International Law. A Treatise Volume I Part 3

-- 28. The present range of the dominion of International Law is a product of historical development within which epochs are distinguishable marked by successive entrances of various States into the Family of Nations.

(1) The old Christian States of Western Europe are the original members of the Family of Nations, because the Law of Nations grew up gradually between them through custom and treaties. Whenever afterwards a new Christian State made its appearance in Europe, it was received into the charmed circle by the old members of the Family of Nations. It is for this reason that this law was in former times frequently called "European Law of Nations." But this name has nowadays historical value only, as it has been changed into "Law of Nations," or "International Law" pure and simple.

(2) The next group of States which entered into the Family of Nations is the body of Christian States which grew up outside Europe. All the American[29] States which arose out of colonies of European States belong to this group. And it must be emphasised that the United States of America have largely contributed to the growth of the rules of International Law. The two Christian Negro Republics of Liberia in West Africa and of Haiti on the island of San Domingo belong to this group.

[Footnote 29: But it ought not to be maintained that there is--in contradistinction to the European--an American International Law in existence; see, however, Alvarez, "Le Droit International Americain"

(1910), and again Alvarez in A.J. III. (1909), pp. 269-353.]

(3) With the reception of the Turkish Empire into the Family of Nations International Law ceased to be a law between Christian States solely.

This reception has expressly taken place through Article 7 of the Peace Treaty of Paris of 1856, in which the five Great European Powers of the time, namely, France, Austria, England, Prussia, and Russia, and besides those Sardinia, the nucleus of the future Great Power Italy, expressly "declarent la Sublime Porte admise a participer aux avantages du droit public et du concert europeens." Since that time Turkey has on the whole endeavoured in time of peace and war to act in conformity with the rules of International Law, and she has, on the other hand, been treated[30]

accordingly by the Christian States. No general congress has taken place since 1856 to which Turkey has not been invited to send her delegates.

[Footnote 30: There is no doubt that Turkey, in spite of having been received into the Family of Nations, has nevertheless. .h.i.therto been in an anomalous position as a member of that family, owing to the fact that her civilisation has not yet reached the level of that of the Western States. It is for this reason that the so-called Capitulations are still in force and that other anomalies still prevail, but their disappearance is only a question of time.]

(4) Another non-Christian member of the Family of Nations is j.a.pan. A generation ago one might have doubted whether j.a.pan was a real and full member of that family, but since the end of the nineteenth century no doubt is any longer justified. Through marvellous efforts, j.a.pan has become not only a modern State, but an influential Power. Since her war with China in 1895, she must be considered one of the Great Powers that lead the Family of Nations.

(5) The position of such States as Persia, Siam, China, Morocco, Abyssinia, and the like, is doubtful. These States are certainly civilised States, and Abyssinia is even a Christian State. However, their civilisation has not yet reached that condition which is necessary to enable their Governments and their population in every respect to understand and to carry out the command of the rules of International Law. On the other hand, international intercourse has widely arisen between these States and the States of the so-called Western civilisation. Many treaties have been concluded with them, and there is full diplomatic intercourse between them and the Western States. China, Persia, and Siam have even taken part in the Hague Peace Conferences.

All of them make efforts to educate their populations, to introduce modern inst.i.tutions, and thereby to raise their civilisation to the level of that of the Western. They will certainly succeed in this respect in the near future. But as yet they have not accomplished this task, and consequently they are not yet able to be received into the Family of Nations as full members. Although they are, as will be shown below (-- 103), for some parts within the circle of the Family of Nations, they remain for other parts outside. But the example of j.a.pan can show them that it depends entirely upon their own efforts to be received as full members into that family.

(6) It must be mentioned that a State of quite a unique character, the former Congo Free State,[31] was, since the Berlin Conference of 1884-1885, a member of the Family of Nations. But it lost its members.h.i.+p in 1908 when it merged in Belgium by cession.

[Footnote 31: See below, -- 101.]

[Sidenote: Treatment of States outside the Family of Nations.]

-- 29. The Law of Nations as a law between States based on the common consent of the members of the Family of Nations naturally does not contain any rules concerning the intercourse with and treatment of such States as are outside that circle. That this intercourse and treatment ought to be regulated by the principles of Christian morality is obvious. But actually a practice frequently prevails which is not only contrary to Christian morality, but arbitrary and barbarous. Be that as it may, it is discretion, and not International Law, according to which the members of the Family of Nations deal with such States as still remain outside that family. But the United States of America apply, as far as possible, the rules of International Law to their relations with the Red Indians.

