СНАР. IV Conventions of the Hague Peace Con ferences the parties, but can obviously create no obligations on the part of other states. They have been called, for want of a better name, "particular international law." They are no more than contracts between two parties looking to their separate interests, as in the case of private contracts between citizens under municipal law. If, however, similar bilateral agreements are entered into by all the states of the world taken two by two, as in the case of extradition treaties, a point is reached where such treaties become practically equivalent to a source of international law. Of a distinctly different character are the so-called "law-making" treaties, such as the Declaration of Paris of 1856, entered into originally by a small group of powers acting in their collective interest, and containing a clause inviting other nations to adhere to the rules laid down in them. When the transition from limited agreements to general agreements has been duly effected by the subsequent adhesion of a large number of states, such treaties become a true source of international law.1 The meeting of the First Hague Conference in 18992 gave a more definite and recognized position to treaties as a direct, if not an immediate, squrce of international law. At this conference important agreements, technically called conventions," were entered into, which gave universal application to certain existing usages of limited practice, abolished certain others, prescribed new rules of international conduct, defined rights, and imposed definite obligations. The Hague Conference of 1907, attended by practically the entire body of states, went still further in concluding general conventions, though as in the case of the Conference of 1899 the agreements relate for the most part to the conduct of war. Several qualifications must, however, be made in respect to the Hague conventions as sources of international law: first, they became binding only upon ratification by the several states acting individually; second, the condition attached to these conventions, to the effect that they might be at any time denounced by the parties to them upon giving due notice, must be expressedly or impliedly waived before they can be considered as settled law; and, 'The Geneva Convention of 1864 is an instance of a similar treaty adopted by a group of powers and subsequently adhered to by practically all states. The Declaration of St. Petersburg, although adopted by a considerable number, failed to win general acceptance. See below, pp. 502; 463. With exception of the United States and Mexico, the American republics were not represented. IV third, certain of them are not binding even between the powers CHAP. that have signed and ratified them in case third states, not parties to the convention, become involved. It must be noted that many of the provisions of the Hague conventions merely codified existing custom; and in consequence the rule so codified continued to be binding as custom, even where the formal convention failed of ratification or where it came to be denounced after having been ratified.2 relating to interests In addition to the conventions of the Hague conferences there Conventions is the large body of international conventions which have been general adopted from time to time by congresses and conferences called to secure an agreement upon particular matters of the general welfare of the international community. The characteristic feature of these conventions is the fact that they deal for the most part with economic and social interests common to the nations without distinction, and that the objects sought by them have required as a rule the establishment of administrative commissions to carry out the general policies agreed upon in the convention. Instead of seeking to regulate the conflicting claims of nations, these conventions are concerned with the promotion of the public good, Jand they may be distinguished from treaties having the former object in much the same way as national legislation for the general welfare is distinguishable from the legislative enactments constituting "private law," dealing with the rights of individual citizens. In most cases the convention has created what is known as a "union" or association of the contracting powers for the furtherance of the particular object of the agreement. Its administrative organ consists of a bureau or commission, having a fixed personnel, permanent in character and supported by pro-rata contributions from the member states of the union. The number of these conventions multiplied rapidly during the last quarter of the nineteenth century. Conspicuous among them before 1914 were the Universal Postal Convention of 1906, replacing earlier conventions, the International Metrical Convention of 1875, the Convention for the Protection of Industrial Property of 1883, the Convention for the Suppression of the African Slave Trade of 1890, the International Sanitary Conventions of 1903 1 The failure, for example, of Serbia to ratify the several Hague conventions relating to the conduct of war had the effect in 1914 of rendering the conventions technically not binding upon the other belligerents who had ratified them. See below, p. 432. 