Opening…

Preface

TO THE SECOND EDITION

The course of events since 1905, when this work first made its appearance, and the results of further research have necessitated not only the thorough revision of the former text and the rewriting of some of its parts, but also the discussion of a number of new topics. But while the new matter which has been incorporated has added considerably to the length of the work--the additions to the bibliography, text, and notes amounting to nearly a quarter of the former work--this second edition is not less convenient in size than its predecessor. By rearranging the matter on the page, using a line extra on each, and a greater number of words on a line, by setting the bibliography and notes in smaller type, and by omitting the Appendix, it has been found possible to print the text of this new edition on 626 pages, as compared with 594 pages of the first edition.

The system being elastic it was possible to place most of the additional matter within the same sections and under the same headings as before. Some of the points treated are, however, so entirely new that it was necessary to deal with them under separate headings, and within separate sections. The reader will easily distinguish them, since, to avoid disturbing the arrangement of topics, these new sections have been inserted between the old ones, and numbered as the sections preceding them, but with the addition of the letters a, b, &c. The more important of these new sections are the following: § 178_a_ (concerning the Utilisation of the Flow of Rivers); §§ 287_a_ and 287_b_ (concerning Wireless Telegraphy on the Open Sea); §§ 287_c_ and 287_d_ (concerning Mines and Tunnels in the Subsoil of the Sea bed); § 446_a_ (concerning the Casa Blanca incident); §§ 476_a_ and 476_b_ (concerning the International Prize Court and the suggested International Court of Justice); §§ 568_a_ and 568_b_ (concerning the Conventions of the Second Hague Peace Conference, and the Declaration of London); § 576_a_ (concerning Pseudo-Guarantees). Only towards the end of the volume has this mode of dealing with the new topics been departed from. As the chapter treating of Unions, the last of the volume, had to be entirely rearranged and rewritten, and a new chapter on Commercial Treaties inserted, the old arrangement comes to an end with § 577; and §§ 578 to 596 of this new edition present an arrangement of topics which differs from that of the former edition.

I venture to hope that this edition will be received as favourably as was its predecessor. My aim, as always, has been to put the matter as clearly as possible before the reader, and nowhere have I forgotten that I am writing as a teacher for students. It is a matter of great satisfaction to me that the prophetic warnings of some otherwise very sympathetic reviewers that a comprehensive treatise on International Law in two volumes would never be read by young students have proved mistaken. The numerous letters which I have received from students, not only in this country but also in America, Japan, France, and Italy, show that I was not wrong when, in the preface to the former edition, I described the work as an elementary book for those beginning to study the subject. Many years of teaching have confirmed me in the conviction that those who approach the study of International Law should at the outset be brought face to face with its complicated problems, and should at once acquire a thorough understanding of the wide scope of the subject. If writers and lecturers who aim at this goal will but make efforts to use the clearest language and an elementary method of explanation, they will attain success in spite of the difficulty of the problems and the wide range of topics to be considered.

I owe thanks to many reviewers and readers who have drawn my attention to mistakes and misprints in the first edition, and I am especially indebted to Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to the Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign Office who gave me valuable information on certain points while I was preparing the manuscript for this edition. And I must likewise most gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have assisted me in reading the proofs and have prepared the table of cases and the exhaustive alphabetical index.

L. OPPENHEIM.

WHEWELL HOUSE, CAMBRIDGE, November 1, 1911.

ABBREVIATIONS

OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT

The books referred to in the bibliography and notes are, as a rule, quoted with their full titles and the date of their publication. But certain books and periodicals which are very often referred to throughout this work are quoted in an abbreviated form, as follows:--

A.J. = The American Journal of International Law. Annuaire = Annuaire de l'Institut de Droit International. Bluntschli = Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 3rd ed. (1878). Bonfils = Bonfils, Manuel De Droit International Public, 5th ed. by Fauchille (1908). Bulmerincq = Bulmerincq, Das Völkerrecht (1887). Calvo = Calvo, Le Droit International etc., 5th ed. 6 vols. (1896). Despagnet = Despagnet, Cours De Droit International Public, 4th ed. by de Boeck (1910). Field = Field, Outlines of an International Code (1872). Fiore = Fiore, Nouveau Droit International Public, deuxième édition, traduite de l'Italien et annotée par Antoine, 3 vols. (1885). Fiore, Code = Fiore, Le Droit International Codifié, nouvelle édition, traduite de l'Italien par Antoine (1911). Gareis = Gareis, Institutionen des Völkerrechts, 2nd ed. (1910). Grotius = Grotius, De Jure Belli ac Pacis (1625). Hall = Hall, A Treatise on International Law, 4th ed. (1895). Halleck = Halleck, International Law, 3rd English ed. by Sir Sherston Baker, 2 vols. (1893). Hartmann = Hartmann, Institutionen des praktischen Völkerrechts in Friedenszeiten (1874). Heffter = Heffter, Das Europäische Völkerrecht der Gegenwart, 8th ed. by Geffcken (1888). Heilborn, System = Heilborn, Das System des Völkerrechts entwickelt aus den völkerrechtlichen Begriffen (1896). Holland, Studies = Holland, Studies in International Law (1898). Holland, Jurisprudence = Holland, The Elements of Jurisprudence, 6th ed. (1893). Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, 4 vols. (1885-1889). Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. by Morstadt (1851). Lawrence = Lawrence, The Principles of International Law, 4th ed.(1910). Lawrence, Essays = Lawrence, Essays on some Disputed Questions of Modern International Law (1884). Liszt = Liszt, Das Völkerrecht, 6th ed. (1910). Lorimer = Lorimer, The Institutes of International Law, 2 vols. (1883-1884). Maine = Maine, International Law, 2nd ed. (1894). Manning = Manning, Commentaries on the Law of Nations, new ed. by Sheldon Amos (1875). Martens = Martens, Völkerrecht, German translation of the Russian original in 2 vols. (1883). Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens Moderne De L'Europe, nouvelle éd. par Vergé, 2 vols. (1858). Martens, R. | Martens, N.R. | Martens, N.S. | Martens, N.R.G. | Martens, N.R.G. | 2nd Ser. | Martens, N.R.G. | 3rd Ser. | = These are the abbreviated quotations of the different parts of Martens, Recueil De Traités (see p. 102 of this volume), which are in common use. Martens, Causes Célèbres = Martens, Causes Célèbres Du Droit Des Gens, 5 vols., 2nd ed. (1858-1861). Mérignhac = Mérignhac, Traité De Droit Public International, vol. i. (1905), vol. ii. (1907). Moore = Moore, A Digest of International Law, 8 vols., Washington (1906). Nys = Nys, Le Droit International, 3 vols. (1904-1906). Perels = Perels, Das internationale öffentliche Seerecht der Gegenwart, 2nd ed. (1903). Phillimore = Phillimore, Commentaries upon International Law, 4 vols. 3rd ed. (1879-1888). Piedelièvre = Piedelièvre, Précis De Droit International Public, 2 vols. (1894-1895). Pradier-Fodéré = Pradier-Fodéré, Traité De Droit International Public, 8 vols. (1885-1906). Pufendorf = Pufendorf, De Jure Naturae et Gentium (1672). Rivier = Rivier, Principes Du Droit Des Gens, 2 vols. (1896). R.I. = Revue De Droit International Et De Législation Comparée. R.G. = Revue Général De Droit International Public. Taylor = Taylor, A Treatise on International Public Law (1901). Testa = Testa, Le Droit Public International Maritime, traduction du Portugais par Boutiron (1886). Twiss = Twiss, The Law of Nations, 2 vols., 2nd ed. (1884, 1875). Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908). Vattel = Vattel, Le Droit Des Gens, 4 books in 2 vols., nouvelle éd. (Neuchâtel, 1773). Walker = Walker, A Manual of Public International Law (1895). Walker, History = Walker, A History of the Law of Nations, vol. i. (1899). Walker, Science = Walker, The Science of International Law (1893). Westlake = Westlake, International Law, 2 vols. (1904-1907). Westlake, Chapters = Westlake, Chapters on the Principles of International Law (1894). Wharton = Wharton, A Digest of the International Law of the United States, 3 vols. (1886). Wheaton = Wheaton, Elements of International Law, 8th American ed. by Dana (1866). Z.V. = Zeitschrift für Völkerrecht und Bundesstaatsrecht.

CASES CITED

Aegi, § 437, p. 496

Ambrose Light, the, § 273, p. 342 note 2; § 276, p. 345 note 1

Amelia Island, § 132, p. 186

Anderson, John, § 147, p. 205 note 1

Anna, the, § 234, p. 301

Aubespine, L', § 387, p. 459

Bartram v. Robertson, § 580, p. 611 note 1

Bass, de, § 387, p. 459

Beckert, Wilhelm, § 402, p. 474

Belgenland, the, § 265, p. 335 note 3

Belle-Isle, Maréchal de, § 398, p. 471

Boisset, M., § 163, p. 220

Botiller v. Dominguez, § 546, p. 578 note 2

Brooke, Sir James, § 209, p. 282 note 2

Brunswick, Duke of, v. King of Hanover, § 353, p. 433

Canning, George, and the Russian Ambassador, § 481, p. 532

Canning, Sir Stratford, § 375, p. 451

Caroline, the, § 133, p. 187; § 444, p. 501; § 446, p. 501

Casa Blanca, § 446_a_, p. 502; § 476, p. 521

Castioni, Ex parte, § 334, p. 415 note 4

Cellamare, Prince, § 388, p. 459

Cespedes, the, § 273, p. 343, note 1

Charkieh, the, § 91, p. 144 note 1; § 450, p. 507 note 1

Charlton, Porter, § 330, p. 408

Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., § 265, p. 335 note 2

Cherokee Tobacco, the, § 546, p. 578 note 2

Constitution, the, § 450, p. 507 note 1

Cook v. Sprigg, § 82, p. 129 note 4

Costa Rica Packet, the, § 162, p. 217

Cutting, § 147, p. 205

Danish Fleet, the, § 131, p. 186

De Jager v. The Attorney-General for Natal, § 317, p. 394

De Haber v. Queen of Portugal, § 115, p. 169 note 2

Delagoa Bay, § 247, p. 313

Dogger Bank, § 163, p. 219 note 2

Dubois, § 392, p. 465

Exchange, the, § 450, p. 507 note 1

Fonds pieux des Californias, § 476, p. 521

Franconia, the, § 25, p. 29

Gallatin, § 403, p. 474 note 1

Germany, Great Britain, and Italy v. Venezuela, § 476, p. 521

Germany, France, and Great Britain v. Japan, § 476, p. 521

Gore and Pinkney, § 458, p. 513

Guébriant, Madame de, § 370, p. 447

Gurney, § 402, p. 473 note 2

Gyllenburg, § 388, p. 459

Haggerty, § 427, p. 489

Hall v. Campbell, § 240, p. 306 note 1

Hellfeld v. Russian Government, § 115, p. 169 note 4

Huascar, the, § 273, p. 342

Huus v. New York and Porto Rico Steamship Co., § 579, p. 609 note 1

Indian Chief, the, § 434, p. 494 note 1

Ionian Ships, § 93, p. 146 note 1

Isabella, Queen of Spain, § 351, p. 432

Jacquin, § 335, p. 416

Jager. See De Jager

Jassy, the, § 450, p. 507 note 1

Johann Friederich, the, § 265, p. 335 note 2; § 271, p. 339 note 1

Kalkstein, § 390, p. 464

Keiley, § 375, p. 450

Koszta, Martin, § 313, p. 388 note 1

Lebanon, the. See Vaderland

L'Aubespine. See Aubespine

McLeod, § 133, p. 187 note 2; § 446, p. 501

Macartney v. Garbutt, § 375, p. 450 note 2; § 394, p. 467 note 1

Magdalena Steam Navigation Co. v. Martin, § 391, p. 465 note 2

Maori King, the, § 261, p. 331 note 1

Mendoza, § 387, p. 459

Meunier, In re, § 334, p. 415 note 4; § 338, p. 418 note 3

Monaldeschi, § 348, p. 431 note 1

Montagnini, § 106, p. 160 note 1; § 386, p. 458 note 1; § 411, p. 478 note 2

Montezuma, the, § 273, p. 343 note 1

Monti, Marquis de, § 400, p. 472

Moray Firth, § 191, p. 263 note 3. See also Mortensen v. Peters

Mortensen v. Peters, § 22, p. 28 note 1; § 192, p. 264 note 2

Muscat Dhows, the, § 295, p. 372 note 2; § 476, p. 521

Musgrove v. Chun Teeong Toy, § 141, p. 200 note 1

Nereide, the, § 21, p. 26 note 2

Nikitschenkow, § 390, p. 463

Nillins, § 330, p. 407

North Atlantic Coast Fisheries, § 191, p. 262 note 1; § 205, p. 276 note 2; § 458, p. 513 note 1; § 476, p. 522

