International Law. A Treatise Volume I Part 7

[Footnote 61: See Martens, N.R.G. 3rd Ser. II. p. 606.]

In 1910 Portugal becomes a Republic; but the Powers, although they enter provisionally into communication with the _de facto_ government, do not recognise the Republic until September 1911, after the National a.s.sembly adopted the republican form of government.

In September 1911 war breaks out between Italy and Turkey, on account of the alleged maltreatment of Italian subjects in Tripoli.

International Law as a body of rules for the international conduct of States makes steady progress during this period. This is evidenced by congresses, conferences, and law-making treaties. Of conferences and congresses must be mentioned the second, third, and fourth Pan-American Congresses,[62] which take place at Mexico in 1901, at Rio in 1906, and at Buenos Ayres in 1910. Although the law-making treaties of these congresses have not found ratification, their importance cannot be denied. Further, in 1906 a conference a.s.sembles in Geneva for the purpose of revising the Geneva Convention of 1864 concerning the wounded in land warfare, and on July 6, 1906, the new Geneva[63] Convention is signed. Of the greatest importance, however, are the second Hague Peace Conference of 1907 and the Naval Conference of London of 1898-9.

[Footnote 62: See Moore, VI. -- 969; Fried, "Pan-America" (1910); Barrett, "The Pan-American Union" (1911).]

[Footnote 63: See Martens, N.R.G. 3rd Ser. II. p. 323.]

The second Peace Conference a.s.sembles at the Hague on June 15, 1907.

Whereas at the first there were only 26 States represented, 44 are represented at the second Peace Conference. The result of this Conference is contained in its Final Act,[64] which is signed on October 18, 1907, and embodies no fewer than thirteen law-making Conventions besides a declaration of minor importance. Of these Conventions, 1, 4, and 10 are mere revisions of Conventions agreed upon at the first Peace Conference of 1899, but the others are new and concern:--The employment of force for the recovery of contract debts (2); the commencement of hostilities (3); the rights and duties of neutrals in land warfare (5); the status of enemy merchant-s.h.i.+ps at the outbreak of hostilities (6); the conversion of merchantmen into men-of-war (7); the laying of submarine mines (8); the bombardment by naval forces (9); restrictions of the right of capture in maritime war (11); the establishment of an International Prize Court (12); the rights and duties of neutrals in maritime war (13).

[Footnote 64: See Martens, N.R.G. 3rd Ser. III. p. 323.]

The Naval Conference of London a.s.sembles on December 4, 1908, for the purpose of discussing the possibility of creating a code of prize law without which the International Prize Court, agreed upon at the second Hague Peace Conference, could not be established, and produces the Declaration of London, signed on February 26, 1909. This Declaration contains 71 articles, and settles in nine chapters the law concerning:--(1) Blockade; (2) contraband; (3) un-neutral service; (4) destruction of neutral prizes; (5) transfer to a neutral flag; (6) enemy character; (7) convoy; (8) resistance to search; and (9) compensation.

The Declaration is accompanied by a General Report on its stipulations which is intended to serve as an official commentary.

The movement which began in the last half of the nineteenth century towards the conclusion of international agreements concerning matters of international administration, develops favourably during this period.

The following conventions are the outcome of this movement:--(1) Concerning the preservation of wild animals, birds, and fish in Africa (1900); (2) concerning international hydrographic and biological investigations in the North Sea (1901); (3) concerning protection of birds useful for agriculture (1902); (4) concerning the production of sugar (1902); (5) concerning the White Slave traffic (1904); (6) concerning the establishment of an International Agricultural Inst.i.tute at Rome (1905); (7) concerning unification of the Pharmacopoeial Formulas (1906); (8) concerning the prohibition of the use of white phosphorus (1906); (9) concerning the prohibition of night work for women (1906); (10) concerning the international circulation of motor vehicles (1909).

