1902 Encyclopedia > International Law

International Law




INTERNATIONAL LAW is the name now generally given to the rules of conduct accepted as binding inter se by the nations—or at all events the civilized nations—of the world. International law as a whole is capable of being very differently interpreted according to the point of view from which it is regarded, and its rules vary infinitely in point of certainty and acceptance. According to the ideas of the leading English school of jurists it is an impropriety to speak of these rules as being laws ; they are merely moral principles,—positive, it is true, in the sense that they are recognized in fact, but destitute of the sanctioning force which is the distinguishing quality of law. There is not a word to be said against this criticism considered merely as a verbal criticism, but it may be so used as unduly to depreciate the actual force and effect of the system as a whole. On the other hand, the vast majority of writers on international law have preferred to derive its principles from some transcendental source, such as nature, reason, the Divine will, &c. ; and these accordingly have no hesitation in attributing to its rules an intrinsic authority over all the nations of the world. The usage of nations according to this theory is evidence of, but not the origin of, the law. It merely expresses, as Sir R. Phillimore puts it, "the consent of nations to things which are naturally, that is, by the law of God, binding upon them." The true position is this—that we find as a fact a number of rules accepted by civilized nations as obligatory in their mutual dealings. These rules no doubt in many cases owe their existence to the prevalence of theories of natural and divine law, but their authority no longer depends on the truth of such theories. The rules are in themselves just and reasonable. Some of them are so precise, so certain, and so universally accepted that they cannot be distinguished from positive law except by the absence of a determinate legislative source. Many of them are taken up by the municipal laws of different countries, and in so far as they are thus incorporated with positive systems they are in every sense positive laws. But many of the rules of international law are vague, uncertain, and of disputed authority. Some of the rules, for example, relating to capture in war, the law of blockade, and the privileges of ambassadors are so well ascertained and settled that it is hardly conceivable that they should be broken by any civilized state. On other points—e.g., as to what articles should be contraband of war, when a state should interfere with the domestic policy of another—no universally admitted principles can be said to have been established. The substance of international law has been fortius reason divided into various sections, according to the degree of certainty which the rules have obtained. Thus one of the most recent writers on this subject, Dr Woolsey, distin-guishes the rights and duties known to the science as (1) those which are deducible from natural jus, which no action of a state can begin or terminate, (2) those deducible from the idea of a state, and (3) those which can be created or destroyed by compact, express or tacit. This and similar divisions do not really explain why some of the rules com-posing what is known as international law are as fixed and certain as rules of conduct can well be, while others are pure matter of controversy. It is simpler to state the fact and to take note that the area of certainty in international law is constantly increasing. For example, the rights of embassies were disputed by England till a recent period ; and the rules prohibiting the slave-trade and making privateering illegal are comparatively recent additions to the certainties of international law. To say that such rules as the last, being founded on contract, are therefore of inferior authority to the imperishable principles which pronounce all sovereigns to be equal and independent, and distinguish between just and unjust wars, is absurd.

The theory of international law contemplates the world as divided into independent states. That states are sovereign within their own territories, independent of other states, and equal as between themselves is a fundamental axiom of the science. Not that all states are regarded as lying within the domain of this law. In modern times at least it has included all the states of the Christian world; but at one time it excluded non-Christian states, and at this moment it would be difficult to say to what extent it covers the relations of such states inter se and with the Christian states of Europe and America. There is little doubt, however, that in course of time all the civilized communities of the world will observe substantially the same system of international law.

In the next place international law regards the states of the world as being either in a state of war or in a state of peace. It prescribes rules of conduct to be observed in the mutual dealings of nations which are at peace with each other, and of nations that are at war with each other; and it fixes the rights and duties of belligerent and neutral nations. If peace is the normal state of nations, as jurists sometimes assert, war is the state which has made the largest demands on the science. The rules of international law with regard to war are more voluminous and more certain than those which govern nations in time of peace.

International law, as we now know it, is substantially the creation of civilized Europe in the last three hun-dred years, but rules of some kind, however meagre, must accompany any state of society in which intercourse, hostile or peaceful, between different communities is common. The great nations of antiquity which have contributed most to the civilization of modern Europe have given least to this branch of that civilization. The history of the Jews furnishes nothing but examples of the total absence of a sense of duty in relation to other nations. The division of the Greek world into a large number of independent communities favoured the existence of an' Hellenic law of nations, presenting in many points-—such as the recognition of common Hellenic customs, religious and political, and of the principle of a balance of power— a parallel to modern international law. The coherence of the Greek communities, however, only intensified the difference between them and all other peoples, and left their relations with them unregulated by any general principles. The jus feciale of the earlier Eoman law— regulating the formal intercourse between Rome and other nations—is indeed the germ of what might have been a system of pure international law. But the rise of the Roman commonwealth to the mastery of the world rendered a jus inter gentes unnecessary and impossible. The fecial law with its college of interpreting priests dwindled into an obsolete collection of formalities no longer supported by the religious feelings of the people. The jus gentium of the Romans does indeed play an important part in the history of international law, but as conceived of by the Roman lawyers it was not international, but a body of positive law composed of the elements common to the nations known to them, including Rome itself. Positive international law does not in fact come into existence until the era of Grotius, although usages of international intercourse must at all times have existed. The sanctity attributed to ambassadors, the importance of formal declarations of war, and the good faith to be observed in promises or treaties would probably be found to be the points of most general recognition.

