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A TREATISEON
INTERNATIONAL LAWBY
WILLIAM EDWAED HALL,
M.A.
FOURTH EDITION
AT THE CLARENDON PRESSLONDON:
HENRY FEOWDEAND
OXFORD UNIVERSITY PRESS WAREHOUSE, AMEN CORNER
STEVENS119
& SONS,120
LIMITED
&
CHANCERY LANE
1895[All rights reserved'}
PRINTED AT THE CLARENDON PRESSBY HORACE HART. PRINTER TO THE UNIVERSITY
PREFACE TO THE FOURTH EDITION,
late
THIS edition was throughout prepared for the press by the Mr. Hall 1 At the time of his lamented death, on.
pages 1-272 were already in type, and as far as page 144 had been finally revised by the author.last,
3Oth November
Thewas
corrected copy,in the
down
hands of the
page 514 of the third edition, printers, and the remainder of it wasto
The improveready to be forwarded to them when required. ments upon the last edition are not inconsiderable. Newmatter will be found, for instance, at pages 131-136, withreferenceto Protectorates
and Spheres of Influence.is;
The
extent of territorial waters
reconsidered in the light of
recent discussions at page 160ships in such watersis
dealt with at pages 169
and the position of foreign and 211.;
Other noteworthy additions relate to Nationality, pp. 236-238 to the Behring Sea controversy, p. 267 ; and to the principlesapplicable to the case of the Kow-shing, although that caseis
not specifically mentioned, pp. 521-523. Two of the sections upon Contraband of War, pp. 677-682., have beencarefully rewritten.
The
result of these additions,
though
partially balanced
by
omissions and condensations, has been to increase the bulk of the body of the work, which
now
compared with 656 in the
first
extends to 767 pages, as edition. It has therefore
For a Memoir of Mr. Hall, and some account of his writings, I perhaps be allowed to refer to the Law Quarterly Review, vol. xi, p. 113.1
may
vi
PREFACE.
been thought desirable to gain space by omitting the three of the Nationality of Appendices, treating respectivelyVessels, of Ships' Papers,
references to
and of Naturalisation ; substituting the Blue-books or other sources whence the
Mr. Hall had information upon those subjects was derived. The first edition cancelled the Preface to the second edition.appeared without any Preface.editionis
The PrefaceMr. Hall's
to the third
reprinted, as containing
latest
views of
the future of International
Law.
Press to write a
Having been requested by the Delegates of the Clarendon few words by way of explanatory Preface to
the fourth edition, I
glad of the opportunity of testifying to the ability, care, and devotion to the memory of his friend the author, shown by Mr. Beresford Atlay, of Lincoln's Inn,
am
work through its various stages. The Delegates were fortunate in obtaining for this purpose the assistance of one to whom Mr. Hall had expressed his debt of gratitude forin seeing thesimilar,
occasion.
though far slighter services, rendered on a previous Mr. Atlay has spared no pains to make the newin-
edition
worthy of those which have preceded it. Apart from mere reader's corrections, his alterations,
dicated
by
the marks J
J,
amountnotes.
to
about half-a-dozenhas inserted some
modifications of the textadditionalreferences,lists
and
He
and has re-arranged, with necessaryof treaties relating to consular jurisin
amplification, thediction,
to
enemy
subjects
a belligerent state at the
outbreak of war, and to the exemption of foreigners from See especially pp. 21 1, 217, 407, 455, 457. military service.
He
has also enlarged the Table of Cases and the Index.T. E.OXFORD,June 20, 1895.
HOLLAND.
PREFACE TO THE THIRD EDITION.
IN issuing the third edition of the following work, it has been found necessary to add still further to its bulk.1
Several
topics
have
assumed;
a
greaterrecent
importanceoccurrencesin others,
than have
they before
possessed
in
others,
brought to light insufficiency of treatment;
new
I have circumstances are tending to establish new rules. endeavoured to take notice of such of these topics as seem to me to be ripe for discussion. There are also a certain
number
of additions in matters of detail.it
inopportune to seize the present occasion to say a word or two as to the degree in which it is reasonable to expect that International Law shall be a
Perhaps
may
not be
restraining force on public conduct.
Men who
have the good
fortune to deal actively with affairs are somewhat apt to think and speak lightly of its strength. It would be very
unwise of an international lawyer to indulge in the delusion, is often credited, that formulas are stronger But in than passions. I doubt much if he ever does so.with which heorder to get clean legal results, he must eliminate the vary-
ing elements of tendency to crime,of infringement of law.
or, to
put
it
more mildly,to be
He
only says what ought
given the acquired moral habits of the past, and the rules of conduct which have been founded upon them.done,
On
the other hand,
it
would
also be unwise,
on the part oflaw.
men whose mindsrate the
are fixed wholly on the present, to underinfluenceit
abiding
of
'
international
Since
it
has come into existence,or brutally disregarded.
Nevertheless
has often been quietly ignored far has force it so
PREFACE.that noofit.
state
could
venture to declare
itself
independent
it
So things stand at present; but looking to the future must be granted that some doubt as to the strength ofis
international lawsets
not wholly unreasonable.pointin
Two
different
of
indications
opposite
directions.
In
no
previous period have endeavours been made, such as those which have been made during the present generation by
the greater European States, to conclude agreements which should not merely express the momentary convenience, or theselfish
aims,
of
the
contracting
powers,
but
should
embody
principles capable of wider
and of impartial applica-
tion, or to lay
down
rules of conduct which, it
might
fairly
be hoped, would be adopted by the body of civilised nations. Great pacificatory settlements, such as those of the Congressesof Utrecht
and Vienna, used occasionallysuggesting rules of
to be
made; but
agreements
action, such as that withcoast,
respect to occupation
on the African
and agreementslast
prescribing general rules of conduct, such as the Conventionof Geneva, are almost wholly new.
Again, within the
fewit,
years, professors of international law,efforts to arrive,
and writers upon
have used their best
of disputed topics, at
common
upon a vast range conclusions, which might be
such authority as may be possessed by professors and writers as a body ; and they have done a good deal towards rendering doctrine harmonious
offered for general acceptance with
andit
consistent.
If
such indications as these stood alone,definite rules of inter-
might be taken not only that thebut that their holdis
national law are extending in range, and gaining incision,
pre-
also
becoming stronger day
by day.thereis
On the other hand, it is not to be denied that a wide-spread distrust of the reality of this progress.andsailors,
Manyhave
soldierslittle
ma'nyof
men concerned withwill bear
affairs,
belief
that
muchlaw
what has been addedany
of
late years to international
serious strain.
PREFACE.
IX
And, however convenient a standard of reference that law may be for the settlement of minor disputes; however willing
may be to defer to it when they are anxious not to quarrel , grave doubt is felt whether even old and established dictates will be obeyed when the highest interestsstatesmenof
nations
are
in
play.
This feeling, for reasonsis
which
cannot be dismissed as unfounded,
England than elsewhereBothback over the
;
but
it is
probably stronger in not confined to England.truly.
sets of indications
seem to me to point
Looking
last couple of centuries
we
see
international
law at the
close of each fifty years in
a more solid position
than that whichProgressivelyit
it occupied at the beginning of the period. has taken firmer hold, it has extended its
sphere of operation,trivial
it
has ceased to trouble
itself
about
formalities, it has
more and more dared
to grapple
in
detail
with the fundamental facts in the relations ofit
states.
The area within which
reigns
beyond dispute
has in that time been infinitely enlarged, and it has been But greatly enlarged within the memory of living men.it
would be
idle
to
on without check.long andoccasions
pretend that this progress has gone In times when wars have been both
on the
bitter, in moments of revolutionary passion, on when temptation and opportunity of selfishness part of neutrals have been great, men have fallen
back into disregard of law and even into true lawlessness. And it would be idle also to pretend that Europe is not now in great likelihood moving towards a time at whichthe strength of international law will be too hardly tried. Probably in the next great war the questions which have
accumulated during the last half century and more, will all be given their answers at once. Some hates moreoverwillall,
will
crave
for
satisfaction;all,
much envy andofnecessity.
greed
be at work;therewill
but above
and at the bottom of
be the hard
sense
Whole
nations will be in the field;
the
commerce of the world
Xmay
PREFACE.be on the sea to win or lose;;
national existences will
be at stake
men
will be
shorten hostilities and tend to a decisivein the next greatif it
tempted to do anything which will issue. Conducthard;
very be scrupulous, whether on the part of belligerents or neutrals ; and most likely the next war will But there can be very little doubt that if the be great.doubtfulwill
war
will certainly be
it
is
next war
is
unscrupulously waged,
it also
will
a reaction towards increased stringency of law.
be followed by In a comis
munity, as in an individual, passionate excess
followed
by
a reaction of lassitude and to some extent of conscience.
