Principles of international law /

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THE PRINCIPLET

OF

BY

T. J. LAWRENCE, M.A., LL.D.

Rector of Girton, and Lecturer in Downing College, Cambridge, England; Associate of the Institute of International Law ;

Lecturer in Maritime Law at the Royal Naval College, Greenwich ; Lately University Extension Professor of History and International Law in the University of Chicago, U.S.A. ;

Sometime Deputy Professor of International Law in the University of Cambridge, England

SECOND EDITION, REVISED

BOSTON, U.S.A.

D. C. HEATH & CO., PUBLISHERS 1898

Copyright, 1895,

By T. J. LAWRENCE.

Entered at Stationers’ Hall.

Norfojoolf -press

J, S. Cushing & Co. — Berwick & Smith Norwood Mass. U.S.A.

To

My American Pupils

Preface

International Law may be regarded as a living organism, which grows with the growth of experience and is shaped in the last resort by the ideas and aspirations current among civilized mankind. He who would accurately describe its present condition must sketch the outlines of its past history and gauge the strength of the forces which are even now acting upon it. He must understand the processes whereby it reached the shape in which we see it and forecast the changes which will accompany its future growth. The perfect publicist must take all philosophy, all history and all diplomacy to be his province. He must weigh in the balance of absqlute impartiality the actions of statesmen and the decisions of judges. He must be familiar in equal degree with the rough amenities of camps and the stately etiquette of courts. I lay no claim to the possession of these exalted qualifications. I have but attempted to trace the development of International Law in such a way as to show on the one hand its relation to a few great ethical principles and on the other its dependence upon the hard facts of history. The severest critic cannot be more sensible than I am of the deficiencies of my work. They are due partly to the greatness of the task compared with the powers of the doer, and partly to untoward circumstances of change and unrest which hampered its progress from beginning to end. I shall be more

VI

PREFACE.

than satisfied if I have succeeded in placing before students of political science a clear and readable outline of one of the most important branches of their subject.

The book is divided into four parts. The first deals with the nature and history of International Law, and in the order of thought precedes the others, which set forth the rules observed among states during peace, war and neutrality. But nevertheless it will be wise to leave a careful study of the questions discussed in the first three chapters till the rest of the work has been mastered. Some knowledge of the usages of international society is necessary before the student is in a position to appreciate the tendencies of opposing schools of thought among publicists. Nor need any inconvenience arise from this mode of procedure ; for nothing is easier than to turn back at the end of a book and read again with an educated eye the early pages, whose discussions on definition and method puzzled the mind not yet familiar with the subject of which they treat. I have striven throughout to avoid unnecessary controversy. When I have been obliged to wrestle with philosophical problems or historical puzzles, I have endeavored to avoid the reproach of mistaking obscurity for profundity. But on the other hand I have recognized that difficulties are not overcome when they are shirked, and my aim has always been to bring to bear upon them the best resources at my disposal. If I have failed, the fault is due, not to inability to see the mark, but to lack of power to hit it.

In a work written in English, and intended in the main for British and American readers, it is natural that most of the cases should be taken from British and American history. I have so taken mine of set purpose. The more the two great English-speaking peoples know of each other the better friends they will be ; and on their friendly co-operation de-

PREFACE.

Vll pend the fairest hopes for the future of humanity. No one who has taught, as I have taught, on both' sides of the Atlantic, can have failed to notice that the influence of old controversies and misunderstandings has not entirely passed away, even among the educated classes. I have approached these questions with a sincere desire to show to each side the strength of the other’s case and deal out impartial justice on every occasion. If I have ever inclined the balance too much in favor of my own country, the error is that of one who, were he not an Englishman, would ask no better fate than to be an American.

The story I have to tell will be found in the text. I have not relegated important matter to notes, nor printed on my pages long quotations from other authors or excerpts from original authorities. I have preferred the much more laborious task of extracting their substance and putting it in my own words into the body of the book, which I trust has gained thereby in both the decrease of bulk and increase of readableness. But I have taken care to provide the means of checking my assertions. At the bottom of nearly every page will be found references, by the use of which teachers and students can amplify or correct the statements in the text and men of affairs obtain the more detailed information they may want for practical purposes. The notes are, I hope, sufficient. My object has been to make them adequate without overloading them with matter. I have not, for instance, referred to a large number of writers of all degrees of authority, when the citation of a few great ones gave the necessary support to my argument ; nor have I quoted a dozen cases, when one or two were enough. I have also taken care that most of the cases given in the text should be something more than mere names to my readers. The material facts are almost always described, so that the points of law may be seen in

PREFACE.

yiii

relation to the actual circumstances which were before the courts. The table of contents has been so arranged as to afford an analysis of the whole book.