Norway v. Sweden, § 476, p. 522

Orinoco Steamship Co., § 476, p. 522

Paladini, § 330, p. 408

Panther, the, § 163, p. 219

Paquette Habana, the, § 21, p. 26 note 2

Parkinson v. Potter, § 394, p. 467 note 1

Parlement Belge, the, § 450, p. 507 note

Platen-Hallermund, § 240, p. 306

Porteña, the, § 273, p. 343 note 1

Pouble, Cirilo, § 147, p. 205 note 1

Prioleau v. United States, § 82, p. 129 note 1; § 115, p. 169 note 3

Reg. v. Cunningham, § 194, p. 266 note 2

Republic of Bolivia v. The Indemnity Mutual Marine Assurance Co., § 272, p. 341 note 1

Republic of Mexico v. Francisco de Arrangoiz, § 115, p. 169 note 1

Ripperda, Duke of, § 390, p. 461

Ross, Bishop, § 362, p. 443 note 1

Sà, Don Pantaleon, § 404, p. 475

Sackville, Lord, § 383, p. 455 note 1

Santa Lucia, § 247, p. 313

Sapphire, the, § 115, p. 169 note 1

Savarkar, § 332, p. 410; § 476, p. 522

Schnaebélé, § 456, p. 511

Scotia, the, § 21, p. 26 note 2

Shenandoah, the, § 273, p. 343

Soulé, § 398, p. 470

Springer, § 390, p. 461

Strathclyde, the. See Franconia, the

Sully, § 396, p. 468

Sun Yat Sen, § 390, p. 464

Taylor v. Best, § 391, p. 465 note 2

Tourville, § 330, p. 407

United States v. Repentigny, § 240, p. 306 note 1

United States v. Prioleau, § 82, p. 129 note 1; § 115, p. 169 note 3

United States v. Smith, § 21, p. 26 note 2

United States v. Venezuela, § 476, p. 522

United States v. Wagner, § 115, p. 169 note 1

Vaderland, the, § 287_b_, p. 357

Vavasseur v. Krupp, § 115, p. 169 note 2

Vexaincourt, § 163, p. 219

Virginius, the, § 133, p. 187 note 2

Waddington, Carlo, § 404, p. 475

Washburne, § 399, p. 471

West Rand Central Mining Co. v. The King, § 21, p. 26 note 2; § 82, p. 129 note 4

William, King of Holland, § 350, p. 432

Whitney v. Robertson, § 546, p. 578 note 2; § 580, p. 611 note 1

Wrech, Baron de, § 391, p. 465

CONTENTS

OF

THE FIRST VOLUME

I. FOUNDATION OF THE LAW OF NATIONS

I. The Law of Nations as Law

SECT. PAGE

1. Conception of the Law of Nations 3 2. Legal Force of the Law of Nations contested 4 3. Characteristics of Rules of Law 6 4. Law-giving authority not essential for the existence of Law 6 5. Definition and Three Essential Conditions of Law 8 6. Law not to be identified with Municipal Law 9 7. The "Family of Nations" a Community 9 8. The "Family of Nations" a Community with Rules of Conduct 11 9. External Power for the enforcement of Rules of International Conduct 13 10. Practice recognises Law of Nations as Law 14

II. Basis of the Law of Nations

11. Common Consent the Basis of Law 15 12. Common Consent of the Family of Nations the Basis of International Law 16 13. States the Subjects of the Law of Nations 19 14. Equality an Inference from the Basis of International Law 20

III. Sources of the Law of Nations

15. Source in Contradistinction to Cause 20 16. The Two Sources of International Law 21 17. Custom in Contradistinction to Usage 22 18. Treaties as Source of International Law 23 19. Factors influencing the Growth of International Law 24

IV. Relations between International and Municipal Law

20. Essential Difference between International and Municipal Law 25 21. Law of Nations never per se Municipal Law 26 22. Certain Rules of Municipal Law necessitated or interdicted 27 23. Presumption against conflicts between International and Municipal Law 28 24. Presumption of Existence of certain necessary Municipal Rules 28 25. Presumption of the Existence of certain Municipal Rules in Conformity with Rights granted by the Law of Nations 28

V. Dominion of the Law of Nations

26. Range of Dominion of International Law controversial 30 27. Three Conditions of Membership of the Family of Nations 31 28. Present Range of Dominion of the Law of Nations 32 29. Treatment of States outside the Family of Nations 34

VI. Codification of the Law of Nations

30. Movement in Favour of Codification 35 31. Work of the First Hague Peace Conference 37 32. Work of the Second Hague Peace Conference and the Naval Conference of London 38 33. Value of Codification of International Law contested 40 34. Merits of Codification in general 40 35. Merits of Codification of International Law 42 36. How Codification could be realised 44

II. DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS

I. Development of the Law of Nations before Grotius

37. No Law of Nations in Antiquity 45 38. The Jews 46 39. The Greeks 49 40. The Romans 50 41. No need for a Law of Nations during the Middle Ages 53 42. The Fifteenth and Sixteenth Centuries 54

II. Development of the Law of Nations after Grotius

43. The time of Grotius 59 44. The period 1648-1721 61 45. The period 1721-1789 64 46. The period 1789-1815 64 47. The period 1815-1856 66 48. The period 1856-1874 69 49. The period 1874-1899 71 50. The Twentieth Century 74 51. Six Lessons of the History of the Law of Nations 80

III. The Science of the Law of Nations

52. Forerunners of Grotius 83 53. Grotius 85 54. Zouche 88 55. The Naturalists 89 56. The Positivists 90 57. The Grotians 92 58. Treatises of the Nineteenth and Twentieth Centuries 94 59. The Science of the Law of Nations in the Nineteenth and Twentieth Centuries, as represented by Treatises 98 60. Collection of Treatises 102 61. Bibliographies 103 62. Periodicals 103

I. INTERNATIONAL PERSONS

I. Sovereign States as International Persons

63. Real and apparent International Persons 107 64. Conception of the State 108 65. Not-full Sovereign States 109 66. Divisibility of Sovereignty contested 110 67. Meaning of Sovereignty in the Sixteenth and Seventeenth Centuries 111 68. Meaning of Sovereignty in the Eighteenth Century 112 69. Meaning of Sovereignty in the Nineteenth Century 113 70. Result of the Controversy regarding Sovereignty 115

II. Recognition of States as International Persons

71. Recognition a condition of Membership of the Family of Nations 116 72. Mode of Recognition 117 73. Recognition under Conditions 118 74. Recognition Timely and Precipitate 119 75. State Recognition in contradistinction to other Recognitions 120

III. Changes in the Condition of International Persons

76. Important in contradistinction to Indifferent Changes 121 77. Changes not affecting States as International Persons 122 78. Changes affecting States as International Persons 123 79. Extinction of International Persons 124

IV. Succession of International Persons

80. Common Doctrine regarding Succession of International Persons 125 81. How far Succession actually takes place 127 82. Succession in consequence of Absorption 127 83. Succession in consequence of Dismemberment 130 84. Succession in case of Separation or Cession 131

V. Composite International Persons

85. Real and apparent Composite International Persons 132 86. States in Personal Union 133 87. States in Real Union 134 88. Confederated States (Staatenbund) 135 89. Federal States (Bundesstaaten) 136

VI. Vassal States

90. The Union between Suzerain and Vassal State 140 91. International position of Vassal States 141

VII. States under Protectorate

92. Conception of Protectorate 144 93. International position of States under Protectorate 145 94. Protectorates outside the Family of Nations 146

VIII. Neutralised States

95. Conception of Neutralised States 147 96. Act and Condition of Neutralisation 148 97. International position of Neutralised States 149 98. Switzerland 151 99. Belgium 152 100. Luxemburg 152 101. The former Congo Free State 153

IX. Non-Christian States

102. No essential difference between Christian and other States 154 103. International position of non-Christian States except Turkey and Japan 155

X. The Holy See

104. The former Papal States 157 105. The Italian Law of Guaranty 158 106. International position of the Holy See and the Pope 159 107. Violation of the Holy See and the Pope 161

XI. International Persons of the Present Day

108. European States 162 109. American States 163 110. African States 164 111. Asiatic States 164

II. POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS

I. International Personality

112. The so-called Fundamental Rights 165 113. International Personality a Body of Qualities 166 114. Other Characteristics of the position of the States within the Family of Nations 167

II. Equality, Rank, and Titles

115. Legal Equality of States 168 116. Political Hegemony of Great Powers 170 117. Rank of States 171 118. The Alternat 173 119. Titles of States 173

III. Dignity

120. Dignity a Quality 174 121. Consequences of the Dignity of States 175 122. Maritime Ceremonials 176

IV. Independence and Territorial and Personal Supremacy

123. Independence and Territorial as well as Personal Supremacy as Aspects of Sovereignty 177 124. Consequences of Independence and Territorial and Personal Supremacy 178 125. Violations of Independence and Territorial and Personal Supremacy 179 126. Restrictions upon Independence 180 127. Restrictions upon Territorial Supremacy 182 128. Restrictions upon Personal Supremacy 183

V. Self-preservation

129. Self-preservation an excuse for violations 184 130. What acts of self-preservation are excused 185 131. Case of the Danish Fleet (1807) 186 132. Case of Amelia Island 186 133. Case of the Caroline 187

VI. Intervention

134. Conception and Character of Intervention 188 135. Intervention by Right 189 136. Admissibility of Intervention in default of Right 193 137. Intervention in the interest of Humanity 194 138. Intervention de facto a Matter of Policy 195 139. The Monroe Doctrine 196 140. Merits of the Monroe Doctrine 198

VII. Intercourse

141. Intercourse a presupposition of International Personality 199 142. Consequences of Intercourse as a presupposition of International Personality 200

VIII. Jurisdiction

143. Jurisdiction important for the position of the States within the Family of Nations 201 144. Restrictions upon Territorial Jurisdiction 202 145. Jurisdiction over Citizens abroad 202 146. Jurisdiction on the Open Sea 203 147. Criminal Jurisdiction over Foreigners in Foreign States 203

III. RESPONSIBILITY OF STATES

I. On State Responsibility in General

148. Nature of State Responsibility 206 149. Original and Vicarious State Responsibility 207 150. Essential Difference between Original and Vicarious Responsibility 208

II. State Responsibility for International Delinquencies

151. Conception of International Delinquencies 209 152. Subjects of International Delinquencies 210 153. State Organs able to commit International Delinquencies 211 154. No International Delinquency without Malice or culpable Negligence 212 155. Objects of International Delinquencies 212 156. Legal consequences of International Delinquencies 213

III. State Responsibility for Acts of State Organs

157. Responsibility varies with Organs concerned 214 158. Internationally injurious Acts of Heads of States 214 159. Internationally injurious Acts of Members of Governments 215 160. Internationally injurious Acts of Diplomatic Envoys 215 161. Internationally injurious Attitudes of Parliaments 216 162. Internationally injurious Acts of Judicial Functionaries 216 163. Internationally injurious Acts of administrative Officials and Military and Naval Forces 218

IV. State Responsibility for Acts of Private Persons

164. Vicarious in contradistinction to Original State Responsibility for Acts of Private Persons 221 165. Vicarious responsibility for Acts of Private Persons relative only 222 166. Municipal Law for Offences against Foreign States 222 167. Responsibility for Acts of Insurgents and Rioters 222

I. STATE TERRITORY

I. On State Territory in General

168. Conception of State Territory 229 169. Different kinds of Territory 230 170. Importance of State Territory 231 171. One Territory, one State 231

II. The different Parts of State Territory

172. Real and Fictional Parts of Territory 235 173. Territorial Subsoil 235 174. Territorial Atmosphere 236 175. Inalienability of Parts of Territory 238

III. Rivers

176. Rivers State Property of Riparian States 239 177. Navigation on National, Boundary, and not-National Rivers 240 178. Navigation on International Rivers 241 178_a_. Utilisation of the Flow of Rivers 243

IV. Lakes and Land-locked Seas

179. Lakes and Land-locked Seas State Property of Riparian States 245 180. So-called International Lakes and Land-locked Seas 246 181. The Black Sea 247

V. Canals

182. Canals State Property of Riparian States 248 183. The Suez Canal 249 184. The Panama Canal 251

VI. Maritime Belt

185. State Property of Maritime Belt contested 255 186. Breadth of Maritime Belt 256 187. Fisheries, Cabotage, Police, and Maritime Ceremonials within the Belt 257 188. Navigation within the Belt 258 189. Jurisdiction within the Belt 260 190. Zone for Revenue and Sanitary Laws 261