The connexion between Roman and modern international law, through the conceptions oijus gentium and jus natural, has been lucidly traced by Sir Henry Maine in his treatise on Ancient Law, and may be briefly noticed here. The postulates of the law of nations—that there is a determinate law of nature, that it is binding on states inter se, and that such states are equal—are founded on well-known general principles of the Roman jurists. The ambiguity of the phrase jus gentium enabled the early founders of international law to apply the principles of the jus natural to the conduct of states inter se in a way of which there is no example in the Roman law-books. Further, in the Middle Ages the state systems of Europe had arranged themselves on a territorial basis, so that sovereigns were regarded as being the absolute masters of the territory occupied by their people, instead of the chiefs of the people irrespective of territory. They could thus be conceived as " members of a group of Roman proprietors," and the Roman law of property supplied the fundamental principles on which their occupation was in international law understood to be based. The appearance of jurists, dominated by the conceptions of the Roman law, at a time when European arrangements made their application possible, is the true beginning of modern international law. The greatest name is that of Grotius, whose work Be jure Belli et Pads was published in 1624. In the first sentence of the prolegomena he defines his subject as the law which obtains between nations or their rulers, whether founded on native or divine ordinance, or custom and tacit consent, which he adds universim ac certo ordine tractavit hactenus nemo. There had been earlier workers in the same field. Among these were Francis de Victoria of Salamanca, Suarez, Ayala, and Albericus Gentilis, all of wiioni flourished in the 16th century. The work of Grotius definitely laid the foundation of the science, which he shaped in imitation of the institutional treatises of Roman law. Among the jurists who followed Grotius, the classical names are those of Puffendorf, Wolff, Vattel, and Bynkers-hoek. In England Sir Leoline Jenkins and Lord Stowell are the most illustrious of those who have made impor-tant contributions to international law. In America Wheaton stands at the head of a school of distinguished jurists, and his Elements of International Law is the standard modern treatise on the subject.

Several of the more important heads of international law will have to be noticed separately, and it is only proposed in the present article to state shortly and in outline its leading principles so far as they can be gathered from the most authoritative modern writers. It will be convenient to discuss first the general rules obtaining between nation and nation, and, secondly, the modifications and special rules which are brought into existence by a state of war.

It may be necessary to distinguish here between public international law and what is known as private international law. The latter phrase is applied to those principles which in the ordinary tribunals of a country are used to harmonize the conflict of laws. Where the subject of a foreign state has a claim against the queen or any of the queen's subjects, for which he seeks redress in our courts of law, it may become necessary to recognize and enforce the law of the foreign state and not the law of England. The best illustration of this class of questions is the case of domicile. For many purposes the place in which a man is domiciled, as distinguished both from that in which he lives and the country of which he is a subject, supplies the law applicable to his case. A French subject, domiciled in Scotland, dies in England leaving personal property in England ; in such a case the property would be distributed according to the law of Scotland, and not of England or of France. All nations have to provide for such cases, in which the prin-ciples of a foreign jurisprudence must be enforced, and have to determine under what conditions and to what extent the tribunal will be required to enforce them. As it happens there is a general agreement among nations on these points; the rule, for example, which makes real property administrable according to the law of the land, and personal property according to the law of the owner's domicile, is universally recognized. So far as this agreement extends, there may be said to be a private international law corresponding to the international system of public law. But in the former we have to deal with true positive law, deriving its authority from the legislature, having no reference to the opinions and practice of nations, and dealing with the rights of individuals. Public international law is of a totally different character, recognizing nations as the only parties, and depending on the agreement of nations as evinced by their opinions and practice. It is with the latter only that we have now to deal.

Independent sovereign states are then the units of international law, and whether a given community is such a state is a question of fact. A community having definite territorial limits within which its own government exercises absolute authority, free from all external control, is the proper type of a state in international law. But the world is not parcelled out among states thus accurately defined. Where a number of states have been united in a permanent confederation, it may be a question whether the group alone is in international law an independent state, or whether each individual member has retained its inter-national independence. The United States of America are an example of the former case ; the German confederation until the recent changes was an example of the other. Again, when one state has placed itself under the protection of another, it may be a question whether it has lost or retained its independent status in international law. The proper test, according to Phillimore, is its capacity 6?« facto to deal with other states in peace or war, without reference to the protecting state. States which have lost this capacity have been called semi-sovereign states. They have the organization of an independent nation, but are in practice subject to the rule of another state. The Ionian Islands under the English protectorate were in that position, and in the treaty of 1815 they are described as a single free and independent state, under the exclusive protection of Great Britain. A similar character attaches to some of the dependencies of Turkey. On the other hand, a large portion of the surface of the earth is occupied by com-munities having neither the permanent territorial occupation nor the social coherence of civilized states, yet entering into such relations with them as require the recognition of some system of rules. A further question of the highest importance may arise when a portion of an existing state rises in rebellion and sets up a claim to independence. Here again the question is one of fact. If the rebels have succeeded in establishing a government, it is the right and duty of the nations to recognize the fact, and each nation must judge for itself whether the time for recognition has come. Premature recognition would be regarded as an aid to rebellion inconsistent with the rules of international law. The criterion suggested by practice and authority is whether the old government had ceased to contend in fact against the revolutionary state. But other nations are not bound to wait until the old government has itself recognized the independence of the new. Similar questions arise when the form of government in any country is changed by revolution, or when portions of one state are transferred by conquest to the dominion of another. When the new state of things is established in fact, no matter whether justly or unjustly, it must be recognized by other nations.

