CHAPTER II DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS
Lawrence, §§ 20-29—Manning, pp. 8-20—Halleck, I. pp. 1-11—Walker, History, I. pp. 30-137—Taylor, §§ 6-29—Ullmann, §§ 12-14—Holtzendorff in Holtzendorff, I, pp. 159-386—Nys, I. pp. 1-18—Martens, I. §§ 8-20—Fiore, I. Nos. 3-31—Calvo, I. pp. 1-32—Bonfils, Nos. 71-86—Despagnet, Nos. 1-19—Mérignhac, I. pp. 38-43—Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd ed. 1861-1868)—Ward, "Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795)—Osenbrüggen, "De Jure Belli ac Pacis Romanorum" (1876)—Müller-Jochmus, "Geschichte des Völkerrechts im Alterthum" (1848)—Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 1-226—Nys, "Le Droit de la Guerre et les Précurseurs de Grotius" (1882) and "Les Origines du Droit International" (1894)—Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905) and vol. II. (1906)—Cybichowski, "Das antike Völkerrecht" (1907)—Phillipson, "The International Law and Custom of Ancient Greece and Rome," 2 vols. (1910)—Strupp, "Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).
No Law of Nations in antiquity.
§ 37. International Law as a law between Sovereign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations. But it is well known that the conception of a Family of Nations did not arise in the mental horizon of the ancient world. Each nation had its own religion and gods, its own language, law, and morality. International interests of sufficient vigour to wind a band around all the civilised States, bring them nearer to each other, and knit them together into a community of nations, did not spring up in antiquity. On the other hand, however, no nation could avoid coming into contact with other nations. War was waged and peace concluded. Treaties were agreed upon. Occasionally ambassadors were sent and received. International trade sprang up. Political partisans whose cause was lost often fled their country and took refuge in another. And, just as in our days, criminals often fled their country for the purpose of escaping punishment.
Such more or less frequent and constant contact of different nations with one another could not exist without giving rise to certain fairly congruent rules and usages to be observed with regard to external relations. These rules and usages were considered under the protection of the gods; their violation called for religious expiation. It will be of interest to throw a glance at the respective rules and usages of the Jews, Greeks, and Romans.
The Jews.
§ 38. Although they were monotheists and the standard of their ethics was consequently much higher than that of their heathen neighbours, the Jews did not in fact raise the standard of the international relations of their time except so far as they afforded foreigners living on Jewish territory equality before the law. Proud of their monotheism and despising all other nations on account of their polytheism, they found it totally impossible to recognise other nations as equals. If we compare the different parts of the Bible concerning the relations of the Jews with other nations, we are struck by the fact that the Jews were sworn enemies of some foreign nations, as the Amalekites, for example, with whom they declined to have any relations whatever in peace. When they went to war with those nations, their practice was extremely cruel. They killed not only the warriors on the battlefield, but also the aged, the women, and the children in their homes. Read, for example, the short description of the war of the Jews against the Amalekites in 1 Samuel xv., where we are told that Samuel instructed King Saul as follows: (3) "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and ass." King Saul obeyed the injunction, save that he spared the life of Agag, the Amalekite king, and some of the finest animals. Then we are told that the prophet Samuel rebuked Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel xii. 31, we find that King David, "the man after God's own heart," after the conquest of the town of Rabbah, belonging to the Ammonites, "brought forth the people that were therein and put them under saws, and under harrows of iron, and made them pass through the brick-kiln...."
With those nations, however, of which they were not sworn enemies the Jews used to have international relations. And when they went to war with those nations, their practice was in no way exceptionally cruel, if looked upon from the standpoint of their time and surroundings. Thus we find in Deuteronomy xx. 10-14 the following rules:—
(10) "When thou comest nigh unto a city to fight against it, then proclaim peace unto it.
(11) "And it shall be, if it make thee answer of peace and open unto thee, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.
(12) "And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.
(13) "And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword.
(14) "But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee."
Comparatively mild, like these rules for warfare, were the Jewish rules regarding their foreign slaves. Such slaves were not without legal protection. The master who killed a slave was punished (Exodus ii. 20); if the master struck his slave so severely that he lost an eye or a tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, further, allowed foreigners to live among them under the full protection of their laws. "Love ... the stranger, for ye were strangers in the land of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is the command: "You shall have one manner of law, as well for the stranger as for one of your own country."
Of the greatest importance, however, for the International Law of the future, are the Messianic ideals and hopes of the Jews, as these Messianic ideals and hopes are not national only, but fully international. The following are the beautiful words in which the prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah shall have appeared:
(2) "And it shall come to pass in the last days, that the mountain of the Lord's house shall be established in the top of the mountains, and shall be exalted above the hills; and all nations shall flow unto it.
(3) "And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the God of Jacob, and he will teach us of his ways, and we will walk in his paths; for out of Zion shall go forth the law, and the word of the Lord from Jerusalem.
(4) "And he shall judge among the nations, and shall rebuke many people: and they shall beat their swords into plowshares, and their spears into pruning-hooks: nation shall not lift up sword against nation, neither shall they learn war any more."
Thus we see that the Jews, at least at the time of Isaiah, had a foreboding and presentiment of a future when all the nations of the world should be united in peace. And the Jews have given this ideal to the Christian world. It is the same ideal which has in bygone times inspired all those eminent men who have laboured to build up an International Law. And it is again the same ideal which nowadays inspires all lovers of international peace. Although the Jewish State and the Jews as a nation have practically done nothing to realise that ideal, yet it sprang up among them and has never disappeared.
The Greeks.
§ 39. Totally different from this Jewish contribution to a future International Law is that of the Greeks. The broad and deep gulf between their civilisation and that of their neighbours necessarily made them look down upon those neighbours as barbarians, and thus prevented them from raising the standard of their relations with neighbouring nations above the average level of antiquity. But the Greeks before the Macedonian conquest were never united into one powerful national State. They lived in numerous more or less small city States, which were totally independent of one another. It is this very fact which, as time went on, called into existence a kind of International Law between these independent States. They could never forget that their inhabitants were of the same race. The same blood, the same religion, and the same civilisation of their citizens united these independent and—as we should say nowadays—Sovereign States into a community of States which in time of peace and war held themselves bound to observe certain rules as regards the relations between one another. The consequence was that the practice of the Greeks in their wars among themselves was a very mild one. It was a rule that war should never be commenced without a declaration of war. Heralds were inviolable. Warriors who died on the battlefield were entitled to burial. If a city was captured, the lives of all those who took refuge in a temple had to be spared. War prisoners could be exchanged or ransomed; their lot was, at the utmost, slavery. Certain places, as, for example, the temple of the god Apollo at Delphi, were permanently inviolable. Even certain persons in the armies of the belligerents were considered inviolable, as, for instance, the priests, who carried the holy fire, and the seers.
Thus the Greeks left to history the example that independent and Sovereign States can live, and are in reality compelled to live, in a community which provides a law for the international relations of the member-States, provided that there exist some common interests and aims which bind these States together. It is very often maintained that this kind of International Law of the Greek States could in no way be compared with our modern International Law, as the Greeks did not consider their international rules as legally, but as religiously binding only. We must, however, not forget that the Greeks never made the same distinction between law, religion, and morality which the modern world makes. The fact itself remains unshaken that the Greek States set an example to the future that independent States can live in a community in which their international regulations are governed by certain rules and customs based on the common consent of the members of that community.
The Romans.
§ 40. Totally different again from the Greek contribution to a future International Law is that of the Romans. As far back as their history goes, the Romans had a special set of twenty priests, the so-called fetiales, for the management of functions regarding their relations with foreign nations. In fulfilling their functions the fetiales did not apply a purely secular but a divine and holy law, a jus sacrale, the so-called jus fetiale. The fetiales were employed when war was declared or peace was made, when treaties of friendship or of alliance were concluded, when the Romans had an international claim before a foreign State, or vice versa.
According to Roman Law the relations of the Romans with a foreign State depended upon the fact whether or not there existed a treaty of friendship between Rome and the respective State. In case no such treaty was in existence, persons or goods coming from the foreign land into the land of the Romans, and likewise persons and goods going from the land of the Romans into the foreign land, enjoyed no legal protection whatever. Such persons could be made slaves, and such goods could be seized, and became the property of the captor. Should such an enslaved person ever come back to his country, he was at once considered a free man again according to the so-called jus postliminii. An exception was made as regards ambassadors. They were always considered inviolable, and whoever violated them was handed over to the home State of those ambassadors to be punished according to discretion.
Different were the relations when a treaty of friendship existed. Persons and goods coming from one country into the other stood then under legal protection. So many foreigners came in the process of time to Rome that a whole system of law sprang up regarding these foreigners and their relations with Roman citizens, the so-called jus gentium in contradistinction to the jus civile. And a special magistrate, the praetor peregrinus, was nominated for the administration of that law. Of such treaties with foreign nations there were three different kinds, namely, of friendship (amicitia), of hospitality (hospitium), or of alliance (foedus). I do not propose to go into details about them. It suffices to remark that, although the treaties were concluded without any such provision, notice of termination could be given. Very often these treaties used to contain a provision according to which future controversies could be settled by arbitration of the so-called recuperatores.