VI

CODIFICATION OF THE LAW OF NATIONS

Holtzendorff in Holtzendorff, I. pp. 136-152--Ullmann, -- 11--Despagnet, Nos. 67-68--Bonfils, Nos. 1713-1727--Merignhac, I.

pp. 26-28--Nys, I. pp. 166-183--Rivier, I. -- 2--Fiore, I. Nos.

124-127--Martens, I. -- 44--Holland, Studies, pp. 78-95--Bergbohm, "Staatsvertrage und Gesetze als Quellen des Volkerrechts" (1877), pp. 44-77--Bulmerincq, "Praxis, Theorie, und Codification des Volkerrechts" (1874), pp. 167-192--Roszkowski in R.I. XXI. (1889), p. 520--Proceedings of the American Society of International Law, IV. (1910), pp. 208-227.

[Sidenote: Movement in Favour of Codification.]

-- 30. The lack of precision which is natural to a large number of the rules of the Law of Nations on account of its slow and gradual growth has created a movement for its codification. The idea of a codification of the Law of Nations in its totality arose at the end of the eighteenth century. It was Bentham who first suggested such a codification. He did not, however, propose codification of the existing positive Law of Nations, but thought of a utopian International Law which could be the basis of an everlasting peace between the civilised States.[32]

[Footnote 32: See Bentham's Works, ed. Bowring, VIII. p. 537; Nys, in _The Law Quarterly Review_, XI. (1885), pp. 226-231.]

Another utopian project is due to the French Convention, which resolved in 1792 to create a Declaration of the Rights of Nations as a pendant to the Declaration of the Rights of Mankind of 1789. For this purpose the Abbe Gregoire was charged with the drafting of such a declaration. In 1795, Abbe Gregoire produced a draft of twenty-one articles, which, however, was rejected by the Convention, and the matter dropped.[33]

[Footnote 33: See Rivier, I. p. 40, where the full text of these twenty-one articles is given. They did not contain a real code, but certain principles only.]

It was not until 1861 that a real attempt was made to show the possibility of a codification. This was done by an Austrian jurist, Alfons von Domin-Petrushevecz, who published in that year at Leipzig a "Precis d'un Code de Droit International."

In 1862, the Russian Professor Katschenowsky brought an essay before the Juridical Society of London (Papers II. 1863) arguing the necessity of a codification of International Law.

In 1863, Professor Francis Lieber, of the Columbia College, New York, drafted the Laws of War in a body of rules which the United States published during the Civil War for the guidance of her army.[34]

[Footnote 34: See below, vol. II. -- 68.]

In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of Nations, published "Das moderne Volkerrecht der civilisirten Staaten als Rechtsbuch dargestellt." This draft code has been translated into the French, Greek, Spanish, and Russian languages, and the Chinese Government produced an official Chinese translation as a guide for Chinese officials.

In 1872, the great Italian politician and jurist Mancini raised his voice in favour of codification of the Law of Nations in his able essay "Vocazione del nostro secolo per la riforma e codificazione del diritto delle genti."

Likewise in 1872 appeared at New York David Dudley Field's "Draft Outlines of an International Code."

In 1873 the Inst.i.tute of International Law was founded at Ghent in Belgium. This a.s.sociation of jurists of all nations meets periodically, and has produced a number of drafts concerning various parts of International Law, and in especial a Draft Code of the Law of War on Land (1880).

Likewise in 1873 was founded the a.s.sociation for the Reform and Codification of the Law of Nations, which also meets periodically and which styles itself now the International Law a.s.sociation.

In 1874 the Emperor Alexander II. of Russia took the initiative in a.s.sembling an international conference at Brussels for the purpose of discussing a draft code of the Law of Nations concerning land warfare.

At this conference jurists, diplomatists, and military men were united as delegates of the invited States, and they agreed upon a body of sixty articles which goes under the name of The Declaration of Brussels. But the Powers have never ratified these articles.

In 1880 the Inst.i.tute of International Law published its "Manuel des Lois de la Guerre sur Terre."

In 1887 Leone Levi published his "International Law with Materials for a Code of International Law."

In 1890 the Italian jurist Fiore published his "Il diritto intern.a.z.ionale codificato e sua sanzione giuridica," of which a fourth edition appeared in 1911.