With the question of recognition is intimately connected that of non-interference. Premature recognition of a strug-gling rebellion would be regarded as a breach of the prin-ciple of non-intervention, but to recognize the independence of an independent state is part of the same duty as to abstain from interfering with it when it has been established. Writers on international law lay it down as one of the fundamental principles of the science that one state has no right to interfere with the domestic affairs of another. In the formal arrangement of topics it generally appears as one of the necessary consequences flowing from the in-dependence of nations, and Phillimore considers it a self-evident proposition for which it is unnecessary to cite authorities. Nevertheless the practice of nations forbids the doctrine to be stated without limitation. Interference has been sanctioned, according to Phillimore, either in the purely domestic concerns of a nation, or with respect to its foreign relations and territorial acquisitions. The first kind of interference has been justified on the plea of self-defence, as when the decree of the French Convention of 1792, promising aid to all peoples who wished to recover their liberty, was treated as a declaration of war on all existing constitutions. Interference to prevent effusion of blood, or put an end to a state of anarchy from which the interests of other nations necessarily suffer, has also been justified, as when England, France, and Russia interfered between Turkey and its rebellious subjects in 1827. On the whole, the right of intervention has been discredited in international law, and the anomalous con-dition of the Turkish empire has almost alone in recent times given occasion for its exercise. The ground that reversion-ary rights of a particular family to the throne of a country justify foreign interference with legislative changes of the succession can no longer be maintained. Nor is it necessary to discuss any such pretended right as that of putting down new Governments which have established themselves by revolution. The same kind of interference is illustrated by the principle of the balance of power which is thus enunciated by Dr Woolsey—that any European state may be restrained from pursuing plans of acquisitions or making preparations looking toward future acquisitions which are judged to be hazardous to the independence and national existence of its neighbours. According to the same authority, it applies only to European states and their acquisitions in Europe, and does not extend to predominant power on the sea. It is not so much a rule of inter-national law as a maxim of policy which has from time to time united European nations against the dangerous ambitions of one of their number. The " Monroe doctrine " of the United States is of a similar character, being directed against the interference of European states in the affairs of the American continent. The declaration that no European power can be permitted to acquire territory on the American continent is, according to Woolsey, not a principle of the national policy of the United States.





Independent states are said to be equal in international law, because, says Phillimore, it is contrary to the nature of an independent state to be in servitude to another. The proposition negatives any claim of precedence on the part of one or more states in international rank, and asserts that all states equally are entitled to the benefit of inter-national rules. No difference in constitution affects this equality, a republic being the equal of a kingdom, and a kingdom of an empire. Beyond this it can hardly be stretched. It is consistent with conventional inequalities in the reciprocal treatment of nations, and with the habitual recognition in Europe at least of the predominance of the Great Powers. Phillimore deduces from the principle of equality the following rights—(1) the right to protect subjects resident in other countries, (2) the right to recog-nition, (3) the right to external marks of honour, and (4) the right to enter into treaties. As to the first of these, it may be laid down that a state has cause of complaint if its subjects in foreign countries are denied ordinary justice.

States in relation to the territories occupied by them are treated on the footing of proprietors in law. As between nations each is the absolute owner of its dominions, and the principles applicable to their ownership are taken, as already said, from the Roman law of things. For example, the modes of acquiring territory in international law are said to be four. (1) The first is occupation of land not already occupied (res nullius). Mere discovery unaccompanied by beneficial use and occupation will not give a title. (2) The second is prescription or mere possession for a considerable length of time. Jurists on the whole are agreed in admitting this title, although they refrain from attempting to fix a period of prescription. These have been called original modes of acquisition, while secondary or derivative modes are (3) gift, purchase, or treaty, and (4) conquest in war. With reference to these distinctions it may be observed that the overruling consideration is actual possession as a matter of fact. Sovereignty exercised de facto over any territory makes it the territory of the sovereign state. This is a deduction of what has already been said on the subject of recognition, and the modes of acquisition here described would only be appealed to in default of such unequivocal possession. In former times a bull of the pope has been set up as a title, e.g., the famous bull of Alexander VI. granting to Spain all lands west of a north and south line drawn a hundred leagues west of the Azores. No such mode of acquisition would now be recognized even by Catholic states. In modern times the acquisition of territory is to some extent governed by the wishes of the inhabitants. As an abstract principle of international justice, the transfer of territory from one sovereignty to another should be with the consent of the people. But this is not yet a recognized rule of international law, although in many recent cases of acquisition of new territory a certain amount of deference has been paid to it. In the treaty of Prague (1866), in the union of the Neapolitan provinces to the kingdom of Italy, and in the union of Savoy and Nice to France, the rights of the inhabitants to decide on the proposed transfers are expressly reserved. A recent and more painful instance is the annexation of the Transvaal by England under an order in council which authorized the measure if it should appear to be agreeable to the legislature or a sufficient portion of the inhabitants. It is now clear that no such assent was given by the people, while the acting Government of the republic firmly protested against the annexation.