Very precise legal rules existed as regards war and peace. Roman law considered war a legal institution. There were four different just reasons for war, namely: (1) Violation of the Roman dominion; (2) violation of ambassadors; (3) violation of treaties; (4) support given during war to an opponent by a hitherto friendly State. But even in such cases war was only justified if satisfaction was not given by the foreign State. Four fetiales used to be sent as ambassadors to the foreign State from which satisfaction was asked. If such satisfaction was refused, war was formally declared by one of the fetiales throwing a lance from the Roman frontier into the foreign land. For warfare itself no legal rules existed, but discretion only, and there are examples enough of great cruelty on the part of the Romans. Legal rules existed, however, for the end of war. War could be ended, first, through a treaty of peace, which was then always a treaty of friendship. War could, secondly, be ended by surrender (deditio). Such surrender spared the enemy their lives and property. War could, thirdly and lastly, be ended through conquest of the enemy's country (occupatio). It was in this case that the Romans could act according to discretion with the lives and the property of the enemy.
From this sketch of their rules concerning external relations, it becomes apparent that the Romans gave to the future the example of a State with legal rules for its foreign relations. As the legal people par excellence, the Romans could not leave their international relations without legal treatment. And though this legal treatment can in no way be compared to modern International Law, yet it constitutes a contribution to the Law of Nations of the future, in so far as its example furnished many arguments to those to whose efforts we owe the very existence of our modern Law of Nations.
No need for a Law of Nations during the Middle Ages.
§ 41. The Roman Empire gradually absorbed nearly the whole civilised ancient world, so far as it was known to the Romans. They hardly knew of any independent civilised States outside the borders of their empire. There was, therefore, neither room nor need for an International Law as long as this empire existed. It is true that at the borders of this world-empire there were always wars, but these wars gave opportunity for the practice of a few rules and usages only. And matters did not change when under Constantine the Great (313-337) the Christian faith became the religion of the empire and Byzantium its capital instead of Rome, and, further, when in 395 the Roman Empire was divided into the Eastern and the Western Empire. This Western Empire disappeared in 476, when Romulus Augustus, the last emperor, was deposed by Odoacer, the leader of the Germanic soldiers, who made himself ruler in Italy. The land of the extinct Western Roman Empire came into the hands of different peoples, chiefly of Germanic extraction. In Gallia the kingdom of the Franks springs up in 486 under Chlodovech the Merovingian. In Italy, the kingdom of the Ostrogoths under Theoderich the Great, who defeated Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in 507. The Vandals had, as early as in 429, erected a kingdom in Africa, with Carthage as its capital. The Saxons had already gained a footing in Britannia in 449.
All these peoples were barbarians in the strict sense of the term. Although they had adopted Christianity, it took hundreds of years to raise them to the standard of a more advanced civilisation. And, likewise, hundreds of years passed before different nations came to light out of the amalgamation of the various peoples that had conquered the old Roman Empire with the residuum of the population of that empire. It was in the eighth century that matters became more settled. Charlemagne built up his vast Frankish Empire, and was, in 800, crowned Roman Emperor by Pope Leo III. Again the whole world seemed to be one empire, headed by the Emperor as its temporal, and by the Pope as its spiritual, master, and for an International Law there was therefore no room and no need. But the Frankish Empire did not last long. According to the Treaty of Verdun, it was, in 843, divided into three parts, and with that division the process of development set in, which led gradually to the rise of the several States of Europe.
In theory the Emperor of the Germans remained for hundreds of years to come the master of the world, but in practice he was not even master at home, as the German Princes step by step succeeded in establishing their independence. And although theoretically the world was well looked after by the Emperor as its temporal and the Pope as its spiritual head, there were constantly treachery, quarrelling, and fighting going on. War practice was the most cruel possible. It is true that the Pope and the Bishops succeeded sometimes in mitigating such practice, but as a rule there was no influence of the Christian teaching visible.
The Fifteenth and Sixteenth Centuries.
§ 42. The necessity for a Law of Nations did not arise until a multitude of States absolutely independent of one another had successfully established themselves. The process of development, starting from the Treaty of Verdun of 843, reached that climax with the reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was the last of the emperors crowned in Rome by the hands of the Popes. At that time Europe was, in fact, divided up into a great number of independent States, and thenceforth a law was needed to deal with the international relations of these Sovereign States. Seven factors of importance prepared the ground for the growth of principles of a future International Law.
(1) There were, first, the Civilians and the Canonists. Roman Law was in the beginning of the twelfth century brought back to the West through Irnerius, who taught this law at Bologna. He and the other glossatores and post-glossatores considered Roman Law the ratio scripta, the law par excellence. These Civilians maintained that Roman Law was the law of the civilised world ipso facto through the emperors of the Germans being the successors of the emperors of Rome. Their commentaries to the Corpus Juris Civilis touch upon many questions of the future International Law which they discuss from the basis of Roman Law.
The Canonists, on the other hand, whose influence was unshaken till the time of the Reformation, treated from a moral and ecclesiastical point of view many questions of the future International Law concerning war.[35]
[35] See Holland, Studies, pp. 40-58; Walker, History, I. pp. 204-212.
(2) There were, secondly, collections of Maritime Law of great importance which made their appearance in connection with international trade. From the eighth century the world trade, which had totally disappeared in consequence of the downfall of the Roman Empire and the destruction of the old civilisation during the period of the Migration of the Peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of Maritime Law, which were collected into codes and gained some kind of international recognition. The more important of these collections are the following: The Consolato del Mare, a private collection made at Barcelona in Spain in the middle of the fourteenth century; the Laws of Oléron, a collection, made in the twelfth century, of decisions given by the maritime court of Oléron in France; the Rhodian Laws, a very old collection of maritime laws which probably was put together between the sixth and the eighth centuries;[36] the Tabula Amalfitana, the maritime laws of the town of Amalfi in Italy, which date at latest from the tenth century; the Leges Wisbuenses, a collection of maritime laws of Wisby on the island of Gothland, in Sweden, dating from the fourteenth century.
[36] See Ashburner, "The Rhodian Sea Law" (1909), Introduction, p. cxii.
The growth of international trade caused also the rise of the controversy regarding the freedom of the high seas (see below, § [248]), which indirectly influenced the growth of an International Law (see below, §§ [248]-250).
(3) A third factor was the numerous leagues of trading towns for the protection of their trade and trading citizens. The most celebrated of these leagues is the Hanseatic, formed in the thirteenth century. These leagues stipulated for arbitration on controversies between their member towns. They acquired trading privileges in foreign States. They even waged war, when necessary, for the protection of their interests.
(4) A fourth factor was the growing custom on the part of the States of sending and receiving permanent legations. In the Middle Ages the Pope alone had a permanent legation at the court of the Frankish kings. Later, the Italian Republics, as Venice and Florence for instance, were the first States to send out ambassadors, who took up their residence for several years in the capitals of the States to which they were sent. At last, from the end of the fifteenth century, it became a universal custom for the kings of the different States to keep permanent legations at one another's capital. The consequence was that an uninterrupted opportunity was given for discussing and deliberating common international interests. And since the position of ambassadors in foreign countries had to be taken into consideration, international rules concerning inviolability and exterritoriality of foreign envoys gradually grew up.
(5) A fifth factor was the custom of the great States of keeping standing armies, a custom which also dates from the fifteenth century. The uniform and stern discipline in these armies favoured the rise of more universal rules and practices of warfare.
(6) A sixth factor was the Renaissance and the Reformation. The Renaissance of science and art in the fifteenth century, together with the resurrection of the knowledge of antiquity, revived the philosophical and aesthetical ideals of Greek life and transferred them to modern life. Through their influence the spirit of the Christian religion took precedence of its letter. The conviction awoke everywhere that the principles of Christianity ought to unite the Christian world more than they had done hitherto, and that these principles ought to be observed in matters international as much as in matters national. The Reformation, on the other hand, put an end to the spiritual mastership of the Pope over the civilised world. Protestant States could not recognise the claim of the Pope to arbitrate as of right in their conflicts either between one another or between themselves and Catholic States.
(7) A seventh factor made its appearance in connection with the schemes for the establishment of eternal peace which arose from the beginning of the fourteenth century. Although these schemes were utopian, they nevertheless must have had great influence by impressing upon the Princes and the nations of Christendom the necessity for some kind of organisation of the numerous independent States into a community. The first of these schemes was that of the French lawyer, Pierre Dubois, who, as early as 1306, in "De Recuperatione Terre Sancte" proposed an alliance between all Christian Powers for the purpose of the maintenance of peace and the establishment of a Permanent Court of Arbitration for the settlement of differences between the members of the alliance.[37] Another project arose in 1461, when Podiebrad, King of Bohemia from 1420-1471, adopted the scheme of his Chancellor, Antoine Marini, and negotiated with foreign courts the foundation of a Federal State to consist of all the existing Christian States with a permanent Congress, seated at Basle, of ambassadors of all the member States as the highest organ of the Federation.[38] A third plan was that of Sully, adopted by Henri IV. of France, which proposed the division of Europe into fifteen States and the linking together of these into a federation with a General Council as its highest organ, consisting of Commissioners deputed by the member States.[39] A fourth project was that of Émeric Crucée, who, in 1623, proposed the establishment of a Union consisting not only of the Christian States but of all States then existing in the whole of the world, with a General Council as its highest organ, seated at Venice, and consisting of ambassadors of all the member States of the Union.[40]
[37] See Meyer, "Die staats- und völkerrechtlichen Ideen von Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909), pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." (1911), pp. 1-29.