It is, lastly, of the greatest importance to mention that the so-called peace movement,[65] which aims at the settlement of all international disputes by arbitration or judicial decision of an International Court, gains considerable influence over the Governments and public opinion everywhere since the first Hague Peace Conference. A great number of arbitration treaties are agreed upon, and the Permanent Court of Arbitration established at the Hague gives its first award[66] in a case in 1902 and its ninth in 1911. The influence of these decisions upon the peaceful settlement of international differences generally is enormous, and it may confidently be expected that the third Hague Peace Conference will make arbitration obligatory for some of the matters which do not concern the vital interests, the honour, and the independence of the States. It is a hopeful sign that, whereas most of the existing arbitration treaties exempt conflicts which concern the vital interests, the honour, and the independence, Argentina and Chili in 1902, Denmark and Holland in 1903, Denmark and Italy in 1905, Denmark and Portugal in 1907, Argentina and Italy in 1907, the Central American Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in 1907, entered into general arbitration treaties according to which all differences, without any exception, shall be settled by arbitration.[67]

[Footnote 65: See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 vols. (1911).]

[Footnote 66: See below, -- 476.]

[Footnote 67: The general arbitration treaties concluded in August 1911 by the United States with Great Britain and France have not yet been ratified, as the consent of the American Senate is previously required.]

[Sidenote: Six Lessons of the History of the Law of Nations.]

-- 51. It is the task of history, not only to show how things have grown in the past, but also to extract a moral for the future out of the events of the past. Six morals can be said to be deduced from the history of the development of the Law of Nations:

(1) The first and princ.i.p.al moral is that a Law of Nations can exist only if there be an equilibrium, a balance of power, between the members of the Family of Nations. If the Powers cannot keep one another in check, no rules of law will have any force, since an over-powerful State will naturally try to act according to discretion and disobey the law.

As there is not and never can be a central political authority above the Sovereign States that could enforce the rules of the Law of Nations, a balance of power must prevent any member of the Family of Nations from becoming omnipotent. The history of the times of Louis XIV. and Napoleon I. shows clearly the soundness of this principle.[68]

[Footnote 68: Attention ought to be drawn to the fact that, although the necessity of a balance of power is generally recognised, there are some writers of great authority who vigorously oppose this principle, as, for instance, Bulmerincq, "Praxis, Theorie und Codification des Volkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, "Essai sur la Theorie de l'equilibre" (1900), and Dupuis, "Le Principe d'equilibre et de Concert Europeen" (1909).]

(2) The second moral is that International Law can develop progressively only when international politics, especially intervention, are made on the basis of real State interests. Dynastic wars belong to the past, as do interventions in favour of legitimacy. It is neither to be feared, nor to be hoped, that they should occur again in the future. But if they did, they would hamper the development of the Law of Nations in the future as they have done in the past.

(3) The third moral is that the principle of nationality is of such force that it is fruitless to try to stop its victory. Wherever a community of many millions of individuals, who are bound together by the same blood, language, and interests, become so powerful that they think it necessary to have a State of their own, in which they can live according to their own ideals and can build up a national civilisation, they will certainly get that State sooner or later. What international politics can, and should, do is to enforce the rule that minorities of individuals of another race shall not be outside the law, but shall be treated on equal terms with the majority. States embracing a population of several nationalities can exist and will always exist, as many examples show.

(4) The fourth moral is that every progress in the development of International Law wants due time to ripen. Although one must hope that the time will come when war will entirely disappear, there is no possibility of seeing this hope realised in our time. The first necessities of an eternal peace are that the surface of the earth should be shared between States of the same standard of civilisation, and that the moral ideas of the governing cla.s.ses in all the States of the world should undergo such an alteration and progressive development as would create the conviction that arbitral awards and decisions of courts of justice are alone adequate means for the settlement of international differences. Eternal peace is an ideal, and in the very term "ideal" is involved the conviction of the impossibility of its realisation in the present, although it is a duty to aim constantly at such realisation.