VII. Gulfs and Bays

191. Territorial Gulfs and Bays 262 192. Non-territorial Gulfs and Bays 263 193. Navigation and Fishery in Territorial Gulfs and Bays 265

VIII. Straits

194. What Straits are Territorial 265 195. Navigation, Fishery, and Jurisdiction in Straits 266 196. The former Sound Dues 267 197. The Bosphorus and Dardanelles 268

IX. Boundaries of State Territory

198. Natural and Artificial Boundaries 270 199. Boundary Waters 270 200. Boundary Mountains 272 201. Boundary Disputes 272 202. Natural Boundaries sensu politico 273

X. State Servitudes

203. Conception of State Servitudes 273 204. Subjects of State Servitudes 276 205. Object of State Servitudes 276 206. Different kinds of State Servitudes 278 207. Validity of State Servitudes 279 208. Extinction of State Servitudes 280

XI. Modes of acquiring State Territory

209. Who can acquire State Territory? 281 210. Former Doctrine concerning Acquisition of Territory 282 211. What Modes of Acquisition of Territory there are 283 212. Original and derivative Modes of Acquisition 284

XII. Cession

213. Conception of Cession of State Territory 285 214. Subjects of Cession 285 215. Object of Cession 286 216. Form of Cession 286 217. Tradition of the ceded Territory 288 218. Veto of third Powers 289 219. Plebiscite and Option 289

XIII. Occupation

220. Conception of Occupation 291 221. Object of Occupation 292 222. Occupation how effected 292 223. Inchoate Title of Discovery 294 224. Notification of Occupation to other Powers 294 225. Extent of Occupation 295 226. Protectorate as Precursor of Occupation 296 227. Spheres of influence 297 228. Consequences of Occupation 298

XIV. Accretion

229. Conception of Accretion 299 230. Different kinds of Accretion 299 231. Artificial formations 299 232. Alluvions 300 233. Deltas 300 234. New-born Islands 301 235. Abandoned River-beds 302

XV. Subjugation

236. Conception of Conquest and of Subjugation 302 237. Subjugation in Contradistinction to Occupation 303 238. Justification of Subjugation as a Mode of Acquisition 304 239. Subjugation of the whole or of a part of Enemy Territory 304 240. Consequences of Subjugation 305 241. Veto of third Powers 307

XVI. Prescription

242. Conception of Prescription 308 243. Prescription how effected 309

XVII. Loss of State Territory

244. Six modes of losing State Territory 311 245. Operation of Nature 312 246. Revolt 312 247. Dereliction 313

II. THE OPEN SEA

I. Rise of the Freedom of the Open Sea

248. Former Claims to Control over the Sea 315 249. Practical Expression of claims to Maritime Sovereignty 317 250. Grotius's Attack on Maritime Sovereignty 318 251. Gradual recognition of the Freedom of the Open Sea 319

II. Conception of the Open Sea

252. Discrimination between Open Sea and Territorial Waters 321 253. Clear Instances of Parts of the Open Sea 322

III. The Freedom of the Open Sea

254. Meaning of the Term "Freedom of the Open Sea" 323 255. Legal Provisions for the Open Sea 324 256. Freedom of the Open Sea and War 325 257. Navigation and ceremonials on the Open Sea 326 258. Claim of States to Maritime Flag 326 259. Rationale for the Freedom of the Open Sea 327

IV. Jurisdiction on the Open Sea

260. Jurisdiction on the Open Sea mainly connected with Flag 329 261. Claim of Vessels to sail under a certain Flag 329 262. Ship Papers 331 263. Names of Vessels 332 264. Territorial Quality of Vessels on the Open Sea 332 265. Safety of Traffic on the Open Sea 333 266. Powers of Men-of-war over Merchantmen of all Nations 335 267. How Verification of Flag is effected 337 268. How Visit is effected 337 269. How Search is effected 338 270. How Arrest is effected 338 271. Shipwreck and Distress on the Open Sea 339

V. Piracy

272. Conception of Piracy 340 273. Private Ships as Subjects of Piracy 341 274. Mutinous Crew and Passengers as Subjects of Piracy 343 275. Object of Piracy 344 276. Piracy, how effected 344 277. Where Piracy can be committed 345 278. Jurisdiction over Pirates and their Punishment 345 279. Pirata non mutat dominium 346 280. Piracy according to Municipal Law 347

VI. Fisheries in the Open Sea

281. Fisheries in the Open Sea free to all Nations 348 282. Fisheries in the North Sea 349 283. Bumboats in the North Sea 351 284. Seal Fisheries in Behring Sea 351 285. Fisheries around the Faröe Islands and Iceland 353

VII. Telegraph Cables in the Open Sea

286. Telegraph Cables in the Open Sea admitted 353 287. International Protection of Submarine Telegraph Cables 354

VIII. Wireless Telegraphy on the Open Sea

287_a_. Radiotelegraphy between Ships and the Shore 355 287_b_. Radiotelegraphy between Ships at Sea 356

IX. The Subsoil beneath the Sea Bed

287_c_. Five Rules concerning the Subsoil beneath the Sea Bed 357 287_d_. The Proposed Channel Tunnel 359

III. INDIVIDUALS

I. Position of Individuals in International Law

288. Importance of Individuals to the Law of Nations 362 289. Individuals never Subjects of the Law of Nations 362 290. Individuals Objects of the Law of Nations 365 291. Nationality the Link between Individuals and the Law of Nations 366 292. The Law of Nations and the Rights of Mankind 367

II. Nationality

293. Conception of Nationality 369 294. Function of Nationality 370 295. So-called Protégés and de facto Subjects 371 296. Nationality and Emigration 373

III. Modes of Acquiring and Losing Nationality

297. Five Modes of Acquisition of Nationality 374 298. Acquisition of Nationality by Birth 375 299. Acquisition of Nationality through Naturalisation 375 300. Acquisition of Nationality through Redintegration 376 301. Acquisition of Nationality through Subjugation and Cession 377 302. Seven Modes of losing Nationality 377

IV. Naturalisation in Especial

303. Conception and Importance of Naturalisation 379 304. Object of Naturalisation 380 305. Conditions of Naturalisation 380 306. Effect of Naturalisation upon previous Citizenship 381 307. Naturalisation in Great Britain 382

V. Double and Absent Nationality

308. Possibility of Double and Absent Nationality 383 309. How Double Nationality occurs 384 310. Position of Individuals with Double Nationality 385 311. How Absent Nationality occurs 387 312. Position of Individuals destitute of Nationality 387 313. Redress against Difficulties arising from Double and Absent Nationality 388

VI. Reception of Aliens and Right of Asylum

314. No Obligation to admit Aliens 390 315. Reception of Aliens under conditions 392 316. So-called Right of Asylum 392

VII. Position of Aliens after Reception

317. Aliens subjected to Territorial Supremacy 393 318. Aliens in Eastern Countries 395 319. Aliens under the Protection of their Home State 395 320. Protection to be afforded to Aliens' Persons and Property 397 321. How far Aliens can be treated according to Discretion 397 322. Departure from the Foreign Country 398

VIII. Expulsion of Aliens

323. Competence to expel Aliens 399 324. Just Causes of Expulsion of Aliens 400 325. Expulsion how effected 402 326. Reconduction in Contradistinction to Expulsion 402

IX. Extradition

327. Extradition no legal duty 403 328. Extradition Treaties how arisen 404 329. Municipal Extradition Laws 405 330. Object of Extradition 407 331. Extraditable Crimes 408 332. Effectuation and Condition of Extradition 409

X. Principle of Non-Extradition of Political Criminals

333. How Non-extradition of Political Criminals became the Rule 411 334. Difficulty concerning the Conception of Political Crime 414 335. The so-called Belgian Attentat Clause 416 336. The Russian Project of 1881 416 337. The Swiss Solution of the Problem in 1892 417 338. Rationale for the Principle of Non-extradition of Political Criminals 418 339. How to avoid Misapplication of the Principle of Non-extradition of Political Criminals 420 340. Reactionary Extradition Treaties 422

I. HEADS OF STATES AND FOREIGN OFFICES

I. Position of Heads of States according to International Law

341. Necessity of a Head for every State 425 342. Recognition of Heads of States 425 343. Competence of Heads of States 426 344. Heads of States Objects of the Law of Nations 427 345. Honours and Privileges of Heads of States 428

II. Monarchs

346. Sovereignty of Monarchs 428 347. Consideration due to Monarchs at home 429 348. Consideration due to Monarchs abroad 429 349. The Retinue of Monarchs abroad 431 350. Monarchs travelling incognito 431 351. Deposed and Abdicated Monarchs 432 352. Regents 432 353. Monarchs in the service or subjects of Foreign Powers 432

III. Presidents of Republics

354. Presidents not Sovereigns 433 355. Position of Presidents in general 434 356. Position of Presidents abroad 434

IV. Foreign Offices

357. Position of the Secretary for Foreign Affairs 435

II. DIPLOMATIC ENVOYS

I. The Institution of Legation

358. Development of Legations 437 359. Diplomacy 438

II. Right of Legation

360. Conception of Right of Legation 440 361. What States possess the Right of Legation 441 362. Right of Legation by whom exercised 442

III. Kinds and Classes of Diplomatic Envoys

363. Envoys Ceremonial and Political 443 364. Classes of Diplomatic Envoys 443 365. Ambassadors 444 366. Ministers Plenipotentiary and Envoys Extraordinary 445 367. Ministers Resident 445 368. Chargés d'Affaires 445 369. The Diplomatic Corps 446

IV. Appointment of Diplomatic Envoys

370. Person and Qualification of the Envoy 446 371. Letter of Credence, Full Powers, Passports 447 372. Combined Legations 448 373. Appointment of several Envoys 448

V. Reception of Diplomatic Envoys

374. Duty to receive Diplomatic Envoys 449 375. Refusal to receive a certain Individual 450 376. Mode and Solemnity of Reception 451 377. Reception of Envoys to Congresses and Conferences 452

VI. Functions of Diplomatic Envoys

378. On Diplomatic Functions in general 453 379. Negotiation 453 380. Observation 454 381. Protection 454 382. Miscellaneous Functions 454 383. Envoys not to interfere in Internal Politics 455

VII. Position of Diplomatic Envoys

384. Diplomatic Envoys objects of International Law 455 385. Privileges due to Diplomatic Envoys 456

VIII. Inviolability of Diplomatic Envoys

386. Protection due to Diplomatic Envoys 457 387. Exemption from Criminal Jurisdiction 458 388. Limitation of Inviolability 459

IX. Exterritoriality of Diplomatic Envoys

389. Reason and Fictional Character of Exterritoriality 460 390. Immunity of Domicile 461 391. Exemption from Criminal and Civil Jurisdiction 464 392. Exemption from Subpoena as witness 465 393. Exemption from Police 466 394. Exemption from Taxes and the like 467 395. Right of Chapel 467 396. Self-jurisdiction 468

X. Position of Diplomatic Envoys as regards Third States

397. Possible Cases 469 398. Envoy travelling through Territory of third State 469 399. Envoy found by Belligerent on occupied Enemy Territory 471 400. Envoy interfering with affairs of a third State 472

XI. The Retinue of Diplomatic Envoys

401. Different Classes of Members of Retinue 472 402. Privileges of Members of Legation 473 403. Privileges of Private Servants 474 404. Privileges of Family of Envoy 474 405. Privileges of Couriers of Envoy 475

XII. Termination of Diplomatic Mission

406. Termination in contradistinction to Suspension 476 407. Accomplishment of Object of Mission 476 408. Expiration of Letter of Credence 477 409. Recall 477 410. Promotion to a higher Class 478 411. Delivery of Passports 478 412. Request for Passports 478 413. Outbreak of War 479 414. Constitutional Changes 479 415. Revolutionary Changes of Government 479 416. Extinction of sending or receiving State 480 417. Death of Envoy 480

III. CONSULS

I. The Institution of Consuls

418. Development of the Institution of Consuls 482 419. General Character of Consuls 484

II. Consular Organisation

420. Different kinds of Consuls 485 421. Consular Districts 485 422. Different classes of Consuls 486 423. Consuls subordinate to Diplomatic Envoys 487

III. Appointment of Consuls

424. Qualification of Candidates 487 425. No State obliged to admit Consuls 488 426. What kind of States can appoint Consuls 488 427. Mode of Appointment and of Admittance 489 428. Appointment of Consuls includes Recognition 489