[38] See Schwitzky, "Der Europaeische Fürstenbund Georg's von Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), pp. 32-36.
[39] See Nys, "Études de Droit International et de Droit Politique" (1896), pp. 301-306, and Darby, "International Arbitration" (4th ed. 1904), pp. 10-21.
[40] See Balch, "Le Nouveau Cynée de Émeric Crucée" (1909); Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch, "Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54.
The schemes enumerated in the text are those which were advanced before the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The numerous plans which made their appearance afterwards—that of the Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688; of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre (1658-1743); of Kant, 1795; and of others—are all discussed in Schücking, "Die Organisation der Welt" (1909), and Darby, "International Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian schemes, but they are nevertheless of great importance. They preached again and again the gospel of the organisation of the Family of Nations, and although their ideal has not been and can never be realised, they drew the attention of public opinion to the fact that the international relations of States should not be based on arbitrariness and anarchy, but on rules of law and comity. And thereby they have indirectly influenced the gradual growth of rules of law for these international relations.
II DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS
Lawrence, §§ 29-53, and Essays, pp. 147-190—Halleck, I. pp. 12-45—Walker, History, I. pp. 138-202—Taylor, §§ 65-95—Nys, I. pp. 19-46—Martens, I. §§ 21-33—Fiore, I. Nos. 32-52—Calvo, I. pp. 32-101—Bonfils, Nos. 87-146—Despagnet, Nos. 20-27—Mérignhac, I. pp. 43-78—Ullmann, §§ 15-17—Laurent, "Histoire du Droit des Gens, &c.," 14 vols. (2nd ed. 1861-1868)—Wheaton, "Histoire des Progrès du Droit des Gens en Europe" (1841)—Bulmerincq, "Die Systematik des Völkerrechts" (1858)—Pierantoni, "Storia del diritto internazionale nel secolo XIX." (1876)—Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 227-320—Brie, "Die Fortschritte des Völkerrechts seit dem Wiener Congress" (1890)—Gareis, "Die Fortschritte des internationalen Rechts im letzten Menschenalter" (1905)—Dupuis, "Le Principe d'Équilibre et le Concert Européen de la Paix de Westphalie à l'Acte d'Algésiras" (1909)—Strupp, "Urkunden zur Geschichte des Völkerrechts," 2 vols. (1911).
The time of Grotius.
§ 43. The seventeenth century found a multitude of independent States established and crowded on the comparatively small continent of Europe. Many interests and aims knitted these States together into a community of States. International lawlessness was henceforth an impossibility. This was the reason for the fact that Grotius's work "De Jure Belli ac Pacis libri III.," which appeared in 1625, won the ear of the different States, their rulers, and their writers on matters international. Since a Law of Nations was now a necessity, since many principles of such a law were already more or less recognised and appeared again among the doctrines of Grotius, since the system of Grotius supplied a legal basis to most of those international relations which were at the time considered as wanting such basis, the book of Grotius obtained such a world-wide influence that he is correctly styled the "Father of the Law of Nations." It would be very misleading and in no way congruent with the facts of history to believe that Grotius's doctrines were as a body at once universally accepted. No such thing happened, nor could have happened. What did soon take place was that, whenever an international question of legal importance arose, Grotius's book was consulted, and its authority was so overwhelming that in many cases its rules were considered right. How those rules of Grotius, which have more or less quickly been recognised by the common consent of the writers on International Law, have gradually received similar acceptance at the hands of the Family of Nations is a process of development which in each single phase cannot be ascertained. It can only be stated that at the end of the seventeenth century the civilised States considered themselves bound by a Law of Nations the rules of which were to a great extent the rules of Grotius. This does not mean that these rules have from the end of that century never been broken. On the contrary, they have frequently been broken. But whenever this occurred, the States concerned maintained either that they did not intend to break these rules, or that their acts were in harmony with them, or that they were justified by just causes and circumstances in breaking them. And the development of the Law of Nations did not come to a standstill with the reception of the bulk of the rules of Grotius. More and more rules were gradually required and therefore gradually grew. All the historically important events and facts of international life from the time of Grotius down to our own have, on the one hand, given occasion to the manifestation of the existence of a Law of Nations, and, on the other hand, in their turn made the Law of Nations constantly and gradually develop into a more perfect and more complete system of legal rules.
It serves the purpose to divide the history of the development of the Law of Nations from the time of Grotius into seven periods—namely, 1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899, 1899-1911.
The period 1648-1721.
§ 44. The ending of the Thirty Years' War through the Westphalian Peace of 1648 is the first event of great importance after the death of Grotius in 1645. What makes remarkable the meetings of Osnaburg, where the Protestant Powers met, and Münster, where the Catholic Powers met, is the fact that there was for the first time in history a European Congress assembled for the purpose of settling matters international by common consent of the Powers. With the exception of England, Russia, and Poland, all the important Christian States were represented at this congress, as were also the majority of the minor Powers. The arrangements made by this congress show what a great change had taken place in the condition of matters international. The Swiss Confederation and the Netherlands were recognised as independent States. The 355 different States which belonged to the German Empire were practically, although not theoretically, recognised as independent States which formed a Confederation under the Emperor as its head. Of these 355 States, 150 were secular States governed by hereditary monarchs (Electors, Dukes, Landgraves, and the like), 62 were free-city States, and 123 were ecclesiastical States governed by archbishops and other Church dignitaries. The theory of the unity of the civilised world under the German Emperor and the Pope as its temporal and spiritual heads respectively was buried for ever. A multitude of recognised independent States formed a community on the basis of equality of all its members. The conception of the European equilibrium[41] made its appearance and became an implicit principle as a guaranty of the independence of the members of the Family of Nations. Protestant States took up their position within this family along with Catholic States, as did republics along with monarchies.
[41] See below, pp. [64], [65], [80], [193], [307].
In the second half of the seventeenth century the policy of conquest initiated by Louis XIV. of France led to numerous wars. But Louis XIV. always pleaded a just cause when he made war, and even the establishment of the ill-famed so-called Chambers of Reunion (1680-1683) was done under the pretext of law. There was no later period in history in which the principles of International Law were more frivolously violated, but the violation was always cloaked by some excuse. Five treaties of peace between France and other Powers during the reign of Louis XIV. are of great importance. (1) The Peace of the Pyrenees, which ended in 1659 the war between France and Spain, who had not come to terms at the Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668 another war between France and Spain, commenced in 1667 because France claimed the Spanish Netherlands from Spain. This peace was forced upon Louis XIV. through the triple alliance between England, Holland, and Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war originally commenced by Louis XIV. in 1672 against Holland, into which many other European Powers were drawn. (4) The Peace of Ryswick, which ended in 1697 the war that had existed since 1688 between France on one side, and, on the other, England, Holland, Denmark, Germany, Spain, and Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and Baden, 1714, which ended the war of the Spanish Succession that had lasted since 1701 between France and Spain on the one side, and, on the other, England, Holland, Portugal, Germany, and Savoy.
But wars were not only waged between France and other Powers during this period. The following treaties of peace must therefore be mentioned:—(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen (also 1660), and Kardis (1661). The contracting Powers were Sweden, Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699, between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt, 1721, between Sweden and Russia under Peter the Great.
The year 1721 is epoch-making because with the Peace of Nystaedt Russia enters as a member into the Family of Nations, in which she at once held the position of a Great Power. The period ended by the year 1721 shows in many points progressive tendencies regarding the Law of Nations. Thus the right of visit and search on the part of belligerents over neutral vessels becomes recognised. The rule "free ships, free goods," rises as a postulate, although it was not universally recognised till 1856. The effectiveness of blockades, which were first made use of in war by the Netherlands at the end of the sixteenth century, rose as a postulate and became recognised in treaties between Holland and Sweden (1667) and Holland and England (1674), although its universal recognition was not realised until the nineteenth century. The freedom of the high seas, claimed by Grotius and others, began gradually to obtain recognition in practice, although it did likewise not meet with universal acceptance till the nineteenth century. The balance of power is solemnly recognised by the Peace of Utrecht as a principle of the Law of Nations.
The period 1721-1789.
§ 45. Before the end of the first half of the eighteenth century peace in Europe was again disturbed. The rivalry between Austria and Prussia, which had become a kingdom in 1701 and the throne of which Frederick II. had ascended in 1740, led to several wars in which England, France, Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace were successively concluded which tried to keep up or re-establish the balance of power in Europe. The most important of these treaties are: (1) The Peace of Aix-la-Chapelle of 1748 between France, England, Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of Hubertsburg and the Peace of Paris, both of 1763, the former between Prussia, Austria, and Saxony, the latter between England, France, and Spain. (3) The Peace of Versailles of 1783 between England, the United States of America, France, and Spain.
