INTERNATIONAL LAW A TREATISE VOL. I. PEACE SECOND EDITION BY L. OPPENHEIM, M.A., LL.D.
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK, BOMBAY, AND CALCUTTA
1912
All rights reserved
TO
EDWARD ARTHUR WHITTUCK
WHOSE SYMPATHY AND ENCOURAGEMENT
HAVE ACCOMPANIED THE PROGRESS OF THIS WORK
FROM ITS INCEPTION TO ITS CLOSE
Transcriber's Note: Original spelling variations have not been standardized. Links have been provided to the second volume of this work, see [International Law. A Treatise. Vol. II--War And Neutrality. Second Edition, by Lassa Oppenheim, M.A., LL.D., gutenberg ebooks 41047]. Although we verify the correctness of these links at the time of posting, these links may not work, for various reasons, for various people, at various times.
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: § [178a] (concerning the Utilisation of the Flow of Rivers); §§ [287a] and [287b] (concerning Wireless Telegraphy on the Open Sea); §§ [287c] and [287d] (concerning Mines and Tunnels in the Subsoil of the Sea bed); § [446a] (concerning the Casa Blanca incident); §§ [476a] and [476b] (concerning the International Prize Court and the suggested International Court of Justice); §§ [568a] and [568b] (concerning the Conventions of the Second Hague Peace Conference, and the Declaration of London); § [576a] (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 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, § 446a, 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, §[ 287b], 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
INTRODUCTION
CHAPTER 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]
CHAPTER 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]
PART I
THE SUBJECTS OF THE LAW OF NATIONS
CHAPTER 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]
CHAPTER 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]
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]
CHAPTER 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]
THE OBJECTS OF THE LAW OF NATIONS
CHAPTER 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]
178a. 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]
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]
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]
CHAPTER 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
287a. Radiotelegraphy between Ships and the Shore [355]
287b. Radiotelegraphy between Ships at Sea [356]
IX. The Subsoil beneath the Sea Bed
287c. Five Rules concerning the Subsoil beneath the Sea Bed [357]
287d. The Proposed Channel Tunnel [359]
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]
PART III
ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS
CHAPTER 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]
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]
CHAPTER 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 Subpœna 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]
CHAPTER 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]
CHAPTER 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]
446a. 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]
467a. 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]
471a. Agricultural Institute [518]
471b. 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
476a. The International Prize Court [522]
476b. The proposed International Court of Justice [524]
PART IV
INTERNATIONAL TRANSACTIONS
CHAPTER 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]
CHAPTER 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]
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]
CHAPTER 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]
568a. Conventions and Declaration of the Second Hague Peace Conference [592]
568b. 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 Fœderis [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]
576a. 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. Pharmacopœia [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
CHAPTER 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.
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.
[1] In contradistinction to mere usages and to rules of so-called International Comity, see below §§ [9] and [19].
[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.
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.
[3] De Cive, XIV. 4.
[4] De Jure Naturæ et Gentium, II. c. iii. § 22.
[5] Lectures on Jurisprudence, VI.