The territory of a state includes all the lands and inland waters within its boundaries, the mouths of rivers, bays, and estuaries, and the sea to the distance of a marine league along the coast. By a fiction vessels on the high seas, and public vessels everywhere, are treated as part of the territory of the state to which they belong. The high seas are no nation's property,—although in the earlier stages of international law exclusive pretensions have been set up to particular by Spain to the Pacific, England to the seas around Great Britain, and Russia to the North Pacific.

Formal intercourse between nations is carried on under well-ascertained rules. Omitting mere ceremonial regula-tions, we may notice specially the position assigned by the law of nations to ambassadors. These are the highest class of diplomatic agents, and according to the universal modern practice they are permanently attached to the foreign court to which they are accredited. The earlier practice (e.g., before the Reformation) favoured the appointment of special ambassadors for particular business. The office of ambassador, whether permanent or temporary, has at all times been clothed with a character of peculiar sanctity. His privileges during residence at a foreign court may be summed up in the statement that himself, his house, his property, and his household are exempt from the foreign jurisdiction. Like a ship of war in foreign waters, the embassy is exterritorial—supposed by fiction of law to be part of the sovereign's dominions. The ambassador there-fore is not liable to prosecution in the criminal nor to suit in the civil courts. His official residence is free from the local jurisdiction; but it is no longer an asylum, and a criminal taking refuge there may be seized by the local authority if not delivered up by the ambassador. Ambassadors are further relieved from taxation on goods imported for their own use, a privilege which has not unfrequently been abused. An ambassador is entitled to freedom of worship, whether his religion be tolerated by the local government or not. The suite of an ambassador down to his domestic servants are also exempt from the local jurisdiction. The household may in some respects be likened to a separate community under the sovereignty of the ambassador. But it is only in minor affairs that his power to actually execute criminal justice on his own servants would now be recognized. The proper course for him to adopt in a serious charge would be to send the accused home to be tried. The privileges of an ambassador and his suite, it should be added, apply only so far as they do not act beyond the limits of their legatorial character, —e.g., as merchants, trustees, and so on. Exceptional crimes committed by an ambassador do not destroy his character or rights,-—at least according to the general consensus of modern authorities, although English lawyers have argued that a crime contra jus gentium destroyed the ambassadorial character. Besides ambassadors, two inferior grades of foreign ministers are recognized, viz., (1) envoys, ministers, or others accredited to sovereigns, and (2) charges d'affaires accredited to ministers charged with foreign affairs. These three grades of diplomatic rank were settled by the congress of Vienna (1815) to avoid the embarrass-ment arising from claims of precedence. Consuls are merely local agents of a foreign Government, for certain limited purposes, such as facilitating and recording legal transactions affecting the subjects of the state they represent, and assisting them in obtaining their legal rights. They are appointed with the permission (exequatur) of the country in which they are to act. They have no immunity from local jurisdiction except under special arrangements In non-Christian countries the consuls representing Christian states have more extensive functions. In Turkey and the Mahometan countries of the Levant they exercise generally an exclusive criminal and civil jurisdic-tion over their countrymen.

The contracts made by states with each other are in international law treated according to the general principles of the law of contracts (see TREATIES). Under the modern practice rules of private law affecting foreigners are in many cases settled by treaty on the basis of reciprocity, e.g., extradition, copyright, &c.

Hitherto we have considered nations as in a state of peace. War introduces an entirely new order of rules, applying either between the belligerents themselves or between the belligerents and neutral states. To the ques-tion whether a given war be just or unjust international law has no answer to give, or only a formal one. Any war undertaken in defence of the rights which have been already described might be called a just, and any war under-taken in violation of them might be called an unjust war. The justice or injustice of any war is really a question of morality, and in proportion as international law has escaped from the merely ethical region it has abandoned the attempt to decide this question. It figures largely in Grotius, as compared with later writers, and more largely in the specu-lative than in the positive jurists. One condition of the legality of a war, that of a formal declaration, borrowed from Roman practice by Grotius and some of his followers has ceased to be of any importance, although some publica-tion of the fact of war is considered necessary in fairness to neutrals. But all wars are legal in international law— that is, they are governed by the rules of the law of war—_ except wars levied by pirates or piratical communities. The part played by international law has been not to prevent but to regulate warfare. Nations have arrived at a tolerable degree of unanimity as to how wars ought to be conducted, and the result is a certain and progressive law of war. They are far from having arrived at any un-derstanding as to the conditions under which war ought to be allowed; when they are within sight of any such understanding, it will be time enough to talk about a war being just or unjust in international law.