The writer of every new work on International Law is the debtor of all who have gone before him in his particular sphere. His best acknowledgments are to be found in his references and quotations. The extent of my own obligations to others may be roughly measured by the frequency with which their names occur in my notes ; but I cannot refrain from making special mention of two. I have been helped at every turn by the robust judgment and incisive arguments of Mr. R. H. Dana, and the judicial reasoning and encyclopedic knowledge of Mr. W. E. Hall. Both have joined the majority; not indeed too soon for fame, but too soon for the expectations of those who profited by their labors. Mr. Hall was taken from us in the zenith of his powers, and Mr. Dana had collected the materials for what I venture to think would have been the best of all books on International Law, had he lived to write it. To the memory of both I offer my humble tribute of reverence and admiration.

T. J. LAWRENCE.

<X>X»o

Preface To The Second Edition

A sudden and pressing call for a Second Edition has left me little time for alterations. I have, however, endeavored to benefit by the friendly criticism the book has received. A few mistakes in names and dates have been corrected. One or two statements that seemed to require modification have received it ; and an effort has been made by the addition of foot-notes here and there to bring up to date the information contained in the text.

T. J. LAWRENCE.

Girton Rectory, Cambridge, England,

November 2, 1897,

Part I

THE NATURE AND HISTORY OF INTERNATIONAL LAW. CHAPTER I.

The Definition of International Law.

6BCTI0N PAGE

1. The definition of International Law. Difficulty of making it per-

fectly satisfactory 1

2. Its principles are rules, whether they are or are not laws . 2

3. It is generally observed by states, though here and there some

of its commands may be disregarded ..... 3

4. It applies to civilized states only, but it is not confined to

Christian states 4

5. It regulates the conduct of states in their mutual dealings,

hostile as well as pacific .5

6. It includes the rules of maritime capture, but not the rules

for determining which of two conflicting systems of law shall prevail in matters of private right .... 6

7. The history of the names given to it 8

CHAPTER II. The Nature of International Law

8. The two problems : — (a) Is International Law really law ?

(b) Are its precepts derived from intuition or experience ? . 10

9. Austin’s definition of law excludes International Law ... 10

10. He lays stress upon one element only in a complex conception 12

11. A definition can be made turning upon the idea of order in-

stead of the idea of force, and if this is done International Law becomes law in the strictest sense ix

X

Contents

12. Importance of the question whether International Law proceeds

by the a priori or the historical method .... 16

13. Whichever method we adopt we cannot exclude ethical con-

CHAPTER III. The History of International Law

20. It goes back to ancient Greece and Rome, and divides into three

periods 26

21. I. In the First Period — from the earliest times to the Roman

Empire — states as such had no mutual rights and duties. Kinship was the basis of the relations between Hellenic communities 27

22. Republican Rome possessed no true International Law . . 29

23. II. In the Second Period — from the Roman Empire to the Refor-

mation — it was deemed that the relations of states must be regulated by a common superior. The Emperor was such a superior while the Empire remained all-powerful ... 30

24. The Holy Roman Empire and the Papacy claimed universal

authority during the Middle Ages ..... 32

25. The idea of a common superior disappeared at the Reforma-

tion . 33

26. For a time there was grave danger of utter lawlessness in

international affairs . . 34

27. Influences which made for improvement during the Middle

Ages 35

28. Importance of the conception of territorial sovereignty . . 36

29. Cruelty of the usages of war. Growth of maritime codes . 38

30. III. In the Third Period — from the Reformation to the present

time — the ruling principle is that there exists a society of independent states, the members of which have mutual rights and obligations 39

31. This change in ideas was brought about by the work of

Grotius and the theory of a Law of Nature ... 40

CONTENTS.

