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INTERNATIONA1 LAW
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INTERNATIONA1 See also:LAW , the See also:general See also:term for the law governing the relations and intercourse of states with one another. The parties in its application are states (see See also:STATE) and not nations, so that the word " See also:international " does not accurately limit the See also:scope of the subject. Nor do authors always confine themselves to its proper See also:limitation. Thus the rules See also:relating to See also:nationality and See also:naturalization, See also:extradition, See also:patents, See also:trade marks, &c., which affect states on the one See also:side and See also:foreign persons on the other, are generally included among the subject-See also:matter of International Law. There is a See also:special See also: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 See also: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 See also: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 See also:custom, it would seem rather to refer to See also:internal See also:jurisprudence. The See also:chancellor d'See also:Aguesseau has already made, I find, a similar remark; he says that what is commonly called See also:droit See also:des gens ought rather to be termed droit entre See also: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." 1 _ There has been much controversy as to the aptness of the use of the word " law " in this connexion. " International law," said the 3rd See also:marquess of See also:Salisbury in a speech on the See also:establishment of a See also:Court of International See also:Arbitration, " has no existence in the sense in which the term ` law ' is usually understood. It depends generally upon the prejudices of writers of See also: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 See also:British statesmen but also of many See also:practical See also:English jurists. It found one of its most emphatic exponents in See also:Lord See also:Chief-See also:Justice See also:Coleridge. " Strictly speaking," he observed in his See also:judgment on the See also:Franconia See also:case,3 " international law is an inexact expression, and it is See also: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 See also:common lawgiver to See also:sovereign states, and no tribunal has the See also: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 See also:evidence. See also:Treaties and acts of states are but evidence of the agreement of nations, and do not, in See also: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 See also:part of English law to such agreement." In opposition to this view may be cited the more See also:recent one expressed by Lord See also:Russell of Killowen, who challenged Lord Coleridge's view as " based on too narrow a See also:definition of law, a definition which relies too much on force as the governing See also:idea." " If," he added, " the development of law is historically considered it will be found to exclude that See also:body of customary law which in See also:early stages of society precedes law. As See also:government becomes more frankly democratic, See also:laws See also:bear less and less the See also:character of commands imposed by a coercive authority, and acquire more and more the character of customary law founded i Introduction to the Principles of Morals and Legislation (See also:Clarendon See also:Press edition of 1879). a The Times, See also:July 26, 1887. 3 R. v. Keyn, 2, Ex.D. 63. with duties which are only enforced by moral See also: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 See also:maxims generally respected.' See also:Sir H. See also:Maine's somewhat indirect See also:answer to See also: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 See also:language, that the sanction is found everywhere, in See also:positive law, See also:civil and criminal. This is, in fact, the See also:great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of See also:punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously, from a See also:mere See also: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 See also: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 See also:man who refrains from stealing or murdering because he fears the See also: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 See also:justification at the See also:present See also: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 See also:act is justified by recognized rules of International Law, is evidence of its binding character. As the See also:late See also:Professor Rivier, one of the leading authorities on See also:Roman Law, as well as an international jurist of See also: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 See also:hand, never in any published See also:official act of the present See also:age, verbal or written, has a state dared to declare that it did not consider itself See also:bound by the law of nations and its principles."' States, as Professor Rivier says, have again and again solemnly declared their determination to abide by the principles of International Law. See also:Witness the See also:Declaration of See also:Aix-la-Chapelle of See also:November 15, 1818, in which the representatives of five See also:powers, See also:Austria, See also:France, Great See also:Britain, See also:Russia and See also:Prussia, solemnly stated that " the sovereigns in forming this See also:august See also:union have regarded as its fundamental basis their unchangeable See also: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 See also:peace, can alone effectively See also:guarantee the See also:independence of each government and the stability of the general association." In the negotiations for the Treaty of See also:London concerning the See also:Black,See also:Sea (See also: Bentham, who worked out the theory of legal sanctions as applied to See also:modern law, describes them as See also:equivalent to pleasures and pains derived from four different See also:sources. These are See also:physical, See also:political, moral and religious. The first three belong to experience in the present See also:life, the See also:fourth to that in the present life or hereafter.' Austin's See also: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 See also:kind of law according to Austin is not positive law but merely called so by See also: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 See also:person or persons in a state of subjection to its author. The law obtaining between nations is only law set by general See also:opinion, ' Address at See also:Saratoga Springs, N.Y., 1896 (Law Quarterly See also:Review, See also:October 1896). 