Onway
the whole the collective seems to exert itself in this
more surely than the individual conscience; and in things within the scope of international law, conscience, if it worksless impulsively,affairs.
can at least work more freely than in home Continuing temptation ceases with the war. Atexperience that times, in which
any
rate it is a matter of
international law has been seriously disregarded, have been
followed
by periods in which the European conscience has done penance by putting itself under straiter obligations than those which it before acknowledged. There is no reasonsupposethat thingswill
to
be otherwise in
the
future.
I therefore look forward with
much misgivingwill be
to the
manner
in
which the next great warall
misgiving atbe
waged, but with no as to the character of the rules which will
acknowledged ten years after its termination, by comparison with the rules now considered to exist.I
to the kindness of
owe a debt of gratitude, which I must not leave unpaid, my friend Mr. Beresford Atlay, who hasoff
taken a very irksome labour
my
hands by reading the
proofs of this edition, inserting references to recent treaties,
and revising and adding to the index.Aug.I,
1889.
CONTENTS.INTRODUCTION.
.....PARTCHAPTERI.
PAGEi
GENERAL PRINCIPLES.I.
PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES POSSESSING AN ANALOGOUS CHARACTER.SECTION1.
The marks characterising persons in International Law and postulates concerning those persons.
.
.18.21
2.
Acquisition, preservation, and loss of personal identityas a state.. . .
.
.
.
3.
Communities imperfectly possessing the marks of aperson in International
Law
.
.
.
.
4.5.
Imperfectly independent statesBelligerent communities.
.
.
.
.24 .2431.
.
.
.
6.
What
states are subject to International
Law
.
42
CHAPTER
II.
GENERAL PRINCIPLES OF THE LAW GOVERNING STATESTHEIR NORMAL RELATIONS.7.
IN
The fundamental
rights and duties of states
.
.
.45.
8.
Eight of continuing and developing existence
45
XllSECTION9.
CONTENTS.PAGE
Rights of property
.
.
.
.
.
.
47
10. 11.12.
Eights arising out of independenceResponsibility of a state..
.
.
50
.
.
.5657
Right of states to repress or punish violations of law
13.14.
Moral duties of
states.
The
sea
.
.
........62.. .
58
.
.
CHAPTERIN15. Iii1
III.
GENERAL PRINCIPLES OF THE LAW GOVERNING STATES
THE RELATION OF WAR.warconsists
what the
relation of
..... ..
63
6.
17.1
The place of war in International Law In what International Law as applied to warDoctrinein
-63.
consists
65
8.
that
war does not
so far as
except they contribute to the prosecution of. .
affect individuals
hostilities
.
.
.
.
.
67
CHAPTERAND NEUTRALS19.
IV.
GENERAL PRINCIPLES OF THE LAW GOVERNING BELLIGERENTSIN THEIR RELATIONS
WITH EACH OTHER..
How
the special law of neutrality has been formed
75
20.
The duty incumbent upon neutrals of conducting themselves with impartiality. .. .
.
-7^re-
21. Territorial
sovereignty..
as.
a
source. .
of
neutral..
sponsibility22. Territorial
'77
sovereignty as the measure of neutral re.. . . . ..
sponsibility
-78-79.
23. Rights of belligerents in restraint of commercial acts of
individuals
.
.
.
.
.
.
.
24. Division of the law of neutrality into two branches 25. Occasional confusion of the
81
two branches with each82
other
CONTENTS.
Xlll
PART.
II.
THE LAW GOVERNING- STATES IN THEIR
NORMAL RELATIONS.CHAPTERI.
COMMENCEMENT OF THE EXISTENCE OF ASECTION 26. Recognition of a state. . .
STATE,
CHANGES INPAGE
THE STATE PERSON, AND EXTINCTION OF A STATE... .
26*.
Forms
of recognition
.
.
26**.
Formation of the Congo State
.....
.
-87 -9394.
27. Relation of ations,
new
state to the contract rights
and obliga96
and
to the property &c. of the parent state
28. Effects of cession
upon the contract rights and obligaand upon the property &c. of the state ceding, tions, and the state acquiring, territory ..
.
.104.
29. Effects of the absorption of a state in another state
105
CHAPTER
II.
TERRITORIAL PROPERTY OF A STATE.30. 31. 32.33.
In what the territorial properly of a
state consists.
.
106
Modes
of acquiring
it
.
33*.
Occupation Cases illustrative of the law of occupation Recent tendency to change in the law of occu.
........
.
.
.
.106106
113
pation34.
.
.
.
.
.
.
.118
Abandonmenttion.
of territory acquired by occupa....
,
.
35.
Cession
.
36.
Prescription
.
.
.
.
.
.
37.
Accretion by the operation of nature..
.
.
38. Boundaries of state territory
.
.
.120 .123 -123 .125 .127130 134
38*. Protectorates over uncivilised and semi-civilised peoples
38**. Spheres of Influence
......
XIVSECTION
CONTENTS.PAGEare possessed by states over rivers not within their territory, or by co-riparianrights of navigationstates over the portions of rivers not
39.
Whether
within their.
territory
.
.
.
.
.
.
.136 .146 .158 .164
To what extent the40. 41.
sea can be appropriated.
:.
History of usage and opinionPresent state of the question
.
.
.
.
42. Right of foreign states to the innocent use of the territorial seas of a state...
.
.
CHAPTER
III.
NON-TEKRITOKIAL PROPERTY OF A STATE.43. In
what non-territorial property of the.
state consists. . .
.
167
44. Public vessels of the state
.
.167171
45. Private vessels covered46.
by the nationalstate,.
flag
.
.
Goods owned by subjects of theforeign ships.
but embarked in.
.
.
.
.
1 7
1
CHAPTER
IV.
SOVEREIGNTY IN RELATION TO THE TERRITORY OF THE STATE.47.
Enumeration of the points requiring notice.. .
.
.
.172173 175
48. Doctrine of exterritoriality
.
.
49.
Immunities of a foreign sovereign Immunities of a diplomatic agentPersonal immunities.
.
.
.
:
50.
.
.
.
.
51. 52.53.
Immunities of his family and suite Immunities of his house. .
.
.
.
.
Miscellaneous privileges
.
.
.
.
.178 .184 .186 .190193 202
54.
Immunities of armed forces of a foreign state History of usage and opinion.
:
55.56.
Immunities of public vessels Immunities of military forces
.... ...... .
206207
57. Reasons for discarding the
fiction of exterritoriality
CONTENTS.SECTION
XVPAGE
57*. Immunities of foreign public property other than public vessels of the state58. Doctrine that foreign
.......merchant vessels possess partial..
208
59.
immunity from the territorial jurisdiction .209 The limits within which the territorial jurisdiction oughtto be exercised over passing vessels..
.212
60.
Freedom of a
vessel entering a state from jurisdiction in
respect of acts done outside the state by or . . subjects of the latter. .
upon the.
.215.
61
.
Extent of the right of a state to require aid from foreignerswithinits territory in
maintaining the public safety
215 218
62.
Whether
the tribunals of a state can take cognizance of.
crimes committed by foreigners in foreign territory63. Eights of giving64.
and refusing hospitality
.
.
.222.
Eight of admitting foreigners to the status of subjects..
224
65. Responsibility of a state
.
.
.
.226
CHAPTER
V.
SOVEREIGNTY IN RELATION TO THE SUBJECTS OF THE STATE.66. Nationality
.
.
.
.
.
.
.
.233234
67. Persons as to whose nationality no difference of opinion can exist
........such difference can exist.
Those as to68.
whom
.
.234234
Children born of the subjects of one power within the territory of anotherIllegitimate children. . . .
....... .
69.70.71.
Married women
.
.
.
.
Naturalised persons
.
.
.
.
.
.238 .238 .239.
71*.
Effects of the naturalisation of parents on children
who72.
are minors at the date of naturalisation
251
Claims of states to treat unnaturalised foreignersas subjects. .
.
.
.
.
.251
73.