IV. Functions of Consuls

429. On Consular Functions in general 490 430. Fosterage of Commerce and Industry 491 431. Supervision of Navigation 491 432. Protection 492 433. Notarial Functions 492

V. Position and Privileges of Consuls

434. Position 493 435. Consular Privileges 494

VI. Termination of Consular Office

436. Undoubted Causes of Termination 496 437. Doubtful Causes of Termination 496 438. Change in the Headship of States no cause of Termination 496

VII. Consuls in non-Christian States

439. Position of Consuls in non-Christian States 497 440. Consular Jurisdiction in non-Christian States 498 441. International Courts in Egypt 498 442. Exceptional Character of Consuls in non-Christian States 499

IV. MISCELLANEOUS AGENCIES

I. Armed Forces on Foreign Territory

443. Armed Forces State Organs 500 444. Occasions for Armed Forces abroad 500 445. Position of Armed Forces abroad 501 446. Case of McLeod 501 446_a_. The Casa Blanca incident 502

II. Men-of-war in Foreign Waters

447. Men-of-war State Organs 504 448. Proof of Character as Men-of-war 505 449. Occasions for Men-of-war abroad 505 450. Position of Men-of-war in foreign waters 506 451. Position of Crew when on Land abroad 508

III. Agents without Diplomatic or Consular Character

452. Agents lacking diplomatic or consular character 509 453. Public Political Agents 509 454. Secret Political Agents 510 455. Spies 510 456. Commissaries 511 457. Bearers of Despatches 511

IV. International Commissions

458. Permanent in Contradistinction to Temporary Commissions 512 459. Commissions in the interest of Navigation 513 460. Commissions in the interest of Sanitation 515 461. Commissions in the interest of Foreign Creditors 515 462. Permanent Commission concerning Sugar 515

V. International Offices

463. Character of International Offices 515 464. International Telegraph Offices 516 465. International Post Office 516 466. International Office of Weights and Measures 516 467. International Office for the Protection of Works of Literature and Art and of Industrial Property 516 467_a_. The Pan-American Union 517 468. Maritime Office at Zanzibar and Bureau Spécial at Brussels 517 469. International Office of Customs Tariffs 517 470. Central Office of International Transports 517 471. Permanent Office of the Sugar Convention 517 471_a_. Agricultural Institute 518 471_b_. International Health Office 518

VI. The International Court of Arbitration

472. Organisation of Court in General 518 473. The Permanent Council 518 474. The International Bureau 519 475. The Court of Arbitration 519 476. The Deciding Tribunal 520

VII. The International Prize Court and the proposed International Court of Justice

476_a_. The International Prize Court 522 476_b_. The proposed International Court of Justice 524

I. ON INTERNATIONAL TRANSACTIONS IN GENERAL

I. Negotiation

477. Conception of Negotiation 529 478. Parties to Negotiation 529 479. Purpose of Negotiation 530 480. Negotiations by whom conducted 531 481. Form of Negotiation 531 482. End and Effect of Negotiation 532

II. Congresses and Conferences

483. Conception of Congresses and Conferences 533 484. Parties to Congresses and Conferences 534 485. Procedure at Congresses and Conferences 535

III. Transactions besides Negotiation

486. Different kinds of Transaction 536 487. Declaration 536 488. Notification 537 489. Protest 538 490. Renunciation 539

II. TREATIES

I. Character and Function of Treaties

491. Conception of Treaties 540 492. Different kinds of Treaties 540 493. Binding Force of Treaties 541

II. Parties to Treaties

494. The Treaty-making Power 543 495. Treaty-making Power exercised by Heads of States 544 496. Minor Functionaries exercising Treaty-making Power 545 497. Constitutional Restrictions 545 498. Mutual Consent of the Contracting Parties 546 499. Freedom of Action of Consenting Representatives 547 500. Delusion and Error in Contracting Parties 547

III. Objects of Treaties

501. Objects in general of Treaties 548 502. Obligations of Contracting Parties only can be Object 548 503. An Obligation inconsistent with other Obligations cannot be an Object 549 504. Object must be physically possible 549 505. Immoral Obligations 549 506. Illegal Obligations 550

IV. Form and Parts of Treaties

507. No necessary Form of Treaties 550 508. Acts, Conventions, Declarations 551 509. Parts of Treaties 552

V. Ratification of Treaties

510. Conception and Function of Ratification 553 511. Rationale for the Institution of Ratification 554 512. Ratification regularly, but not absolutely, necessary 554 513. Length of Time for Ratification 555 514. Refusal of Ratification 556 515. Form of Ratification 557 516. Ratification by whom effected 558 517. Ratification cannot be partial and conditional 559 518. Effect of Ratification 561

VI. Effect of Treaties

519. Effect of Treaties upon Contracting Parties 561 520. Effect of Treaties upon the Subjects of the Parties 562 521. Effect of Changes in Government upon Treaties 562 522. Effect of Treaties upon Third States 563

VII. Means of Securing Performance of Treaties

523. What means have been in use 565 524. Oaths 565 525. Hostages 566 526. Pledge 566 527. Occupation of Territory 566 528. Guarantee 567

VIII. Participation of Third States in Treaties

529. Interest and Participation to be distinguished 567 530. Good Offices and Mediation 568 531. Intervention 568 532. Accession 568 533. Adhesion 569

IX. Expiration and Dissolution of Treaties

534. Expiration and Dissolution in Contradistinction to Fulfilment 570 535. Expiration through Expiration of Time 570 536. Expiration through Resolutive Condition 571 537. Mutual Consent 571 538. Withdrawal by Notice 571 539. Vital Change of Circumstances 572

X. Voidance of Treaties

540. Grounds of Voidance 576 541. Extinction of one of the two Contracting Parties 576 542. Impossibility of Execution 577 543. Realisation of Purpose of Treaty other than by Fulfilment 577 544. Extinction of such Object as was concerned in a Treaty 577

XI. Cancellation of Treaties

545. Grounds of Cancellation 578 546. Inconsistency with subsequent International Law 578 547. Violation by one of the Contracting Parties 579 548. Subsequent Change of Status of one of the Contracting Parties 579 549. War 580

XII. Renewal, Reconfirmation, and Redintegration of Treaties

550. Renewal of Treaties 580 551. Reconfirmation 581 552. Redintegration 581

XIII. Interpretation of Treaties

553. Authentic Interpretation, and the Compromise Clause 582 554. Rules of Interpretation which recommend themselves 583

III. IMPORTANT GROUPS OF TREATIES

I. Important Law-making Treaties

555. Important Law-making Treaties a product of the Nineteenth Century 587 556. Final Act of the Vienna Congress 588 557. Protocol of the Congress of Aix-la-Chapelle 588 558. Treaty of London of 1831 588 559. Declaration of Paris 588 560. Geneva Convention 589 561. Treaty of London of 1867 589 562. Declaration of St. Petersburg 590 563. Treaty of Berlin of 1878 590 564. General Act of the Congo Conference 590 565. Treaty of Constantinople of 1888 591 566. General Act of the Brussels Anti-Slavery Conference 591 567. Two Declarations of the First Hague Peace Conference 591 568. Treaty of Washington of 1901 592 568_a_. Conventions and Declaration of the Second Hague Peace Conference 592 568_b_. The Declaration of London 595

II. Alliances

569. Conception of Alliances 595 570. Parties to Alliances 597 571. Different kinds of Alliances 597 572. Conditions of Alliances 598 573. Casus Foederis 599

III. Treaties of Guarantee and of Protection

574. Conception and Objects of Guarantee Treaties 599 575. Effect of Treaties of Guarantee 600 576. Effect of Collective Guarantee 601 576_a_. Pseudo-Guarantees 602 577. Treaties of Protection 604

IV. Commercial Treaties

578. Commercial Treaties in General 605 579. Meaning of Coasting-trade in Commercial Treaties 606 580. Meaning of Most-favoured-nation Clause 610

V. Unions Concerning Common Non-Political Interests

581. Object of the Unions 612 582. Post and Telegraphs 613 583. Transport and Communication 614 584. Copyright 615 585. Commerce and Industry 616 586. Agriculture 617 587. Welfare of Working Classes 618 588. Weights, Measures, Coinage 619 589. Official Publications 620 590. Sanitation 620 591. Pharmacopoeia 622 592. Humanity 622 593. Preservation of Animal World 623 594. Private International Law 623 595. American Republics 624 596. Science 625

INDEX 627

Introduction

FOUNDATION AND DEVELOPMENT OF THE LAW OF NATIONS

I. FOUNDATION OF THE LAW OF NATIONS

I

THE LAW OF NATIONS AS LAW

Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, §§ 1-3, and Essays, pp. 1-36--Phillimore, I. §§ 1-12--Twiss, I. §§ 104-5--Taylor, § 2--Moore, I. §§ 1-2--Westlake, I. pp. 1-13--Walker, History, I. §§ 1-8--Halleck, I. pp. 46-55--Ullmann, §§ 2-4--Heffter, §§ 1-5--Holtzendorff in Holtzendorff, I. pp. 19-26--Nys, I. pp. 133-43--Rivier, I. § 1--Bonfils, Nos. 26-31--Pradier-Fodéré, I. Nos. 1-24--Mérignhac, I. pp. 5-28--Martens, I. §§ 1-5--Fiore, I. Nos. 186-208, and Code, Nos. 1-26--Higgins, "The Binding Force of International Law" (1910)--Pollock in The Law Quarterly Review, XVIII. (1902), pp. 418-428--Scott in A.J. I. (1907), pp. 831-865--Willoughby and Root in A.J. II. (1908), pp. 357-365 and 451-457.

[Sidenote: Conception of the Law of Nations.]

§ 1. Law of Nations or International Law (Droit des gens, Völkerrecht) is the name for the body of customary and conventional rules which are considered legally[1] binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception is called universal International Law,[2] in contradistinction to particular International Law, which is binding on two or a few States only. But it is also necessary to distinguish general International Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General International Law, as, for instance, the Declaration of Paris of 1856, has a tendency to become universal International Law.

[Footnote 1: In contradistinction to mere usages and to rules of so-called International Comity, see below §§ 9 and 19.]

[Footnote 2: The best example of universal International Law is the law connected with legation.]

International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work, "De Jure Belli ac Pacis libri III.," appeared in 1625 and became the foundation of all later development.

The Law of Nations is a law for the intercourse of States with one another, not a law for individuals. As, however, there cannot be a sovereign authority above the several sovereign States, the Law of Nations is a law between, not above, the several States, and is, therefore, since Bentham, also called "International Law."

Since the distinction of Bentham between International Law public and private has been generally accepted, it is necessary to emphasise that only the so-called public International Law, which is identical with the Law of Nations, is International Law, whereas the so-called private International Law is not. The latter concerns such matters as fall at the same time under the jurisdiction of two or more different States. And as the Municipal Laws of different States are frequently in conflict with each other respecting such matters, jurists belonging to different countries endeavour to find a body of principles according to which such conflicts can be avoided.

[Sidenote: Legal Force of the Law of Nations contested.]

§ 2. Almost from the beginning of the science of the Law of Nations the question has been discussed whether the rules of International Law are legally binding. Hobbes[3] already and Pufendorf[4] had answered the question in the negative. And during the nineteenth century Austin[5] and his followers take up the same attitude. They define law as a body of rules for human conduct set and enforced by a sovereign political authority. If indeed this definition of law be correct, the Law of Nations cannot be called law. For International Law is a body of rules governing the relations of Sovereign States between one another. And there is not and cannot be a sovereign political authority above the Sovereign States which could enforce such rules. However, this definition of law is not correct. It covers only the written or statute law within a State, that part of the Municipal Law which is expressly made by statutes of Parliament in a constitutional State or by some other sovereign authority in a non-constitutional State. It does not cover that part of Municipal Law which is termed unwritten or customary law. There is, in fact, no community and no State in the world which could exist with written law only. Everywhere there is customary law in existence besides the written law. This customary law was never expressly enacted by any law-giving body, or it would not be merely customary law. Those who define law as rules set and enforced by a sovereign political authority do not deny the existence of customary law. But they maintain that the customary law has the character of law only through the indirect recognition on the part of the State which is to be found in the fact that courts of justice apply the customary in the same way as the written law, and that the State does not prevent them from doing so. This is, however, nothing else than a fiction. Courts of justice having no law-giving power could not recognise unwritten rules as law if these rules were not law before that recognition, and States recognise unwritten rules as law only because courts of justice do so.

[Footnote 3: De Cive, XIV. 4.]

[Footnote 4: De Jure Naturæ et Gentium, II. c. iii. § 22.]

[Footnote 5: Lectures on Jurisprudence, VI.]