2 Commentaries on the Law of England, 4th ed., iv. 66. ' Austin's view, as set out in the See also:Province of Jurisprudence Deter-See also:mined, 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 See also: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. Introduction to the Principles of Morals and Legislation (See also:Oxford, 1879), pp. 24 et seq. ' Province of Jurisprudence Determined (1861), p. 177; Austin explains his view more fully at p. 127. s International Law, p. 5o. ' Droll des gens (1896), i. 22. Compare See also:Savigny: " A community of judicial See also:conscience can be formed among nations like that which positive law creates in the bosom of one See also:people. The See also:foundations of that intellectual community are constituted partly by a community of See also:race, partly and especially by a community of religious convictions. Such is the basis of the law of nations which exists principally among See also:European See also: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 (184o), i. § ii. 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 See also:annexation of Bosnia-Herzegovina without obtaining the See also:prior assent of the high contracting powers, who under the treaty of See also: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 See also:isolation or of discredit or even of " boycotting " becomes a matter of increasing importance in the conduct of states. The See also: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. See also:Personal intercourse among citizens of the same See also:country, and between statesmen, politicians and citizens of different countries has a still greater effect in the creation of the See also:mental attitude of nations towards each other. This exposes any departure from recognized usage or any disregard for international obligations to such reprobation through-out the whole world, that, far from taking See also:advantage of the See also: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 See also: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 See also:interpretation, See also:escape from its obligations. Sources and Foundations.—It is usual, following See also:Wheaton's See also:classification,' to enumerate the sources of International Law in the following See also:groups: text-writers of authority as witnesses of usage; treaties of peace, See also:alliance and See also:commerce; ordinances of particular states, prescribing rules for the conduct of their commissioned cruisers and See also:prize tribunals; adjudications of international tribunals; written opinions of official jurists given confidentially to their own government; See also:history of See also: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: " With-out 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 See also:weight of their testimony increases every See also:time that their authority is invoked by statesmen, and every See also:year that passes without the rules laid down in their See also:works being impugned by the avowal of contrary principles." This distinguished writer's quasi-explanation of the sources of Inter-national Law is extremely vague. He masses together cause and effect, private and public opinions, usage and exceptions. Professor See also:Oppenheim has endeavoured to give a more scientific explanation of the growth and development of International Law, and See also: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 ' Elements (London, 1885), pp. 22 et seq.they confound the term ' source ' with that of ' cause ' 2 by calling sources of International Law such factors as influence the See also:gradual growth of new rules of International Law without, however, being the See also: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 See also: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 See also:Family of Nations to conclude such treaties as stipulate legal rules for future international conduct. " A See also:factor of the special kind which also influences the growth of International Law is the so-called See also:comity (Comitas gentium, See also:Con-valance et courtoisie internationale, Staatengunst). In their inter-course 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 See also: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 See also: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." 