xi

PAGE

Causes of the vast influence exercised by Grotius ... 42

The Grotian version of Nature and Natural Law . . .43

The theory of a Law of Nature criticised .... 44

Its connection with the theory of a State of Nature . . 45

Their effect in obtaining acceptance for an improved International Law 47

Grotius insists on the independence of states and the territorial sovereignty of rulers 47

His rules with regard to dominion taken from the Jus Gentium 49

His rules for the acquisition of newly discovered territory

taken from the Roman law of occupation . ... 51

His principles triumphed in the Peace of Westphalia . . 52

Since 1648 International Law has developed on the lines laid down by him . * .53

CHAPTER IV. The Subjects of International Law

42. List of the subjects of International Law

43. I. Sovereign states

44. Only the more civilized sovereign states are subjects of Inter

national Law

45. State-life and its continuity. The different kinds of confed

46. Other unions between states

47. International Law deals only with cases where there is

division of the powers of external sovereignty .

48. The Great Powers of Europe and the United States of Amer

ica possess more authority than other sovereign states

49. II. Part-sovereign states ......

50. Communities under a suzerain ....

51. Members of a system of confederated states .

52. Permanently neutralized states ....

53. III. Civilized belligerent communities not being states .

54. IV. Corporations, both ordinary and privileged .

55. V. Individuals

56. Admission of new subjects of International Law .

57. (1) States hitherto accounted barbarous .

58. (2) States formed by civilized men in hitherto uncivilized

countries

59. (3) States where independence is recognized in consequence

of a successful revolt ......

60. The various methods of recognition of independence

65 67 69 73

77 79

CONTENTS.

xii

CHAPTER Y.

The Sources and Divisions or International Law.

61. Meaning of the phrase, The sources of International Law . . 91

62. (1) The works of great publicists .92

63. (2) Treaties 94

64. (3) Decisions of prize courts, international conferences, and

arbitral tribunals ........ 100

65. (4) State-papers other than treaties 103

66. (5) Instructions given by states for the guidance of their own

officers and tribunals ........ 105

67. Divisions of International Law. The old attempts at division

68. States possess normal and abnormal rights and obligations . 108

69. Normal rights and obligations are connected with indepen-

dence, property, jurisdiction, equality, and diplomacy. Abnormal rights and obligations are connected with war and neutrality 109

CHAPTER I. Rights and Obligations connected with Independence

70. Independence. Definition and nature of the right . . . Ill

71. Part-sovereign states not fully independent .... 112

72. Voluntary restrictions upon the freedom of action of sovereign

states 113

73. Involuntary restriction upon the freedom of action of sove-

reign states 114

74. Intervention. Its essential characteristics 115

75. General principles with regard to intervention .... 116

76. Intervention based upon the necessity of self-preservation . 117

77. Intervention based upon treaty-right 118

78. Intervention based upon the protection of another state

against illegal intervention . . . . . . .119

79. Intervention based upon grounds of humanity . . . 119

80. Grounds of intervention put forward on various occasions . . 121

81. (1) Protection from imminent danger 121

CONTENTS.

xiii

SECTION 1’AGE

82. (2) Protection of another state from illegal intervention . 122

83. (3) Treaty-right 123

81. (4) Request of one of the parties 125

85. (5) Preservation of the balance of power .... 126

86. (6) Interference with revolution 130

88. Complication of most cases of intervention 133

89. The doctrine of non-intervention 135

CHAPTER II. Rights and Obligations connected with Property

90. States are political units capable of holding both territorial and

lion-territorial possessions 136

91. Extent of a state’s territorial possessions 137

92. Legal modes of acquiring territory : — (1) Occupation . . . 143

93. Applies only to res nullius, and consists of (a) annexation

plus (6) settlement 146

94. Extent of territory gained by occupation .... 149

95. Recent developments of the doctrine of occupation as ap-

plied to Africa 152

96. Native tribes to be treated justly and trained in civilization . 154

97. Legal modes of acquiring territory : — (2) Cession . . . 156

98. Legal modes of acquiring territory : — (3) Conquest . . .158

99. Legal modes of acquiring territory : -- (4) Prescription . . 159

100. Legal modes of acquiring territory : — (5) Accretion . . . 160

101. A state may exercise power over territory as A part of its Do-

102. A state may exercise power over territory as A Protectorate . 162

103. A state may exercise power over territory as A Sphere of In-

fluence 164

104. Chartered companies and spheres of influence .... 166

105. Rights over waters. (1) Claims to sovereignty over the high

seas 167

106. (2) The American claim to prohibit seal-flshing in Bering

107. (3) Claims to jurisdiction beyond the marine league . . 175

108. (4) The right of innocent passage . . . . . .176

109. (5 ) The special case of the Dardanelles and the Bosphorus . 178

110. (6) The legal position of interoceanic canals .... 180

111. (7) The use of sea fisheries ....... 182

112. (8) The navigation of great arterial rivers .... 186

XIV

CONTENTS.