The Permanent Court of Arbitration at the Hague, now established by the Hague Peace Conference of 1899, is an inst.i.tution that can bring us nearer to such realisation than ever could have been hoped. And codification of parts of the Law of Nations, following the codification of the rules regarding land warfare and the codification comprised in the Declaration of London, will in due time arrive, and will make the legal basis of international intercourse firmer, broader, and more manifest than before.[69]

[Footnote 69: See Oppenheim, "Die Zukunft des Volkerrechts" (1911) where some progressive steps are discussed which the future may realise.]

(5) The fifth moral is that the progress of International Law depends to a great extent upon whether the legal school of International Jurists prevails over the diplomatic school.[70] The legal school desires International Law to develop more or less on the lines of Munic.i.p.al Law, aiming at the codification of firm, decisive, and unequivocal rules of International Law, and working for the establishment of international Courts for the purpose of the administration of international justice.

The diplomatic school, on the other hand, considers International Law to be, and prefers it to remain, rather a body of elastic principles than of firm and precise rules. The diplomatic school opposes the establishment of international Courts because it considers diplomatic settlement of international disputes, and failing this arbitration, preferable to international administration of justice by international Courts composed of permanently appointed judges. There is, however, no doubt that international Courts are urgently needed, and that the rules of International Law require now such an authoritative interpretation and administration as only an international Court can supply.

[Footnote 70: I name these schools "diplomatic" and "legal" for want of better denomination. They must, however, not be confounded with the three schools of the "Naturalists," "Positivists," and "Grotians,"

details concerning which will be given below, ---- 55-57.]

(6) The sixth, and last, moral is that the progressive development of International Law depends chiefly upon the standard of public morality on the one hand, and, on the other, upon economic interests. The higher the standard of public morality rises, the more will International Law progress. And the more important international economic interests grow, the more International Law will grow. For, looked upon from a certain stand-point, International Law is, just like Munic.i.p.al Law, a product of moral and of economic factors, and at the same time the basis for a favourable development of moral and economic interests. This being an indisputable fact, it may, therefore, fearlessly be maintained that an immeasurable progress is guaranteed to International Law, since there are eternal moral and economic factors working in its favour.

III

THE SCIENCE OF THE LAW OF NATIONS

Phillimore, I., Preface to the first edition--Lawrence, ---- 31-36--Manning, pp. 21-65--Halleck, I. pp. 12, 15, 18, 22, 25, 29, 34, 42--Walker, History, I. pp. 203-337, and "The Science of International Law" (1893), _pa.s.sim_--Taylor, ---- 37-48--Wheaton, ---- 4-13--Rivier in Holtzendorff, I. pp. 337-475--Nys, I. pp.

213-328--Martens, I. ---- 34-38--Fiore, I. Nos. 53-88, 164-185, 240-272--Calvo, I. pp. 27-34, 44-46, 51-55, 61-63, 70-73, 101-137--Bonfils, Nos. 147-153--Despagnet, Nos. 28-35--Ullmann, -- 18--Kaltenborn, "Die Vorlaufer des Hugo Grotius" (1848)--Holland, Studies, pp. 1-58, 168-175--Westlake, Chapters, pp. 23-77--Ward, "Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795)--Nys, "Le droit de la guerre et les precurseurs de Grotius" (1882), "Notes pour servir a l'histoire ... du droit international en Angleterre" (1888), "Les origines du droit international" (1894)--Wheaton, "Histoire des progres du droit des gens en Europe" (1841)--Oppenheim in A.J. I. (1908), pp.

313-356--Pollock in the Cambridge Modern History, vol. XII.

(1910), pp. 703-729--See also the bibliographies enumerated below in -- 61.

[Sidenote: Forerunners of Grotius.]