3 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 See also:primary rules of conduct are appealed to between states as between individuals, and precedents See also: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 See also:account of their See also:work to the sovereign or nation they represent, preserve an See also:argument in their own favour in departing as little as possible from any course taken in previous similar circumstances. Precedents, moreover, are arguments for See also:acceptance by their adversaries or See also:counter-negotiators. In fact, in See also: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 See also:local usages, such as grew up in the intercourse of the See also:Italian communities. Italy, in fact, served as a laboratory Italian 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 See also:necessity of rules of conduct in this See also:miniature See also:Europe, with its perpetual antagonisms and jealousies, its See also:balance of power, its idea of a state distinct from a nation and of a community of 2 " It seems to me," says Professor L. Oppenheim, " that most writers confound the conception of ' source ' with that of ' cause,' and through this See also: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 See also:spring or well, and has to be defined as the rising from the ground of a stream of See also: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 See also:running over the See also:surface of the See also:earth, so we see, as it were, streams of rules running over the See also: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 See also: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.). 3 International Law (London, 1905) sec. 19. Precedents. 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 See also: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 See also:war. In the See also: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 the See also:Thirty Years' War, with its revolting See also:cruelty, which brought out the contrast between the more humane practice of war as an See also:art in Italy and the mere bludgeonry which prevailed in the brutal struggle which disgraced the first See also:half of the 17th See also:century. The brutality of the struggle turned thinkers' See also:attention to the need of formulating rules for the See also:protection in time of war of non-combatants and the See also:innocent subjects of See also:absolute sovereigns, the treatment of the sick and wounded, the See also:prohibition of wanton pillage and the other horrors which shocked the awakening conscience of See also: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 See also:Grotius's De jure See also:belli ac pads Grotius. (See also:Paris, 1625), which practically exhausted the theoreti- cal arguments in favour of the new subject. Nobody has in fact since brought to See also:light any new conception of the foundations of international law. An exhaustive and masterly See also: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. See also:Pufendorf (1632–1647), who, in the PufeO- sequence of effective text-writers, succeeded Grotius, dorf. endeavoured to See also:base international law on an ethical basis accepted by all peoples without necessity for a common creed or See also: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 See also: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 See also:Leibnitz (1646–1716) revolted against this theoretical and doctrinaire tendency of Pufendorf and other Leibnitz. writers, who were following with feeble tread in the See also:giant footsteps of Grotius. He saw that the practice of nations was taking a course dictated by the current moral See also: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 See also:science, moreover, had taught him the See also:risk of theorizing on imperfect data, and while See also:writing a history of See also:Brunswick it occurred to him that treaties and diplomatic documents generally were the substances and tests of the publicist's laboratory. His codex See also:juris gentium diplomaticus (1693–1700) gave a more precise direction to speculations on the subject.
The next great writer of authority See also:united all the qualities of a practical lawyer and jurist. This was See also:Bynkershoek (1673
1743). He was the first writer on international law
Byaker- who dealt with public maritime law as a matter See also:shock.
demanding special treatment and involving a set of
principles not called into See also:action in territorial warfare. A See also: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 See also: His book had all the See also:charm, although Vattel was a Neufchatelois, of the See also:French writers of his time, and Vattel. 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 See also: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 See also:Mansfield, Sir See also: The work of the See also:Conference of 1907 was of a much wider and more exhaustive character than that of 1849. 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 See also:merchant See also:ships at beginning of hostilities; See also:Conversion of merchant vessels into warships; Rights and duties of neutral states in naval war; The laying of automatic submarine contact mines; The Thirty Years' War. See also:bombardment of undefended places by naval forces; Treatment of fishing vessels, postal See also:correspondence and See also:capture generally in maritime war; and Recovery by force of See also: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 See also:December 4, 1908, to See also:February 26, 1909, and was confined to representatives of the following countries: Great Britain, France, Germany, United States of See also:America, Italy, Austria-Hungary, Russia, See also:Japan, Holland and See also:Spain. It adopted a See also:series of rules on naval warfare relating to See also:Blockade in time of war; See also:Contraband of war; Unneutral service; Destruction of neutral prizes; See also:Transfer to neutral See also:flag; Enemy character; See also:Convoy; and Resistance to See also:search and See also: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 See also: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 See also: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 See also:consideration of absolute fitness still unrecognized, but of which the learned See also:Barbeyrac truly said,' " Ce commun consentement des peuples que l'on suppose avoir force de loi est une See also: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 fc one great state to hold aloof and thus See also: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 See also:probability for the future be that " Parliament