The questions arising out of sovereigntysubjects with which International
in relation todeals.
Law
-255255
74. Persons destitute of nationality, or of uncertain nationality
XVI
CONTENTS.
CHAPTERSTATE.SECTION
VI.
JURISDICTION IN PLACES NOT WITHIN THE TERRITORY OF ANY
PAGE
75. General
view of the jurisdiction exercised by states in places not within the territory of any powerterritoriality of vessels
76.
Theory of the
..... .
257
258
77. Limits of the jurisdiction of a state over vessels in non-territorial waters.
its.
merchant.
.263265.
78. Jurisdiction over public vessels in non-territorial waters 79. Jurisdiction of a state over foreigners in its ships.
265 266
80. Pursuit of a vessel into non-territorial waters for infrac-
tions of law
committed in
territorial waters
.
.
81. Piracy 82.Illustrative cases..
268.. .
.276
CHAPTER
VII.
SELF-PRESERVATION.83.
Right of self-preservation in general
.
.
.
.281
84. Permissible action within foreign territory against individuals making it a starting-point for attack .282.
85. Permissible action within the territory of states which are not free agents.
.
.
.
.
.
86. Permissible action in non-territorial waters
.
.
.284 .287.291
87. Protection of subjects abroad
.
.
.
.
CHAPTER
VIII.
INTERVENTION.88.
The
equivocal character of intervention
.
.
.
297
89. General conditions of the legality of intervention
.
.
298
CONTENTS.SECTION
XV11PA.GE
90. Classification of the grounds
upon which intervention299299
has taken place, or which are alleged to be sufficient91.
Self-preservation
92.93.94.
Restraint of wrong-doing
Treaty of guarantee
...... ..... ......war.
302
305306307
Invitation by a party to a civil
.
.
95. Intervention under the authority of the body of states.
CHAPTERTHE AGENTS OF A STATE INITS
IX.
INTERNATIONAL RELATIONS.
96.
Enumeration of the various kinds of agents of a
state
.
310
97. Persons to
whom
the
management.
of foreign affairs is.
committed by the constitution of the state98. Diplomatic agents..
.
.
.
Refusal to receive them
.
.
.
.
.310 .312 .312.
Commencement98*.
of their mission
Rights of diplomatic agents
..... ..
315
316
98**.99.
Termination of a mission
.
.
.
.
.317
Diplomatic agents in friendly states to which they are not accredited .322..
.
.
.
100.
Diplomaticdiction.
agents.
found..
within.
enemy.
juris.
.324terri-
101.
Diplomaticstate to
agents found by the enemy of the
which they are accredited in theof
tory of the latter1
......forces of the state.
325
02. Officers in
command
armed
.327329
103. Diplomatic agents not of publicly acknowledged character 104. Commissioners
104*. Bearers of despatches105. Consuls
......... ........ ....... .........byits
330
330 330338
106. Responsibility of a state for acts done
agents
.
XVlll
CONTENTS.
CHAPTERTEEATIES.SECTION
X.
PAGE. .. .
107. Division of the subject1
339.
08. Antecedent conditions of the validity of a treaty
109.
Formsits
of contract
........ . ..
.340343
no.
Ratification
by the supreme power of treaties.
made by
agents
-345.
in.112.113.
Interpretation of treaties
-35-356358
Interpretation of conflicting agreementsTreaties of guarantee.
......
114. Effects of treaties
.
-362..
115.11
Modes of assuring the executionExtinction of treaties.
of treaties..
362
6.
.
117.
Renewal
of treaties
.
.
.
.
.
.
-3^3 -375
CHAPTER
XI.
AMICABLE SETTLEMENT OP DISPUTES; AND MEASURES OP CONSTKAINT PALLING SHORT OP WAR.1 1 8.
Modes of
settling disputes amicably
119.1
Arbitration
20. Retorsion
and Reprisal
121. Pacific blockade122.
....... ........ .. .
378378381
.
.
.
.
.
.
386
Embargo
in contemplation of
war
.
.
.
.390
CONTENTS.
XIX
PART
III.
THE LAW GOVERNING STATES IN THE RELATION OP WAR.CHAPTERSECTIONI.
COMMENCEMENT OF WAR.PAGE
Whether the issue of a declaration or manifesto before the commencement of hostilities is necessary -391 124. Negative effects of the commencement of war 399 125. Abrogation and suspension of treaties 399123...
.
.
.
126.
Termination of non-hostile relations between subjects of the
enemy
states,
and between the
government of the one and the subjects of theother
........CHAPTERII... . . ...
405
EIGHTS WITH RESPECT TO THE PERSON OF ENEMIES.127. Limits to the rights of violence against the person of
enemies128. Non-combatants129. Combatants
.
.
.
.
.
.
.
.
.
.
.
.
.
130. Treatment of sick131.
and wounded
.
.
.
.
.411 .412 .413 .416.
What
persons
may
be made prisoners of war
132. Treatment of prisoners of war 133. Dismissal of prisoners on parole 134.
Ransom and exchange
135. Rights of punishment
and security
..... ...... .......
420423
.
.
.425426
430
CHAPTER136. Division of the subject
III.
RIGHTS WITH RESPECT TO THE PROPERTY OF THE ENEMY.
137.
Rough
division of property susceptible of appropria.
tion from property insusceptible of appropriation
138. State property
...... ........its
434 435
435441
139. Private property within the territory of
owner's state
b
2
XXSECTION
CONTENTS.Contributions and requisitions
140.
..... . .
PAGE
443
140*.
Under what
may141.
conditions contributions and requisitions be levied by a naval force.
.448.
Foraging
453
142.
Booty
.
.
453
143.
Property in territorial waters of its own state Private property within the jurisdiction of an enemy 144.
.
453453
.
145.
Property entering his territorial waters after the
commencementstate
of
war
.
.
.
.
-459460 460466
146. Private property in places not within the jurisdiction of
any14*7.
Theory of the immunity of private property at sea from capture
........ ......andits effect.
148.
Exceptions to the rule that private property at sea may be captured
......
149. 150.151.152.
What
constitutes a valid capture,
Disposal of captured property
Ransom
.... ..........
470474 478479
Loss of property acquired by capture
CHAPTER
IV.
MILITAKY OCCUPATION.153. Nature of military occupation in its
primd facie aspectto its character.
.
481
154.
The
theories
which have been held as
.
481
155. Extent of the rights of a military occupant 156. Practice in matters bearing on the security of an.
.
488
occupant
......... .
490
157. Practice in administrative matters, &c.1
58.
Use of the
resources of the country
.
.
.
-494 .496
159. Legal relation of an enemy to the government and . people of an occupied country.
1
60. Duties of
an occupant
1
6 1.
When
occupation ceases
CHAPTER162. In
POSTLIMINIUM.
what postliminium
consists
163. Limitations on its operation
...... ...... ..... ......
.498499
500
V.
505507
CONTENTS.SECTION
xxiPAGE
164.
The
effect of acts
rights
.........done by an invader in excess of his.
508
165. The
the expulsion of an invader by a power not in alliance with the occupied stateeffect of..
.509512
1
66. Special usages with regard to property recaptured at sea
CHAPTER
VI.
ENEMY CHARACTEE.167. Persons and property affected with an enemy character other than subjects and property of an enemy state1:
515:
68.
How personsi.
become
affected with.
an enemy character.. .
Through domicilThrough
.
.
517
1
68*.
2.
civil or military
employment
.
.521523
169.
How
property becomes affected with an enemy character
170. Questions with regard to
524
171.
Things sold by an enemy during war, or beforeits commencement in anticipation of war 524 Goods consigned by neutrals from neutral ports to an enemy consignee, or vice versa .527.
172.
.
173.
Places belonging to a belligerent, which are in the military occupation of his enemy..
528 530532
174.
Places under double or ambiguous sovereignty
175.
The
effects of a personal
union
.....
.
CHAPTER176. Division of the subjectHostilities on land:
VII.
MEANS OF EXERCISING THE RIGHTS OF OFFENCE AKD DEFENCE.
.......
535
177.178.
Question as to who are legitimate combatants Whether an authorisation from the sovereignnecessary
535
is
-537is:
179.
How farMaritime
possession of the external characteristics
of soldiershostilities
required
......
542
1
80.
Regular forces of the state and privateersVolunteer navy.
.
546
1 8-1.
.
.
.
.
-547
xxiiSECTION
CONTENTS.PAGK
182.