The absence of any legal standard of the justice of a war only adds to the importance of the moral question. There being no law of nations to restrain the warlike ambition of nations, as there is to restrain their passions when war has begun, the purely moral restraints become all-important. Among these it might not be worth while to reckon the kind of selfishness which counts the cost of a campaign against a powerful enemy. But a generous horror of war for its own sake may safely be pronounced to be, in spite of recent events, a growing public sentiment, particularly in the English-speaking people of both worlds. There is no English or American statesman who would not at least do lip-service to the principle that an avoidable war is a public crime. Some of them have done more. The great experiment in international arbitration between England and America in 1871 was more glorious to its promoters, and will be more fruitful of benefit to mankind, than fifty victorious campaigns. It is through the establishment of the principle of arbitration that we may ultimately hope to see the question of justice or injustice in war take its place among the topics of international law.

Short of war, certain preliminary measures of hostility are recognized. These are—"embargo," or the seizure in port of vessels belonging to a foreign nation with which we have a difference, in order to bring it to justice ; " retorsion," or retaliating on the foreign nation or its subjects, by similar injuries to those inflicted on us; and "reprisals," or the seizure of foreign property in retaliation for wrongs done to us. These are now of little importance. The right of " pacific blockade," i.e., the blockade of ports belonging to a nation with which we profess not to be at war, has been asserted in a few doubtful instances, but such interference ought to be treated as an act of war.

A state of war transforms the nations engaged into two hostile camps, every man in either being the enemy of all in the other, and entitled to slay and capture as best he can. Such at least is the "natural" theory of war, which international law has reduced to much smaller proportions. First, hostile acts are strictly reserved for the soldiers or others acting under direct public authority; non-combat-ants are to. be regarded as neutrals so far as actual warfare is concerned ; they must abstain from hostile acts, and they must be left unharmed by the enemy. Property taken in war belongs to the state, not te the individual captor; and, on the other hand, subject to modifications to be pointed out hereafter, only the property of the state and not private property should be liable to capture. War is thus reduced to an open armed strife between two states carried on by means of a definite and unmistakable set of agents, viz., the fleets and armies. That the non-combatant portions of the two communities should remain as though they were in a state of peace is the principle towards which international law appears to be tending. The movement against privateering is an illustration of this tendency. In wars carried on by land, non-combatants are as far as possible kept out of the sphere of operations,—persons only under public military command being regarded as combat-ants. In naval warfare it has long been recognized as a valid mode of conducting hostilities to grant "letters of marque" to private vessels, owned, manned, and officered by private persons. Its analogy on land would be a roving commission to private gangs of freebooters. These letters commission the privateers to prey upon the commerce of the hostile nation, the reward for their services being the plunder they may chance to gain. The privateer may belong to a neutral nation or to the nation granting the commission. The practice is defended on the ground that it enables a power having weak naval resources to cope with a great naval power on sudden emergencies. On the other hand the loose discipline of privateer crews, and the fact that their object is simply plunder, are serious evils. The treaty of Paris of 1856 contains the famous declaration that o" privateering is and remains abolished," and the adhesion of the United States to this principle would go far to make the practice illegal by the law of nations. Hitherto they have declined, preferring the more compre-hensive policy of prohibiting the seizure of private property of all kinds by ships of war. This point conceded, the United States would assent to the abolition of privateering.

Contracts entered into between the subjects of hostile states are void. Eights already created by contracts entered into before the war are not destroyed, but the remedy is suspended, an alien enemy having no redress in courts of law. All commercial intercourse between the two neoDles is interdicted, according to the maxim that there cannot be at the same time " a war for arms and a peace for commerce." Partnerships between a citizen and an alien enemy existing before the war are ipso facto extinguished by the war. All nations, in fact, are agreed in pronouncing illegal during a time of war the ordinary commercial intercourse which prevails between them in time of peace. The principle extends to giving one of two allies a right to prohibit intercourse carried on with or without licence by the subjects of the other with the common enemy. Contracts for the ransom of captured property are valid by the law of nations, but may be and sometimes are restricted by the provisions of a municipal law. And a state may of course grant special licences to its own subjects to trade with the enemy.





The effect of war on the persons and property of alien enemies within the dominions of the state, and on debts due to them by the state or its subjects before the war, has been greatly softened in modern practice. In strict theory the debts and property would be liable to confiscation, and the persons themselves to detention as prisoners of war. Such is the rule laid down by Bynkershoek, but later writers have held that the guarantees to a contrary effect contained in commercial treaties and even in voluntary declarations by belligerent powers have altered the law of nations on this point. This question was expressly decided in an important American case (Brown v. the United States), in which the supreme court held that the ancient rule still remained unimpaired as a right recognized by the law of nations, however much it might have been mitigated in practice. In that case, however, its exercise was held to require a special Act of Congress. The confiscation of debts and the confiscation of property seem to stand on the same footing, and in both cases it may be said that the law of nations has not yet formally recognized the rule established by universal practice. The Act of the Con-federate Congress in 1861, confiscating all property and debts (except public debts) due to an alien enemy, may be taken as the exception which proves the rule. It has been unequivocally condemned, and was vigorously pro-tested against at the time by Earl Russell as a violation of the spirit of modern law. Even the Confederate Act did not profess to confiscate public debts, and it may be taken as the settled rule of law that no state is justified in repudiating its own public obligations to the subjects of a state with which it may be at war.