CHAPTER III. Rights and Obligations connected with Jurisdiction

113. I. A state has jurisdiction over all persons and things within its

territory, with a few exceptions 190

114. Natural-born subjects 190

115. Naturalized subjects ........ 193

116. International questions connected with naturalization . . 194

117. Domiciled aliens 198

118. Travellers passing through the territory .... 202

119. Rules relating to various kinds of things within the territory 202

120. II. A state has jurisdiction over all its ships on the high seas . 205

121. III. A state has limited jurisdiction over its subjects abroad . 208

122. IV. A state has jurisdiction over pirates seized by its vessels . 209

123. Distinction between piracy by the law of nations and piracy

by municipal law 213

124. The slave trade not piracy by the law of nations. Attempts

to put it down by treaty 214

125. The claim to jurisdiction over foreigners for offences committed

abroad 219

126. Exceptions to ordinary rules about jurisdiction : — (1) Foreign

sovereigns and their suites . 221

127. Exceptions to ordinary rules about jurisdiction : — (2) Diplomatic

agents of foreign states 222

128. Exceptions to ordinary rules about jurisdiction : — (3) Public

armed forces of foreign states 222

129. Exemption of public vessels of one state in the territorial

waters of another not absolute and complete . . . 226

130. The case of political offenders and fugitive slaves . . . 226

131. Exceptions to ordinary rules about jurisdiction : — (4) Subjects

of Western states resident in Eastern countries . . . 229

132. Extradition. A state is not obliged to grant it unless bound to

do so by treaty 233

133. The conditions generally inserted in extradition treaties . 235

CHAPTER IV. Rights and Obligations connected with Equality

134. Meaning and utility of the principle of equality. Modifications

now necessary in the statement of it . . . . . 241

135. The primacy of the Great Powers in Europe .... 242

136. rl'he primacy of the United States in America .... 247

CONTENTS.

XV

137. Matters of ceremony and etiquette connected with the doctrine

138. Rules of precedence for states and their representatives . 253

139. Titles and their recognition by other states .... 255

140. Maritime ceremonials 256

CHAPTER Y.

Rights and Obligations connected with Diplomacy

141. Diplomatic intercourse necessary. Growth of resident embassies 258

142. Development of different kinds of diplomatic ministers . . 260

143. Classification of diplomatic ministers ...... 261

144. Sovereign states possess the right of legation fully, part-sovereign

states to a limited extent ....... 263

145. The rupture of diplomatic relations is a serious step which gener-

ally ends in war 264

146. But a state may on good grounds refuse to receive a particular

individual, or ask for his recall 265

147. The commencement and termination of diplomatic missions and

the ceremonies connected therewith 269

148. Consuls. Their position and immunities ..... 272

149. Diplomatic immunities. Their general nature and the reasons

for their existence 274

150. Immunities connected with the person of the diplomatic

agent 274

151. Immunities connected with the property of the diplomatic

agent 280

152. The treaty-making power. Ratification of treaties . . . 284

153. The interpretation of treaties ....... 286

154. The obligation of treaties 287

CHAPTER I. The Definition of War and other Preliminary Points

155. The nature and definition of war ....... 290

156. Modes of putting stress upon a state by violence which is not

held to amount to open war 293

XVI

CONTENTS.

159. (3) Pacific blockade 297

160. The value and admissibility of these anomalous measures . . 299

161 . Declarations of war are not necessary 299

162. The meaning and effects of recognition of belligerency . . 302

163. The circumstances under which it may lawfully be given . 303

164. The question whether it can be given to a fleet acting with-

out a land base of operations ...... 305

165. The immediate legal effects of the outbreak of war . . . 306

166. The effect of war upon treaties to which the belligerents and

powers other than the belligerents are parties . . . 308

167. The effect of war upon treaties to which the belligerents only are

parties 310

168. Table showing tlie effect of war on treaties 313

Chapter II

The Acquisition bv Persons and Property of Enemy Character.