of mankind," the Hague Conferences. The Yague Court and its See also: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 Standard have to be officially defined. These principles have of right 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 See also: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 See also:admission of Japan into the See also:councils of the great powers has introduced a non-Christian See also: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 See also: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 See also:external development been See also:paramount. Japan, See also: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 See also:schools inculcates Christian See also:ethics as a subject per se without reference to divine See also: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 See also:civilization. As regards practice, it is unreasonable to expect that the high estimate of the moral standard of See also: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 See also:simple See also: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 See also:heathen peoples, and wars and conquering enterprises undertaken by the Northmen of a thousand years ago. In his Northern Antiquities See also:Mallet'- describes the See also:primitive feeling of the Northmen in the following passages: " The rules of justice, far from checking their prejudices, had been themselves warped and adapted to their See also:bias. It is no exaggeration to say that all the See also: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 See also:title over the weak, a visible See also:mark that See also: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 amonganimals, 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 could not defend. This See also:maxim which formed the basis of the law of Nations among the See also:ancient inhabitants of Europe being dictated by their most See also:darling See also: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 See also: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 See also:Providence enables us to distinguish those which it has appointed to command others." The very notion of the " right of See also:conquest," and that the victorious are entitled to an See also:indemnity without reference to any question of right and wrong or of justice and injustice, shows that there are principles in actual practice which Whatizedis a civil See also:lie outside and have no analogy in the principles of state? private law. In the See also:partition of See also: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 See also:possession of a See also:regular government sufficient to ensure to Europeans who See also:settle among them safety of life and See also:property. Every country, in principle, possessing such a government has prima facie -the See also:rank of a state and is entitled to treatment as a civilized cornmunity. Treaties made with it for the purpose of extra-territorial See also: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 See also: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 See also:movement for the protection of See also:African See also:aborigines has, however, 2 See also:Bishop See also:Percy's See also:translation (1847), p. 138. resulted in at least one great international See also:charter for the prevention of the further degradation of African aborigines, viz. the General Act of See also:Brussels of 1885. A vigorous outcry has also been raised against the methods of the government of the See also:Congo State. But the agitation ought not to be confined to this part of Central Africa. Other governments are also in. See also: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 See also:teach the African native. In the case of European enterprise in See also:Asia, the " good old rule " has had still less justification. The action taken for the repression of the Boxer movement in See also: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 See also:Japanese took part in the " Boxer " expedition, and the example of respect for native right and of orderly self-See also:restraint they set has been universally acknowledged. But the See also:lesson is one of greater significance than one of See also:comparative ethics. The rise of the power of Japan and her obvious determination to constitute herself the See also: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: I. 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 See also:change its form of government and to enjoy the chief See also:free exercise of its internal energies. This is subject spies. 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, See also:industrial or social character. Even at the Conference of See also: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 See also:Morocco, Austria-Hungary, Italy, Russia, See also:Belgium, Holland, See also:Portugal and See also:Sweden. Ships on the high sea being regarded as detached portions of the national territory, there is also the derived principle of the See also:Nish freedom of the high sea, of the independence and equality sea. 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 See also: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 less tentatively, it is true, but it is being to art/See also:tea- /kw. completed by See also:separate treaties of compulsory arbitra- tion in connexion with the cases referred to. It is enunciated in the following See also: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 whichdiplomacy 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 See also:award " (Art. I). 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 See also:fictions and reduce rights to the limits of
their practical application. Between two alternatives, Restric-
the one to assert rights which cannot possibly be tion of maintained by force such as claims to dominion over effect of portions of the high sea (see HIGH SEA, TERRITORIAL fictions.