The laws and usages of actual war exhibit the same tendency to substitute a milder and more humane code for the unrestrained licence of earlier times. The inspiring idea of Grotius was in fact to introduce the spirit of law into the conduct of hostilities, to enforce the principle that there was a lawful as well as an unlawful way of waging war. Between the time of Grotius and our own the sphere of law in war has greatly widened. No nation claiming to be civilized would now venture to conduct a campaign otherwise than according to the rules of civilized warfare, unless against savages from whom no reciprocal treatment is to be expected, or rebels to whom they refuse the status of belligerents. Besides the influence of international law systematically studied as a science, and the general growth of humaner modes of life and action, a specific cause of this improvement in the law of war is the fact that battle is now for the most part the business of professional soldiers scientifically equipped, and accustomed to stringent disci-pline. For the best historical view of this interesting subject we may refer to Mr Mountague Bernard's paper " On the Growth of Laws and Usages of War," in the volume of Oxford Essays for 1856.

The actual laws and usages of civilized warfare can scarcely be brought within the scope of the present article, but we may refer to a summary of them contained in one project of an international declaration submitted to the I Brussels conference of 1874. The conference did not result in any international convention, and England firmly repu-diated portions of the declaration which appeared to be calculated to " facilitate aggressive wars, and to paralyse the patriotic efforts of an invaded people." But on the whole this document, although not accepted into the legis-lation of nations, expresses their general sense on most of the points with which it deals. It lays down rules with regard to (1) the occupation of a hostile country by military force, (2) the distinction between combatants and non-combatants, (3) the means of injuring an enemy, (4) sieges and bombardments, (5) spies, (6) prisoners of war, (7) sick and wounded, (8) private individuals and private property, (9) contributions and requisitions, (10) flags of truce, (ll) capitulations, (12) armistices, (13) belligerents interned or wounded treated in neutral territory. Under the first, second, eighth, and ninth heads the effects of war are restricted to the property of the state and its recognized army, although the necessity of military organization in order to entitle combatants to the rights of war is laid down too stringently. Private property must be respected, and pillage is expressly forbidden, but on the other hand an army of occupation has a right to seize all the personal property of the state which is likely to be of use in war, including any kind of munitions of war although belonging to private individuals or companies. The occupying state is to consider itself in the light of an administrator and usufructuary of the public buildings, &c, of the hostile state. Contributions and requisitions may be imposed on the inhabitants, for which receipts must be given. Under the third head there are forbidden the use of poison or poisoned weapons, murder by treachery or murder of a dis-armed enemy, declaration of " no quarter," projectiles caus-ing unnecessary suffering or prohibited by the declaration of St Petersburg 1868, abuse of the flag of truce, and unneces-sary destruction of enemy's property; but ruses cle guerre are permitted. Spies (who collect information on false pretences or secretly in territory occupied by the enemy) shall when captured be tried and treated according to the law of the army which captures them. The bearer of a flag of truce is inviolable unless he abuse his position, but a commander is not bound to receive a flag of truce. Treat-ment of the wounded is regulated by the Geneva Conven-tion of 1864, and such modifications thereof as may from time to time be made. The English reader will find a copy of the Brussels project in Boyd's edition of Wheaton's International Law. The Geneva Convention, to which reference is here made, was an international compact between the European states, establishing the neutrality of ambulances and military hospitals, and of all persons engaged in the service thereof, as well as of inhabitants of the country bringing help to the wounded. The hospitals, &c, shall bear a distinctive flag (red cross on white ground), and badges similarly distinguished shall be allowed for individuals entitled to the benefits of neutrality. The St Petersburg declaration renounces for the contracting parties in case of war among themselves the use of " any projectile of a weight below 400 grammes, which is either explosive or charged with fulminating or inflammable substances."

War by land is necessarily carried on within the territory of one or other of the belligerents, and generally in the midst of surroundings devoted to the permanent works of civilization and peace. Naval warfare is a duel between two sets of " floating fortresses," on an element which is no nation's exclusive property, and in no nation's continuous possession. This is the principal reason for the superior humanity characterizing the rule of war on land, where the licence of primitive warfare would be infinitely more disastrous than it would be at sea. Another reason why the law of the sea retains so much of its original severity is that its rules have been developed under the influence of a regular court and a professional bar, and have acquired the fixed and inelastic character peculiar to positive law. The toleration of privateering already noticed is an example of the difference between the two systems, and the practice of bombarding seaports to enforce contributions is another. The liability of private property to capture is, however, the most important point of difference. The public vessels of the enemy are of course the natural prey of our own. The private property of the enemy may be contained either in private vessels of his own or in the ships of neutral powers, and we may add for the sake of convenience a third case, where the private vessels of the enemy carry goods belong-ing to neutral owners. In the last case, when the hostile vessel has been captured, the neutral property is not affected thereby—enemy ship does not make enemy goods. In the second case the treaty of Paris has promulgated the rule that free ship makes free goods, which may now be regarded as the established modern rule. In the first case ship and cargo alike are the prey of our vessels of war. In the result, therefore, we may capture the enemy's ships and the enemy's property on board his own ships, but we must spare neutral vessels and all the goods therein, whether belonging to enemies or neutrals, and neutral goods when found on board the enemy's vessels. There is, however, a manifest tendency in international opinion to withdraw private vessels and private property lawfully used altogether from the sphere of warlike operations. The law of capture by sea is further considered under the heading PRIZE.