'See below, p. 433. Scope of economic and social conventions CHAP. IV b. Evidences of international law and 1913, the Agreements for the Suppression of the White Slave Traffic of 1904 and 1910, and the White Phosphorus Convention and the Convention Prohibiting Night Work of Women of 1906.1 Since 1919 the number of these general conventions has continued to grow. Sixteen distinct labor conventions have been adopted, pursuant to the agreement contained in Article 23 of the Covenant of the League of Nations. Two important conventions were adopted at Barcelona in 1921, one dealing with mutual freedom of transit across land territories and the second dealing with similar freedom over international waterways. A supplementary White Slave Convention was adopted in 1921. In addition there are the treaties for the protection of minorities, which, being entered into with the signatory states of the several peace treaties, approximate to the status of general conventions. Finally, there are the administrative measures taken by the League of Nations directly, looking to such matters of general welfare as international sanitation, the suppression of the opium trade, and the protection of minorities.2 Distinct from custom and treaties as sources of international law are the "evidences" of international law, the documentary material bearing witness to the existence of particular rules. Owing to a confusion among writers as to the proper use of the term "sources," the evidences of the law have frequently been classed as sources, and they might perhaps be not inaccurately described as "secondary sources." The most conspicuous of these evidences are the texts of international law-making conventions, with the qualifications above noted that they are conditionally rather than absolutely binding and that they codify to a large extent customs which would be law independently of the formal agreement. More important evidences, because of their greater scope, are the historical documents which contain the record of international practice and of the negotiations attending the settlement of disputed rights. Among these documents the records of the foreign offices of the several states must be given first place, although they are not in many cases accessible source material for the investigator. Within recent years the official publications. of the nations have greatly increased in volume, so that nowadays 'See Reinsch, Public International Unions; Oppenheim, International Law, I, § 581-596; Potter, International Organization, Chap. XVII; Woolf, International Government, Part II. 'See Handbook on the League of Nations, 1920-1923. IV the student has at his disposal not only collections of treaties, but CHAP. volumes of official correspondence, as well as decrees, proclamations, special instructions to the various branches of the government, statements bearing upon international relations, etc. When these records of the leading states are collected and compared it is possible to deduce from them, with some degree of finality, the existing rule of law. publicists of inter national law In consequence of the difficulty of access to the_primary_source Works of material of international law, the most available evidences of inter- as sources national law are the works of jurists and scholars who have undertaken to compile the rules of international law in force at the time of their writing. So important were the works of jurists in the earlier stages of international law that a number of them may be classed as direct sources of international law. The great treatise of Grotius would have fallen short both of the author's high purpose and of the world's needs had he been content to do no more than record the actual practices of the nations. The urgent task, as he felt, was not to set forth the uncertain and unjust usages of the time, but to lay down better rules of conduct based upon inferences from moral principles acknowledged in the abstract but consistently violated; and his appeal from existing practice to the ideal conduct was so forcible that his words became authoritative, and statesmen relied upon his judgments as the correct inference from accepted general principles. The treatise published by Vattel in 1758 won for itself the approval of statesmen as a correct statement both of abstract rules and of concrete practices; it became the reference-work of foreign offices, and was quoted with finality in diplomatic negotiations and in the decisions of national courts.2 Since the eighteenth century the works of publicists have been Works of limited more strictly to the part of evidences of international law. as evidences These writers, said Wheaton, writing in 1836, "are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked. by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary 'Moore's Digest of International Law is one of the most valuable collections of such documents, showing the interpretation and application of international law by the United States. During the World War the practice was followed by the several states of issuing official "white," "blue, "red," and other colored "books" containing diplomatic correspondence and governmental decrees and pronouncements. publicists 2 See above, p. 53. CHAP. IV Decisions of international courts 2 piinciples." 1 Other evidences of international law, to be used with even greater caution than the works of great writers, are the decisions of international and national courts. In the case of the former, it must be observed that their jurisdiction, being purely voluntary, has in each instance arisen out of an agreement, known as a compromis, entered into by the parties defining the issue and at times laying down the principles by which it is to be decided. The decisions of international arbitration courts, therefore, do not always, even in intent, represent the application of the rules of customary international law. Moreover, arbitration courts are not bound by the decisions of former courts as precedents, although the cases submitted to arbitration in the past have related to so wide a range of subjects that there has been no opportunity of testing the weight that might of option have been attributed to previous cases. With these qualifications the decisions of international courts may be accepted not merely as evidences of an interpretation of interna1 Elements of International Law, § 15. 175 U. S., 677, 700 (1900). Scott, Cases, 12; Evans, 19, 602. See, for example, the Three Rules of the Treaty of Washington, adopted for the guidance of the Geneva Arbitration Tribunal. Below, p. 564. |