These wars gave occasion to disputes as to the right of neutrals and belligerents regarding trade in time of war. Prussia became a Great Power. The so-called First Armed Neutrality[42] made its appearance in 1780 with claims of great importance, which were not generally recognised till 1856. The United States of America succeeded in establishing her independence and became a member of the Family of Nations, whose future attitude fostered the growth of several rules of International Law.
[42] See below, Vol. II. §§ [289] and [290], where details concerning the First and Second Armed Neutrality are given.
The period 1789-1815.
§ 46. All progress, however, was endangered, and indeed the Law of Nations seemed partly non-existent, during the time of the French Revolution and the Napoleonic wars. Although the French Convention resolved in 1792 (as stated above, § 30) to create a "Declaration of the Rights of Nations," the Revolutionary Government and afterwards Napoleon I. very often showed no respect for the rules of the Law of Nations. The whole order of Europe, which had been built up by the Westphalian and subsequent treaties of peace for the purpose of maintaining a balance of power, was overthrown. Napoleon I. was for some time the master of Europe, Russia and England excepted. He arbitrarily created States and suppressed them again. He divided existing States into portions and united separate States. The kings depended upon his goodwill, and they had to follow orders when he commanded. Especially as regards maritime International Law, a condition of partial lawlessness arose during this period. Already in 1793 England and Russia interdicted all navigation with the ports of France, with the intention of subduing her by famine. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to the ports of the enemy or carrying enemy goods. Again Napoleon, who wanted to ruin England by destroying her commerce, announced in 1806 in his Berlin Decrees the boycott of all English goods. England answered with the blockade of all French ports and all ports of the allies of France, and ordered her fleet to capture all ships destined to any such port.
When at last the whole of Europe was mobilised against Napoleon and he was finally defeated, the whole face of Europe was changed, and the former order of things could not possibly be restored. It was the task of the European Congress of Vienna in 1814 and 1815 to create a new order and a fresh balance of power. This new order comprised chiefly the following arrangements:—The Prussian and the Austrian monarchies were re-established, as was also the Germanic Confederation, which consisted henceforth of thirty-nine member States. A kingdom of the Netherlands was created out of Holland and Belgium. Norway and Sweden became a Real Union. The old dynasties were restored in Spain, in Sardinia, in Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen cantons of the Swiss Confederation were added those of Geneva, Valais, and Neuchâtel, and this Confederation was neutralised for all the future.
But the Vienna Congress did not only establish a new political order in Europe, it also settled some questions of International Law. Thus, free navigation was agreed to on so-called international rivers, which are rivers navigable from the Open Sea and running through the land of different States. It was further arranged that henceforth diplomatic agents should be divided into three classes (Ambassadors, Ministers, Chargés d'Affaires). Lastly, a universal prohibition of the trade in negro slaves was agreed upon.
The period 1815-1856.
§ 47. The period after the Vienna Congress begins with the so-called Holy Alliance. Already on September 26, 1815, before the second Peace of Paris, the Emperors of Russia and Austria and the King of Prussia called this alliance into existence, the object of which was to make it a duty upon its members to apply the principles of Christian morality in the administration of the home affairs of their States as well as in the conduct of their international relations. After the Vienna Congress the sovereigns of almost all the European States had joined that alliance with the exception of England. George IV., at that time prince-regent only, did not join, because the Holy Alliance was an alliance not of the States, but of sovereigns, and therefore was concluded without the signatures of the respective responsible Ministers, whereas according to the English Constitution the signature of such a responsible Minister would have been necessary.
The Holy Alliance had not as such any importance for International Law, for it was a religious, moral, and political, but scarcely a legal alliance. But at the Congress of Aix-la-Chapelle in 1818, which the Emperors of Russia and Austria and the King of Prussia attended in person, and where it might be said that the principles of the Holy Alliance were practically applied, the Great Powers signed a Declaration,[43] in which they solemnly recognised the Law of Nations as the basis of all international relations, and in which they pledged themselves for all the future to act according to its rules. The leading principle of their politics was that of legitimacy,[44] as they endeavoured to preserve everywhere the old dynasties and to protect the sovereigns of the different countries against revolutionary movements of their subjects. This led, in fact, to a dangerous neglect of the principles of International Law regarding intervention. The Great Powers, with the exception of England, intervened constantly with the domestic affairs of the minor States in the interest of the legitimate dynasties and of an anti-liberal legislation. The Congresses at Troppau, 1820, Laibach, 1821, Verona, 1822, occupied themselves with a deliberation on such interventions.
[43] See Martens, N.R. IV. p. 560.
[44] See Brockhaus, "Das Legitimitätsprincip" (1868).
The famous Monroe Doctrine (see below, § [139]) owes its origin to that dangerous policy of the European Powers as regards intervention, although this doctrine embraces other points besides intervention. As from 1810 onwards the Spanish colonies in South America were falling off from the mother country and declaring their independence, and as Spain was, after the Vienna Congress, thinking of reconquering these States with the help of other Powers who upheld the principle of legitimacy, President Monroe delivered his message on December 2, 1823, which pointed out amongst other things, that the United States could not allow the interference of a European Power with the States of the American continent.
Different from the intervention of the Powers of the Holy Alliance in the interest of legitimacy were the two interventions in the interest of Greece and Belgium. England, France, and Russia intervened in 1827 in the struggle of Turkey with the Greeks, an intervention which led finally in 1830 to the independence of Greece. And the Great Powers of the time, namely, England, Austria, France, Prussia, and Russia, invited by the provisional Belgian Government, intervened in 1830 in the struggle of the Dutch with the Belgians and secured the formation of a separate Kingdom of Belgium.
It may be maintained that the establishment of Greece and Belgium inferred the breakdown of the Holy Alliance. But it was not till the year 1848 that this alliance was totally swept away through the disappearance of absolutism and the victory of the constitutional system in most States of Europe. Shortly afterwards, in 1852, Napoleon III., who adopted the principle of nationality,[45] became Emperor of France. Since he exercised preponderant influence in Europe, one may say that this principle of nationality superseded in European politics the principle of legitimacy.
[45] See Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 53-70.
The last event of this period is the Crimean War, which led to the Peace as well as to the Declaration of Paris in 1856. This war broke out in 1853 between Russia and Turkey. In 1854, England, France, and Sardinia joined Turkey, but the war continued nevertheless for another two years. Finally, however, Russia was defeated, a Congress assembled at Paris, where England, France, Austria, Russia, Sardinia, Turkey, and eventually Prussia, were represented, and peace was concluded in March 1856. In the Peace Treaty, Turkey is expressly received as a member into the Family of Nations. Of greater importance, however, is the celebrated Declaration of Paris regarding maritime International Law which was signed on April 16, 1856, by the delegates of the Powers that had taken part in the Congress. This declaration abolished privateering, recognised the rules that enemy goods on neutral vessels and that neutral goods on enemy vessels cannot be confiscated, and stipulated that a blockade in order to be binding must be effective. Together with the fact that at the end of the first quarter of the nineteenth century the principle of the freedom of the high seas[46] became universally recognised, the Declaration of Paris is a prominent landmark in the progress of the Law of Nations. The Powers that had not been represented at the Congress of Paris were invited to sign the Declaration afterwards, and the majority of the members of the Family of Nations did sign it before the end of the year 1856. The few States, such as the United States of America, Spain, Mexico, and others, which did not then sign,[47] have in practice since 1856 not acted in opposition to the Declaration, and one may therefore, perhaps, maintain that the Declaration of Paris has already become or will soon become universal International Law through custom. Spain and Mexico, however, signed the Declaration in 1907, as Japan had already done in 1886.
[47] It should be mentioned that the United States did not sign the Declaration of Paris because it did not go far enough, and did not interdict capture of private enemy vessels.
The period 1856-1874.
§ 48. The next period, the time from 1856 to 1874, is of prominent importance for the development of the Law of Nations. Under the aegis of the principle of nationality, Austria turns in 1867 into the dual monarchy of Austria-Hungary, and Italy as well as Germany becomes united. The unity of Italy rises out of the war of France and Sardinia against Austria in 1859, and Italy ranges henceforth among the Great Powers of Europe. The unity of Germany is the combined result of three wars: that of Austria and Prussia in 1864 against Denmark on account of Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, and that of Prussia and the allied South German States against France in 1870. The defeat of France in 1870 had the consequence that Italy took possession of the Papal States, whereby the Pope disappeared from the number of governing sovereigns.
The United States of America rise through the successful termination of the Civil War in 1865 to the position of a Great Power. Several rules of maritime International Law owe their further development to this war. And the instructions concerning warfare on land, published in 1863 by the Government of the United States, represent the first step towards codification of the Laws of War. In 1864, the Geneva Convention for the amelioration of the condition of soldiers wounded in armies in the field is, on the initiation of Switzerland, concluded by nine States, and in time almost all civilised States became parties to it. In 1868, the Declaration of St. Petersburg, interdicting the employment in war of explosive balls below a certain weight, is signed by many States. Since Russia in 1870 had arbitrarily shaken off the restrictions of Article 11 of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the Conference of London, which met in 1871 and was attended by the representatives of the Powers which were parties to the Peace of Paris of 1856, solemnly proclaimed "that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement." The last event in this period is the Conference of Brussels of 1874 for the codification of the rules and usages of war on land. Although the signed code was never ratified, the Brussels Conference was nevertheless epoch-making, since it showed the readiness of the Powers to come to an understanding regarding such a code.