Right
of
non-commissioned vessels
capture183.
.......to.
resist
550
Attack by non-commissioned vessels illegitimate
550551
184. General limitations
upon the rights of violence
.
.
Specific usages with respect to
185.1
The meansDeceit
of destruction which
86.
Devastation
.......may be employedVIII..
552
553
187.1
-557559
88. Spies
CHAPTER
NON -HOSTILE RELATIONS OF BELLIGERENTS.189. General character of non-hostile relations.
.562.
190. Flags of trucei
J i. Passports
192. Suspensions of
193. Cartels
......... .... ..........
.
.
.
.
.
.
562
564565
arms and armistices
570572
194. Capitulations195. Safeguards
.....
575. .
196. Licences to trade
.
.
.
.
575
CHAPTER197.
IX.
TERMINATION OF WAR.
Modes
in
which war may be terminated
.
.
.
579
198. Effects of a treaty of peace in settingobligations.
up.
rights and.
.
.
.
.
-579-581.
199. Dates from which hostilities cease on conclusion of
a treaty
.
.
.
.
.
.
.
Effects of a treaty of peace with reference to
200.
Acts done before the commencement of the warActs done during the warof peace.
583
20 1.202.
.
.
.
.584585.
Acts of war done subsequently to the conclusion586
203. Termination of war by simple cessation of hostilities204. Conquest. .
.
.
.
.
.
.587.
205. Effects of conquest
.
.
.
.
.
.
592 593
206. Difference between the effect of cession and conquest
.
CONTENTS.
XXlll
PART
IV.
THE LAW GOVERNING STATES IN THE RELATION OP NEUTRALITY.CHAPTERTHE COMMENCEMENT OFSECTIONI.
WAR
IN ITS RELATION TO NEUTRALITY.PAGE
207. Notification
.....,.CHAPTERII.
596
(iKOWTH OF THE
LAW AFFECTING BELLIGERENT AND NEUTRAL
STATES TO THE END OF THE EIGHTEENTH CENTURY.208. Duties of neutral states to the end of the seventeenth
century209. Their rights
.........
.
.
.
.
.
.
598603 606
210.
Growth
of opinion in the eighteenth century.
.
.
211. Practice during the eighteenth century
.
.
608
212. Neutral duty in the latter part of the century, accordingto
De Martens
.
.
.
.
.
.
213. Neutrality policy of the United States
.
.
.613 .614
CHAPTER
III.
THE EXISTING LAW AFFECTING BELLIGERENT AND NEUTRAL STATES.214. General principles of law as ascertained at the end of the eighteenth century in their relation to modern
doctrine
.
.
.
.
.
.
.
.617
XXIVSECTION
CONTENTS.PAUK
215. "Whether troops can be furnished to a belligerent under .618 a treaty made before the outbreak of war.
216. Whether 217.
loans
by neutral individuals are permissible
.
619
Whether
the sale of articles of warlike use..
by.
a neutral.
state is permissible
.
.621.
218. Limits of the duty to prohibit the levy of219.
men.
.
622
Whether a neutral
state
may
permit a belligerent force.
to pass through its territory
.
.
220. Hostilities committed within neutral territory 221.
.
.623 .626.627
Use of neutral territory by a belligerentoperations.
as the base of.
.
.
.
.
.
an expedition .630 223. Expeditions combined outside neutral territory from elements issuing separately from it 631222.constitutes.
What
.
.
.
.
.
.
224.225*.
Equipment Usage and existing law.
of vessels of
war,
in neutral territory.
.
.
.
.
.634 '635
226. Effect of neutral sovereignty upon captured persons and. .641 property 227. Duty of a neutral state to procure redress for injuries done to a belligerent within its territory 643.. . .
.
.
.
228. Effect of resistance
b}'.
a belligerent attacked within. .
neutral territory
.
.
.
.648649
229. Reparation by a neutral state for permitted violation ofits
neutrality
230. Hospitality 231.
and asylum to land.
forces of a belligerent. ..
.
649
To
his naval forces
.
.
.650
CHAPTER
IV.
GENERAL VIEW OF THE RELATIONS OF BELLIGERENT STATES AND NEUTRAL INDIVIDUALS.232. General principles of the law233. Exceptional practicesi.: .. ..
-655657 660
Commercial blockade
234.235.
2.
Theof
rule of the
Heads
law
.... ........warof
1756
663
CONTENTS.
XXV
CHAPTERSECTION
V.
CONTRABAND.PAGE236. Uncertainty of usage as to
what.
objects are included in.
contraband237.
.
.
Practice in the seventeenth century
238. Practice in the eighteenth century239. Practice in the nineteenth century
.... ..... .
.
.665666 668
.
.
.
.
675
240. Opinions of
modern
publicists
.
.
.
.
.677.
241. Contraband not restricted to munitions of 242.
war
.
680
Whether contraband includesHorses, saltpetre, sulphur, and the raw materials of modern explosives .
243. 244.2
Materials of naval construction
CoalProvisions.
45.
.
.
.
246.
Clothing, money, metals, &c.
247. Penalties affecting contraband
.... .... ......
.
.
.682684
685
.
.
.
.687690
690
CHAPTERWherein
VI.
ANALOGUES OF CONTRABAND.248.their carriage differs from that of contraband
249. Carriage of despatches
.......
697
699701
250.251.
of persons in the service of the belligerent
Penalty incurred by the transport contraband. . ..
of analogues.. .
of
.702.
252. Carriage of despatches in the ordinary 253.of persons in the ordinary
way way of trade
of trade
703 705
.
CHAPTER
VII.
CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL VESSELS.254. Conflicting theories on the subject 255. History of usage 256. Effect of the Declaration of Paris..
.
.
.
.709710
.
.716
XXVI
CONTENTS.
CHAPTERSECTION
VIII.
BLOCKADE.PAGE.
257. In what blockade consists
.
.
.
.
.718.
258. Institution of a blockade, andaffected with a
how a
neutral becomes.
knowledge of its institution under which a blockade may be established 259. Authority 260. Conditions of the due maintenance of a blockade.
719 725
.
261. Effect of the cessation of a blockade
....when..
-725730
262. Conditions under which vessels lying in a port is placed under blockade can come out
it
731
263.
What
acts constitute a breach of blockade. . ..
.
.
.734736.
264. Penalty of breach
.
.
265. Cases of innocent entrance of blockaded ports
.
737738
266. Blockade of a river partly in neutral territory
.
.
CHAPTER
IX.SHIPS..
NEUTKAL GOODS IN ENEMY'S267. Conflicting theories on the subject.
.
-739.
268. Course of usage, and present state of the question269. Liability of neutral to incidental loss from capture
740743
.
CHAPTERVISIT
X.
AND CAPTUEE.746be visited.
270. Object of visit and capture 271.
Who mayMode
visit
and who
is liable to
.
.
746
272. 273. 274.
Whether convoyed
ships can be visited
-747754
of conducting visit
When
capture takes place.
756. .
275. Capture on ground of resistance to visit276.
756
on ground of fraudulent acts
277. Duties of a captor
........
.
.
.760761
CONTENTS.
XXV11
CHAPTER XLNEUTRAL PERSONS AND PROPERTY WITHIN BELLIGERENTJURISDICTION.SECTION
PAGE
278. General position of neutral persons and property within belligerent jurisdiction, and right of angary.
.764
TABLE OF CASES
.
GENERAL INDEX
.........
.
.
.
.
.
.769772
ADDENDA AND CORRIGENDA.la Mer, pp.i. read See Ortolan, Diplomatic de i, for See Appendix 746-752 (Edition of 1864). P. 171, note 2, for See Appendix ii. read See postea, p. 756, note i. P. 205, note, line 5 from bottom, fee/ore L. K. iv. P. D. insert The Consti-
Page
171, note
tution.
Jacquemyns read Jaequemyns. Appendix iii. read see Reports of Her Majesty's Representatives Abroad upon the Laws of Foreign Countries, Parl. Papers, Miscell. No. 3, 1893, and Cogordan, La Nationality, Annexes.i,
P. 224, note, lineP. 250,
for
note, for see
P. 308, note, line i, for Jacquemyns read Jaequemyns. P. 471, line 4 from bottom, for Consolat del Mar read Consolato del Mare. P. 485, note, line i, for i. Edwards, 182 ; read The Santa Anna,
Edwards, 180.P. 625, at
end of note add
J
But by the opening
of the line
from Ulm
to
Basle via Sigmaringen, Tuttlingen, and Waldshut, which passes altogether clear of Swiss territory, an alternative route has now been provided. J
INTEENATIONAL LAW.
