CONCLUSION. DEFECTS, SANCTIONS, PROGRESS, AND PROSPECTS OF INTERNATIONAL LAW. § 222. INTERNATIONAL LAW, as we have viewed it, is a system of rules, adopted by the free choice of certain nations for the purpose of governing their intercourse with each other, and not inconsistent with the principles of natural justice. It has grown up by degrees, and has been submitted during its progress to sundry modifications. It is the most voluntary of all codes, but in other respects shares the character of national law. We propose, in this closing chapter, to consider briefly its defects, its sanctions, its progress hitherto, and its prospects for the future. 1. Defects tional Law. The principal deficiencies of international law grow out of its voluntary nature, and its being a law for the of Interna- conduct of perfectly sovereign independent bodies. Hence its slow progress, since it takes time for modifications or improvements of it to pass from one nation to another; and hence, also, in part, the different views of it taken by different nations, some of whom are in advance of their age in a sense of justice or of true international policy. But the principal defect arising from this source is tainty. the want of an authoritative exponent of its principles. When individuals differ in regard to their rights, the law as interpreted by the courts, decides at last between them. But no nation can set up its opinion on a doubtful question of international law as a rule for another. No text-writer has Its uncer such authority that all will abide by his judgment; not to say that he may need an interpreter himself, that new cases may arise which he has not contemplated, and that part of the law he has laid down may become obsolete. And thus, if nations have differed on some important question touching their rights, they have been prone, in the absence of any sovereign authority beyond themselves, to take the law into their own hands, to commit their cause to the sword. In regard, however, to the question, what is actually international law, there seems to be no impossibility that a congress of men learned in that department should prepare a code, on which all Christian nations or the great body of them should agree. Such a congress has appeared to many to be highly desirable. That its decisions in the shape of a code would introduce entire certainty into the science, or that its own language would not give rise to new uncertainties, is not to be supposed; still, many questions as to the rights of ambassasadors, of neutral territory, and of war on land and on the sea, and the like, could be so far settled, that there would be fewer grounds of controversy, fewer unintended violations of the law between nations than hitherto. As for the interpretation of such a code in the general, and when it should bear on no present dispute, it is not unlikely that a uniform view would grow up among the publicists of all nations. And if additions or changes should be found necessary in the progress of human society, they could be made with more ease than the original code itself. The uniformity of opinion, in regard to what international law actually is at the present time, is greatly aided by the increasing closeness of intercourse between those who devote themselves to that science. The "Institution de Droit International," embracing as it does all the leading writers in this department in Europe, and some outside of Europe, may be said to have for its object, together with projects of improving the science, the criticism of its actual state and of the movements in the way of political treaties and of congresses which are taking place among the nations. If those to whom the world must look for the actual state and the defects of this branch of the law, shall come to be of one mind, such agreement will have a good tendency in the end to produce uniformity among governments. Such uniformity would be of immense importance in preventing and in settling disputes between nations, for it would be a disgrace for any nation to oppose rules and principles which they themselves have admitted. 2. Its narrow limits. § 223. Another defect of existing international law is the limited number of nations to which it is applicable. As it is a voluntary code, to which neither the half-civilized nor the barbarian parts of the world have given their assent, the Christian states who make it a law between themselves, are in danger of acting as if no rules of justice bound them beyond their own circle, and as if nations which refused to abide by their rules of intercourse in any respect were to be treated as enemies. Formerly barbarous tribes were conquered under grant from the Pope to make Christians of them. Now great nations do not scruple to seize on islands or coasts with no sufficient pretext, or go to war because a nation of the East, in the exercise of its sovereignty, declines to trade with them. And when war breaks out in such cases, there is no acknowledged obligation to abide by the ordinary rules of humanity, nor indeed of justice. When Constantine was stormed, in 1837, by the French, besides the ordinary pillage of property by the troops, a scientific commission robbed the inhabitants of all the Arabic manuscripts they could lay their hands on. No cure can be effectual for this evil, until a deeper moral sense and feeling of brotherhood shall dictate rules, humane and just, by which the vessels of civilized nations shall govern their intercourse with the weak and the barbarous parts of the world. Nor even then will lawless crews abstain from outrages which will be avenged on the next ship, and thus new fuel be applied to kindle up the ferocity of savages. And for every outrage there will be a plea, which will prevail, because the savages cannot tell their own story. We have already re marked (§ 143), that rules of intercourse with such races of men cannot be conformed to our international code, and that punishments must often be summary with them, to be understood. But is justice, is humanity, to be thrown off, as being conventional? Can there be a doubt that, if all the ships of Christian states had dealt kindly and righteously with the islands of the sea, long ago they would have been far more open to Christianity and civilization than they are now. § 224. Means of strife be tween na tions. There is no natural umpire between nations, and no direct way of preventing war, however certain the rules of international law may be. Nations, however, like preventing individuals, may seek the good offices of others, when involved in strife, or friendly powers may offer their aid for the purpose of endeavoring to prevent war between their friends. There are three ways of doing this: mediation, arbitration by standing courts, and private or compromissory arbitration. And these means, especially the two latter, may be used also to restore peace. 1. Mediation may be solicited or offered, and differs not from attempts of private parties to reconcile two friends. It has a most natural origin, and has always Mediation. been in use. At the Congress of Paris, in 1856, the following recommendation was passed by the representatives of the powers there treating of peace. "The plenipotentiaries do not hesitate to express in the name of their governments, the wish that states, between which a serious disagreement should arise, would, before appealing to arms, have recourse, as far as circumstances admit, to the good offices of friendly powers.' This is a safe and a tame recommendation; but it ought to be taken into account that in some cases, as in that of internal strife, the circumstances would hardly admit of interposition. Mediation is of use especially in preventing war. Sometimes one or both the parties may ask for it. Sometimes the offer from a powerful third party might almost amount to a threat. Sometimes with it a suggestion of terms may be made to one or both of the parties. Sometimes the decided expression of a friend's opinion will lead a state to pause or draw back from the use of violence. Public arbitration. 2. A second way of preventing war, is public arbitration, in which the judges, process, and result are determined, not by the parties pro re nata, but by the terms of an alliance intended to have continuance. It must be a court with a power to decide, and to enforce its decrees by an army placed by the allies at its disposal. It seems evident that such a court of arbitration could not be founded, or could not be lasting, unless the members had the same notions of justice, and were nearly equal in power. At least, if one strong nation were thus allied with several weak ones, there would be danger of its employing the power put in its hands, for the oppression of the confederacy. The proper sphere of such a system would be in a collection of homogeneous states. Of course disobedience to a decision of the court must involve war; a military execution must be put into the hands of some of the members, and in the end, the whole body instead of a few members, might be involved in war. Or if fines could be levied instead of immediate force, this would be but a delay of the evil. On the whole, unless the body constituting the court had some reason for keeping up their organization besides that of preventing disputes, it is not likely that it could long hold together. Plans of ar $ 225. Plans of arbitration grew up naturally on the soil of Greece. This is not the place to examine them at large; bitration. we will only say that it may be laid down as a rule of public law between those Greek states, which for any reason had a close union with one another, that war was not to be waged, until the method of judicial decision had been tried and failed. So also, we are indebted for the remark to Schömann ("Gr. Alterth.," ii., 5), after peace had been made, questions of interpretation and of breach of peace were 1 Compare article on Arbitration, International Review for January, 1874. |