It remains to speak of the right of neutrals, and their obligations to the belligerents. The neutral nation is to be regarded as the friend of both belligerents, and is bound to treat both of them alike. Jurists distinguish between "strict" or " ordinary " neutrality, and " imperfect " neutrality, in which certain advantages are allowed to both belligerents, or in which advantages are granted to one of the belligerents only under a prior treaty, which the other belligerent does not choose to consider a casus belli. The "perpetual" neutrality of Belgium and Switzerland secured by treaties binds those states to abstain from taking part in any war arising between their neighbours. The combination of several northern powers to enforce by arms certain alleged rights of neutrals against the claims of belligerents in 1780 and 1800 has been termed an "armed neutrality."

Neutral states are entitled to prohibit all belligerent operations within their territory,—using that phrase in the enlarged sense it bears in international law. They may prevent the passage of fleets or armies through those por-tions of the sea or land over which their jurisdiction extends. Hostilities carried on within neutral territory are unlawful, and captures effected thereby are void. The rule is indis-putable, but its application to warfare by sea has not been free from controversy. A capture made outside the neutral territory by the boats of a ship lying within the neutral territory has been held to imply an illegal use of that terri-tory for purposes of war. On the other hand, a capture begun outside but consummated within the neutral territory, is also, notwithstanding the theory set up by Byukershoek, entirely illegal. It is in fact as much the duty as the right of the neutral state to insist on these prohibitions, as the omission to do so in any case'/might give an advantage to one belligerent over the other inconsistent with true neutrality. The exemption of neutral property everywhere from the operation of war has been already noticed. The impartiality which it is the duty of the neutral to observe towards the belligerents has been summed up by Vattel in two propositions cited with approval by Wheaton :—(1) that no assistance should be given to either party in matters relating to war unless vnder some pre-existing stipulation ; (2) that in matters not relating to war the neutral should not refuse to one belligerent " merely because he is at war with the other what she grants to that other. ' The obligation of impartiality extends to prohibiting the use of the neutral territory for the purpose of fitting out warlike expeditions, equipping vessels, and enlisting men. The right and duty of neutral nations in this respect were first recognized and enforced by the United States, long the chief representative and champion of neutral rights. An Act of Congress passed in 1794, re-enacted 1818, makes it a misdemeanour for "any person within the jurisdiction of the United States to augment the rorce of any armed vessel belonging to one foreign power at war with another power with whom they are at peace, or to prepare any military expedition against the territories of any foreign nations with whom they are at peace, or to hire or enlist troops or seamen for foreign military or naval service, or to be concerned in fitting out any vessel to cruise or commit hostilities in foreign service, &c." The same principles inspire the English Foreign Enlistment Acts which have been pronounced by the well-known writer " Historicus" to be a transcript of the American law. The 59 Geo. III. c. 69 was the first Act known by this title ; the statute now in force is the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90). These Acts are correctly described as municipal statutes, based indeed on international law, but intended for the protection of the neutral state rather than the belli-gerents. The purely international obligations of the belligerent have been recently the subject of protracted discussions between England and America, arising out of the depredations committed by Confederate cruisers on American commerce. The treaty of Washington, 1871, by which all these questions were referred to arbitration, directed the arbitrator to apply to them not only the rules of the law of nations but three new rules, which England at least could not admit as being in force when the claims arose, but which she acceded to as an evidence of her desire to strengthen friendly relations with the United States. Both parties agreed to abide by these principles in future, and to invite other nations to accede to them. The rules were that a neutral government is bound—(1) to use due diligence to prevent the fitting out, arming, or equip-ping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been adapted in whole or in part within such jurisdiction to warlike use; (2) not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of renewal or augmentation of military supplies or arms or the recruitment of men; and (3) to exercise due diligence in its own ports and waters and as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.

These rules, which we believe to be substantially just, have been unduly discredited in England, partly by the result of the arbitration, which was in favour of the United States, partly by the fact that they were from the point of view of English opinion ex post facto rules, and that the words defining liability ("due diligence") were vague and open to unforeseen constructions,—for example, the construction actually adopted by the Geneva tribunal that due diligence ought to be exercised in propor-tion to the belligerent's risk of suffering from any failure of the neutral to fulfil his obligations. One important principle, to some extent challenged in these controversies, is established beyond dispute. Whatever the obligations of a neutral in any given case may be, failure to fulfil them is not excused either by defects of the municipal law or by successful evasions of that law. The neutral state ought to make its laws conformable to its international duties, and to compel its subjects to obey them. If it fails in either respect, and injury to belligerents is the consequence, it is answerable under the law of nations.