INTRODUCTORY CHAPTER.INTERNATIONAL lawwhich moderncivilised
consistsstates
in
certain rules of
conduct In whatconsists
regard as being binding on tionaUaw
them
in their relations with one another with a force
com-
-
parable in nature and degree to that binding the conscientious
person to obey the laws of his country, and which they alsoregard as beingenforceable by appropriate means in case ofinfringement.
Twoorigin
principal views
may
be held as to the nature and Viewsheldto be aninatureandis*
of
these
rules.
They may be considered
imperfect attempt to give effect to
an absolute right which;
assumed to
exist and to be capable of being discovered or be looked upon simply as a reflection of the moral they may development and the external life of the particular nations
which are governed by them.a distinctionis
to be
drawn between;
According to the former view, international right and
international positive law
the one being the logical applica-
tion of the principles of right to international relations,
andthe
furnishing the rule
by which
states
ought
to be guided
;
8
2
INTRODUCTORY CHAPTER.
other consisting- in the concrete rules actually in use, andpossessing- authority so far only as they are not in disagree-
ment with
international right.
According to the
latter view,
the existing rules are the sole standard of conduct or law ofpresent authority;rules
and changes and improvements in those can only be effected through the same means by which
they were originally formed, namely, by growth in harmony with changes in the sentiments and external conditions of the
body of states. As between these two views in their crude form the majority of writers appear to hold to the former, buta considerable number, while thinking that positive international law derives its force from absolute right, practicallyrefer to positive law as the only evidence of what is right ; so that international usage and the facts of modern state life return by a bye road to the position which they occupy in the
Reasonsing the
second view, and from which they appear at been expelled. In the following work the second viewcorrect.
first
sight to have
is
assumed
to be:
The
reasons for this assumption are as followsall
oftheseviews.
question as to whether an absolute right, applicable to human relations, exists, or whether if its exis-
Putting aside
tence be granted
its
dictates can be sufficiently ascertained,fatal,
two
objections, both of which seem to beit
may
be urged
against taking
as the basis of international law.is
The
first
of_these
that
it
is
absolute standard consists.
With some
not agreed in what the__ it is the law of God,
with othersothersit is
it
is
erected metaphysically.
a law of nature inductively reached, by Standards so different in;
origin necessarily differ in themselves
and
it is
scarcely too
much
to
say that
if
the fundamental ideas of the morewriters
prominent
systematic
on
international
law
were
worked out without reference
to that
body of international
usage which always insensibly exerts its wholesome influence whenever particular rules are under consideration, there wouldbe almost as
many
distinct
codes as there are writers of
INTRODUCTORY CHAPTER.1
3is
authority
.
The
difference of opinion thus
shown
no doubt
not greater than that which exists as to the principles by which the internal life of a state ought to be regulated, and as to the origin and sanction of those But the principles.external conditions under which individuals
and
states live
with reference to law, or with reference to law in the onecase ;
and
to rules equivalent to
law
in the other, are
wholly
dissimilar.
Law
in
modern
civilised states presents itself as
being imposed and enforced by a superior, invested withauthority for that purpose;to individuals, therefore,it
is
immaterial whether they agree with their neighbours as to the speculative basis of law they have not to reason out;
The fundamental ideas of the writers who have exercised most influence upon other writers or upon general opinion, may be shortly stated as follows. Grotius based international law in the main upon a natural law! imposed upon man by the requirements of his own nature, of which the' cardinal quality, so far as the relation of one man to another is concerned, he supposed to be the social instinct. This natural law he regarded as existing independently of divine command (De Jure Belli et Pacis, Prolegomena and lib. i. cap. i.). Pufendorf, by looking upon natural law as being imposed by a divine injunction, analogous apparently to the injunctions of religion, and as not being binding apart from such injunction, loosened the intimacy of its connexion with human nature ; and though he agreed with his predecessor in thinking that the social instinct at least is inherent in the human mind, he appears, in supposing it to have been given as a means of self-preservation, to elevate utility to the1
individual rather than right between man and man into its primary bk. ii. c. 2, 3). In one object (Law of Nature and Nations, bk. i. c. 2 important respect Grotius and Pufendorf were at one. Both considered that natural law not only forbids acts detrimental to the social state, but;
enjoins acts tending to its conservation, so that neglect to contribute to the maintenance of that state amounts to an infraction of law. Thomasius, on the other hand, narrows the sphere of law by reducing its injunctionsto the negative to do to you,'
maxim, Do not do to others what you do not wish them and relegates everything beyond this to the domain of morals, with respect to which no external obligation exists. It is unnecessary to point out what different international laws would be obtained by the logical application of the former and the latter of these theories respectively. According to Wolff, man is bound by the law of his nature to attain the highest perfection of which he is capable, and the obligation'
to
perform an act being regarded as giving rise to the rights necessary for performance, he is endowed with innate rights of liberty, equality, and security, which are necessary to his development. These innate rights others are bound in their turn to respect their acknowledgmentits;
B 2
4
INTRODUCTORY CHAPTER.by which they intend to be governed; them by a competent authority, and
for themselves the rules
the law
is
declared to
conscientious
persons
are
movedis
to
obedienceis
so
soon as
to conveyed on the other hand, are independent beings, them. States, no person subject to no control, and owning no superior
the
order in
which law
communicated
;
or
body
of
persons
exists
to
whom
authority has;
been
delegated to declare
only bound by rules science after reasonable examination to submitstates are to be subject to
a state is law for the common good to which it feels itself obliged in con;
if
thereforestrictly
anything which can either
may therefore be compelled, and their infringement punished. Subjectively also a man in the natural state is bound to assist his neighbourin arriving at the perfection which is the end of his being but the obligation implies no correlative right to demand its fulfilment, and compliance with it cannot therefore be enforced (Jus naturae methodo scientifico;
Thus the pertractatum esp. 28, 78, 197, 208, 640, 645, 659, 669, 676). natural law of Wolff distinguishes, like that of Thomasius, between law and morals, but it again enlarges the compass of the former by expressly:
results, the
importing into it the principle of right to liberty of action. In their one seems to lead to such laws as those which exist in actual
human
The societies, and the other provides free scope for a vague ideal. principle of liberty was converted by Kant into the key of his system. Liberty is a conception of the pure reason, which presents itself to thewill as the necessary condition of its action, and the practical principles founded upon it are the determining causes of particular actions, under a law of free obedience on the part of the will to the dictates of reason, and of corresponding external liberty, the presence of which is as necessaryto the action of the will as is internal freedom.
The
dictates of reason
indicate rights and obligations, and law consists in the conditions under which the choice of the individual with regard to their subject matter
can be reconciled with that of other
men on
the assumption of the;
independence ofits
all
upon any constraining
object is to prevent such inconsistent with the rational liberty of cannot exist between states, because they'
will on the part of another aberrant manifestations of will as are
all. Law, however, so defined, have no machinery for effecting this reconciliation by the use of a collective, constraining will through the means of legislation, which can only be employed in an organised social community. They are therefore in a relation of non-law, in which'
force is the only arbiter of disputes but this relation being in itself contrary to the dictates of reason, nations ought to issue from it by agreeing with each other to live in a state of peace. Thus Kant's doctrine on its;
international side, while it offers an ideal standard of conduct, dispenses with the necessity of obeying it, except on the condition of express compact (Metaphysische Anfangsgriinde der Rechtslehre).
INTRODUCTORY CHAPTER.or analogically be calledrules
5of
law, they
must accept a body
of its origin, or else theyprinciples
by general consent as an arbitrary code irrespectively must be agreed as to the general by which theyobjectionare to be governed.is,
The second
that even
if
a theory of absolute
right were jmiversally accepted^jthe measure of the obligations of a statejouldjiot be found in its dictates, but in the,
which are received as positive law by the body of states. Just as the legal obligations of an individual are defined, notrules
by the moral
ideal recognised in the
society to
which he
belongs, but by the laws in force within it, so no state can have the right to demand that another state shall act in
conformity with a rule in advance of the practical morality which nations in general have embodied in the law recognised by them ; and a state cannot itself fall under a legal obligationto
act^fei
different
way from thatshall act in
in
which
it
can demand
that
anther
state
like circumstances.
