INTERNATIONAL LAW. INTRODUCTORY CHAPTER. DEFINITION, GROWTH, JURAL AND MORAL GROUNDS, SOURCES OF INTERNATIONAL LAW. § 1. In order to protect the individual members of human society from one another, and to make just society possible, the Creator of man has implanted in his nature certain conceptions which we call rights, to which in every case obligations correspond. These are the foundation of the system of justice, and the ultimate standard with which laws are compared, to ascertain whether they are just or unjust. They involve, amid all the inequalities of condition, a substantial equality of the members of society before the tribunal of law and justice, because the physical, intellectual, and moral natures of all imply the same capacity and destination, and because to the capacity and destination of man his rights or powers of free action must correspond. On this basis within the state, and often without any direct co-operation of its members, a system of law grows up, which, while it may be imperfect, approaches with the progress of society in knowledge and moral cultivation to the standard of perfect justice. And even the moral progress of society, the ability of its members to acknowledge their reciprocal claims, and discharge their duties to each other-to fulfil their part in that moral sphere which lies in great measure quite beyond the reach of positive law-this also is dependent to a great degree upon their correct estimate of rights and obligations. § 2. Nations or organised communities of men differ from the individual men of a state, in that they are self-governed, that no law is imposed on them by any external human power, but they retain the moral accountable nature, which must govern the members of a single society. They cannot have intercourse with one B another without feeling that each party has rights and obligations. They have, as states, a common nature and destination, whence an equality of rights arises. And hence proceeds the possibility of a law between nations which is just, as expressing reciprocal rights and obligations, or just as expressing a free waiver of the rights which are by all acknowledged, and which may also embody by mutual agreement rules defining their more obvious claims and duties, or aiming to secure their common convenience and welfare. (Compare § 27.) This law of intercourse between nations has been united with political law, or the doctrine concerning the constitution of the state and the relations of the government to the people, under the head of public law, as opposed to private, or to the system of laws within the state, by which the relations of its individual members are defined and protected.1 And yet there is a branch of this law which has both a private and a public characterprivate as relating to persons, and public as agreed upon between nations. This law is now extensively called international law. International § 3. International law, in a wide and abstract sense, would embrace those rules of intercourse between nations, which are deduced from their rights and moral claims; or in other words, it is the expression of the jural and moral relations of states to one another. law in the widest sense. According to this definition, if we could once find out what are the rights and obligations, the moral claims and duties of nations as such, by mere deduction the principles of this science would be settled. But such an abstract form of the science, commanding general assent, neither has appeared, nor is likely to appear. The advantage of separating international law in its theoretical form from the positive existing code depends, not on the possibility of constructing a perfect code according to a true theory, but on the fact that right views of justice may serve as a touchstone of actual usages and regulations; for in all jural science it is most important to distinguish between the law as it is, and as it ought to be. This same distinction is made by those2 who discriminate between international law-the positive admitted law-and international morality. But the latter term must be objectionable to those at least who make a distinction between morals and jus. The law of nations, both as it is and as it ought to be, does not confine itself within the jural sphere. 1 Compare for example, Klüber, § 2, and for the next remark Hurd's Law of Freedom and Bondage, § 25. The Germans excel us in the neatness of their divisions of jural science, e.g. Offentliches Recht is divided into Staatsrecht and Völkerrecht. 2 Compare an article attributed to Mr. Senior in Edinburgh Review, No. 156, for April 1843. § 4. limited sense. In a more limited sense international law would be the system of positive rules, by which the nations of the world International regulate their intercourse with one another. But law in a more in strictness of truth this definition is too broad, for there is no such law recognised as yet through all nations. Neither have the more civilised states of the East agreed with those of Europe, nor the states of antiquity with those of modern times, unless it be in a few provisions, which together would constitute an exceedingly meagre code. § 5. law Coming within narrower limits, we define international law to be the aggregate of the rules which Christian Actual positive states acknowledge, as obligatory in their relations international to each other, and to each other's subjects. The rules also which they unite to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Here notice 1. That as Christian states are now controllers of opinion among men, their views of law are beginning to extending spread beyond the bounds of Christendom, as into beyond ChrisTurkey and China. tendom, towards savages. : 2. That the definition cannot justly be widened to include the law which governs Christian states in their inter- but not observed course with savage or half-civilised tribes; or even with nations on a higher level, but lying outside of their forms of civilisation. In general, towards such nations, they have acted on the principle that there is no common bond of obligation between them and the other party, observing so much of international law as suited their policy or sense of right at the time. Especially towards savage tribes they have often acted with flagrant selfishness, as if they feared no retribution from a weaker party, or were beyond the reach of public opinion. (Compare § 136 and § 204.) 3. The rules of action agreed upon by two or more Christian states, but not by all, or the most of them, form no part of international law; although they often illustrate it, and often pave way for the admission of new modifications of it. the 4. Nations, it is conceded by all, have obligations towards foreigners, who are not constituent parts of any nation; or, at least, of a nation by which the law of nations is acknowledged. The consideration of the rights, or moral claims of such persons, belongs to international law, not as the system of rules observed between nations, but as involving obligations which all nations, or all Christian nations, acknowledge. voluntary nature. § 6. The way in which positive international law becomes such Genesis of inter- shows that it must be progressive and somewhat national law. Its uncertain. Right, as Heffter remarks,' is either guaranteed, under the protection and force of a competent power (as we see it in the state), or free, that is, the individual power or person must protect and preserve it for himself. The law of nations is of this latter kind. First of all, the single state sets up for itself its views of right against other states. If it gives up its isolation, it freely forms in intercourse with other states a common right or law, from which now it can no longer set itself free, without offering up, or at least endangering, its peaceful relations, and even its existence. Thus a law of nations can grow up only by the consent of the parties to it. It is, therefore, more a product of human freedom than the municipal law of a particular state. Its natural progress is to start from those provisions which are necessary in conducting political and commercial intercourse, while it leaves untouched, for a time, many usages which are contrary to humanity and morality; until, with the advance of civilisation, the sway of moral ideas becomes stronger. It grows into a system of tolerable Of later growth justice and humanity after, perhaps long after, municipal legislation has worked itself clear of many faults and errors. For although both branches of law have the same foundation of justice, and although a state, like Rome, for example, with an advanced system of internal laws, ought to have its views of international obligations purified; yet, as states have diverse interests and opinions, it takes time before a seeming interest can be given up, even after right is acknowledged to be on the other side; and it takes time to bring the views of nations to a common standard.2 than state law. $ 7. The same causes which have enabled Christian states to Why this law reach a higher point of civilisation than any other, arose in Chrishave made them the first to elaborate a system of tian states, 1 Völkerrecht, § 2. 2 A state in the lower grade of civilisation, like a savage, becomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may be, no better feeling than that of independence and self-reliance; in the state it helps the members to feel their unity and dependence, and the priceless value of the state itself. Hence war is a moral teacher: opposition to external force is an aid to the highest civic virtues. But if this were all, there could be no recognition of obligations towards foreigners, no community of nations, in short, no world. These conceptions grow up in man, from the necessity of recognising rules of intercourse, and intercourse is itself a natural necessity from the physical ordinances of God. Self-protection and intercourse are thus the two sources of international law; they make it necessary, and the conception in man of justice, of rights and obligations, must follow because he has a moral nature. |