[Sidenote: Characteristics of Rules of Law.]

§ 3. For the purpose of finding a correct definition of law it is indispensable to compare morality and law with each other, for both lay down rules, and to a great extent the same rules, for human conduct. Now the characteristic of rules of morality is that they apply to conscience, and to conscience only. An act loses all value before the tribunal of morality, if it was not done out of free will and conscientiousness, but was enforced by some external power or was done out of some consideration which lies without the boundaries of conscience. Thus, a man who gives money to the hospitals in order that his name shall come before the public does not act morally, and his deed is not a moral one, though it appears to be one outwardly. On the other hand, the characteristic of rules of law is that they shall eventually be enforced by external power.[6] Rules of law apply, of course, to conscience quite as much as rules of morality. But the latter require to be enforced by the internal power of conscience only, whereas the former require to be enforced by some external power. When, to give an illustrative example, morality commands you to pay your debts, it hopes that your conscience will make you pay them. On the other hand, if the law gives the same command, it hopes that, if the conscience has not sufficient power to make you pay your debts, the fact that, if you will not pay, the bailiff will come into your house, will do so.

[Footnote 6: Westlake, Chapters, p. 12, seems to make the same distinction between rules of law and of morality, and Twiss, I. § 105, adopts it expressis verbis.]

[Sidenote: Law-giving Authority not essential for the Existence of Law.]

§ 4. If these are the characteristic signs of morality and of law, we are justified in stating the principle: A rule is a rule of morality, if by common consent of the community it applies to conscience and to conscience only; whereas, on the other hand, a rule is a rule of law, if by common consent of the community it shall eventually be enforced by external power. Without some kind both of morality and law, no community has ever existed or could possibly exist. But there need not be, at least not among primitive communities, a law-giving authority within a community. Just as the rules of morality are growing through the influence of many different factors, so the law can grow without being expressly laid down and set by a law-giving authority. Wherever we have an opportunity of observing a primitive community, we find that some of its rules for human conduct apply to conscience only, whereas others shall by common consent of the community be enforced; the former are rules of morality only, whereas the latter are rules of law. For the existence of law neither a law-giving authority nor courts of justice are essential. Whenever a question of law arises in a primitive community, it is the community itself and not a court which decides it. Of course, when a community is growing out of the primitive condition of its existence and becomes gradually so enlarged that it turns into a State in the sense proper of the term, the necessities of life and altered circumstances of existence do not allow the community itself any longer to do anything and everything. And the law can now no longer be left entirely in the hands of the different factors which make it grow gradually from case to case. A law-giving authority is now just as much wanted as a governing authority. It is for this reason that we find in every State a Legislature, which makes laws, and courts of justice, which administer them.

However, if we ask whence does the power of the legislature to make laws come, there is no other answer than this: From the common consent of the community. Thus, in Great Britain, Parliament is the law-making body by common consent. An Act of Parliament is law, because the common consent of Great Britain is behind it. That Parliament has law-making authority is law itself, but unwritten and customary law. Thus the very important fact comes to light that all statute or written law is based on unwritten law in so far as the power of Parliament to make Statute Law is given to Parliament by unwritten law. It is the common consent of the British people that Parliament shall have the power of making rules which shall be enforced by external power. But besides the statute laws made by Parliament there exist and are constantly growing other laws, unwritten or customary, which are day by day recognised through courts of justice.

[Sidenote: Definition and three Essential Conditions of Law.]

§ 5. On the basis of the results of these previous investigations we are now able to give a definition of law. We may say that law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power.

The essential conditions of the existence of law are, therefore, threefold. There must, first, be a community. There must, secondly, be a body of rules for human conduct within that community. And there must, thirdly, be a common consent of that community that these rules shall be enforced by external power. It is not an essential condition either that such rules of conduct must be written rules, or that there should be a law-making authority or a law-administering court within the community concerned. And it is evident that, if we find this definition of law correct, and accept these three essential conditions of law, the existence of law is not limited to the State community only, but is to be found everywhere where there is a community. The best example of the existence of law outside the State is the law of the Roman Catholic Church, the so-called Canon Law. This Church is an organised community whose members are dispersed over the whole surface of the earth. They consider themselves bound by the rules of the Canon Law, although there is no sovereign political authority that sets and enforces those rules, the Pope and the bishops and priests being a religious authority only. But there is an external power through which the rules of the Canon Law are enforced--namely, the punishments of the Canon Law, such as excommunication, refusal of sacraments, and the like. And the rules of the Canon Law are in this way enforced by common consent of the whole Roman Catholic community.

[Sidenote: Law not to be identified with Municipal Law.]

§ 6. But it must be emphasised that, if there is law to be found in every community, law in this meaning must not be identified with the law of States, the so-called Municipal Law,[7] just as the conception of State must not be identified with the conception of community. The conception of community is a wider one than the conception of State. A State is a community, but not every community is a State. Likewise the conception of law pure and simple is a wider one than that of Municipal Law. Municipal Law is law, but not every law is Municipal Law, as, for instance, the Canon Law is not. Municipal Law is a narrower conception than law pure and simple. The body of rules which is called the Law of Nations might, therefore, be law in the strict sense of the term, although it might not possess the characteristics of Municipal Law. To make sure whether the Law of Nations is or is not law, we have to inquire whether the three essential conditions of the existence of law are to be found in the Law of Nations.

[Footnote 7: Throughout this work the term "Municipal Law" is made use of in the sense of national or State law in contradistinction to International Law.]

[Sidenote: The "Family of Nations" a Community.]

§ 7. As the first condition is the existence of a community, the question arises, whether an international community exists whose law could be the Law of Nations. Before this question can be answered, the conception of community must be defined. A community may be said to be the body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between the single individuals. This definition of community covers not only a community of individual men, but also a community of individual communities such as individual States. A Confederation of States is a community of States. But is there a universal international community of all individual States in existence? This question is decidedly to be answered in the affirmative as far as the States of the civilised world are concerned. Innumerable are the interests which knit all the individual civilised States together and which create constant intercourse between these States as well as between their subjects. As the civilised States are, with only a few exceptions, Christian States, there are already religious ideas which wind a band around them. There are, further, science and art, which are by their nature to a great extent international, and which create a constant exchange of ideas and opinions between the subjects of the several States. Of the greatest importance are, however, agriculture, industry, and trade. It is totally impossible even for the largest empire to produce everything its subjects want. Therefore, the productions of agriculture and industry must be exchanged by the several States, and it is for this reason that international trade is an unequalled factor for the welfare of every civilised State. Even in antiquity, when every State tried to be a world in itself, States did not and could not exist without some sort of international trade. It is international trade which has created navigation on the high seas and on the rivers flowing through different States. It is, again, international trade which has called into existence the nets of railways which cover the continents, the international postal and telegraphic arrangements, and the Transatlantic telegraphic cables.[8]

[Footnote 8: See Fried, "Das internationale Leben der Gegenwart" (1908), where the innumerable interests are grouped and discussed which knit the civilised world together.]

The manifold interests which knit all the civilised States together and create a constant intercourse between one another, have long since brought about the necessity that these States should have one or more official representatives living abroad. Thus we find everywhere foreign envoys and consuls. They are the agents who make possible the current stream of transactions between the Governments of the different States. A number of International Offices, International Bureaux, International Commissions have been permanently appointed for the administration of international business, a permanent Court of Arbitration has been, and an International Prize Court will soon be, established at the Hague. And from time to time special international conferences and congresses of delegates of the different States are convoked for discussing and settling matters international. Though the individual States are sovereign and independent of each other, though there is no international Government above the national ones, though there is no central political authority to which the different States are subjected, yet there is something mightier than all the powerful separating factors: namely, the common interests. And these common interests and the necessary intercourse which serves these interests, unite the separate States into an indivisible community. For many hundreds of years this community has been called "Family of Nations" or "Society of Nations."

[Sidenote: The "Family of Nations" a Community with Rules of Conduct.]

§ 8. Thus the first essential condition for the existence of law is a reality. The single States make altogether a body of States, a community of individual States. But the second condition cannot be denied either. For hundreds of years more and more rules have grown up for the conduct of the States between each other. These rules are to a great extent customary rules. But side by side with these customary and unwritten rules more and more written rules are daily created by international agreements, such as the Declaration of Paris of 1856, the Hague Rules concerning land warfare of 1899 and 1907, and the like. The so-called Law of Nations is nothing else than a body of customary and conventional rules regulating the conduct of the individual States with each other. Just as out of tribal communities which were in no way connected with each other arose the State, so the Family of Nations arose out of the different States which were in no way connected with each other. But whereas the State is a settled institution, firmly established and completely organised, the Family of Nations is still in the beginning of its development. A settled institution and firmly established it certainly is, but it entirely lacks at present any organisation whatever. Such an organisation is, however, gradually growing into existence before our eyes. The permanent Court of Arbitration created by the First Hague Peace Conference, and the International Prize Court proposed by the Second Hague Peace Conference, are the first small traces of a future organisation. The next step forward will be that the Hague Peace Conferences will meet automatically within certain periods of time, without being summoned by one of the Powers. A second step forward will be the agreement on the part of the Powers upon fixed rules of procedure for the future Hague Peace Conferences. As soon as these two steps forward are really made, the nucleus of an organisation of the Family of Nations will be in existence, and out of this nucleus will grow in time a more powerful organisation, the ultimate characteristic features of which cannot at present be foreseen.[9]

[Footnote 9: See Oppenheim, "Die Zukunft des Völkerrechts" (1911), passim.]

[Sidenote: External Power for the Enforcement of Rules of International Conduct.]

§ 9. But how do matters stand concerning the third essential condition for the existence of law? Is there a common consent of the community of States that the rules of international conduct shall be enforced by external power? There cannot be the slightest doubt that this question must be affirmatively answered, although there is no central authority to enforce those rules. The heads of the civilised States, their Governments, their Parliaments, and public opinion of the whole of civilised humanity, agree and consent that the body of rules of international conduct which is called the Law of Nations shall be enforced by external power, in contradistinction to rules of international morality and courtesy, which are left to the consideration of the conscience of nations. And in the necessary absence of a central authority for the enforcement of the rules of the Law of Nations, the States have to take the law into their own hands. Self-help and intervention on the part of other States which sympathise with the wronged one are the means by which the rules of the Law of Nations can be[10] and actually are enforced. It is true that these means have many disadvantages, but they are means which have the character of external power. Compared with Municipal Law and the means at disposal for its enforcement, the Law of Nations is certainly the weaker of the two. A law is the stronger, the more guarantees are given that it can and will be enforced. Thus, the law of a State which is governed by an uncorrupt Government and the courts of which are not venal is stronger than the law of a State which has a corrupt Government and venal judges. It is inevitable that the Law of Nations must be a weaker law than Municipal Law, as there is not and cannot be an international Government above the national ones which could enforce the rules of International Law in the same way as a national Government enforces the rules of its Municipal Law. But a weak law is nevertheless still law, and the Law of Nations is by no means so weak a law as it sometimes seems to be.[11]

[Footnote 10: See below, § 135, concerning intervention by right.]

[Footnote 11: Those who deny to International Law the character of law because they identify the conception of law in general with that of Municipal Law and because they cannot see any law outside the State, confound cause and effect. Originally law was not a product of the State, but the State was a product of law. The right of the State to make law is based upon the rule of law that the State is competent to make law.]

[Sidenote: Practice recognises Law of Nations as Law.]

§ 10. The fact is that theorists only are divided concerning the character of the Law of Nations as real law. In practice International Law is constantly recognised as law. The Governments and Parliaments of the different States are of opinion that they are legally, not morally only, bound by the Law of Nations, although they cannot be forced to go before a court in case they are accused of having violated it. Likewise, public opinion of all civilised States considers every State legally bound to comply with the rules of the Law of Nations, not taking notice of the opinion of those theorists who maintain that the Law of Nations does not bear the character of real law. And the several States not only recognise the rules of International Law as legally binding in innumerable treaties, but emphasise every day the fact that there is a law between themselves. They moreover recognise this law by their Municipal Laws ordering their officials, their civil and criminal courts, and their subjects to take up such an attitude as is in conformity with the duties imposed upon their Sovereign by the Law of Nations. If a violation of the Law of Nations occurs on the part of an individual State, public opinion of the civilised world, as well as the Governments of other States, stigmatise such violation as a violation of law pure and simple. And countless treaties concerning trade, navigation, post, telegraph, copyright, extradition, and many other objects exist between civilised States, which treaties, resting entirely on the existence of a law between the States, presuppose such a law, and contribute by their very existence to its development and growth.