How-
ever useful therefore an absolute standard of rightas presenting
might be
an
ideal
towards which law might be made to
approach continuously nearer, either by the gradual modification of usage or by express agreement, it can only be a sourceof confusion
and mischief when
it is
regarded as a test of the
legal value of existing practices.
If international law consists simply in those principles and By whatstates agree to regard as obligatory, the the rules ur rt how such r principles and rules as may P P con* ing to purport to constitute international law can be shown to be stitute indefinite rules
which
question at once arises
sanctioned by the needful international agreement. No formal a l law has been adopted by the body of civilised states, and scarcely code
are
any
principles
consent.pressed.
have even separately been laid down by common ed The rules by which nations are governed are unexof their existence
as
law
-
The evidence
and of
their contents
must therefore be sought
in national acts
in other words, in
such international usage as can be looked upon as authoritative. What then constitutes an authoritative international usage ?
INTRODUCTORY CHAPTER.Usage, ofauthority
Up
to a certain point there
is
no
difficulty in
answering
this question.
A
large part of international usage gives effectfacts of state existence, essentialcivilised state life.
P rmc ipl es which represent
under the conditions of modern
Whetheris
these are essential facts in the existence of all states
im-
material
;
several of
them indeed
are not so.
The assumptionis
that they are essential, so far as that group of states whichsubject to international lawis
concerned,
lies
at the root of the
conduct ; and that they have come to be regarded in this light, and unquestionably continue to be so regarded, is sufficient reason for taking as authorita-
whole of
civilised international
tive the principles
and
rules
which
result
from them.
Anothermoral
it portion of international usage gives effect to certain
obligations,rules
which are recognised as being the source of legal with the same unanimity as marks opinion with respectthird basis of legislation can be found of such solid
to the facts of state existence.
No
value as are the essential facts of existence of a society and
the moral principles to which that society feels itself obliged Of both the foregoing kinds of usage, to give legal effect.therefore, it can be affirmed unhesitatingly that they possess
a
much higherIt
authority than any other part of international
law.
can also be affirmed as unhesitatingly that the principles which underlie them have been accepted not merely as forms of classification of usage, but as distinct sources oflaw.
States
are
consequently bound,
not
only to respect
those principles in the shape of existing usage, but in dealing with fresh circumstances to apply them wherever their applicationis
possible.
manner, whenbe
The international lawyer, in like the validity of practices claiming to testingis
facts or relations,
modes of regulating new within the scope of the prinjustified ciples in question, in going beyond the rules which can be drawn from the bare facts of past practice. He is able, andlegal, or indicating appropriate
ought, to hold that the principle governs until an exceptional
INTRODUCTORY CHAPTER.usageis
7it
shown
to
have been established^ or at least until
can be shown that the authority of the principle has been broken by practice at variance with it, but not treated as an
In other words, all practices or which militate against the principles in question, must be looked upon with disfavour, and the onus of proving that they have a right to exist isinfringement of the law.1
particular acts, claiming to be legal,
thrown upon themselves.Itis
to be observed that the accepted principles of inter-
national law sometimes lead logically to incompatible results.
In such cases
it
is
evident that as neither of two ultimate
principles can control the other, and reconciling legislation at the hands of a superior is from the nature of the case
impossible, there
is
nothing but bare practice which can
fix
at
what point the inevitable compromise is to be made. It is more difficult to determine the value of arbitrary
Usage, of
usages unconnected with principle, or of usages professing either to be the groundwork of rules derogating from accepted P en In some principles, or to form exceptions from admitted rules.
^^
'
is*
may establish their authority ; but in be a question whether the practice which may upholds them, though unanimous so far as it goes, is of value enough to be conclusive ; and in others again it has to becases their universality
others there
decided which, or whether either, of two competing practices, or whether a practice claiming to support an exception, is
strong enough to set up a new, or destroy an old, authority. To solve such questions it is necessary to settle the relative These split themselves into two great value of national acts.divisions,
namely,
unilateral
acts
and
treaties
and other
compacts.It
appears to be usually thought that treaties are more
Treaties.
important indications than unilateral acts of the opinion ofthe contracting parties as to whatis,
or
ought to
be, the
law ;
and
even frequently considered that they are in some sense a fountain of law to others than the signatory states.itis
8
INTRODUCTORY CHAPTER.latter notion rests is
The reasoning upon which theintelligible.
not very'
It
is
conceded that 'in the
full rigour of the
law, treaties are only obligatory on the contracting parties ; but it is nevertheless held that 'when a certain number,freely entered into
by
divers nations, have embodied theit
same
principles of natural law, imparting totion,
the same interpretait,
and adopting the same methods for giving effect to although no one of them need be compulsorily applicablestates
to
which have not been parties to it, a sort of jurisprudence a species of law is formed, which the majority ofnations recognise as being obligatory, even upon those who have not signed any of its constituent parts 1 .' The doctrineis
more
seldom stated with this openness and breadth, but it is or less consciously implied in the use which is generallyof
madethere
whatbe
is
called the conventional
law of nations.it
In
spite of the largeness of the support which
thus receives,at
can
no
hesitation
in
dismissing
it
once asis
essentially unsound.
As a
pact between two parties
con-
1 Hautefeuille, Des Droits et des Devoirs des Nations Neutres Discours Preliminaire. Calvo, Le Droit International, 3 ed. 24, puts forward the same view more indefinitely, but with sufficient distinctness and:
;
e Bluntschli, Le Droit International Codifie, 2 ed. 794, adopts it by implication in looking upon the declaration of the Treaty of Paris with
jrespect
to the effect of the flag on enemy's goods as universally binding, notwithstanding that the United States have not yet adhered to it. Ortolan (Diplomatie de la Mer. Notice Additionnelle) states the reasons for the supposed authority of treaties as follows. The authors, he says, who have asserted it ont envisage successivement et separement les conventions conclues a diverses epoques par chacune des puissances civilisees avec les autres ils ont reconnu que, dans ces instruments publics ayant pour but non seulement de regler des interets de detail et particuliers, mais encore de fixer les grands principes d'inte"ret general, quelques-uns de ces principes etaient toujours ou le plus souvent reconnus d'un commun ac' ;
cord
;
que
si,
dans des temps de guerre ou de mesintelligence, 1'abandon de
ces principes avait eu lieu quelquefois, les peuples, instruits par experience des consequences funestes de cet abandon, avaient proclame de iiouveau ces
memes principes dans leurs traites de paix,et en avaient stipule I'observationconstante pour 1'avenir. Des lors on a ete fonde a deduire de cette conformite presque generale de decisions une theorie de ce qui se pratique ou de ce qui doit se pratiquer entre les nations civilisees en vertu des stipulations ecrites; et c'est la ce que Ton a nomme droit des gens conventionnel ou des traites.'
INTRODUCTORY CHAPTER.fessedly incapable of affecting a third
9in
who has
no way
assented to
terms, the only ground on which it is possible that treaties can be invested with more authority than otheritsis
national acts
that,
when they
enshrine a principle, they are
supposed to express national opinion, in a peculiarly deliberate
and solemn manner, and therefore to be of more value than other precedents. Even if this were the case, treaties wouldbe a long
way frombutit
f
establishing
a sort of jurisprudence'
separable from that produced
by
the aggregate of deliberate
cannot be admitted that the greater number of treaties do in fact express in a peculiarly solemnnational acts;
manner, or indeed atas to
all,
the views of the contracting parties
what
is
or
ought
to be international law.
Treaties included
to express principles of
amongst those which have been supposed law appear to be susceptible of divisionoleclaratory of
into three classes1.
:
Those which are
law as understood by the
contracting parties.
Those which stipulate for practices^ which the contracting parties wish to incorporate into the usages of the2.
law, but which they
know
to be outside the actual law.
3. Those which are in fact mere bargain^Jn which, without any reference to legal considerations, something is bought by one party at the price of an equivalent given to the other.