WATERS), " See also:paper blockades " (see BLOCKADE) and fictitious occupations of territory (see OCCUPATION), and the other to require actual physical assertion, a See also:medium course is growing up, viz. that of recognizing potential assertion, that is assertion limited to physical possibilities.' With the aid of the See also:Institute of International Law, the International Law Association and other reforming agencies (see PEACE), See also: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.
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concerning a See also:Uniform Code of International Law (See also:Washington, 189o) ;
See also:Joseph Imbart Latour, La Mer territoriale (Paris, 1889); Atherley See also: See also: 1869); Heffter, Das europaische Volkerrecht der Gegenwart (Berlin, 1855, trans. into French by Bergson, Le Droit international de t'Europe, 4th ed., enlarged and annotated by See also:Geffcken, Berlin and Paris, 1883) ; See also:Amos E. Hershey, The International Law and Diplomacy of the Russo-Japanese War (New York, 1906) ; Hertslet's Commercial Treaties (24 vols., London, 1840–1907) ; Sir See also:Edward Hertslet, See also:Map of Europe by Treaty, showing the territorial changes since the general Peace of 1812–1891 (4 vols., London, 1875–1891) ; Map of Africa by Treaty (1778–1805) (3 vols., London, 1896), See also:Index to British and Foreign State Papers, vols. 1 to 63 (1879); A. See also:Pearce See also:Higgins, The Hague Peace Conferences and other International Conferences concerning the Laws and Usages of War (Cambridge, 1909) ; Historicus (Sir William See also:Harcourt). Letters on some Questions of International Law (1863); See also:Albert E. Hogan, Pacific Blockade ; T. E. Holland, The Elements of Jurisprudence (London, 188o, loth ed., Oxford, igo6), Studies in International Law (Oxford, 1898), The Laws of War on See also:Land (Oxford, 1908), Letters to The Times upon War and See also:Neutrality (1881–1909) with some commentary (London, 1909), British See also:Admiralty Manual of the Law of Prize (1888) ; G. F. W. Holls, The Peace Conference at The Hague (New York, 19o0); See also:Holtzendorff, Handbuch des Volkerrechts (4 vols., See also:Hamburg, 1885–1889) ; J. Hosack, On the Rise and Growth of the Law of Nations from the earliest Times to the Treaty of See also:Utrecht (London, 1882) ; See also:Huber, Die St raten-See also:Succession, volkerrechtliche and staatsrechtliche Praxis See also:im 19. Jahrhundert (Leipzig, 1898); International American Conference, Plan of Arbitration for the settlement of disputes between the American Republics, Report and Recommendations (Washington, 189o) ;
folkrattelig Synpunkt (See also:Stockholm, 1906), Kodificerad Handbok i Krigets Lagar till lands och till Sjos (Stockholm, 1909) ; See also:Otto Krauske, Die Entwickelung der standigen Diplomatic vom 15 ten Jahrhundert bis zu den Besclilitssen von 1815 and 1818 (Leipzig, 1885) ; See also:Jean Lagorgette, Le Role de la guerre. Etude de la sociologie generale (Paris, 1905) ; Lammasch, Fortbildung des Volkerrechts durch die Haager Conferenz (See also:Munich, 1900); See also:Alma Latifi, Effects of War on Property, being Studies in International Law and Policy (London, 1909) ; Francois See also:Laurent, Ilistoire du droit des gens et des relations internationales, continued at vol. iv. under title of Etudes de l'histoire de l'humaniti (18 vols., Brussels, 1861–188o) ; See also:Laveleye, Du respect de la propriete privee en temps de guerre (Brussels, 1875) ; T. J. See also:Lawrence, Essays on Disputed Questions of Modern International Law (See also:Cam-See also:bridge, 1884), The Principles of International Law (London, 1895, 3rd ed. 1900), Handbook of Public International Law (4th ed., London, 1898), War and Neutrality in the Far See also:East (London, 1904) ; Emile Lefevre, Reorganisation du consulat See also:francais a l'etranger (Paris,
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