-- 52. The science of the modern Law of Nations commences from Grotius's work, "De Jure Belli ac Pacis libri III.," because in it a fairly complete system of International Law was for the first time built up as an independent branch of the science of law. But there were many writers before Grotius who wrote on special parts of the Law of Nations. They are therefore commonly called "Forerunners of Grotius." The most important of these forerunners are the following: (1) Legnano, Professor of Law in the University of Bologna, who wrote in 1360 his book "De bello, de represaliis, et de duello," which was, however, not printed before 1477; (2) Belli, an Italian jurist and statesman, who published in 1563 his book, "De re militari et de bello"; (3) Brunus, a German jurist, who published in 1548 his book, "De legationibus"; (4) Victoria, Professor in the University of Salamanca, who published in 1557 his "Relectiones theologicae,"[71] which partly deals with the Law of War; (5) Ayala, of Spanish descent but born in Antwerp, a military judge in the army of Alexandro Farnese, the Prince of Parma. He published in 1582 his book, "De jure et officiis bellicis et disciplina militari"; (6) Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 1612 his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8) for the first time the attempt is made to found a law between the States on the fact that they form a community of States; (7) Gentilis (1552-1608), an Italian jurist, who became Professor of Civil Law in Oxford. He published in 1585 his work, "De legationibus," in 1588 and 1589 his "Commentationes de jure belli," and in 1598 an enlarged work on the same matter under the t.i.tle "De jure belli libri tres."[72] His "Advocatio Hispanica" was edited, after his death, in 1613 by his brother Scipio. Gentilis's book "De jure belli" supplies, as Professor Holland shows, the model and the framework of the first and third book of Grotius's "De Jure Belli ac Pacis." "The first step"--Holland rightly says--"towards making International Law what it is was taken, not by Grotius, but by Gentilis."

[Footnote 71: See details in Holland, Studies, pp. 51-52.]

[Footnote 72: Re-edited in 1877 by Professor Holland. On Gentilis, see Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker, History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung fur das Volkerrecht" (1896); Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, XII. (1912), pp. 52-80; Balch in A.J. V. (1911), pp. 665-679.]

[Sidenote: Grotius.]

-- 53. Although Grotius owes much to Gentilis, he is nevertheless the greater of the two and bears by right the t.i.tle of "Father of the Law of Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from his earliest childhood known as a "wondrous child" on account of his marvellous intellectual gifts and talents. He began to study law at Leyden when only eleven years old, and at the age of fifteen he took the degree of Doctor of Laws at Orleans in France. He acquired a reputation, not only as a jurist, but also as a Latin poet and a philologist. He first practised as a lawyer, but afterwards took to politics and became involved in political and religious quarrels which led to his arrest in 1618 and condemnation to prison for life. In 1621, however, he succeeded in escaping from prison and went to live for ten years in France. In 1634 he entered into the service of Sweden and became Swedish Minister in Paris. He died in 1645 at Rostock in Germany on his way home from Sweden, whither he had gone to tender his resignation.

Even before he had the intention of writing a book on the Law of Nations Grotius took an interest in matters international. For in 1609, when only twenty-four years old, he published--anonymously at first--a short treatise under the t.i.tle "Mare liberum," in which he contended that the open sea could not be the property of any State, whereas the contrary opinion was generally prevalent.[73] But it was not until fourteen years later that Grotius began, during his exile in France, to write his "De Jure Belli ac Pacis libri III.," which was published, after a further two years, in 1625, and of which it has rightly been maintained that no other book, with the single exception of the Bible, has ever exercised a similar influence upon human minds and matters. The whole development of the modern Law of Nations itself, as well as that of the science of the Law of Nations, takes root from this for ever famous book. Grotius's intention was originally to write a treatise on the Law of War, since the cruelties and lawlessness of warfare of his time incited him to the work. But thorough investigation into the matter led him further, and thus he produced a system of the Law of Nature and Nations. In the introduction he speaks of many of the authors before him, and he especially quotes Ayala and Gentilis. Yet, although he recognises their influence upon his work, he is nevertheless aware that his system is fundamentally different from those of his forerunners.