So far we have been dealing with the rights and duties of neutral states. Neutral commerce in times of war is subject to restrictions which affect individuals rather than states, such as the rules relating to blockade and contra-band of war.
4 See Mountague Bernard's British Neutrality.

Pirates and savages or uncivilized tribes have been men-tioned as excluded from the benefits of international law. The municipal law of most countries assumes jurisdiction over the former wherever they may be found (see PIRACY). With regard to the latter, it cannot be said that civilized nations have observed any rule of law or morality whatso-ever in their dealings with them. The overflowing popula-tion of European nations has been compelled to seek an outlet in regions occupied by men in a low state of civilization, neither capable nor desirous of making a beneficial use of them. It is not to be pretended for a moment that the Europeans were bound to leave the continent of America to its original Indians, for even civilized communities are not permitted to claim dominion over territory which they do not really occupy. But the early European settlers founded their claims on some authority, generally that of their own sovereigns, which recognized no right whatever in the original occupants. They were described in patent deeds as " heathens and infidels," and a colour of religious duty was thus imparted to the most barefaced schemes of spoliation. Wheaton cites the authority given by Henry VII. to Cabot and by Queen Elizabeth to Sir Humphrey Gilbert to seek out foreign and barbarous lands " not actually possessed of any Christian prince or people," and to hold, occupy, and enjoy the same. Vattel, who strongly insists upon the right of civilized people to reduce the ineffective occupation of savages to the narrowest possible limits, warmly commends the conduct of William Penn and the English Quakers in purchasing from its savage occupants the country they wished to inhabit. The colonizing nations, says Wheaton, were agreed in one thing, viz., in "almost entirely disregarding the right of the native inhabitants." Settlements of this kind are not now made from European countries, and public opinion would no longer sanction the pretensions on which they were based. But between the European settlements already established and the native tribes by which they are surrounded the same disregard of the rights of the weaker party is only too common. So far as England is concerned, the temptations of her colonists to commit injustice in their dealings with inferior races are counterbalanced by an active public opinion at home. In the conduct of hostili-ties against savages, civilized troops would not be regarded as bound by the international law of war; and it is difficult to conceive of any restraint other than that of their own sense of decency and humanity. In conflicts between civilized communities the employment of savages on either side is condemned for this very reason. In self-defence the troops opposed to them must resort to practices con-demned by the opinion of the civilized world.

The main object of this article has been to exhibit the law of nations as much as possible in the form of a positive system of rules binding on states inter se, to assimilate the treatment of the subject to a statement of the ordinary rules of positive law. Many topics have therefore been omitted which are discussed at length in treatises on international law. It is not always possible to say where international law begins and international morality ends, but it is of the highest importance to mark the distinction. The former, taken broadly, means the rules of conduct that the nations of the civilized world admit and insist upon as a matter of course, and the fact that there are such rules is the central fact of the whole subject. Every addition to them is a positive good to the whole world, and such additions are for the most part to be traced to the reasonings of private thinkers. But to treat principles supported only by the authority of jurists, how-ever distinguished, as of equal validity with those which have been adopted by the universal practice of nations is to weaken the one without strengthening the other. It should be said, moreover, that the systematic study of international law with a view to its improvement by jurists of all countries organized in societies like the Institut de Droit International at once tends to mature opinion and to give it an immediate hold on the practice of nations.

Among the purely speculative questions connected with international law two deserve special notice on account of the extent to which they have engaged the sympathies at least of the best minds in every age. One is the project for a perpetual peace, the other is the more immediately practical proposal to reduce the law of nations to a written code. With the former the names of Bentham and of Kant are associated. Bentham's plan is a congress of deputies, two from each state, which should determine international disputes, and the decrees of which should be enforced against any state that might resist them by the combined power of the rest. As a preliminary condition he requires the reduction of military establishments and the abandonment by European nations of their colonies. Kant proposes a confederation of states, all under a republican constitution, and acting in international affairs through congresses to be held from time to time. An account of these and other projects of the same kind will be found in Wheaton's History of the Law of Nations. Codification would effect for the law of nations, as a whole, what has already been done for portions of it by the St Petersburg and Geneva conventions, and even by the treaties of Paris and Washington. All states are alike interested in ascertaining the rules to which they have assented in general terms. The work has already been to a great extent performed by private associations, and what is wanted is the formal ratification of their labours by the Governments of the world.

The following are the most authoritative modern works on International Law :—Henry Wheaton's Elements of International Law (8th American edition published in 1866 with notes by R. H. Dana, jun. ; an English edition appeared in 1880); Sir Robert Phillimore's Commentaries on International Law, in 4 vols, (a very complete and elaborate work); Sir Travers Twiss's Law of Nations, 2 vols. ; and Heffter's Das Europäische Völkerrecht der Gegenwart. To these may be added the less important treatises of Richard Wildman, William Oke Manning, and H. W. Halleck (American). Useful elementary works are Chancellor Kent's Commentary, which has been edited in England by Dr J. T. Abdy; T. D. Woolsey's Introduction to the Study of International Law; and W. E. Hall's International Law. The history of the law of nations has been treated by Wheaton, Ward, K. von Mohl, and E. Laurent. (E. R.)


The above article was written by Prof. E. Robertson.




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