169. I. Enemy character. The extent to which individuals possess it 314

170. (1) Persons enrolled in the enemy’s fighting forces . . 314

171. (2) Crews of the enemy’s merchant vessels .... 315

172. (3) Non-combatant subjects of the enemy state . . . 316

173. (4) Persons other than enemy subjects, resident in the

enemy’s country . 317

174. (5) Residents in places occupied by the forces of the enemy 317

175. (6) Neutral subjects having houses of trade in the enemy’s

country 318

176. Summary of the circumstances under which enemy character is

acquired by persons - . 318

177. Rules for determining domicil in relation to questions of bellig-

erent capture .319

178. II. Enemy character. The extent to which property possesses it 322

179. (1) Property belonging to the enemy state .... 322

180. (2) Property belonging to subjects of the enemy state . . 323

181. (3) Produce of estates owned by neutrals in places under

enemy control 324

182. (4) Neutral property incorporated in enemy commerce or

subject to enemy control 325

183. Summary of the circumstances under which enemy character is

acquired by property 326

CONTENTS,

XVII

Chapter III

The Laws of War with regard to Enemy Persons.

184. The treatment accorded to enemy subjects found in a state at

the outbreak of war 328

185. Ancient and modern ideas of the violence permissible in war . 330

186. I. As to combatants note (1) The growth of the practice of giv-

ing quarter 332

187. (2) The treatment of prisoners of war ..... 333

188. (3) The care of the sick and wounded 337

189. (4) The improved treatment of the garrisons of captured

places 339

190. (5) The prohibition of certain means of destruction . . 341

191. II. As to non-combatants note (1) The gradual amelioration of

their condition 342

192. (2) The extent of their exemption from personal injury . 344

193. (3) The diminution of the barbarities inflicted on the inhab-

itants of captured towns 346

194. (4) The special protection granted to those who tend the sick

and wounded . 348

Chapter IV

The Laws of War with regard to Enemy Property on Land.

195. Property of the enemy government found within a state at the

outbreak of war 350

196. Real property of enemy subjects found within a state at the out-

break of war 350

197. Personal property of enemy subjects found within a state at the

outbreak of war ......... 352

198. The special case of stock held by enemy subjects in the public

debt 355

200. Belligerent occupation. Its history 358

201. The essentials of belligerent occupation .... 363

202. Rights over state property gained by occupation . . . 367

203. Rights over private property gained by occupation . . 372

204. The special case of requisitions, contributions and fines . 371 xviii

CONTENTS.

Chapter V

The Laws of War with regard to Enemy Property at Sea.

SECTION PAGB

205. The extent to which public vessels of the enemy are liable to

capture 379

206. The extent to which private vessels of the enemy are liable to

207. The extent to which enemy goods at sea are liable to capture . 385

208. The practice of giving and accepting ransom bills . .' . 387

209. Recapture at sea and the jus postliminii 389

210. The right of search 392

212. Prize Courts : — (1) Their nature, and the responsibility of the

state for their decisions 398

213. (2) Their jurisdiction . 402

214. (3) Their procedure 403

215. (4) The obligation of captors to send prizes in for adjudica-

tion by them 404

216. History of the proposal to exempt private property from capture

at sea 407

217. Arguments for and against it 413

CHAPTER VI. The Agents, Instruments and Methods of Warfare

218. I. The Agents of warfare. Doubts as to some and conditional

legality of others 417

219. (1) Guerilla troops 417

220. (2) Levies en masse 422

221. (3) Savage troops 424

223. (5) Privateers 429

224. (6) A volunteer navy 432

225. II. The instruments and methods of warfare. Prohibition of

some and conditional legality of others .... 435

226. (1) Assassination is forbidden ...... 436

227. (2) The use of poison is condemned 438

228. (3) Projectiles which inflict useless suffering are prohibited . 438

229. (4) Devastation is generally unlawful, but may be justified

under special circumstances ...... 440

230. (5) Stratagems are allowable unless they violate good faith . 444

CONTENTS.