The period 1874-1899.
§ 49. After 1874 the principle of nationality continues to exercise its influence as before. Under its aegis takes place the partial decay of the Ottoman Empire. The refusal of Turkey to introduce reforms regarding the Balkan population led in 1877 to war between Turkey and Russia, which was ended in 1878 by the peace of San Stefano. As the conditions of this treaty would practically have done away with Turkey in Europe, England intervened and a European Congress assembled at Berlin in June 1878 which modified materially the conditions of the Peace of San Stefano. The chief results of the Berlin Congress are:—(1) Servia, Roumania, Montenegro become independent and Sovereign States; (2) Bulgaria becomes an independent principality under Turkish suzerainty; (3) the Turkish provinces of Bosnia and Herzegovina come under the administration of Austria-Hungary; (4) a new province under the name of Eastern Rumelia is created in Turkey and is to enjoy great local autonomy (according to an arrangement of the Conference of Constantinople in 1885-1886 a bond is created between Eastern Rumelia and Bulgaria by the appointment of the Prince of Bulgaria as governor of Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates to its mouth in the Black Sea is proclaimed.
In 1889 Brazil becomes a Republic and a Federal State (the United States of Brazil). In the same year the first Pan-American Congress meets at Washington.
In 1897 Crete revolts against Turkey, war breaks out between Greece and Turkey, the Powers interfere, and peace is concluded at Constantinople. Crete becomes an autonomous half-Sovereign State under Turkish suzerainty with Prince George of Greece as governor, who, however, retires in 1906.
In the Far East war breaks out in 1894 between China and Japan, on account of Korea. China is defeated, and peace is concluded in 1895 at Shimonoseki.[48] Japan henceforth ranks as a Great Power. That she must now be considered a full member of the Family of Nations becomes apparent from the treaties concluded soon afterwards by her with other Powers for the purpose of abolishing their consular jurisdiction within the boundaries of Japan.
[48] See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.
In America the United States intervene in 1898 in the revolt of Cuba against the motherland, whereby war breaks out between Spain and the United States. The defeat of Spain secures the independence of Cuba through the Peace of Paris[49] of 1898. The United States acquires Porto Rico and other Spanish West Indian Islands, and, further, the Philippine Islands, whereby she becomes a colonial Power.
[49] See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 74.
An event of great importance during this period is the Congo Conference of Berlin, which took place in 1884-1885, and at which England, Germany, Austria-Hungary, Belgium, Denmark, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were represented. This conference stipulated freedom of commerce, interdiction of slave-trade, and neutralisation of the territories in the Congo district, and secured freedom of navigation on the rivers Congo and Niger. The so-called Congo Free State was recognised as a member of the Family of Nations.
A second fact of great importance during this period is the movement towards the conclusion of international agreements concerning matters of international administration. This movement finds expression in the establishment of numerous International Unions with special International Offices. Thus a Universal Telegraphic Union is established in 1875, a Universal Postal Union in 1878, a Union for the Protection of Industrial Property in 1883, a Union for the Protection of Works of Literature and Art in 1886, a Union for the Publication of Custom Tariffs in 1890. There were also concluded conventions concerning:—(1) Private International Law (1900 and 1902); (2) Railway transports and freights (1890); (3) the metric system (1875); (4) phylloxera epidemics (1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6) Monetary Unions (1865, 1878, 1885, 1892, 1893).
A third fact of great importance is that in this period a tendency arises to settle international conflicts more frequently than in former times by arbitration. Numerous arbitrations are actually taking place, and several treaties are concluded between different States stipulating the settlement by arbitration of all conflicts which might arise in future between the contracting parties.
The last fact of great importance which is epoch-making for this period is the Peace Conference of the Hague of 1899. This Conference produces, apart from three Declarations of minor importance, a Convention for the Pacific Settlement of International Conflicts, a Convention regarding the Laws and Customs of War on Land, and a Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It also formulates, among others, the three wishes (1) that a conference should in the near future regulate the rights and duties of neutrals, (2) that a future conference should contemplate the declaration of the inviolability of private property in naval warfare, (3) that a future conference should settle the question of the bombardment of ports, towns, and villages by naval forces.
The Twentieth Century.
§ 50. Soon after the Hague Peace Conference, in October 1899, war breaks out in South Africa between Great Britain and the two Boer Republics, which leads to the latter's subjugation at the end of 1901. The assassination on June 10, 1900, of the German Minister and the general attack on the foreign legations at Peking necessitate united action of the Powers against China for the purpose of vindicating this violation of the fundamental rules of the Laws of Nations. Friendly relations are, however, re-established with China on her submitting to the conditions enumerated in the Final Protocol of Peking,[50] signed on September 7, 1901. In December 1902 Great Britain, Germany, and Italy institute a blockade of the coast of Venezuela for the purpose of making her comply with their demands for the indemnification of their subjects wronged during civil wars in Venezuela, and the latter consents to pay indemnities to be settled by a mixed commission of diplomatists.[51] As, however, Powers other than those blockading likewise claim indemnities, the matter is referred to the Permanent Court of Arbitration at the Hague, which in 1904 gives its award[52] in favour of the blockading Powers. In February 1904 war breaks out between Japan and Russia on account of Manchuria and Korea. Russia is defeated, and peace is concluded through the mediation of the United States of America, on September 5, 1905, at Portsmouth.[53] Korea, now freed from the influence of Russia, places herself by the Treaty of Seoul[54] of November 17, 1905, under the protectorate of Japan. Five years later, however, by the Treaty of Seoul[55] of August 22, 1910, she merges entirely into Japan.
[50] See Martens, N.R.G. 2nd Ser. XXXII. p. 94.
[51] See Martens, N.R.G. 3rd Ser. I. p. 46.
[52] See Martens, N.R.G. 3rd Ser. I. p. 57.
[53] See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.
[54] See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.
[55] See Martens, N.R.G. 3rd Ser. IV. p. 24.
The Real Union between Norway and Sweden, which was established by the Vienna Congress in 1815, is peacefully dissolved by the Treaty of Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom under Prince Charles of Denmark, who takes the name of Haakon VIII., and Great Britain, Germany, Russia, and France guarantee by the Treaty of Christiania[57] of November 2, 1907, the integrity of Norway on condition that she would not cede any part of her territory to any foreign Power.
[56] See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.
[57] See Martens, N.R.G. 3rd Ser. II. p. 9, and below, § [574].
The rivalry between France and Germany—the latter protesting against the position conceded to France in Morocco by the Anglo-French agreement signed at London on April 8, 1904—leads in January 1906 to the Conference of Algeciras, in which Great Britain, France, Germany, Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, Spain, and the United States of America take part, and where on April 7, 1906, the General Act of the International Conference of Algeciras[58] is signed. This Act, which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities for all nations in that country, contains:—(1) A declaration concerning the organisation of the Moroccan police; (2) regulations concerning the detection and suppression of the illicit trade in arms; (3) an Act of concession for a Moorish State Bank; (4) a declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) regulations respecting customs and the suppression of fraud and smuggling; (6) a declaration concerning the public services and public works. But it would seem that this Act has not produced a condition of affairs of any permanency. Since, in 1911, internal disturbances in Morocco led to military action on the part of France and Spain, Germany, in July of the same year, sent a man-of-war to the port of Agadir. Thus the Moroccan question has been reopened, and fresh negotiations for its settlement are taking place between the Powers.[59]
[58] See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.
[59] It should be mentioned that by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia; see Martens, N.R.G. 2nd Ser. XXXV. p. 556.
Two events of importance occur in 1908. The first is the merging of the Congo Free State[60] into Belgium, which annexation is not as yet recognised by all the Powers. The other is the crisis in the Near East caused by the ascendency of the so-called Young Turks and the introduction of a constitution in Turkey. Simultaneously on October 5, 1908, Bulgaria declares herself independent, and Austria-Hungary proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish provinces had been under her administration since 1878. This violation of the Treaty of Berlin considerably endangers the peace of the world, and an international conference is proposed for the purpose of reconsidering the settlement of the Near Eastern question. Austria-Hungary, however, does not consent to this, but prefers to negotiate with Turkey alone in the matter, and a Protocol is signed by the two Powers on February 26, 1909, according to which Turkey receives a substantial indemnity in money and other concessions. Austria-Hungary negotiates likewise with Montenegro alone, and consents to the modifications in Article 29 of the Treaty of Berlin concerning the harbour of Antivary, which is to be freed from Austria-Hungarian control and is henceforth to be open to warships of all nations. Whereupon the demand for an international conference is abandoned and the Powers notify on April 7, 1909, their consent to the abolition of Article 25 and the amendment of Article 29 of the Treaty of Berlin.[61]
[60] See Martens, N.R.G. 3rd Ser. II. p. 101.
[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 Assembly 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 assembles 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.
[62] See Moore, VI. § 969; Fried, "Pan-America" (1910); Barrett, "The Pan-American Union" (1911).
