns, with better principles, to act as ill? As to the ancient nations, we attribute nothing to them here but what is justified to them by a thousand facts. They adopted the above maxim in all its rigour and gave the name of Divine Judgment not only to the Judiciary Combat, but to conflicts and battles of all sorts: victory being in their opinion the only certain mark by which Providence enables us to distinguish those which it has appointed to command others."
The very notion of the " right of conquest," and that the victorious are entitled to an indemnity without reference to any question of right and wrong or of justice and injustice, shows that there are principles in actual practice which JJ^ e 'J " lie outside and have no analogy in the principles of state? private law. In the partition of Africa native states have been treated as non-existent except as local bodies. They have been annexed to European states without reference to their will or consent. Treaties have indeed been made with them, but they have rather been regarded as evidence of prior occupation than as involving any question of native right. The test in the distinction between civilized and uncivilized states which is regarded as warranting exclusion from enjoyment of the right to consideration as independent states, and admission to the community of the civilized world, is in practice the possession of a regular government sufficient to ensure to Europeans who settle among them safety of life and property. Every country, in principle, possessing such a government has prima facie the rank of a state and is entitled to treatment as a civilized community. Treaties made with it for the purpose of extra-territorial jurisdiction are intended merely to take into account a difference of judicial institutions but are not supposed to detract otherwise from the possession of such equality and independence. This principle has no analogy in private morals, and has been, slight as it is, more honoured in the breach than the observance. If indifference to native right has provoked reaction, it has been' on the part rather of philanthropists than of statesmen. Their movement for the protection of African aborigines has, however, 1 Bishop Percy's translation (1847), p. 138.
resulted in at least one great international charter for the prevention of the further degradation of African aborigines, viz. the General Act of Brussels of 1885. A vigorous outcry has also been raised against the methods of the government of the Congo State. But the agitation ought not to be confined to this part of Central Africa. Other governments are also in fault. In fact, the contact of the European with Central Africa has, throughout, with few exceptions, been one of barbarous practice quite inconsistent with the principles which Christian missionaries have been sent to teach the African native.
In the case of European enterprise in Asia, the " good old rule " has had still less justification. The action taken for the repression of the Boxer movement in China, like previous European incursions, had no essential characteristic distinguishing it from the expeditions of the Northmen described by Mallet in the above -quoted passage. The Japanese took part in the " Boxer " expedition, and the example of respect for native right and of orderly self-restraint they set has been universally acknowledged. But the lesson is one of greater significance than one of comparative ethics. The rise of the power of Japan and her obvious determination to constitute herself the champion of the races of eastern Asia has widened the scope of International Law, and we may now regard China as henceforth under the protection of the same principles as European states.
The three chief principles of inter-state intercourse, those, in fact, on which International Law is based are:
1. Recognition of each other's existence and integrity as states.
2. Recognition of each other's independence.
3. Recognition of equality, one with another, of all independent states.
As regards the first of these principles see STATE. From the principle of independence it follows that every state has a right to change its form of government and to enjoy the Chief f ree ex e r cise of its internal energies. This is subject only to the limitation that in the exercise of this right other states or their subjects shall not be molested or otherwise suffer. The equality of all independent states entitles them to respect by other states of all the forms of ceremonial and to the same treatment by others, where their interests are identical, whether they are strong or weak. This principle has often been violated, but it is, nevertheless, acknowledged wherever possible, as in diplomatic conferences relating to all matters of an economic, hygienic, industrial or social character. Even at the Conference of Algeciras, though the powers immediately concerned from a political point of view were only Great Britain, France, Germany and Spain, the following were also represented as having economic interests in Morocco, Austria-Hungary, Italy, Russia, Belgium, Holland, Portugal and Sweden.
Ships on the high sea being regarded as detached portions of the national territory, there is also the derived principle of the freedom of the high sea, of the independence and equality upon it of the ships of all nations, subject only to due respect being paid to the independence and equality of all others and to such conventional restrictions as states may impose upon themselves (see TERRITORIAL WATERS). This principle is re-enunciated in the preamble to the Convention of 1907 on the laying of automatic submarine contact mines (see PEACE CONFERENCES).
The Hague Conventions are based on these principles, to which there is a tendency to add another, viz. the right to arbitration in certain cases. This principle is set out The right more or i ess tentatively, it is true, but it is being 'ton!*"" completed by separate treaties of compulsory arbitration in connexion with the cases referred to. It is enunciated in the following article of the Convention of 1907 for the pacific settlement of International disputes:
" In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the contracting powers as the most effective, and, at the same time, the most equitable means of arranging disputes which principles High sea.
Restriction of effect of fictions.
diplomacy has failed to settle. Consequently, it is desirable that, in disputes regarding the above-mentioned questions, the contracting powers should, if need be, have recourse to arbitration, in so far as circumstances permit " (Art. 28).
The principle of arbitration has also been adopted in reference to the recovery of contract debts under the following article of the " Convention respecting the limitation of the employment of force for the recovery of contract debts":
" The contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its subjects or citizens. This undertaking is, however, not applicable when the debtor state refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, renders the settlement of the Compromis impossible, or, after the arbitration, fails to comply with the a ward " (Art. l).
The codification of International Law itself, begun at the Hague and London Conferences, is an admission of the binding character of the primary principles set out above.
One of the chief tendencies of contemporary reform is also to restrict the effect of fictions and reduce rights to the limits of their practical application. Between two alternatives, the one to assert rights which cannot possibly be maintained by force such as claims to dominion over portions of the high sea (see HIGH SEA, TERRITORIAL WATERS), " paper blockades " (see BLOCKADE) and fictitious occupations of territory (see OCCUPATION), and the other to require actual physical assertion, a medium course is growing up, viz. that of recognizing potential assertion, that is assertion limited to physical possibilities. 1 With the aid of the Institute of International Law, the International Law Association and other reforming agencies (see PEACE), expert opinion in these matters is becoming homogeneous throughout the civilized world, and the ground is being prepared for a clearer understanding of these fundamental principles by the statesmen ,and state officials who have to apply them in practice.
[1] We have seen this in the progress made in the three instances given above at the Congress of Paris (1856), the Conference of Berlin (1878) and the Hague Conference of 1907.
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Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)