In 1906 E. Duplessix published his "La loi des Nations. Projet d'inst.i.tution d'une autorite nationale, legislative, administrative, judiciaire. Projet de Code de Droit international public."

In 1911 Jerome Internoscia published his "New Code of International Law"

in English, French, and Italian.

[Sidenote: Work of the first Hague Peace Conference.]

-- 31. At the end of the nineteenth century, in 1899, the so-called Peace Conference at the Hague, convened on the personal initiative of the Emperor Nicholas II. of Russia, has shown the possibility that parts of the Law of Nations may well be codified. Apart from three Declarations of minor value and of the convention concerning the adaptation of the Geneva Convention to naval warfare, this conference has succeeded in producing two important conventions which may well be called codes--namely, first, the "Convention for the Pacific Settlement of International Disputes," and, secondly, the "Convention with respect to the Laws and Customs of War on Land." The great practical importance of the first-named convention is now being realised, as the Permanent Court of Arbitration has in a number of cases already successfully given its award. Nor can the great practical value of the second-named convention be denied. Although the latter contains, even in the amended form given to it by the second Hague Peace Conference of 1907, many gaps, which must be filled up by the customary Law of Nations, and although it is not a masterpiece of codification, it represents a model, the very existence of which teaches that codification of parts of the Law of Nations is practicable, provided the Powers are inclined to come to an understanding. The first Hague Peace Conference has therefore made an epoch in the history of International Law.

[Sidenote: Work of the second Hague Peace Conference and the Naval Conference of London.]

-- 32. Shortly after the Hague Peace Conference of 1899, the United States of America took a step with regard to sea warfare similar to that taken by her in 1863 with regard to land warfare. She published on June 27, 1900, a body of rules for the use of her navy under the t.i.tle "The Laws and Usages of War at Sea"--the so-called "United States Naval War Code"--which was drafted by Captain Charles H. Stockton, of the United States Navy.

Although, on February 4, 1904, this code was by authority of the President of the United States withdrawn it provided the starting-point of a movement for codification of maritime International Law. No complete Naval War Code agreed upon by the Powers has as yet made its appearance, but the second Hague Peace Conference of 1907 and the Naval Conference of London of 1908-9 have produced a number of law-making treaties which represent codifications of several parts of maritime International Law.

The second Hague Peace Conference met in 1907 and produced not less than thirteen conventions and one declaration. This declaration prohibits the discharge of projectiles and explosives from balloons and takes the place of a corresponding declaration of the first Hague Peace Conference. And three of the thirteen conventions, namely that for the pacific settlement of international disputes, that concerning the laws and customs of war on land, and that concerning the adaptation of the principles of the Geneva Convention to maritime war, likewise take the place of three corresponding conventions of the first Hague Peace Conference. But the other ten conventions are entirely new and concern: the limitation of the employment of force for the recovery of contract debts, the opening of hostilities, the rights and duties of neutral Powers and persons in war on land, the status of enemy merchant s.h.i.+ps at the outbreak of hostilities, the conversion of merchant s.h.i.+ps into war s.h.i.+ps, the laying of automatic submarine contact mines, bombardments by naval forces in time of war, restrictions on the exercise of the right of capture in maritime war, the establishment of a Prize Court, the rights and duties of neutral Powers in maritime war.

The Naval Conference of London which met in November 1908, and sat till February 1909, produced the Declaration of London, the most important law-making treaty as yet concluded. Its nine chapters deal with: blockade, contraband, unneutral service, destruction of neutral prizes, transfer to a neutral flag, enemy character, convoy, resistance to search, compensation. The Declaration of London, when ratified, will make the establishment of an International Prize Court possible.

[Sidenote: Value of Codification of International Law contested.]

-- 33. In spite of the movement in favour of codification of the Law of Nations, there are many eminent jurists who oppose such codification.

They argue that codification would never be possible on account of differences of languages and of technical juridical terms. They a.s.sert that codification would cut off the organic growth and future development of International Law. They postulate the existence of a permanent International Court with power of executing its verdicts as an indispensable condition, since without such a court no uniform interpretation of controversial parts of a code could be possible.

Lastly, they maintain that the Law of Nations is not yet at present, and will not be for a long time to come, ripe for codification. Those jurists, on the other hand, who are in favour of codification argue that the customary Law of Nations to a great extent lacks precision and certainty, that writers on International Law differ in many points regarding its rules, and that, consequently, there is no broad and certain basis for the practice of the States to stand upon.

[Sidenote: Merits of Codification in general.]