Violations of this law are certainly frequent. But the offenders always try to prove that their acts do not contain a violation, and that they have a right to act as they do according to the Law of Nations, or at least that no rule of the Law of Nations is against their acts. Has a State ever confessed that it was going to break the Law of Nations or that it ever did so? The fact is that States, in breaking the Law of Nations, never deny its existence, but recognise its existence through the endeavour to interpret the Law of Nations in a way favourable to their act. And there is an ever-growing tendency to bring disputed questions of International Law as well as international differences in general before international courts. The permanent Court of Arbitration at the Hague established in 1899, and the International Prize Court proposed at the Hague according to a convention of 1907, are the first promising fruits of this tendency.

II

BASIS OF THE LAW OF NATIONS

[Sidenote: Common Consent the Basis of Law.]

§ 11. If law is, as defined above (§ 5), a body of rules for human conduct within a community which by common consent of this community shall be enforced through external power, common consent is the basis of all law. What, now, does the term "common consent" mean? If it meant that all the individuals who are members of a community must at every moment of their existence expressly consent to every point of law, such common consent would never be a fact. The individuals, who are the members of a community, are successively born into it, grow into it together with the growth of their intellect during adolescence, and die away successively to make room for others. The community remains unaltered, although a constant change takes place in its members. "Common consent" can therefore only mean the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever, and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction to the wills of its single members. The question as to whether there be such a common consent in a special case, is not a question of theory, but of fact only. It is a matter of observation and appreciation, and not of logical and mathematical decision, just as is the well-known question, how many grains make a heap? Those legal rules which come down from ancestors to their descendants remain law so long only as they are supported by common consent of these descendants. New rules can only become law if they find common consent on the part of those who constitute the community at the time. It is for that reason that custom is at the background of all law, whether written or unwritten.

[Sidenote: Common Consent of the Family of Nations the Basis of International Law.]

§ 12. What has been stated with regard to law pure and simple applies also to the Law of Nations. However, the community for which this Law of Nations is authoritative consists not of individual human beings, but of individual States. And whereas in communities consisting of individual human beings there is a constant and gradual change of the members through birth, death, emigration, and immigration, the Family of Nations is a community within which no such constant change takes place, although now and then a member disappears and a new member steps in. The members of the Family of Nations are therefore not born into that community and they do not grow into it. New members are simply received into it through express or tacit recognition. It is therefore necessary to scrutinise more closely the common consent of the States which is the basis of the Law of Nations.

The customary rules of this law have grown up by common consent of the States--that is, the different States have acted in such a manner as includes their tacit consent to these rules. As far as the process of the growth of a usage and its turning into a custom can be traced back, customary rules of the Law of Nations came into existence in the following way. The intercourse of States with each other necessitated some rules of international conduct. Single usages, therefore, gradually grew up, the different States acting in the same or in a similar way when an occasion arose. As some rules of international conduct were from the end of the Middle Ages urgently wanted, the theory of the Law of Nations prepared the ground for their growth by constructing certain rules on the basis of religious, moral, rational, and historical reflections. Hugo Grotius's work, "De Jure Belli ac Pacis libri III." (1625), offered a systematised body of rules, which recommended themselves so much to the needs and wants of the time that they became the basis of the development following. Without the conviction of the Governments and of public opinion of the civilised States that there ought to be legally binding rules for international conduct, on the one hand, and, on the other hand, without the pressure exercised upon the States by their interests and the necessity for the growth of such rules, the latter would never have grown up. When afterwards, especially in the nineteenth century, it became apparent that customs and usages alone were not sufficient or not sufficiently clear, new rules were created through law-making treaties being concluded which laid down rules for future international conduct. Thus conventional rules gradually grew up side by side with customary rules.

New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct in force at the time of their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the Family of Nations consented to it. No single State can say on its admittance into the Family of Nations that it desires to be subjected to such and such a rule of International Law, and not to others. The admittance includes the duty to submit to all the rules in force, with the sole exception of those which, such as the rules of the Geneva Convention for instance, are specially stipulated for such States only as have concluded, or later on acceded to, a certain international treaty creating the rules concerned.

On the other hand, no State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations. The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one State. This applies not only to customary rules, but also to such conventional rules as have been called into existence through a law-making treaty for the purpose of creating a permanent mode of future international conduct without a right of the signatory powers to give notice of withdrawal. It would, for instance, be a violation of International Law on the part of a signatory Power of the Declaration of Paris of 1856 to declare that it would cease to be a party. But it must be emphasised that this does not apply to such conventional rules as are stipulated by a law-making treaty which expressly reserves the right to the signatory Powers to give notice.

[Sidenote: States the Subjects of the Law of Nations.]

§ 13. Since the Law of Nations is based on the common consent of individual States, and not of individual human beings, States solely and exclusively are the subjects of International Law. This means that the Law of Nations is a law for the international conduct of States, and not of their citizens. Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively. An individual human being, such as a king or an ambassador for example, is never directly a subject of International Law. Therefore, all rights which might necessarily have to be granted to an individual human being according to the Law of Nations are not international rights, but rights granted by Municipal Law in accordance with a duty imposed upon the respective State by International Law. Likewise, all duties which might necessarily have to be imposed upon individual human beings according to the Law of Nations are not international duties, but duties imposed by Municipal Law in accordance with a right granted to or a duty imposed upon the respective State by International Law. Thus the privileges of an ambassador are granted to him by the Municipal Law of the State to which he is accredited, but such State has the duty to grant these privileges according to International Law. Thus, further, the duties incumbent upon officials and subjects of neutral States in time of war are imposed upon them by the Municipal Law of their home States, but these States have, according to International Law, the duty of imposing the respective duties upon their officials and citizens.[12]

[Footnote 12: The importance of the fact that subjects of the Law of Nations are States exclusively is so great that I consider it necessary to emphasise it again and again throughout this work. See, for instance, below, §§ 289, 344, 384. It should, however, already be mentioned here that this assertion is even nowadays still sometimes contradicted; see, for instance, Kaufmann, "Die Rechtskraft des Internationalen Rechts" (1899), passim; Rehm in Z.V. I. (1907), p. 53; and Diena in R.G. XVI. pp. 57-76.]

[Sidenote: Equality an Inference from the Basis of International Law.]

§ 14. Since the Law of Nations is based on the common consent of States as sovereign communities, the member States of the Family of Nations are equal to each other as subjects of International Law. States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty and of the fact that the Law of Nations is a law between, not above, the States.[13]

[Footnote 13: See below, §§ 115-116, where the legal equality of States in contradistinction to their political inequality is discussed, and where it will also be shown that not-full Sovereign States are not equals of full-Sovereign States.]

III

SOURCES OF THE LAW OF NATIONS

Hall, pp. 5-14--Maine, pp. 1-25--Lawrence, §§ 61-66--Phillimore, I. §§ 17-33--Twiss, I. §§ 82-103--Taylor, §§ 30-36--Westlake, I. pp. 14-19--Wheaton, § 15--Halleck, I. pp. 55-64--Ullmann, §§ 8-9--Heffter, § 3--Holtzendorff in Holtzendorff, I. pp. 79-158--Rivier, I. § 2--Nys, I. pp. 144-165--Bonfils, Nos. 45-63--Despagnet, Nos. 58-63--Pradier-Fodéré, I. Nos. 24-35--Mérignhac, I. pp. 79-113--Martens, I. § 43--Fiore, I. Nos. 224-238--Calvo, I. §§ 27-38--Bergbohm, "Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877)--Jellinek, "Die rechtliche Natur der Staatsverträge" (1880)--Cavaglieri, "La consuetudine giuridica internazionale" (1907).

[Sidenote: Source in Contradistinction to Cause.]

§ 15. The different writers on the Law of Nations disagree widely with regard to kinds and numbers of sources of this law. The fact is that the term "source of law" is made use of in different meanings by the different writers on International Law, as on law in general. It seems to me 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 defined as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term "source of law," the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in Great Britain a good many rules of law rise every year from 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.

[Sidenote: The two Sources of International Law.]

§ 16. As the basis of the Law of Nations is the common consent of the member States of the Family of Nations, it is evident that there must exist, and can only exist, as many sources of International Law as there are facts through which such common consent can possibly come into existence. Of such facts there are only two. A State, just as an individual, may give its consent either directly by an express declaration or tacitly by conduct which it would not follow in case it did not consent. The sources of International Law are therefore twofold--namely: (1) express consent, which is given when States conclude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, which is given through States having adopted the custom of submitting to certain rules of international conduct. Treaties and custom are, therefore, exclusively the sources of the Law of Nations.

[Sidenote: Custom in Contradistinction to Usage.]

§ 17. Custom is the older and the original source of International Law in particular as well as of law in general. Custom must not be confounded with usage. In everyday life and language both terms are used synonymously, but in the language of the jurist they have two distinctly different meanings. Jurists speak of a custom, when a clear and continuous habit of doing certain actions has grown up under the ægis of the conviction that these actions are legally necessary or legally right. On the other hand, jurists speak of a usage, when a habit of doing certain actions has grown up without there being the conviction of their legal character. Thus the term "custom" is in juristic language a narrower conception than the term "usage," as a given course of conduct may be usual without being customary. Certain conduct of States concerning their international relations may therefore be usual without being the outcome of customary International Law.

As usages have a tendency to become custom, the question presents itself, at what time a usage turns into a custom. This question is one of fact, not of theory. All that theory can point out is this: Wherever and as soon as a frequently adopted international conduct of States is considered legally necessary or legally right, the rule which may be abstracted from such conduct, is a rule of customary International Law.

[Sidenote: Treaties as Source of International Law.]

§ 18. Treaties are the second source of International Law, and a source which has of late become of the greatest importance. As treaties may be concluded for innumerable purposes,[14] it is necessary to emphasise that such treaties only are a source of International Law as either stipulate new rules for future international conduct or confirm, define, or abolish existing customary or conventional rules. Such treaties must be called law-making treaties. Since the Family of Nations is not a State-like community, there is no central authority which could make law for it in a similar way as Parliaments make law by statutes within the States. The only way in which International Law can be made by a deliberate act, in contradistinction to custom, is that the members of the Family of Nations conclude treaties in which certain rules for their future conduct are stipulated. Of course, such law-making treaties create law for the contracting parties solely. Their law is universal International Law then only, when all the members of the Family of Nations are parties to them. Many law-making treaties are concluded by a few States only, so that the law which they create is particular International Law. On the other hand, there have been many law-making treaties concluded which contain general International Law, because the majority of States, including leading Powers, are parties to them. General International Law has a tendency to become universal because such States as hitherto did not consent to it will in future either expressly give their consent or recognise the respective rules tacitly through custom.[15] But it must be emphasised that, whereas custom is the original source of International Law, treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations, that treaties are binding upon the contracting parties.[16]

[Footnote 14: See below, § 492.]

[Footnote 15: Law-making treaties of world-wide importance are enumerated below, §§ 556-568b.]

[Footnote 16: See below, § 493.]

[Sidenote: Factors influencing the Growth of International Law.]

§ 19. Thus custom and treaties are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term "source" with that of "cause" by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical facts from which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers[17] on International Law, decisions of prize courts, arbitral awards,[18] 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.[19] 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.

[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.]

[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.]

[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.]

A factor of a special kind which also influences the growth of International Law is the so-called Comity (Comitas Gentium, Convenance et Courtoisie Internationale, Staatengunst). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are not 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.[20]

[Footnote 20: The matter is ably discussed in Stoerk, "Völkerrecht und Völkercourtoisie" (1908).]

Not to be confounded with the rules of Comity are the rules of morality which ought to apply to the intercourse of States as much as to the intercourse of individuals.

IV

RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW

Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp. 185-189--Taylor, § 103--Holland, Studies, pp. 176-200--Kaufmann, "Die Rechtskraft des internationalen Rechts" (1899)--Triepel, "Völkerrecht und Landesrecht" (1899)--Anzilotti, "Il diritto internazionale nei giudizi interni" (1905)--Kohler in Z.V. II. (1908), pp. 209-230.

[Sidenote: Essential Difference between International and Municipal Law.]

§ 20. The Law of Nations and the Municipal Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Municipal Law are custom grown up within the boundaries of the respective State and statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties concluded by the members of that family.

The Law of Nations and Municipal Law differ, secondly, regarding the relations they regulate. Municipal Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations.

The Law of Nations and Municipal Law differ, thirdly, with regard to the substance of their law: whereas Municipal Law is a law of a Sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between Sovereign States, and therefore a weaker law.[21]

[Footnote 21: See above, § 9.]

[Sidenote: Law of Nations never per se Municipal Law.]

