A contemporary of Bynkershoek was Christian de Wolff (1679-1754), a philosopher, mathematician, theologian, lawyer and disciple of Leibnitz. Wolff’s great work on the Institutions of the Law of Nature and Nations is a learned C. de Wolff. and accurate treatise drawn from all the well-known sources of knowledge, and, just as Grotius based his demonstrations on the then imperfect knowledge of public events of his time, Wolff based his on the more accurate sources of information which had grown up under the influence of Leibnitz, and created a connected system out of the scattered fragments available. But his book was written in Latin at a period when scholarship had declined, and its influence was only felt after Vattel (1714-1767) wrote his Droit des gens, ou principes de la loi naturelle appliquées à la conduite et aux affaires des nations et des souverains (1758). His book had all the charm, although Vattel was a Vattel. Neufchatelois, of the French writers of his time, and he it was who popularized the study of International Law. His book was based chiefly on the work of Wolff, but in it he gave what was best amongst his predecessors without attempting to add anything original of his own. It became the handbook of statesmen and jurists, and has never ceased to be quoted by them down to the present day.
But the opinions of jurists in International Law can have little more than the value of criticism and co-ordination. They have seldom served to make law, though they have the weight of all statements made by those who have made a special study of any branch of law, as to what they had gathered to be the existing practice at the time when they wrote, or as to the trend which they showed that practice might be taking. Great lawyers and writers like those we have mentioned, and such as Lord Mansfield, Sir William Scott, Chief-Justice Marshall and others, have done the work of classifying facts, deducing conclusions from them and connecting rules with psychological and ethical motives, and have thus sent a current of higher intelligence through the subject which has raised it to its present methodical form. Still International Law remained a wide field for controversy. Authors were agreed on general principles, but when these general principles were applied in practice, the shortcomings of unwritten usage often caused as much difficulty as that which the appeal to principles was intended to overcome.
What may be called the first enactment of rules of International Law was the Declaration of Paris of 1856, but the great work of codification, or rather of reducing into writing the rules which had been floating as an unwritten law Hague and London Conferences. in the conscience of Europe, was undertaken by the Hague Conferences, which may be said to be and to have created an entirely new factor in the domain of International Law. Two of the conventions adopted in 1899 completed work which had already been commenced long before, viz. those on the usages of war and on the adaptation of the Geneva Convention to naval war. The third established methods for the pacific settlement of international difficulties, including the formation of the Hague Court of Arbitration. Recourse to the latter was purely optional, but the other two conventions have been absorbed into the national law of the ratifying countries, and thus have also the domestic sanction states give to their own laws. The work of the Conference of 1907 was of a much wider and more exhaustive character than that of 1899. It comprised, besides revised conventions on the matters dealt with in 1899, new Conventions on the following subjects: Opening of hostilities; Position in naval war of enemy’s merchant ships at beginning of hostilities; Conversion of merchant vessels into warships; Rights and duties of neutral states in naval war; The laying of automatic submarine contact mines; The bombardment of undefended places by naval forces; Treatment of fishing vessels, postal correspondence and capture generally in maritime war; and Recovery by force of contract debts. It also adopted a convention for the creation of an International Prize Court of Appeal, which led to the calling of a fresh Conference on Prize Law. This conference sat in London from December 4, 1908, to February 26, 1909, and was confined to representatives of the following countries: Great Britain, France, Germany, United States of America, Italy, Austria-Hungary, Russia, Japan, Holland and Spain. It adopted a series of rules on naval warfare relating to Blockade in time of war; Contraband of war; Unneutral service; Destruction of neutral prizes; Transfer to neutral flag; Enemy character; Convoy; and Resistance to search and Compensation.
The revolution effected in the relations of states by the Hague and London Conferences, however, is not confined to the reduction into writing of more or less vague usages nor to the elaboration of details which no usage can possibly determine. Until a machinery was provided for the reform of the law it was futile to speculate on the advantages or disadvantages of any rule admitted by the majority of civilized nations. The territorial waters 3 m. limit, for instance, had its origin in the distance seawards of cannon-range in a past period. Its almost universal recognition only came long after the range of coast-guns had far exceeded this distance. This superannuated rule has now no legal basis at all except the so-called “common consent of nations,” a boon no doubt which outweighs any consideration of absolute fitness still unrecognized, but of which the learned Barbeyrac truly said,[14] “Ce commun consentement des peuples que l’on suppose avoir force de loi est une chose qu’on ne prouvera jamais.” The institution of the Hague Conferences has now provided a method of obtaining the consent of nations, not only to existing rules, but to their reform and to the introduction of new rules. It is now an understanding among the states of the world, that these conferences shall be held periodically. It is, of course, possible for one great state to hold aloof and thus wreck the chances of universal agreement, but even then we have the power of the majority as against that of the minority. A case actually arose in a recent war between non-signatories of the declaration of Paris of 1856. Neither the United States nor Spain was a party to that declaration, yet neither ventured to disregard it.