There was in truth nothing original in Grotius's start from the Law of Nature for the purpose of deducing therefrom rules of a Law of Nations.

Other writers before his time, and in especial Gentilis, had founded their works upon it. But n.o.body before him had done it in such a masterly way and with such a felicitous hand. And it is on this account that Grotius bears not only, as already mentioned, the t.i.tle of "Father of the Law of Nations," but also that of "Father of the Law of Nature."

[Footnote 73: See details with regard to the controversy concerning the freedom of the open sea below, ---- 248-250. Grotius's treatise "Mare liberum" is--as we know now--the twelfth chapter of the work "De jure praedae," written in 1604 but never published by Grotius; it was not printed till 1868. See below, -- 250.]

Grotius, as a child of his time, could not help starting from the Law of Nature, since his intention was to find such rules of a Law of Nations as were eternal, unchangeable, and independent of the special consent of the single States. Long before Grotius, the opinion was generally prevalent that above the positive law, which had grown up by custom or by legislation of a State, there was in existence another law which had its roots in human reason and which could therefore be discovered without any knowledge of positive law. This law of reason was called Law of Nature or Natural Law. But the system of the Law of Nature which Grotius built up and from which he started when he commenced to build up the Law of Nations, became the most important and gained the greatest influence, so that Grotius appeared to posterity as the Father of the Law of Nature as well as that of the Law of Nations.

Whatever we may nowadays think of this Law of Nature, the fact remains unshaken that for more than two hundred years after Grotius jurists, philosophers, and theologians firmly believed in it. And there is no doubt that, but for the systems of the Law of Nature and the doctrines of its prophets, the modern Const.i.tutional Law and the modern Law of Nations would not be what they actually are. The Law of Nature supplied the crutches with whose help history has taught mankind to walk out of the inst.i.tutions of the Middle Ages into those of modern times. The modern Law of Nations in especial owes its very existence[74] to the theory of the Law of Nature. Grotius did not deny that there existed in his time already a good many customary rules for the international conduct of the States, but he expressly kept them apart from those rules which he considered the outcome of the Law of Nature. He distinguishes, therefore, between the _natural_ Law of Nations on the one hand, and, on the other hand, the _customary_ Law of Nations, which he calls the _voluntary_ Law of Nations. The bulk of Grotius's interest is concentrated upon the natural Law of Nations, since he considered the voluntary of minor importance. But nevertheless he does not quite neglect the voluntary Law of Nations. Although he mainly and chiefly lays down the rules of the natural Law of Nations, he always mentions also voluntary rules concerning the different matters.

[Footnote 74: See Pollock in _The Journal of the Society of Comparative Legislation_, New Series, III. (1901), p. 206.]

Grotius's influence was soon enormous and reached over the whole of Europe. His book[75] went through more than forty-five editions, and many translations have been published.

[Footnote 75: See Rivier in Holtzendorff, I. p. 412. The last English translation is that of 1854 by William Whewell.]

[Sidenote: Zouche.]

-- 54. But the modern Law of Nations has another, though minor, founder besides Grotius, and this is an Englishman, Richard Zouche[76]

(1590-1660), Professor of Civil Law at Oxford and a Judge of the Admiralty Court. A prolific writer, the book through which he acquired the t.i.tle of "Second founder of the Law of Nations," appeared in 1650 and bears the t.i.tle: "Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum inter diversos principes aut populos spectant, ex praecipuis historico jure peritis exhibentur." This little book has rightly been called the first manual of the _positive_ Law of Nations. The standpoint of Zouche is totally different from that of Grotius in so far as, according to him, the customary Law of Nations is the most important part of that law, although, as a child of his time, he does not at all deny the existence of a natural Law of Nations. It must be specially mentioned that Zouche is the first who used the term _jus inter gentes_ for that new branch of law. Grotius knew very well and says that the Law of Nations is a law _between_ the States, but he called it _jus gentium_, and it is due to his influence that until Bentham n.o.body called the Law of Nations _Inter_national Law.