§ 21. If the Law of Nations and Municipal Law differ as demonstrated, the Law of Nations can neither as a body nor in parts be per se a part of Municipal Law. Just as Municipal Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Municipal Law. If, according to the Municipal Law of an individual State, the Law of Nations as a body or in parts is considered the law of the land, this can only be so either by municipal custom or by statute, and then the respective rules of the Law of Nations have by adoption[22] become at the same time rules of Municipal Law. Wherever and whenever such total or partial adoption has not taken place, municipal courts cannot be considered to be bound by International Law, because it has, per se, no power over municipal courts.[23] And if it happens that a rule of Municipal Law is in indubitable conflict with a rule of the Law of Nations, municipal courts must apply the former. If, on the other hand, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly having been adopted by Municipal Law, municipal courts cannot apply such rule of the Law of Nations.

[Footnote 22: This has been done by the United States. See The Nereide, 9 Cranch, 388; United States v. Smith, 5 Wheaton, 153; The Scotia, 14 Wallace, 170; The Paquette Habana, 175 United States, 677. See also Taylor, § 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great Britain, see Blackstone, IV. ch. 5, and Westlake in The Law Quarterly Review, XXII. (1906), pp. 14-26; see also the case of the West Rand Central Mining Co. v. The King (1905), 2 K. B. 391.]

[Footnote 23: This ought to be generally recognised, but, in fact, is not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--"... das Völkerrecht ist ein überstaatliches Recht, das der Gesetzgebung des einzelnen Staates nicht unterworfen ist und von den Richtern ohne weiteres respectirt werden muss: das Völkerrecht steht über dem staatlichen Recht."]

[Sidenote: Certain Rules of Municipal Law necessitated or interdicted.]

§ 22. If Municipal Courts cannot apply unadopted rules of the Law of Nations, and must apply even such rules of Municipal Law as conflict with the Law of Nations, it is evident that the several States, in order to fulfil their international obligations, are compelled to possess certain rules, and are prevented from having certain other rules as part of their Municipal Law. It is not necessary to enumerate all the rules of Municipal Law which a State must possess, and all those rules it is prevented from having. It suffices to give some illustrative examples. Thus, on the one hand, the Municipal Law of every State, for instance, is compelled to possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Municipal Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent passage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Municipal Law as it is prevented from having by the Law of Nations, or if it does not possess such Municipal rules as it is compelled to have by the Law of Nations, it violates an international legal duty, but its courts[24] cannot by themselves alter the Municipal Law to meet the requirements of the Law of Nations.

[Footnote 24: This became quite apparent in the Moray Firth case (Mortensen v. Peters)--see below, § 192--in which the Court had to apply British Municipal Law.]

[Sidenote: Presumption against conflicts between International and Municipal Law.]

§ 23. However, although Municipal Courts must apply Municipal Law even if conflicting with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that a civilised State would intentionally enact a rule conflicting with the Law of Nations. A part of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict.

[Sidenote: Presumption of Existence of certain necessary Municipal Rules.]

§ 24. In case of a gap in the statutes of a civilised State regarding certain rules necessitated by the Law of Nations, such rules ought to be presumed by the Courts to have been tacitly adopted by such Municipal Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Municipal Law to be deficient in such rules. If, for instance, the Municipal Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted.

[Sidenote: Presumption of the Existence of certain Municipal Rules in Conformity with Rights granted by the Law of Nations.]

§ 25. There is no doubt that a State need not make use of all the rights it has by the Law of Nations, and that, consequently, every State can by its laws expressly renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. However, when no such renunciation has taken place, Municipal Courts ought, in case the interests of justice demand it, to presume that their Sovereign has tacitly consented to make use of such rights. If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sovereign has tacitly consented to that wider range of its jurisdiction.

A remarkable case illustrating this happened in this country in 1876. The German vessel Franconia, while passing through the British maritime belt within three miles of Dover, negligently ran into the British vessel Strathclyde, and sank her. As a passenger on board the latter was thereby drowned, the commander of the Franconia, the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.[25] To provide for future cases of like kind, Parliament passed, in 1878, the "Territorial Waters Jurisdiction Act."[26]

[Footnote 25: L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp. 39-45. See also below, § 189, where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pass through its maritime belt.]

[Footnote 26: 41 and 42 Vict. c. 73.]

V

DOMINION OF THE LAW OF NATIONS

Lawrence, § 44--Phillimore, I. §§ 27-33--Twiss, I. § 62--Taylor, §§ 61-64--Westlake, I. p. 40--Bluntschli, §§ 1-16--Heffter, § 7--Holtzendorff in Holtzendorff, I. pp. 13-18--Nys, I. pp. 116-132--Rivier, I. § 1--Bonfils, Nos. 40-45--Despagnet, Nos. 51-53--Martens, I. § 41--Fiore, Code, Nos. 38-43--Ullmann, § 10--Nippold in Z.V. II. (1908), pp. 441-443--Cavaglieri in R.G. XVIII. (1911), pp. 259-292.

[Sidenote: Range of Dominion of International Law controversial.]

§ 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable--that is, those States between which International Law finds validity. The range of the dominion of the Law of Nations is controversial, two extreme opinions concerning this dominion being opposed. Some publicists[27] maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or non-Christian, civilised or uncivilised, is a subject of International Law. On the other hand, several jurists[28] teach that the dominion of the Law of Nations extends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no constant intercourse existed in former times between Christian and Buddhistic States. But from about the beginning of the nineteenth century matters gradually changed. A condition of perpetual enmity between whole groups of nations exists no longer either in theory or in practice. And although there is still a broad and deep gulf between Christian civilisation and others, many interests, which knit Christian States together, knit likewise some non-Christian and Christian States.

[Footnote 27: See, for instance, Bluntschli, § 8, and Fiore, Code, No. 38.]

[Footnote 28: See, for instance, Martens, § 41.]

[Sidenote: Three Conditions of Membership of the Family of Nations.]

§ 27. Thus the membership of the Family of Nations has of late necessarily been increased, and the range of the dominion of the Law of Nations has extended beyond its original limits. This extension has taken place in conformity with the basis of the Law of Nations. As this basis is the common consent of the civilised States, there are three conditions for the admission of new members into the circle of the Family of Nations. A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations. Such State must, secondly, expressly or tacitly consent to be bound for its future international conduct by the rules of International Law. And, thirdly, those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member.

The last two conditions are so obvious that they need no comment. Regarding the first condition, however, it must be emphasised that not particularly Christian civilisation, but civilisation of such kind only is conditioned as to enable the State concerned and its subjects to understand and to act in conformity with the principles of the Law of Nations. These principles cannot be applied to a State which is not able to apply them on its own part to other States. On the other hand, they can well be applied to a State which is able and willing to apply them to other States, provided a constant intercourse has grown up between it and other States. The fact is that the Christian States have been of late compelled by pressing circumstances to receive several non-Christian States into the community of States which are subjects of International Law.

[Sidenote: Present range of Dominion of the Law of Nations.]

§ 28. The present range of the dominion of International Law is a product of historical development within which epochs are distinguishable marked by successive entrances of various States into the Family of Nations.

(1) The old Christian States of Western Europe are the original members of the Family of Nations, because the Law of Nations grew up gradually between them through custom and treaties. Whenever afterwards a new Christian State made its appearance in Europe, it was received into the charmed circle by the old members of the Family of Nations. It is for this reason that this law was in former times frequently called "European Law of Nations." But this name has nowadays historical value only, as it has been changed into "Law of Nations," or "International Law" pure and simple.

(2) The next group of States which entered into the Family of Nations is the body of Christian States which grew up outside Europe. All the American[29] States which arose out of colonies of European States belong to this group. And it must be emphasised that the United States of America have largely contributed to the growth of the rules of International Law. The two Christian Negro Republics of Liberia in West Africa and of Haiti on the island of San Domingo belong to this group.

[Footnote 29: But it ought not to be maintained that there is--in contradistinction to the European--an American International Law in existence; see, however, Alvarez, "Le Droit International Américain" (1910), and again Alvarez in A.J. III. (1909), pp. 269-353.]

(3) With the reception of the Turkish Empire into the Family of Nations International Law ceased to be a law between Christian States solely. This reception has expressly taken place through Article 7 of the Peace Treaty of Paris of 1856, in which the five Great European Powers of the time, namely, France, Austria, England, Prussia, and Russia, and besides those Sardinia, the nucleus of the future Great Power Italy, expressly "déclarent la Sublime Porte admise à participer aux avantages du droit public et du concert européens." Since that time Turkey has on the whole endeavoured in time of peace and war to act in conformity with the rules of International Law, and she has, on the other hand, been treated[30] accordingly by the Christian States. No general congress has taken place since 1856 to which Turkey has not been invited to send her delegates.

[Footnote 30: There is no doubt that Turkey, in spite of having been received into the Family of Nations, has nevertheless hitherto been in an anomalous position as a member of that family, owing to the fact that her civilisation has not yet reached the level of that of the Western States. It is for this reason that the so-called Capitulations are still in force and that other anomalies still prevail, but their disappearance is only a question of time.]

(4) Another non-Christian member of the Family of Nations is Japan. A generation ago one might have doubted whether Japan was a real and full member of that family, but since the end of the nineteenth century no doubt is any longer justified. Through marvellous efforts, Japan has become not only a modern State, but an influential Power. Since her war with China in 1895, she must be considered one of the Great Powers that lead the Family of Nations.

(5) The position of such States as Persia, Siam, China, Morocco, Abyssinia, and the like, is doubtful. These States are certainly civilised States, and Abyssinia is even a Christian State. However, their civilisation has not yet reached that condition which is necessary to enable their Governments and their population in every respect to understand and to carry out the command of the rules of International Law. On the other hand, international intercourse has widely arisen between these States and the States of the so-called Western civilisation. Many treaties have been concluded with them, and there is full diplomatic intercourse between them and the Western States. China, Persia, and Siam have even taken part in the Hague Peace Conferences. All of them make efforts to educate their populations, to introduce modern institutions, and thereby to raise their civilisation to the level of that of the Western. They will certainly succeed in this respect in the near future. But as yet they have not accomplished this task, and consequently they are not yet able to be received into the Family of Nations as full members. Although they are, as will be shown below (§ 103), for some parts within the circle of the Family of Nations, they remain for other parts outside. But the example of Japan can show them that it depends entirely upon their own efforts to be received as full members into that family.

(6) It must be mentioned that a State of quite a unique character, the former Congo Free State,[31] was, since the Berlin Conference of 1884-1885, a member of the Family of Nations. But it lost its membership in 1908 when it merged in Belgium by cession.

[Footnote 31: See below, § 101.]

[Sidenote: Treatment of States outside the Family of Nations.]

§ 29. The Law of Nations as a law between States based on the common consent of the members of the Family of Nations naturally does not contain any rules concerning the intercourse with and treatment of such States as are outside that circle. That this intercourse and treatment ought to be regulated by the principles of Christian morality is obvious. But actually a practice frequently prevails which is not only contrary to Christian morality, but arbitrary and barbarous. Be that as it may, it is discretion, and not International Law, according to which the members of the Family of Nations deal with such States as still remain outside that family. But the United States of America apply, as far as possible, the rules of International Law to their relations with the Red Indians.

VI

CODIFICATION OF THE LAW OF NATIONS

Holtzendorff in Holtzendorff, I. pp. 136-152--Ullmann, § 11--Despagnet, Nos. 67-68--Bonfils, Nos. 1713-1727--Mérignhac, I. pp. 26-28--Nys, I. pp. 166-183--Rivier, I. § 2--Fiore, I. Nos. 124-127--Martens, I. § 44--Holland, Studies, pp. 78-95--Bergbohm, "Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877), pp. 44-77--Bulmerincq, "Praxis, Theorie, und Codification des Völkerrechts" (1874), pp. 167-192--Roszkowski in R.I. XXI. (1889), p. 520--Proceedings of the American Society of International Law, IV. (1910), pp. 208-227.

[Sidenote: Movement in Favour of Codification.]

§ 30. The lack of precision which is natural to a large number of the rules of the Law of Nations on account of its slow and gradual growth has created a movement for its codification. The idea of a codification of the Law of Nations in its totality arose at the end of the eighteenth century. It was Bentham who first suggested such a codification. He did not, however, propose codification of the existing positive Law of Nations, but thought of a utopian International Law which could be the basis of an everlasting peace between the civilised States.[32]

[Footnote 32: See Bentham's Works, ed. Bowring, VIII. p. 537; Nys, in The Law Quarterly Review, XI. (1885), pp. 226-231.]

