CHAP. III The law of nature applied to nations 1 de la loi naturelle, appliqués a la conduite et aux affaires des nations et des souverains." Vattel's system of international law began with a recognition of the state as a corporate person having an understanding and will of its own and susceptible at once of obligations and of rights. He then argued, following the theory of primitive society accepted at the time, that "as men are subject to the laws of nature, and as their union in civil society cannot exempt them from the obligation of observing those laws, since in that union they remain none the less men, the whole nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all its undertakings." 2 The next step was to apply the law of nature in a proper and scientific way to the conduct of nations and of sovereigns; and the result was international law. But who was to be the interpreter of this application of the law of nature to nations? On the one hand, there were certain matters in which right and wrong stood out clearly, so that there could be no doubt as to the principle of law involved, and to such rules Vattel gave the name of the "necessary (or natural) law of nations." On the other hand, in the absence of a supreme authority capable of deciding between nation and nation, there were cases in which the application of the law of nature was not clear and consequently in which each nation must be allowed its own interpretation of the law of nature, with the result that the precepts of the law might be evaded by a nation, yet without the commission of a positive injury against the other party. These rules Vattel designated by the name of the "voluntary law of nations." In addition to these two forms of the law of nations Vattel recognized the existence of treaties in the form of "conventional law," and the existence of usages which constituted "customary law." But there must be no conflict between either conventional or customary law and the necessary law, since nothing could obligate a nation to violate the law of nature. Vattel's method, therefore, was entirely deductive. If the practice of nations was frequently quoted in support of a given proposition, it was merely because Vattel regarded it as The text of the edition of 1758 photographically reproduced, edited by A. de Lapradelle, with English translation, was published by the Carnegie Institution of Washington, 1916 ("Classics of International Law''). 2 3 Op. cit., Preface, vi. Op. cit., Introduction, § 5. 4 Op. cit., Introduction, §§ 24-26. III confirming the truth of a rule that he had already established a CHAP. priori. The real test of the lawfulness or unlawfulness of a given act was always its conformity with the law of nature. The system proposed by Vattel is elaborate and complex, but it is important because of the great influence exercised by him. upon the subsequent development of international law. No name was quoted more often than his during the century following the publication of his treatise. Judicial tribunals relied upon his authority, statesmen referred to him for arguments and precedents, and political philosophers were consciously or unconsciously influenced in their writings by him. If within recent years his name has passed into the remoter field of the history of international law, his system still dominates the thought of Latin Europe.1 Positivists A third group of writers has been classified as "Positivists" or The the Positive School. The emphasis placed by Zouche upon the customs of nations was pressed still further by Bynkershoek, a Dutch publicist, whose works, published in 1702-37, covered only a portion of the field of international law. For the law of nature he substituted reason, which, together with usage, constituted the two sources of international law. But permanent usage would appear to embody the dictates of reason; it represented the collective reason of successive generations and of various nations; and in consequence it imposed a reciprocal obligation as if such usage were based upon mutual consent.3 In this way Bynkershoek was enabled to appeal directly to custom in support of certain claims, and he even went so far as to assert in one place that there was no law of nations except between those who voluntarily submitted to it by tacit convention. John Jacob Moser, a voluminous German writer of the middle of the eighteenth century, pointed the way to the more modern conception of international law by concerning himself solely with the accumulation of treaties and usages which, in the form of precedents, gave a positive character to international law. A similar service was performed by George Friedrich de For further details of Vattel's system and an estimate of the extent of his influence upon writers and upon governments, see the introduction, by A. de Lapradelle, in the edition published by the Carnegie Institution of Washington, 1916; also "The Authority of Vattel," by C. G. Fenwick, Am. Pol. Science Rev., VII, 395; VIII, 375. 2 Quæstiones Juris Publicæ, Lib. I, Cap. 10. 3 De Foro Legatorum, Cap. III, § 10. Ibid., Cap. XIX, § 6. "Nys considers him, by reason of his historical labors, as worthy to be regarded as one of the "founders of international law.'' Le Droit International, I, 258. CHAP. d. Character of recent treatises: British American Martens, professor at Göttingen, whose Précis du Droit des Gens During the course of the nineteenth century and the opening years of the twentieth the progress of international law was marked by the increasing, and finally predominating, influence of the positive school. A number of writers still referred to the law of nature as the ultimate test of international justice, but usage and convention, now grown large in bulk, preoccupied the attention of the jurist. In Great Britain Sir William Scott, afterward Lord Stowell, as judge in the British High Court of Admiralty, gave to the law of prize in time of war the definiteness of a positive system, and incidentally delivered valuable dicta upon other branches of the law. Manning, in Commentaries on the Law of Nations, published in 1839, followed the old classification of the "natural" and the "positive" law of nations, and after the true Grotian tradition said that "customary law should be tested by the law of nature." 