The chief source of International Law will, therefore, in all probability for the future be that “Parliament of mankind,” the Hague Conferences. The Hague Court and its adjunct in time of war, the proposed International Prize Court of Appeal, will form the Judicature applying and construing the enactments of the Conferences acting as a sort of international Legislature.
Fundamental Principles.—Underlying the details of both the new International Legislature and the new International Judicature are certain principles which may some day have to be officially defined. These principles have Standard of right conduct. necessarily fluctuated with the standard of morals of each period. With the contemporary development of the public conscience, they are undergoing changes and a betterment which it is not desirable to check by yet nailing them up as immutable articles of faith. Till quite recently it was usual to speak of the common standard of right conduct prevailing throughout the Christian world, a standard to which responsible statesmen tried to adjust their direction of the affairs of state. The admission of Japan into the councils of the great powers has introduced a non-Christian element whose standard of conduct was not identical with nor based upon Christian morals. Turkey, though admitted in 1856 to European Councils, remained rather the occasion of their deliberations than a deliberating party. Her new position as a constitutional state, with a code of morals at any rate in some essentials distinct from that of Christian peoples, will add a further new non-Christian element into the moral foundations of international conduct. The influence of western Europe, however, in both Japan and Turkey, has hitherto in all external development been paramount. Japan, after examining all the existing systems, has even adopted the best she found in Western morals, and in her schools inculcates Christian ethics as a subject per se without reference to divine revelation or authority. Turkey too has the advantage of possessing a code of morals which produces so high a standard of right conduct in private life that very little in the way of moral lessons will have to be learned by the Ottomans from Western civilization. As regards practice, it is unreasonable to expect that the high estimate of the moral standard of west European civilization, which is cherished by those who profess its principles, should be accepted by other peoples with unqualified assent. Are not the nations of western Europe still vaguely influenced by the instincts of their conquering ancestors, and by the traditions of—
| “... the good old rule, ... The simple plan, That they should take who have the power And they should keep who can”? |
There is nothing essentially different between many recent wars and military enterprises undertaken by Western nations against heathen peoples, and wars and conquering enterprises undertaken by the Northmen of a thousand years ago. In his Northern Antiquities Mallet[15] describes the primitive feeling of the Northmen in the following passages:—
“The rules of justice, far from checking their prejudices, had been themselves warped and adapted to their bias. It is no exaggeration to say that all the Teutonic nations entertained opinions on this subject quite opposite to the theory of our times. They looked upon war as a real act of justice, and esteemed it an incontestable title over the weak, a visible mark that God had intended to subject them to the strong. They had no doubt but the intentions of this divinity had been to establish the same dependence among men which there is among animals, and setting out from the principle of the inequality of men, as our modern civilians do, from that of their equality, they inferred thence that the weak had no right to what they could not defend. This maxim which formed the basis of the law of Nations among the ancient inhabitants of Europe being dictated by their most darling passion, we cannot wonder that they should so steadily act up to it in practice. And, which after all is worst, to act and think as they did, or, like the moderns, with better principles, to act as ill? As to the ancient nations, we attribute nothing to them here but what is justified to them by a thousand facts. They adopted the above maxim in all its rigour and gave the name of Divine Judgment not only to the Judiciary Combat, but to conflicts and battles of all sorts: victory being in their opinion the only certain mark by which Providence enables us to distinguish those which it has appointed to command others.”
The very notion of the “right of conquest,” and that the victorious are entitled to an indemnity without reference to any question of right and wrong or of justice and injustice, shows that there are principles in actual practice which What is a civilized state? lie outside and have no analogy in the principles of private law. In the partition of Africa native states have been treated as non-existent except as local bodies. They have been annexed to European states without reference to their will or consent. Treaties have indeed been made with them, but they have rather been regarded as evidence of prior occupation than as involving any question of native right. The test in the distinction between civilized and uncivilized states which is regarded as warranting exclusion from enjoyment of the right to consideration as independent states, and admission to the community of the civilized world, is in practice the possession of a regular government sufficient to ensure to Europeans who settle among them safety of life and property. Every country, in principle, possessing such a government has prima facie the rank of a state and is entitled to treatment as a civilized community. Treaties made with it for the purpose of extra-territorial jurisdiction are intended merely to take into account a difference of judicial institutions but are not supposed to detract otherwise from the possession of such equality and independence. This principle has no analogy in private morals, and has been, slight as it is, more honoured in the breach than the observance. If indifference to native right has provoked reaction, it has been on the part rather of philanthropists than of statesmen. Their movement for the protection of African aborigines has, however, resulted in at least one great international charter for the prevention of the further degradation of African aborigines, viz. the General Act of Brussels of 1885. A vigorous outcry has also been raised against the methods of the government of the Congo State. But the agitation ought not to be confined to this part of Central Africa. Other governments are also in fault. In fact, the contact of the European with Central Africa has, throughout, with few exceptions, been one of barbarous practice quite inconsistent with the principles which Christian missionaries have been sent to teach the African native.