The
first
of these kindsrare.
is
for
precedent extremely
A
any purpose of international few instances there no doubt
are of international instruments declaratory of true law ; such, for example, as the Protocol signed at the Conference of
London
in
1871, by which the representatives of Russia,
Austria, France,
Germany, Greatit
Britain, Italy,
and Turkey,
stated that they recognised
to be
an
essential principle of
the law of nations that no power can be released from the
engagements of treaties, or modify their stipulations, except with the consent of the contracting parties amicably obtained. But the greater number of the few treaties which profess to
10
INTRODUCTORY CHAPTER.
be declaratory are of the type of the Acts and Conventions of the two Armed Neutralities, and the Convention for the
common
defence of the liberty of trade betweenin
Denmark
and Sweden
1794, which
may
be taken by implication
to assert the principles of the first
Armed
Neutrality, and toit is
be declaratory of
them
as general law.
In these cases
certain that the weight of authority
was not
in accordance
with the provisions of the treaties, and that their object was simply to enforce new rules upon a third state in the commoninterest of the contracting parties1.
Certain_introductory clauses are usually found in treatiesof commerce,
which do in fact involve principles of existingusage,asin
international
the
case
of
stipulations
that
there
be friendship between the contracting nations. This and like covenants, however, are now mere words ofshall;
they add nothing to the authority of the principle Once no doubt they were necessary; but long after they ceased to be so they remained as common forms of opening, and it can only be supposed that theysurplusage
which they embody.
owe
such the position which they occupy as the sole exceptions to the general truth that expressto their use asstipulations are not
made
which both contractingselves to be bound.
law by parties would in any case feel themto ensure obedience to a
Of
the second class of treaties there are not2;
many which
enunciate principles1
but there are a very large number
not so insee2
Treaties are often referred to as declaratory of a principle which are Thus the Treaty of Vienna is sometimes said to be fact.
declaratory of the principles of freedom of navigation.39.
For
its
true effect
to
it
Treaties are sometimes referred to this class also which do not belong in fact. Thus the Treaty of Utrecht, which purported to have for one
of its practical objects the establishment of a justuni potentiae equilibrium, has been spoken of as being designed to affirm the doctrine of the balance of power. As examples of treaties which were really intended to enunciate principles may be instanced the Treaty of 1850 between Great Britain and the United States for the construction and regulation of a Ship Canal across Central America, and the Declaration of Paris in 1856.
INTRODUCTORY CHAPTER.
II
which have for their aim to define the objects which anundisputedprincipleis
to
be permitted to
affect,
or the
manner
in
whicharticles
it is
to be applied.
Such are those which
enumerate
contraband of war, those which prescribe
the formalities of maritime Capture, those directed to therepression of the slave trade,
and many of those regulating
the functions and denning the privileges of Consuls.
The
value both of the more general and the more specific kindsis
great to the international lawyer
;
not because the conof law, but
ventions which belong to
them can be a sourcewithreferenceto
because they
show the flow and ebba given
of opinion,
and
its
strength
at
time
particular
doctrines or practices.
Treaties of the third class are not only useless but misleading.
Unfortunately, they are also the most numerous.to affirm
Sometimes they mingle with conventions intendedor extend a principle in such
manner
as to blur their effect,
or even to
throw an
air of uncertainty
on the wishes of the
contracting parties; sometimes they contradict in a long succession of separate agreements what from other evidence would appear to be the settled policy of a nation sometimes;
they form a mere jumble in which no clue to intention can be traced. Thus in 1801, Great Britain and Russia and GreatBritain and
Sweden signed
treaties
by which enemy's goodswhile
in neutral vesselsin the
were rendered
liable to confiscation,
same year Russia and Sweden reiterated as between themselves the principle of the armed neutrality under whichhostile property
was protected by a friendly
ship.
During
the present century the United States have concluded tenrecited in the former that the contracting parties desired not only accomplish a particular object, but also to establish a general principle,' in the latter that the signatory states proposed Mntroduire dans les rapports international^ des principes fixes with reference to certain points of maritime international law. Apart from such express recitals, or from distinct external evidence, it would be rash to assume that a treaty is intended to enunciate a principle.It'
was
to
'
12treaties
INTRODUCTORY CHAPTER.under which neutral goods are confiscated in enemy's
goods as free in all cases not specially provided for by international agreement. Again, in 1785 the United States agreed with Prussia that contra-
vessels ; but their courts regard such
band of war should not be confiscable
;
by
their treaty of
1794 with England not only were munitions of war subjected to confiscation, but the list was extended to include materialsof naval construction;
and
in the only treaty since concluded
by
which the subject is referred to, except two in 1799 an ^ 1838 reviving that of 1785 with the United States, articles contraband of war are dealt with in the usual manner.Prussia, in
Instances of like kind might be endlessly multiplied, and it may be safely said that it is rarely that the treaty policy of any country is consistent with itself over a long period of time.
On
thus exposing the nature of treaties to analysis, no
ground appears for their claim to exceptional reverence. They differ only from other evidences of national opinion in that their true character can generally be better appreciated they;
are strong, concrete facts, easily seized
the
They movement
easily understood. of the greatest use as marking points in are, therefore,
and
of thought.
If treaties
modifying an existing
practice, or creating a
newif
one, are found tostates
growin
in number,
and to be made betweenof sufficient diversity;
placed
circumstances
they are found to become nearly universal for a while, and then to dwindle away, leaving a practice more or less confirmed, then it is known thata battle has taken place between
new and
old ideas, that the
former called in the aid of special contracts till their victory was established, and that when they no longer needed externalassistance, they no longer cared to express themselves in the
form of
so-called conventional law.
While, therefore, treaties
are usually allied with a change of law, they have no pcrwer to turn controverted into authoritative doctrines, and they
have butat
little
independentis
effect in
hastening the
moment
which the alteration
accomplished.
Treaties are only
INTRODUCTORY CHAPTER.
13
permanently obeyed when they represent the continued wishesof the contracting parties.
If the le^al value of national acts
is
not to be estimated Conclu.
sions as to
with reference to a divine or natural law, and
if treaties
are the legalDifferent s of
not necessarily more important, and occasionally, from being the result of a temporary exigency, less important than some unilateral acts, it remains to be asked whether all indications of national opinion with
mere evidences of national
will,
kll
^
acts,
reference to international law are to be considered of an equal
weight, except in so far as their significance
is determined by and whether, therefore, authority attendant circumstances, will attach to them in proportion to their number and to the
length of time during which they have been repeated. Subject to two important qualifications this may probably be saidto be the case.
Thegrowth
first_^ualification is thatis
unanimous opinion of recent a better foundation of law than long practice jm
But it the part of_some only of the body of civilised states. must be remembered that as no nation is bound by the actsof other countries in matters
which have not become expressly
or tacitly a part of received international usage, the refusal
of a single state to accept a change in the law, prevents
a modification agreed upon
by
all
other states from being
immediately compulsory, except as between themselves.rule, as altered for their purpose,
The
merely becomes an unusually foundation of usage, capable of upholding law in less time than if the number of dissentients had been greater.solid
^
Thus the provisions
of the Declaration of Paris cannot in
strictness be said to be at present part of international law,
because they have not received the adherence of the United States but if the signatories to it continue to act upon those;
provisions, the
United States
will
come under an obligation
to conform its practice to
them which will depend on the number and importance of the opportunities which otherin a time states
may
possess of manifesting their persistent opinions.
INTRODUCTORY CHAPTER.The secondqualificationis
that there are some states, the
usagesoiHsvhich in certain matterspreponderant weight.that the practice,first
must be taken
to have
It
is
impossible to overlook the fact
and England, and afterwards of England and France, exercised more influence on the development of maritime law than that of states weaker onof Holland
the sea ; and it would at the present day be absurd to declare a maritime usage to be legally fixed in a sense opposed to the continued assertion of both Great Britain and the UnitedStates.
The
acts ofit
minor powers
may
often indicate the
direction
would be well that progress should take, but they can never declare actual law with so much authority as those done by the states to whom the moulding of law has which
Whetherinternational la\\ constitutes a branch of true law.
been committed by the force of irresistible circumstance. In what has been said up to this point the rules governingthe conduct of states have been spoken of as legal rules it has therefore been implied either that they constitute a body;
of true law, identical in its essential characteristics with
law
regulating an organised political community, or at least that, if not identical with such law, they are so closely analogoustoit
as to be
other name.
It
more properly described as law than by any is however not uncommonly thought in
England
at any rate that neither of these views is correct The only fundamental distinction, it is said, which separates
legal
from moral
rules, is that the
former
are,
and the
latter
are
not,
commands given and
enforced
by a determinate
authority;
both are general precepts relating to overt acts, but in the one case a machinery exists for securing obedience, in the other no more definite sanction can be appealed to
than disapprobation ona section ofofit.
the
part of thethis test, it
communityis
or of
Judged by
urged, the rulesof
International
Lawby
are
nothing more than counselsthis criticism
morality, sanctioned
the public opinion of states.