[63] See Martens, N.R.G. 3rd Ser. II. p. 323.
The second Peace Conference assembles 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-ships 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).
[64] See Martens, N.R.G. 3rd Ser. III. p. 323.
The Naval Conference of London assembles 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 Institute at Rome (1905); (7) concerning unification of the Pharmacopœial 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]
[65] See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 vols. (1911).
[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.
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 principal 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]
[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 Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, "Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe d'Équilibre et de Concert Européen" (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 classes 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 institution 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]
[69] See Oppenheim, "Die Zukunft des Völkerrechts" (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 Municipal 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.
[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 Municipal 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), passim—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 Vorläufer 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 précurseurs de Grotius" (1882), "Notes pour servir à l'histoire ... du droit international en Angleterre" (1888), "Les origines du droit international" (1894)—Wheaton, "Histoire des progrès 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].
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 title "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."
[71] See details in Holland, Studies, pp. 51-52.
[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 für das Völkerrecht" (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.
Grotius.
§ 53. Although Grotius owes much to Gentilis, he is nevertheless the greater of the two and bears by right the title 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 title "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 nobody 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 title of "Father of the Law of Nations," but also that of "Father of the Law of Nature."
[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 Constitutional 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 institutions 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.
[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.
[75] See Rivier in Holtzendorff, I. p. 412. The last English translation is that of 1854 by William Whewell.
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 title of "Second founder of the Law of Nations," appeared in 1650 and bears the title: "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 nobody called the Law of Nations International Law.
[76] See Phillipson in The Journal of the Society of Comparative Legislation, New Series, IX. (1908), pp. 281-304.
The distinction between the natural Law of Nations, chiefly treated by Grotius, and the customary or voluntary Law of Nations, chiefly treated by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to three different schools[78] of writers on the Law of Nations—namely, the "Naturalists," the "Positivists," and the "Grotians."
[77] It should be mentioned that already before Zouche, another Englishman, John Selden, in his "De jure naturali et gentium secundum disciplinam ebraeorum" (1640), recognised the importance of the positive Law of Nations. The successor of Zouche as a Judge of the Admiralty Court, Sir Leoline Jenkins (1625-1684) ought also to be mentioned. His opinions concerning questions of maritime law, and in especial prize law, were of the greatest importance for the development of maritime international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols. (1740).
[78] These three schools of writers must not be confounded with the division of the present international jurists into the diplomatic and legal schools; see above, § [51, No. 5].
The Naturalists.
§ 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain that all Law of Nations is only a part of the Law of Nature. The leader of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the first chair which was founded for the Law of Nature and Nations at a University—namely, that at Heidelberg. Among the many books written by Pufendorf, three are of importance for the science of International Law:—(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. 4, that Natural Law is to be divided into Natural Law of individuals and of States, and that the latter is the Law of Nations, Pufendorf[79] adds that outside this Natural Law of Nations no voluntary or positive Law of Nations exists which has the force of real law (quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superiore profecta stringat).
[79] De jure naturae et gentium, II. c. 3, § 22.
The most celebrated follower of Pufendorf is the German philosopher, Christian Thomasius (1655-1728), who published in 1688 his "Institutiones jurisprudentiae divinae," and in 1705 his "Fundamenta juris naturae et gentium." Of English Naturalists may be mentioned Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas Rutherford ("Institutes of Natural Law; being the Substance of a Course of Lectures on Grotius read in St. John's College, Cambridge," 2 vols. 1754-1756). Jean Barbeyrac (1674-1744), the learned French translator and commentator of the works of Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who wrote the "Principes du droit de la nature et des gens," ought likewise to be mentioned.
The Positivists.
§ 56. The "Positivists" are the antipodes of the Naturalists. They include all those writers who, in contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as the outcome of custom or international treaties, but consider it more important than the natural Law of Nations, the very existence of which some of the Positivists deny, thus going beyond Zouche. The positive writers had not much influence in the seventeenth century, during which the Naturalists and the Grotians carried the day, but their time came in the eighteenth century.
Of seventeenth-century writers, the Germans Rachel and Textor must be mentioned. Rachel published in 1676 his two dissertations, "De jure naturae et gentium," in which he defines the Law of Nations as the law to which a plurality of free States are subjected, and which comes into existence through tacit or express consent of these States (Jus plurium liberalium gentium pacto sive placito expressim aut tacite initum, quo utilitatis gratia sibi in vicem obligantur). Textor published in 1680 his "Synopsis juris gentium."
In the eighteenth century the leading Positivists, Bynkershoek, Moser, and Martens, gained an enormous influence.
Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist, never wrote a treatise on the Law of Nations, but gained fame through three books dealing with different parts of this Law. He published in 1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 "Quaestionum juris publici libri II." According to Bynkershoek the basis of the Law of Nations is the common consent of the nations which finds its expression either in international custom or in international treaties.
[80] See Phillipson in The Journal of the Society of Comparative Legislation, New Series, IX. (1908), pp. 27-49.
Johann Jakob Moser (1701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts in Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. Moser never fights against the Naturalists, but he is totally indifferent towards the natural Law of Nations, since to him the Law of Nations is positive law only and based on international custom and treaties.
Georg Friedrich von Martens (1756-1821), Professor of Law in the University of Göttingen, also published many books concerning the Law of Nations. The most important is his "Précis du droit des gens moderne de l'Europe," published in 1789, of which William Cobbett published in 1795 at Philadelphia an English translation, and of which as late as 1864 appeared a new edition at Paris with notes by Charles Vergé. Martens began the celebrated collection of treaties which goes under the title "Martens, Recueil des Traités," and is continued to our days.[81] The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, and since he sometimes refers to the latter in case he finds a gap in the positive Law of Nations. But his interest is in the positive Law of Nations, which he builds up historically on international custom and treaties.
[81] Georg Friedrich von Martens is not to be confounded with his nephew Charles de Martens, the author of the "Causes célèbres de droit des gens" and of the "Guide diplomatique."
The Grotians.
§ 57. The "Grotians" stand midway between the Naturalists and the Positivists. They keep up the distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, their interest to both alike. Grotius's influence was so enormous that the majority of the authors of the seventeenth and eighteenth centuries were Grotians, but only two of them have acquired a European reputation—namely, Wolff and Vattel.
Christian Wolff (1679-1754), a German philosopher who was first Professor of Mathematics and Philosophy in the Universities of Halle and Marburg and afterwards returned to Halle as Professor of the Law of Nature and Nations, was seventy years of age when, in 1749, he published his "Jus gentium methodo scientifica pertractatum." In 1750 followed his "Institutiones juris naturae et gentium." Wolff's conception of the Law of Nations is influenced by his conception of the civitas gentium maxima. The fact that there is a Family of Nations in existence is strained by Wolff into the doctrine that the totality of the States forms a world-State above the component member States, the so-called civitas gentium maxima. He distinguishes four different kinds of Law of Nations—namely, the natural, the voluntary, the customary, and that which is expressly created by treaties. The latter two kinds are alterable, and have force only between those single States between which custom and treaties have created them. But the natural and the voluntary Law of Nations are both eternal, unchangeable, and universally binding upon all the States. In contradistinction to Grotius, who calls the customary Law of Nations "voluntary," Wolff names "voluntary" those rules of the Law of Nations which are, according to his opinion, tacitly imposed by the civitas gentium maxima, the world-State, upon the member States.
Emerich de Vattel[82] (1714-1767), a Swiss from Neuchâtel, who entered into the service of Saxony and became her Minister at Berne, did not in the main intend any original work, but undertook the task of introducing Wolff's teachings concerning the Law of Nations into the courts of Europe and to the diplomatists. He published in 1758 his book, "Le droit des gens, ou principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains." But it must be specially mentioned that Vattel expressly rejects Wolff's conception of the civitas gentium maxima in the preface to his book. Numerous editions of Vattel's book have appeared, and as late as 1863 Pradier-Fodéré re-edited it at Paris. An English translation by Chitty appeared in 1834 and went through several editions. His influence was very great, and in diplomatic circles his book still enjoys an unshaken authority.
[82] See Montmorency in The Journal of the Society of Comparative Legislation, New Series, X. (1909), pp. 17-39.
Treatises of the Nineteenth and Twentieth Centuries.
§ 58. Some details concerning the three schools of the Naturalists, Positivists, and Grotians were necessary, because these schools are still in existence. I do not, however, intend to give a list of writers on special subjects, and the following list of treatises comprises the more important ones only.
(1) British Treatises
William Oke Manning: Commentaries on the Law of Nations, 1839; new ed. by Sheldon Amos, 1875.
Archer Polson: Principles of the Law of Nations, 1848; 2nd ed. 1853.
Richard Wildman: Institutes of International Law, 2 vols. 1849-1850.
Sir Robert Phillimore: Commentaries upon International Law, 4 vols. 1854-1861; 3rd ed. 1879-1888.
Sir Travers Twiss: The Law of Nations, etc., 2 vols. 1861-1863; 2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French translation, 1887-1889.
Sheldon Amos: Lectures on International Law, 1874.
Sir Edward Shepherd Creasy: First Platform of International Law, 1876.
