The government class book / Designed for the instruction of youth in the principles of constitutional government and the rights and duties of citizens.

by Andrew W. Young

Chapter LXIII.

Origin and Progress of the Law of Nations; the Natural, Customary, and Conventional Laws of Nations.

§1. The law of nations consists of those rules by which intercourse between nations is regulated. In its present improved state, the law of nations has not long existed. Ancient nations were little governed by the principles of natural justice. Little respect was paid by one nation to the persons and property of the citizens of another. Robbery on land and sea was not only tolerated, but esteemed honorable; and prisoners of war were either put to death, or reduced to slavery. By this rule of national law, commerce was destroyed, and perpetual enmity kept up between nations.

§2. Within the last three or four centuries, essential improvement in the law of nations has been made. By the light of science and Christianity, the rights and obligations of nations have come to be better understood, and more generally regarded. Commerce also has done much to improve the law, by showing that the true interests of a nation are promoted by peace and friendly intercourse.

§3. Hence we find the nations of Europe and America recognizing the same rules of international law. And as the light and power of Christianity shall increase, the law of nations will undergo still further improvements. And it is to be hoped, that, as one of these improvements, the practice of settling national disputes by war will be abolished, and the more rational and humane course be adopted, of referring difficulties which the parties are incapable of adjusting, to some disinterested power for adjudication.

§4. There are, in every nation or state, courts of justice to try and punish offenders; but there is no tribunal before which one nation can be brought to answer for the violation of the rights of another. Every nation, however small and weak, is independent of every other. Therefore, when injuries are committed by one upon another, the offended party, unless it chooses quietly to endure the wrong must seek redress, either by appealing to the sense of justice of the party offending, or by a resort to force.

§5. Every nation has a right to establish such government as it thinks proper; and no other nation has a right to interfere with its internal policy. To this rule, however, some writers make an exception. They hold that the natural right of a state to provide for its own safety, gives it the right to interfere where its security is seriously endangered by the internal transactions of another state. But it is admitted that such cases are so very rare, that it would be dangerous to reduce them to a rule.

§6. So cases seldom arise in which one nation has a right to assist the subjects of another in overturning or changing their government. It is generally agreed, that such assistance may be afforded consistently with the law of nations, in extreme cases; as when the tyranny of a government becomes so oppressive, as to compel the people to rise in their defense, and call for assistance. When the subjects of any government have carried their revolt so far as to have established a new state, and to give reasonable evidence of their ability to maintain a government, the right of assistance is unquestionable. But it is not clear that, prior to this state of progress in a revolution, the right to interpose would be justifiable.

§7. There is a sense, however, in which nations are not wholly independent. Mankind in the social state, as we have seen, are dependent upon each other for assistance. (Chap. I, §2.) Such is, in a measure, the mutual dependence of nations. Although the people of every nation have within themselves the means of maintaining their individual and national existence, their prosperity and happiness are greatly promoted by commerce with other nations. And as laws are necessary to govern the conduct of the individual citizens of a state, so certain rules are necessary to regulate the intercourse of nations.

§8. It has been observed, also, that the law of nature is a perfect rule for all moral and social beings, and ought to be universally obeyed. Equally binding is this law upon nations. It requires each nation to respect the rights of all others, and to do for them what their necessities demand, and what it is capable of doing, consistently with the duties it owes to itself. And the general good of mankind is as really promoted by the application of this law to the affairs of nations, as by its application to the affairs of individuals.

§9. The law of nature applied to nations or states as moral persons, is called the natural law of nations. It is also called the necessary law of nations, because nations are morally bound to observe it; and sometimes the internal law of nations, from its being binding on the conscience.

§10. Although the law of nature, as expressed in the law of revelation, is a correct rule of human conduct; yet, as much of this law consists of general principles from which particular duties can not always be deduced, positive human enactments are necessary to define the law of nature and revelation. So an important part of the law of nations necessarily consists of positive institutions. Hence some writers have divided international law under these two principal heads: the natural law of nations, and the positive.

§11. The positive law of nations is founded on usage or custom and agreement, and may be considered as properly divided into the customary law of nations, and the conventional. The customary law of nations consists of certain maxims, or is founded on customs and usages which have been long observed and tacitly consented to by nations, and have thereby become binding upon all who have adopted them, so far as their observance does not require a violation of the law of nature.

§12. A conventional law of nations is one that has been established by a treaty or league. The word convention usually signifies an assembly of persons met for some benevolent, political, or ecclesiastical purpose. It also signifies a treaty, or agreement between nations; and such agreement or contract, though made without a formal meeting, is deemed conventional.

§13. As the law of nature is liable to misconstruction, and as the law of usage or custom is vague and uncertain, conventional law, because more definite, has been found to afford greater security to the rights of commerce. Hence the practice, now so common among nations, of regulating their intercourse by negotiation. By treaties, the rights of the contracting parties are placed beyond dispute.

§14. But it may be said, if each nation is independent of every other, and if there is no constituted authority to enforce the fulfillment of treaty stipulations, the rights guarantied by treaties are still insecure. But few governments are so devoid of a sense of honor as, by a palpable violation of treaty obligations, to incur the odium and condemnation of all mankind. Self-respect and the fear of provoking a war, have generally proved sufficient incentives to the observance of treaties.

§15. The obligations of nations are sometimes called imperfect. A perfect obligation is one that can be enforced--one that exists where there is a right to compel the party on whom the obligation rests to fulfill it. An imperfect obligation gives only the right to demand the fulfillment, leaving the party pledged to judge what his duty requires, and to do as he chooses, without being constrained by another to do otherwise.