That there
is
an element of truth in
must
be frankly admitted.
International law does not conform to
INTRODUCTORY CHAPTER.the most perfect type of law.Itis
15
not wholly identical in character with the greater part of the laws of fully developed societies, and it is even destitute of the marks which strikethe eye most readily in them.
But
it is
now
fully recognised
that the proper scope of the term law transcends the limitsof
the more perfect examples of
law_.
To what extentThe
it
transcends
them
is
not equally certain.societies
various ideas of
law formed in different
and times, and the various
groups of customs which have been obeyed as law, have probably not yet been sufficiently compared and analysed, and
an adequate comparison and analysis have been made, no definition or description of law can be regarded as final.until
During the continuance ofnational law, to ignore thetreated as law,
this state of uncertainty as to the
proper limits of law, it is impossible, in dealing with inter-
two broad
facts, that it is habitually ||a
knowledged
to be
and that a certain part of what is at present ac-il law is indistinguishable in character from it.to be erroneous that the
Even supposing the viewtime at whichit first
international usages constituted a branch of law
body of from the
acquired authority, the fact that states
and writers have acted and argued as if it were law cannot but affect the nature of the rules which now exist. Thedoctrinesof
international
law have been elaborated by acontroversies
y,
course
in international reasoning; are used in a strictly legal manner precedents
of
legal
;
the opinions
of writers are quoted as those for
and relied upon for the same purposes which the opinions of writers are invoked under
a system of municipal law; the conduct of states is attacked, defended, and judged within the range of international law
by reference
to legal considerations alone;is
and
finally, it is*
an international morality distinct from law, violation of which gives no formal ground of l complaint, however odious the action of the ill-doer may berecognised that there.
1 The above points are well put by Sir Frederick Pollock in a paper on the methods of Jurisprudence. Law Magazine, November 1882.
16It
INTRODUCTORY CHAPTER.mayfairly be
doubted whether a description of law is adequate which fails to admit a body of rules as being substantially legal, when they have received legal shape, andare regarded as having the force of law
by the persons whose
conduct they are intended to guide. It is moreover not true to say that municipal law is invariably enforced by a determinate authority. There are stages of social organisation in which public opinion, which is the ulti-
mate sanction ofis is
all
law, whether municipal or international,
often able only to say to the individual that, when the law broken to his hurt, he may himself exact redress if he can.
When whom
the early Teutonic societies allowed a person, upon a certain kind of legal injury had been inflicted, to seize
the cattle of the wrongdoer and keepsatisfaction, or
them
till
he obtained
when they
told
him
to refer a quarrel involving
legal questions to the issue of trial
by combat, they showed
much
the same powerlessness to enforce law directly that is Even at a far usually shown by the community of states.
more advanced point of development there is probably always some law which can only be supposed by a violent fiction to be enforced by a determinate authority. A custom which, onbeing infringed, is brought before the courts for enforcement, and is enforced by them, must have been law for someindefinite time before judicial cognizance can be
taken of
it.
If not, the courts have legislated,
whomsible;
and the person against the custom has been enforced is subjected to an ex post
facto law.
The
supposition of such legislation
is
inadmis-
fiction that the courts, without legislating, have by their decision transformed the custom retrospectively
and the
into
law,
is
as
unsatisfactory as fictions always
must
be.
Evidently the courts give effect to a custom because it is already regarded in the community as having the force of law ; and during the time that it has existed, before appealhas been made to the courts, it must have been imposed upon unwilling persons by the strength of public opinion alone.
INTRODUCTORY CHAPTER.To regard the foregoingIf the rulesfacts as unessentialis
17impossible.
known under
the
name
of international law are
linked
to
the higher examples of typical positive law by
specimens of the laws of organised communities, imperfectly developed as regards their sanction, the weakness and indeter-
minateness of the sanction of international law cannot be anabsolute bar tobar, the factsits
admission as law
;
and
if
there
is
no such
that international rules are cast in a legal
mould, and are invariably treated in practice as being legal in character, necessarily become the considerations of most im-
That they lie on portance in determining their true place. but on the of law is not to be denied the extreme frontier;
whole
it
would seem to be more
correct, as it certainly is
more
convenient, to treatinclude
them
as being a branch of law, than toof morals.
them within the sphere
PART
I.
CHAPTER
I.
PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES POSSESSING AN ANALOGOUS CHARACTER.PARTCHAP.I.I.
I.
PRIMARILY international law governs the
relations of
The communities governedbyinter-
the communities called independent states as volunTo a limited extent, as will be tarily subject themselves to it.seen presently,it
such o
may also
govern the relations of certain com-
national law.
munities of analogous character. The marks of an independent state are, that the community constituting it is permanentlyestablished for a political end, thatit
possesses a defined terri-
It is postory, independent of external control. tulated of those independent states which are dealt with byit is
and tiiat
international law that they have a moral nature identical with
that of individuals, and that with respect to one another they are in the same relation as that in which individuals standto each other
who
are subject to law.
They
are collectiveobli-
persons, and as such they havegations.
rights and are under
states as are
These postulates assume the conformity of the nature of such governed by law to the conditions necessarily;
precedent to the existence of law
because the capacity in a
PERSONS
IN
INTERNATIONAL LAW.
19
corporate person to be subject to law evidently depends upon the existence of a sense of right, and of a sense of obligation to act in obedience to it, either on the part of the communityat large, or at least of thewill
PAET
I.
man
or
body of men in
whom
theI
governing the acts of the community resides. In so far moreover as states are permanently established societies their
( t'
marks represent a necessary condition of subjection to law. A society, for example, of which the duration is wholly uncertaincannot offer solid guarantees for the fulfilment of obligations,
and cannot therefore acquire the rights which are correlative to them. It cannot ask other communities to enter intoexecutory contracts withit,
and at any moment
it
may
cease
to be a body capable of being held responsible for the effects
of its present acts.
On
the other hand, the marks constituted
by independencewhich,
Theirra
and association with
specific territory represent facts
though they determine the form of the particular law, arenot in themselves necessary to law. The absolute independence of states, though inseparable from international law in the shape which it has received,n
I
'
not only unnecessary to the conception of a legal relation between communities independent with respect to each other,is
but, at the very least,
fits
in
less
readily with
that con-
ception
indeed a
than does dependence on a common superior. If law had been formed upon the basis of the ideas
prevalent during the Middle Ages, the notion of the absolute independence of states would have been excluded from it.
The mindsideas,
ofif
and
men were at that time occupied with hierarchical a law had come into existence, it must have in-
volved either a solidification of the superiority of the Empire, or legislation at the hands of the Pope. Law imposed by asuperior
was the natural
ideal of a religious epoch
^ and inof the
spite of the fierce personal
independence of the
men
Middle Ages, the ideal might have been realised if it had not been for the mutual jealousy of the secular and religiousc 2
20
PERSONS IN INTERNATIONAL LAW.As it was, neither the Church nor the Empire became enough to impose law. With their definitive failure
PART1
I.'
powers.
strongto
a regulatory authority international relations tended to drift into chaos ; and in the fifteenth century interestablish
national life
was
fast resolving itself into a struggle for exis-
tence in
In such a condition of things no law could be established which was unable to recognise absoluteits
barest form.
independence as a fact prior to itself; and rules of conduct which should command obedience apart from an externalsanction were the necessary alternative to a state of complete anarchy.
That the possession of a fixed territory is a distinct requirement must be looked upon as the result of more general, butnot strictly necessary, circumstances. Abstractedly there is no why even a wandering tribe or society should not feel itself bound as stringently as a settled community by definitereasonrules of conduct
towards other communities, and though there
might be difficulty in subjecting such societies to restraint,or in
some
cases in being sure of their identity, theredifficulties to
would
be nothing in such
regarding them therefore to render the possession of a fixed seat an absolute condition of admission to its benefits. The explanation of the requirement must be sought in the circumstances of thespecial civilisation
exclude the possibility of as subjects of law, and there would be nothing
Partly, no doubt,
it is
which has given rise to international law. to be found in the fact that all com-
munities
civilised
enough
to
understand
elaborated legalsettled,
rules have, as
a matter of experience, been
but the
degree to
which the doctrine