William Edward Hall: Treatise on International Law, 1880; 6th ed. 1909 (by Atlay).
Sir Henry Sumner Maine: International Law, 1883; 2nd ed. 1894 (Whewell Lectures, not a treatise).
James Lorimer: The Institutes of International Law, 2 vols. 1883-1884; French translation by Nys, 1885.
Leone Levi: International Law, 1888.
T. J. Lawrence: The Principles of International Law, 1895; 4th ed. 1910.
Thomas Alfred Walker: A Manual of Public International Law, 1895.
Sir Sherston Baker: First Steps in International Law, 1899.
F. E. Smith: International Law, 1900; 4th ed. 1911 (by Wylie).
John Westlake: International Law, vol. I. (Peace) 1904, vol. II. (War) 1907; 2nd ed. vol. I. 1910.
(2) North American Treatises
James Kent: Commentary on International Law, 1826; English edition by Abdy, Cambridge, 1888.
Henry Wheaton: Elements of International Law, 1836; 8th American ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed. by Atlay, 1904.
Theodore D. Woolsey: Introduction to the Study of International Law, 1860; 6th ed. by Th. S. Woolsey, 1891.
Henry W. Halleck: International Law, 2 vols. 1861; 4th English ed. by Sir Sherston Baker, 1907.
Francis Wharton: A Digest of the International Law of the United States, 3 vols. 1886.
George B. Davis: The Elements of International Law, 1887; 3rd ed. 1908.
Hannis Taylor: A Treatise on International Public Law, 1901.
George Grafton Wilson and George Fox Tucker: International Law, 1901; 5th ed. 1910.
Edwin Maxey: International Law, with illustrative cases, 1906.
John Basset Moore: A Digest of International Law, 8 vols. 1906.
George Grafton Wilson: Handbook of International Law, 1910.
(3) French Treatises
Funck-Brentano et Albert Sorel: Précis du Droit des Gens, 1877; 2nd ed. 1894.
P. Pradier-Fodéré: Traité de Droit International Public, 8 vols. 1885-1906.
Henry Bonfils: Manuel de Droit International Public, 1894; 5th ed. by Fauchille, 1908.
Georges Bry: Précis élémentaire de Droit International Public; 5th ed. 1906.
Frantz Despagnet: Cours de Droit International Public, 1894; 4th ed. by De Boeck, 1910.
Robert Piédelièvre: Précis de Droit International Public, 2 vols. 1894-1895.
A. Mérignhac: Traité de Droit Public International, vol. I. 1905; vol. II. 1907.
(4) German Treatises
Theodor Schmalz: Europäisches Völkerrecht, 1816.
Johann Ludwig Klüber: Droit des Gens moderne, 1819; German ed. under the title of Europäisches Völkerrecht in 1821; last German ed. by Morstadt in 1851, and last French ed. by Ott in 1874.
Karl Heinrich Ludwig Poelitz: Practisches (europäisches) Völkerrecht, 1828.
Friedrich Saalfeld: Handbuch des positiven Völkerrechts, 1833.
August Wilhelm Heffter: Das europäische Völkerrecht der Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by Bergson in 1851 and Geffcken in 1883.
Heinrich Bernhard Oppenheim: System des Völkerrechts, 1845; 2nd ed. 1866.
Johann Caspar Bluntschli: Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed. 1878; French translation by Lardy, 5th ed. 1895.
Adolf Hartmann: Institutionen des praktischen Völkerrechts in Friedenszeiten, 1874; 2nd ed. 1878.
Franz von Holtzendorff: Handbuch des Völkerrechts, 4 vols. 1885-1889. Holtzendorff is the editor and a contributor, but there are many other contributors.
August von Bulmerincq: Das Völkerrecht, 1887.
Karl Gareis: Institutionen des Völkerrechts, 1888; 2nd. ed. 1901.
E. Ullmann: Völkerrecht, 1898; 2nd ed. 1908.
Franz von Liszt: Das Völkerrecht, 1898; 6th ed. 1910.
(5) Italian Treatises
Luigi Casanova: Lezioni di diritto internazionale, published after the death of the author by Cabella, 1853; 3rd. ed. by Brusa, 1876.
Pasquale Fiore: Trattato di diritto internazionale publico, 1865; 4th ed. in 3 vols. 1904; French translation of the 2nd ed. by Antoine, 1885.
Giuseppe Carnazza-Amari: Trattato di diritto internazionale di pace, 2 vols. 1867-1875; French translation by Montanari-Pevest, 1881.
Antonio del Bon: Institutioni del diritto publico internazionale, 1868.
Giuseppe Sandona: Trattato di diritto internazionale moderno, 2 vols. 1870.
Gian Battista Pertille: Elementi di diritto internazionale, 2 vols. 1877.
Augusto Pierantoni: Trattato di diritto internazionale, vol. I. 1881. (No further volume has appeared.)
Giovanni Lomonaco: Trattato di diritto internazionale publico, 1905.
Giulio Diena: Principî di diritto internazionale, Parte Prima, Diritto internaziole publico, 1908.
(6) Spanish And Spanish-american Treatises
Andrés Bello: Principios de derecho de gentes (internacional), 1832; last ed. in 2 vols. by Silva, 1883.
José Maria de Pando: Elementos del derecho internacional, published after the death of the author, 1843-1844.
Antonio Riquelme: Elementos de derecho público internacional, etc.; 2 vols. 1849.
Carlos Calvo: Le Droit International, etc. (first edition in Spanish, following editions in French), 1868; 5th ed. in 6 vols. 1896.
Amancio Alcorta: Curso de derecho internacional público, vol. I. 1886; French translation by Lehr, 1887.
Marquis de Olivart: Trattato y notas de derecho internacional público, 4 vols. 1887; 4th ed. 1903-1904.
Luis Gesteso y Acosta: Curso de derecho internacional público, 1894.
Miguel Cruchaga: Nociones de derecho internacional, 1899; 2nd ed. 1902.
Manuel Torres Campos: Elementos de derecho internacional público; 2nd. ed. 1904.
(7) Treatises of Authors of other Nationalities
Frederick Kristian Bornemann: Forelæsninger over den positive Folkeret, 1866.
Friedrich von Martens: Völkerrecht, 2 vols. 1883; a German translation by Berghohm of the Russian original. A French translation by Léo in 3 vols. appeared in the same year. The Russian original went through its 5th ed. in 1905.
Jan Helenus Ferguson: Manual of International Law, etc., 2 vols. 1884. The author is Dutch, but the work is written in English.
Alphonse Rivier: Lehrbuch des Völkerrechts, 1894; 2nd ed. 1899, and the larger work in two vols. under the title: Principes du Droit des Gens, 1896. The author of these two excellent books was a Swiss who taught International Law at the University of Brussels.
H. Matzen: Forelæsninger over den positive Folkeret, 1900.
Ernest Nys: Le droit international, 3 vols. 1904-1906. The author of this exhaustive treatise is a Belgian jurist whose researches in the history of the science of the Law of Nations have gained him far-reaching reputation.[83]
[83] The first volume of Nys contains in its pp. 251-328 an exhaustive enumeration of all the more important works on International Law, treatises as well as monographs, and I have much pleasure in referring my readers to this learned work.
J. De Louter: Het Stellig Volkenrecht, 2 vols. 1910.
The Science of the Law of Nations in the Nineteenth and Twentieth Centuries as represented by treatises.
§ 59. The Science of the Law of Nations, as left by the French Revolution, developed progressively during the nineteenth century under the influence of three factors. The first factor is the endeavour, on the whole sincere, of the Powers since the Congress of Vienna to submit to the rules of the Law of Nations. The second factor is the many law-making treaties which arose during this century. And the last, but not indeed the least factor, is the downfall of the theory of the Law of Nature, which after many hundreds of years has at last been shaken off during the second half of this century.
When the nineteenth century opens, the three schools of the Naturalists, the Positivists, and the Grotians are still in the field, but Positivism[84] gains slowly and gradually the upper hand, until at the end it may be said to be victorious, without, however, being omnipotent. The most important writer[85] up to 1836 is Klüber, who may be called a Positivist in the same sense as Martens, for he also applies the natural Law of Nations to fill up the gaps of the positive. Wheaton appears in 1836 with his "Elements," and, although an American, at once attracts the attention of the whole of Europe. He may be called a Grotian. And the same may be maintained of Manning, whose treatise appeared in 1839, and is the first that attempts a survey of British practice regarding sea warfare based on the judgments of Sir William Scott (Lord Stowell). Heffter, whose book appeared in 1844, is certainly a Positivist, although he does not absolutely deny the Law of Nature. In exact application of the juristic method, Heffter's book excels all former ones, and all the following authors are in a sense standing on his shoulders. In Phillimore, Great Britain sends in 1854 a powerful author into the arena, who may, on the whole, be called a Positivist of the same kind as Martens and Klüber. Generations to come will consult Phillimore's volumes on account of the vast amount of material they contain and the sound judgment they exhibit. And the same is valid with regard to Sir Travers Twiss, whose first volume appeared in 1861. Halleck's work, which appeared in the same year, is of special importance as regards war, because the author, who was a General in the service of the United States, gave to this part his special attention. The next prominent author, the Italian Fiore, who published his system in 1865 and may be called a Grotian, is certainly the most prominent Italian author, and the new edition of his work will for a long time to come be consulted. Bluntschli, the celebrated Swiss-German author, published his book in 1867; it must, in spite of the world-wide fame of its author, be consulted with caution, because it contains many rules which are not yet recognised rules of the Law of Nations. Calvo's work, which first appeared in 1868, contains an invaluable store of facts and opinions, but its juristic basis is not very exact.