2 Phillimore, whose Commentaries on International Law were first published in 1854, spoke of custom and usage as outwardly expressing "the consent of nations to things which are naturally, that is by the law of God, binding upon them." 3 Hall, whose text on International Law, published in 1880, is accounted one of the best reasoned of the modern treatises, was strictly positive in adopting "the existing rules" actually in force between nations as the "sole standard of conduct or law of present authority." His positive attitude dominates the field of more recent British thought, as presented in the works of Lawrence, Walker, and Westlake. Oppenheim, while equally explicit in laying down that "only a positive law of nations can be a branch of the science of law," indulges freely in critical comment based upon general principles of justice.5 In the United States James Kent, the first of American publicists to attempt a connected statement of the rules of international law, took a definite stand in favor of the consent of nations 1 The publication of Martens's volume on the eve of the French Revolution makes it a landmark of progress up to the time of that great crisis. 2 Op. cit., 57, 69. International Law, 3rd ed., 1920, I, § 59. Oppenheim, although of German birth and education, wrote his important treatise while a professor at the London School of Economics and at Cambridge University, and he is therefore classed here among British writers. For an appreciation of his scientific attainments, see British Year Book of International Law, 1920-21, 1-9; Am. Journal, XIV (1920), 229. 8 III as furnishing the only positive basis of international law.1 Henry CHAP. Wheaton, whose Elements of International Law, published in 1836, exercised an important influence both in England and in the United States, followed more closely the Grotian tradition, and gave due place to deductions from general principles.2 The judicial decisions of Chief Justice Marshall and of Justice Story show a similar tendency to fall back upon general principles of justice where the inference from usage and custom is not convincing. Succeeding writers either reaffirm the traditional attitude of the Grotian school, as in the case of Francis Lieber and Theodore D. Woolsey, or in more recent years confine their attention, as in the case of Davis," Wilson,' Stockton, and Hershey, more exclusively to the restatement of general usage and the description of the growing body of international conventions. John Bassett Moore's Digest of International Law, published in 1906, is of special importance as setting forth in a wide variety of official documents the international practice of the United States. 10 It must be noted, however, that on many points the Digest represents the American interpretation of international law rather than the generally accepted rules. Charles Cheney Hyde's recently published work on International Law, Chiefly as Interpreted and Applied by the United States, is an exhaustive study of the subject within a similarly limited field. To these leading treatises must be added the voluminous publications," original and editorial, of James Brown 1 Commentaries on American Law, I; published in 1826. 'Wheaton defines international law "as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent. Op. cit., ed. 1866, § 14. The latest English edition of Wheaton is that by Coleman Phillipson, 1916. See, for example, the decision in Schooner Exchange v. McFadden, below, p. 201. 3 • Miscellaneous Writings, 2 vols., 1881. See also, Instructions for the Government of the Armies of the United States in the Field, below, p. 74. • Introduction to the Study of International Law, 6th ed., 1899. • Elements of International Law, ed. 1916. * Handbook of International Law, 1910. "Outlines of International Law, 1914. • Essentials of International Law, 1912. 10 The work in seven volumes and index, while based upon an earlier Digest by Francis Wharton, 3 vols., 1886, contains so large a body of original research study as to constitute an independent undertaking. "The most important of these are perhaps: The Hague Peace Conferences of 1899 and 1907, 2 vols., 1909; Cases on International Law, 1906; revised ed. 1922; The United States of America: A Study in International Organization, 1920; Judicial Settlement of Controversies between States of the American Union: an Analysis of the Cases Decided in the Supreme Court of the United States, 1919. CHAP. German Continental. Scott, whose theories with respect to international procedure have had a wide influence. German writers, like those of Great Britain and the United States, show a predominantly positive conception of the nature of international law. Klüber, who published in 1819 a volume in French entitled Droit des Gens Moderne de l'Europe, was still influenced by the theory of the natural law to the extent of having recourse to it to fill the gaps in the positive law and to give unity to its principles.' Heffter, whose volume, Das Europäische Völkerrecht der Gegenwart, appeared in 1844, was more positive in his attitude, discarding metaphysical speculation and seeking merely to present a clear and precise picture of the actual customs and treaties in force between nations.2 Bluntschli, in the introduction to his Code published in 1868, frankly stated that it was his intention "to formulate clearly the existing ideas of the civilized world." 4 This position is confirmed by the more recent standard texts of von Liszt 5 and von Ullmann. A similar attitude is to be observed, on the whole, in the works of the Swiss, Dutch, Scandinavian, and Russian publicists, among whom may be mentioned Rivier,' de Louter," Kleen," and Martens.10 3 On the other hand there is still manifest, principally among French, Italian, Spanish, and Latin-American writers, a tendency to refer to theories of absolute right as the ultimate source of law, although this attitude is often combined, as in the case of Bonfils11 and Despagnet,12 with an exhaustive study of international prac 1 Preface, Chap. I, § 5. Additional value attaches to Klüber's work by reason of its being representative of progressive thought at the time of the Congress of Vienna. Fourth edition, in French translation, edited by Geffken, 1883. Rivier commends Heffter as the best survey of the entire subject. Holtzendorf, Handbuch, I. Das Moderne Völkerrecht der Civilisirten Staaten als Rechtsbuch Dargestellt, 3rd ed., 1878. See below, p. 72. Das Völkerrecht Systematisch Dargestellt, 10th ed., 1915. • Völkerrecht, 2nd ed., 1908. The post-bellum treatises of Nippold and Niemeyer are distinctly constructive. See below, p. 60. 'Principes du Droit des Gens, 2 vols., 1896. 8 Het Stellig Volkenrecht, 2 vols., 1910; translated into French by the author under the title Droit International Public Positif, 1920. Lois et Usages de la Neutralité, 2 vols., 1898-1900. Kleen was, however, alive to the need of reforms in the law. 10 Traité de Droit.International, 3 vols., 1883-1887. Translated from the original Russian. Manuel de Droit International Public, 7th ed. by Fauchille, 1914. The 8th edition appears under the name of Fauchille, Traité de Droit International Public, Vol. II, 1921, Vol. I, Part I, 1922. 13 Cours de Droit International Public, 4th ed. by de Boeck, 1910. |