Another utopian project is due to the French Convention, which resolved in 1792 to create a Declaration of the Rights of Nations as a pendant to the Declaration of the Rights of Mankind of 1789. For this purpose the Abbé Grégoire was charged with the drafting of such a declaration. In 1795, Abbé Grégoire produced a draft of twenty-one articles, which, however, was rejected by the Convention, and the matter dropped.[33]

[Footnote 33: See Rivier, I. p. 40, where the full text of these twenty-one articles is given. They did not contain a real code, but certain principles only.]

It was not until 1861 that a real attempt was made to show the possibility of a codification. This was done by an Austrian jurist, Alfons von Domin-Petrushevecz, who published in that year at Leipzig a "Précis d'un Code de Droit International."

In 1862, the Russian Professor Katschenowsky brought an essay before the Juridical Society of London (Papers II. 1863) arguing the necessity of a codification of International Law.

In 1863, Professor Francis Lieber, of the Columbia College, New York, drafted the Laws of War in a body of rules which the United States published during the Civil War for the guidance of her army.[34]

[Footnote 34: See below, vol. II. § 68.]

In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of Nations, published "Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt." This draft code has been translated into the French, Greek, Spanish, and Russian languages, and the Chinese Government produced an official Chinese translation as a guide for Chinese officials.

In 1872, the great Italian politician and jurist Mancini raised his voice in favour of codification of the Law of Nations in his able essay "Vocazione del nostro secolo per la riforma e codificazione del diritto delle genti."

Likewise in 1872 appeared at New York David Dudley Field's "Draft Outlines of an International Code."

In 1873 the Institute of International Law was founded at Ghent in Belgium. This association of jurists of all nations meets periodically, and has produced a number of drafts concerning various parts of International Law, and in especial a Draft Code of the Law of War on Land (1880).

Likewise in 1873 was founded the Association for the Reform and Codification of the Law of Nations, which also meets periodically and which styles itself now the International Law Association.

In 1874 the Emperor Alexander II. of Russia took the initiative in assembling an international conference at Brussels for the purpose of discussing a draft code of the Law of Nations concerning land warfare. At this conference jurists, diplomatists, and military men were united as delegates of the invited States, and they agreed upon a body of sixty articles which goes under the name of The Declaration of Brussels. But the Powers have never ratified these articles.

In 1880 the Institute of International Law published its "Manuel des Lois de la Guerre sur Terre."

In 1887 Leone Levi published his "International Law with Materials for a Code of International Law."

In 1890 the Italian jurist Fiore published his "Il diritto internazionale codificato e sua sanzione giuridica," of which a fourth edition appeared in 1911.

In 1906 E. Duplessix published his "La loi des Nations. Projet d'institution d'une autorité nationale, législative, administrative, judiciaire. Projet de Code de Droit international public."

In 1911 Jerome Internoscia published his "New Code of International Law" in English, French, and Italian.

[Sidenote: Work of the first Hague Peace Conference.]

§ 31. At the end of the nineteenth century, in 1899, the so-called Peace Conference at the Hague, convened on the personal initiative of the Emperor Nicholas II. of Russia, has shown the possibility that parts of the Law of Nations may well be codified. Apart from three Declarations of minor value and of the convention concerning the adaptation of the Geneva Convention to naval warfare, this conference has succeeded in producing two important conventions which may well be called codes--namely, first, the "Convention for the Pacific Settlement of International Disputes," and, secondly, the "Convention with respect to the Laws and Customs of War on Land." The great practical importance of the first-named convention is now being realised, as the Permanent Court of Arbitration has in a number of cases already successfully given its award. Nor can the great practical value of the second-named convention be denied. Although the latter contains, even in the amended form given to it by the second Hague Peace Conference of 1907, many gaps, which must be filled up by the customary Law of Nations, and although it is not a masterpiece of codification, it represents a model, the very existence of which teaches that codification of parts of the Law of Nations is practicable, provided the Powers are inclined to come to an understanding. The first Hague Peace Conference has therefore made an epoch in the history of International Law.

[Sidenote: Work of the second Hague Peace Conference and the Naval Conference of London.]

§ 32. Shortly after the Hague Peace Conference of 1899, the United States of America took a step with regard to sea warfare similar to that taken by her in 1863 with regard to land warfare. She published on June 27, 1900, a body of rules for the use of her navy under the title "The Laws and Usages of War at Sea"--the so-called "United States Naval War Code"--which was drafted by Captain Charles H. Stockton, of the United States Navy.

Although, on February 4, 1904, this code was by authority of the President of the United States withdrawn it provided the starting-point of a movement for codification of maritime International Law. No complete Naval War Code agreed upon by the Powers has as yet made its appearance, but the second Hague Peace Conference of 1907 and the Naval Conference of London of 1908-9 have produced a number of law-making treaties which represent codifications of several parts of maritime International Law.

The second Hague Peace Conference met in 1907 and produced not less than thirteen conventions and one declaration. This declaration prohibits the discharge of projectiles and explosives from balloons and takes the place of a corresponding declaration of the first Hague Peace Conference. And three of the thirteen conventions, namely that for the pacific settlement of international disputes, that concerning the laws and customs of war on land, and that concerning the adaptation of the principles of the Geneva Convention to maritime war, likewise take the place of three corresponding conventions of the first Hague Peace Conference. But the other ten conventions are entirely new and concern: the limitation of the employment of force for the recovery of contract debts, the opening of hostilities, the rights and duties of neutral Powers and persons in war on land, the status of enemy merchant ships at the outbreak of hostilities, the conversion of merchant ships into war ships, the laying of automatic submarine contact mines, bombardments by naval forces in time of war, restrictions on the exercise of the right of capture in maritime war, the establishment of a Prize Court, the rights and duties of neutral Powers in maritime war.

The Naval Conference of London which met in November 1908, and sat till February 1909, produced the Declaration of London, the most important law-making treaty as yet concluded. Its nine chapters deal with: blockade, contraband, unneutral service, destruction of neutral prizes, transfer to a neutral flag, enemy character, convoy, resistance to search, compensation. The Declaration of London, when ratified, will make the establishment of an International Prize Court possible.

[Sidenote: Value of Codification of International Law contested.]

§ 33. In spite of the movement in favour of codification of the Law of Nations, there are many eminent jurists who oppose such codification. They argue that codification would never be possible on account of differences of languages and of technical juridical terms. They assert that codification would cut off the organic growth and future development of International Law. They postulate the existence of a permanent International Court with power of executing its verdicts as an indispensable condition, since without such a court no uniform interpretation of controversial parts of a code could be possible. Lastly, they maintain that the Law of Nations is not yet at present, and will not be for a long time to come, ripe for codification. Those jurists, on the other hand, who are in favour of codification argue that the customary Law of Nations to a great extent lacks precision and certainty, that writers on International Law differ in many points regarding its rules, and that, consequently, there is no broad and certain basis for the practice of the States to stand upon.

[Sidenote: Merits of Codification in general.]

§ 34. I am decidedly not a blind and enthusiastic admirer of codification in general. It cannot be maintained that codification is everywhere, at all times, and under all circumstances opportune. Codification certainly interferes with the so-called organic growth of the law through usage into custom. It is true that a law, once codified, cannot so easily adapt itself to the individual merits of particular cases which come under it. It is further a fact, which cannot be denied, that together with codification there frequently enters into courts of justice and into the area of juridical literature a hair-splitting tendency and an interpretation of the law which often clings more to the letter and the word of the law than to its spirit and its principles. And it is not at all a fact that codification does away with controversies altogether. Codification certainly clears up many questions of law which have been hitherto debatable, but it creates at the same time new controversies. And, lastly, all jurists know very well that the art of legislation is still in its infancy and not at all highly developed. The hands of legislators are very often clumsy, and legislation often does more harm than good. Yet, on the other hand, the fact must be recognised that history has given its verdict in favour of codification. There is no civilised State in existence whose Municipal Law is not to a greater or lesser extent codified. The growth of the law through custom goes on very slowly and gradually, very often too slowly to be able to meet the demands of the interests at stake. New interests and new inventions very often spring up with which customary law cannot deal. Circumstances and conditions frequently change so suddenly that the ends of justice are not met by the existing customary law of a State. Thus, legislation, which is, of course, always partial codification, becomes often a necessity in the face of which all hesitation and scruple must vanish. Whatever may be the disadvantages of codification, there comes a time in the development of every civilised State when it can no longer be avoided. And great are the advantages of codification, especially of a codification that embraces a large part of the law. Many controversies are done away with. The science of Law receives a fresh stimulus. A more uniform spirit enters into the law of the country. New conditions and circumstances of life become legally recognised. Mortifying principles and branches are cut off with one stroke. A great deal of fresh and healthy blood is brought into the arteries of the body of the law in its totality. If codification is carefully planned and prepared, if it is imbued with true and healthy conservatism, many disadvantages can be avoided. And interpretation on the part of good judges can deal with many a fault that codification has made. If the worst comes to the worst, there is always a Parliament or another law-giving authority of the land to mend through further legislation the faults of previous codification.

[Sidenote: Merits of Codification of International Law.]

§ 35. But do these arguments in favour of codification in general also apply to codification of the Law of Nations? I have no doubt that they do more or less. If some of these arguments have no force in view of the special circumstances of the existence of International Law and of the peculiarities of the Family of Nations, there are other arguments which take their place.

When opponents maintain that codification would never be practicable on account of differences of language and of technical juridical terms, I answer that this difficulty is only as great an obstacle in the way of codification as it is in the way of contracting international treaties. The fact that such treaties are concluded every day shows that difficulties which arise out of differences of language and of technical juridical terms are not at all insuperable.

Of more weight than this is the next argument of opponents, that codification of the Law of Nations would cut off its organic growth and future development. It cannot be denied that codification always interferes with the growth of customary law, although the assertion is not justified that codification does cut off such growth. But this disadvantage can be met by periodical revisions of the code and by its gradual increase and improvement through enactment of additional and amending rules according to the wants and needs of the days to come.

When opponents postulate an international court with power of executing its verdicts as an indispensable condition of codification, I answer that the non-existence of such a court is quite as much or as little an argument against codification as against the very existence of International Law. If there is a Law of Nations in existence in spite of the non-existence of an international court to guarantee its realisation, I cannot see why the non-existence of such a court should be an obstacle to codifying the very same Law of Nations. It may indeed be maintained that codification is all the more necessary as such an international court does not exist. For codification of the Law of Nations and the solemn recognition of a code by a universal law-making international treaty would give more precision, certainty, and weight to the rules of the Law of Nations than they have now in their unwritten condition. And a uniform interpretation of a code is now, since the first Hague Peace Conference has instituted a Permanent Court of Arbitration, and since the second Peace Conference has resolved upon the establishment of an International Prize Court, much more realisable than in former times, although these courts will never have the power of executing their verdicts.

But is the Law of Nations ripe for codification? I readily admit that there are certain parts of that law which would offer the greatest difficulty, and which therefore had better remain untouched for the present. But there are other parts, and I think that they constitute the greater portion of the Law of Nations, which are certainly ripe for codification. There can be no doubt that, whatever can be said against codification of the whole of the Law of Nations, partial codification is possible and comparatively easy. The work done by the Institute of International Law, and published in the "Annuaire de l'Institut de Droit International," gives evidence of it. And the number and importance of the law-making treaties produced by the Hague Peace Conferences and the Maritime Conference of London, 1908-9, should leave no doubt as to the feasibility of such partial codification.

[Sidenote: How Codification could be realised.]

§ 36. However, although possible, codification could hardly be realised at once. The difficulties, though not insuperable, are so great that it would take the work of perhaps a generation of able jurists to prepare draft codes for those parts of International Law which may be considered ripe for codification. The only way in which such draft codes could be prepared consists in the appointment on the part of the Powers of an international committee composed of a sufficient number of able jurists, whose task would be the preparation of the drafts. Public opinion of the whole civilised world would, I am sure, watch the work of these men with the greatest interest, and the Parliaments of the civilised States would gladly vote the comparatively small sums of money necessary for the costs of the work. But in proposing codification it is necessary to emphasise that it does not necessarily involve a reconstruction of the present international order and a recasting of the whole system of International Law as it at present stands. Naturally, a codification would in many points mean not only an addition to the rules at present recognised, but also the repeal, alteration, and reconstruction of some of these rules. Yet, however this may be, I do not believe that a codification ought to be or could be undertaken which would revolutionise the present international order and put the whole system of International Law on a new basis. The codification which I have in view is one that would embody the existing rules of International Law together with such modifications and additions as are necessitated by the conditions of the age and the very fact of codification being taken in hand. If International Law, as at present recognised, is once codified, nothing prevents reformers from making proposals which could be realised by successive codification.