XIX

CHAPTER VII. The Non-hostile Intercourse of Belligerents

231. Non-hostile intercourse can be carried on by belligerents during

war 440

232. (1) Elags of truce 447

234. (3) Passports and safe-conducts ...... 448

235. (4) Licenses to trade 449

236. (5) Capitulations 452

237. (6) Truces and armistices ....... 455

CHAPTER VIII. Peace and the Means of Preserving Peace

238. War is usually terminated by a treaty of peace .... 457

239. The legal consequences of the restoration of peace . . . 458

240. The simultaneous growth in modern times of a horror of war and

preparations for war 460

241. Remedies for war. Arbitration the most hopeful . . . 464

242. Possibility of an agreement to submit to arbitration all disputes

between Great Britain and the United States . . . 468

CHAPTER I. The Nature of Neutrality

243. Definition of neutrality. The elements out of which the Law of

Neutrality has been formed 473

244. The history of neutrality 475

245. Neutrality and neutralization. The correct meaning of neutral-

ization 484

246. Instances of true neutralization examined .... 487

247. The special case of neutralized portions of unneutralized

states 494

248. The divisions of the Law of Neutrality 498 xx

CONTENTS.

CHAPTER II. The Doties of Belligerent States towards Neutral States

249. A belligerent state ought (1) To refrain from carrying on hostil-

ities within neutral territory 500

250. (2) To abstain from making on neutral territory direct prep-

arations for acts of hostility 503

251. (3) To obey all reasonable regulations made by neutral states

for the protection of their neutrality .... 509

252. (4) To make reparation to any state whose neutrality it may

have violated ... ... . . 514

CHAPTER III. The Doties of Neutral States towards Belligerent States

253. A neutral state is bound (1) Not to give armed assistance to

either belligerent or grant to one privileges denied to the other 518

254. (2) Not to supply belligerents with money or instruments of

255. (3) Not to allow belligerents to send troops through its terri-

tory or levy soldiers therein 524

256. (4) Not to suffer belligerent agents or its own subjects to fit

out armed expeditions within its dominions, or increase therein the warlike force of any belligerent ship or expedition 530

257. (5) Not to permit its subjects to enter the military or naval

service of the belligerents, or accept letters of marque from either of them . . . . . .' . . 532

258. (6) To make reparation to any belligerent who may have

been seriously and specifically injured by failure on its part to perform its neutral duties . . . . 535

259. The measure of “due diligence” 537

260. The consequences ‘of resistance to unlawful attack in neutral

waters 540

261. The difficulty with regard to ships armed and equipped in neutral

waters for the warlike purposes of a belligerent . . . 542

262. Two attempts to solve it 547

263. The three rules of the Treaty of Washington and the award of

the Geneva Tribunal 549

264. The powers possessed by neutral governments for the protection

and vindication of their neutrality 554

CONTENTS.

XXI

CHAPTER IV. Ordinary Neutral Commerce

265. The conflict between belligerent and neutral interests in the mat-

ter of trade 557

266. The history of the rules of ordinary maritime capture . . . 559

267. The Declaration of Paris 567

268. The claim that neutral vessels under convoy are exempt from

belligerent search 571

CHAPTER V. Blockade

269. The nature and history of blockade . . . . . .576

270. Strategic and commercial blockades. The legality of the latter . 579

271. The heads of the law of blockade 581

272. (1) The existence of an actual blockade .... 583

273. (2) Knowledge of it 585

274. (3) Violation of it 591

275. (4) The penalty for breach of it . . . . . 593

276. The doctrine of continuous voyages and its application to breach

of blockade 694

CHAPTER VI. Contraband Trade

277. The nature of contraband trade. Neutral states are not bound

to stop it 599

278. What articles are contraband of war ? 604

279. The essentials of guilt in the matter of contraband trade . . 613

280. The penalty for carrying contraband ...... 617

281. Two anomalous practices : — (a) Taking contraband goods out

of vessels, (6) Pre-emption 619

CHAPTER VII. Unneutral Service

282. The acts which are forbidden under the designation of unneutral

service 624

283. The penalty for unneutral service and the essentials of liability

284. The distinctions between the offences of carrying contraband

and engaging in unneutral service ..... 633