[84] Austin and his followers who hold that the rules of International Law are rules of "positive morality" must be considered Positivists, although they do not agree to International Law being real law.
[85] I do not intend to discuss the merits of writers on special subjects, and I mention only the authors of the most important treatises which are written in, or translated into, English, French, or German.
From the seventies of the nineteenth century the influence of the downfall of the theory of the Law of Nature becomes visible in the treatises on the Law of Nations, and therefore real positivistic treatises make their appearance. For the Positivism of Zouche, Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real Positivism, since these authors recognised a natural Law of Nations, although they did not make much use of it. Real Positivism must entirely avoid a natural Law of Nations. We know nowadays that a Law of Nature does not exist. Just as the so-called Natural Philosophy had to give way to real natural science, so the Law of Nature had to give way to jurisprudence, or the philosophy of the positive law. Only a positive Law of Nations can be a branch of the science of law.
The first real positive treatise known to me is Hartmann's "Institutionen des praktischen Völkerrechts in Friedenszeiten," which appeared in 1874, but is hardly known outside Germany. In 1880 Hall's treatise appeared, and at once won the attention of the whole world; it is one of the best books on the Law of Nations that have ever been written. Lorimer, whose two volumes appeared in 1883 and 1884, is a Naturalist pure and simple, but his work is nevertheless of value. The Russian Martens, whose two volumes appeared in German and French translations in 1883 and at once put their author in the forefront of the authorities, certainly intends to be a real Positivist, but traces of Natural Law are nevertheless now and then to be found in his book. A work of a special kind is that of Holtzendorff, the first volume of which appeared in 1885. Holtzendorff himself is the editor and at the same time a contributor to the work, but there are many other contributors, each of them dealing exhaustively with a different part of the Law of Nations. The copious work of Pradier-Fodéré, which also began to appear in 1885, is far from being positive, although it has its merits. Wharton's three volumes, which appeared in 1886, are not a treatise, but contain the international practice of the United States. Bulmerincq's book, which appeared in 1887, gives a good survey of International Law from the positive point of view. In 1894 three French jurists, Bonfils, Despagnet, and Piédelievre, step into the arena; their treatises are comprehensive and valuable, but not absolutely positive. On the other hand, the English authors Lawrence and Walker, whose excellent manuals appeared in 1895, are real Positivists. Of the greatest value are the two volumes of Rivier which appeared in 1896; they are full of sound judgment, and will influence the theory and practice of International Law for a long time to come. Liszt's short manual, which in its first edition made its appearance in 1898, is positive throughout, well written, and suggestive. Ullmann's work, which likewise appeared in its first edition in 1898, is an excellent and comprehensive treatise which thoroughly discusses all the more important problems and points from the positive standpoint. Hannis Taylor's comprehensive treatise, which appeared in 1901, is likewise thoroughly positive, and so are the serviceable manuals of Wilson and Maxey. Of great value are the two volumes of Westlake which appeared in 1904 and 1907; they represent rather a collection of thorough monographs than a treatise, and will have great and lasting influence. A work of particular importance is the "Digest" of John Basset Moore, which appeared in 1906, comprises eight volumes, and contains the international practice of the United States in a much more exhaustive form than the work of Wharton; it is an invaluable work which must be consulted on every subject. The same is valid with regard to the three volumes of Nys, who may be characterised as a Grotian, and whose work is full of information on the historical and literary side of the problems.[86]
[86] On the task and method of the science of International Law from the positive standpoint, see Oppenheim in A.J. II. (1908), pp. 313-356.
§ 60. COLLECTIONS OF TREATIES
(1) General Collections
Leibnitz: Codex iuris gentium diplomaticus (1693); Mantissa codicis iuris gentium diplomatici (1700).
Bernard: Recueil des traités, etc. 4 vols. (1700).
Rymer: Foedera etc. inter reges angliae et alios quosvis imperatores ... ab anno 1101 ad nostra usque tempora habita et tradata, 20 vols. 1704-1718 (Contains documents from 1101-1654).
Dumont: Corps universel diplomatique, etc., 8 vols. (1726-1731).
Rousset: Supplément au corps universel diplomatique de Dumont, 5 vols. (1739).
Schmauss: Corpus iuris gentium academicum (1730).
Wenck: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, 1795).
Martens: Recueil de Traités d'Alliance, etc., 8 vols. (1791-1808); Nouveau Recueil de Traités d'Alliance, etc., 16 vols. (1817-1842); Nouveaux Suppléments au Recueil de Traités et d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau Recueil Général de Traités, Conventions et autres Actes remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil Général de Traités et autres Actes relatifs aux Rapports de droit international, Deuxième Série, 35 vols. (1876-1908); Nouveau Recueil Général de Traités et autres Actes relatifs aux Rapports de droit international, Troisième Série, vol. I. 1908, continued up to date. Present editor, Heinrich Triepel, professor in the University of Kiel in Germany.
Ghillany: Diplomatisches Handbuch, 3 vols. (1855-1868).
Martens et Cussy: Recueil manuel, etc., 7 vols. (1846-1857); continuation by Geffcken, 3 vols. (1857-1885).
British and Foreign State Papers: Vol. I. 1814, continued up to date, one volume yearly.
Das Staatsarchiv: Sammlung der officiellen Actenstücke zur Geschichte der Gegenwart, vol. I. 1861, continued up to date, one volume yearly.
Archives diplomatiques: Recueil mensuel de diplomatie, d'histoire, et de droit international, first and second series, 1861-1900, third series from 1901 continued up to date (4 vols. yearly).
Recueil International des Traités du XX^e Siècle: Edited by Descamps and Renault since 1901.
Strupp: Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911).
(2) Collections of English Treaties only
Jenkinson: Collection of all the Treaties, etc., between Great Britain and other Powers from 1648 to 1783, 3 vols. (1785).
Chalmers: A Collection of Maritime Treaties of Great Britain and other Powers, 2 vols. (1790).
Hertslet: Collection of Treaties and Conventions between Great Britain and other Powers (vol. I. 1820, continued to date).
Treaty Series: Vol. I. 1892, and a volume every year.
Ompteda: Litteratur des gesammten Völkerrechts, 2 vols. (1785).
Kamptz: Neue Litteratur des Völkerrechts seit 1784 (1817).
Klüber: Droit des gens moderne de l'Europe (Appendix) (1819).
Miruss: Das Europäische Gesandschaftsrecht, vol. II. (1847).
Mohl: Geschichte und Litteratur des Staatswissenschaften, vol. I. pp. 337-475 (1855).
Woolsey: Introduction to the Study of International Law (6th ed. 1891), Appendix I.
Rivier: pp. 393-523 of vol. I. of Holtzendorff's Handbuch des Völkerrechts (1885).
Stoerk: Die Litteratur des internationalen Rechts von 1884-1894 (1896).
Olivart: Catalogue d'une bibliothèque de droit international (1899).
Nys: Le droit international, vol. I. (1904), pp. 213-328.
§ 62. PERIODICALS
Revue de droit international et de législation comparée. It has appeared in Brussels since 1869, one volume yearly. Present editor, Edouard Rolin.
Revue générale de droit international public. It has appeared in Paris since 1894, one volume yearly. Founder and present editor, Paul Fauchille.
Zeitschrift für internationales Recht. It has appeared in Leipzig since 1891, one volume yearly. Present editor, Theodor Niemeyer.
Annuaire de l'Institut de Droit International, vol. I. 1877. A volume appears after each meeting of the Institute.
Kokusaiho-Zasshi, the Japanese International Law Review. It has appeared in Tokio since 1903.
Revista de Derecho Internacional y politica exterior. It has appeared in Madrid since 1905, one volume yearly. Editor, Marquis de Olivart.
Rivista di Diritto Internazionale. It has appeared in Rome since 1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti, and L. A. Senigallia.
Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared in Breslau since 1906, one volume yearly. Editors, Joseph Kohler, L. Oppenheim, and F. Holldack.
The American Journal of International Law. It has appeared in Washington since 1907, one volume yearly. Editor, James Brown Scott.
Essays and Notes concerning International Law frequently appear also in the Journal du droit international privé et de la Jurisprudence comparée (Clunet), the Archiv für öffentliches Recht, The Law Quarterly Review, The Law Magazine and Review, The Juridical Review, The Journal of the Society of Comparative Legislation, The American Law Review, the Annalen des deutschen Reiches, the Zeitschrift für das privat- und öffentliche Recht der Gegenwart (Grünhut), the Revue de droit public et de la science politique (Larnaude), the Annales des sciences politiques, the Archivio giuridico, the Jahrbuch des öffentlichen Rechts, and many others.