viii

CONTENTS
IV. JURISDICTION OF STATES WITHIN
THEIR TERRITORIES
I. Jurisdiction in territorial waters . .
2. Jurisdiction over foreign ships in
rro
rro
3 Jurisdiction over the air .
4 Jurisdiction over international
5 Jurisdiction over canals
6. Diplomatic persons and heads of
states a
"3
rr8
I2I
126
7. Jurisdiction aliens .

8
The limits of criminal jurisdicti
01
;
V. JURISDICTION OF STATES ON
HIGH SEAS
VI. INTERVENTION . . .
VII. TREATIES .
VIII. DISPUTES BETWEEN STATES
r. Amicable methods of settlement
2. Arbitration and judicial
3 The limits of arbitration as a method of
settlement
4 Good offices,
5 Settlement by coercion . .
IX. INTERNATIONAL ORGANIZATION
r. Developme':'t of methods of international

2. Constitution of the League. of Natlons
3 The International Labour Office
4- The functions of the League
BIBLIOGRAPHICAL NOTE .
INDEX
I 50
1
55
r65
176
176
'77
190
1
93
1
97
1
97
210
223
225
I
THE ORIGIN AND CHARACTER OF
INTERNATIONAL LAW
I. The Rise of Modern States and of the Doctrine
of Sovereignty.

action which_ are binding upon in
theirrelations with one another. Rules-which may
6e law are to be
found in the history both of the ancient and medieval
worlds; for ever since men began to organize their
common life in political communities they have felt
the need of some system of rules, however rudi-
mentary, to regulate their inter-community relations.
the_sys_tf_!!l
which we now know asinternationariawisessentially
modern, datin.g orily from the siXteenth aiid seVejl-
teenth centuries, for its speda:r character has- been
determined by that of the European state systen;_,
which was itself shaped i!' thefermef1t of theRe-
naissance and the Reformation: Some understand-
ing of the main features of this modern state system
is therefore necessary to an understanding of the
nature of international law.
For the present purpose what most distinguishes
the modern post-Reformation from the medieval
state is the enormously greater strength and concen-
3454 B
2
LAW OF NATIONS
tratwn of the powers of o
The national and in former.
familiar to-day in West Es a e With Which we are
h
ern urope a d .
w ich are founded h ' n m countries
E
on, or ave adopt d W
uropean civilization . 'd e ' estern
of government wh' h' IS provJ ed with institutions
. IC normally en bl .
Its control at all ti d . a e It to enforce
nions. This type

h m all of its domi-

a long and chequered h.' t ow ever, IS the product of
Middle Ages the and throughout. the
governments was ir/! d d bof strong centralized
which difficulties e Y. obstacles, of
population primit,v sparcity of
b ' e economic d'
o VIous i11ustratio B con Itwns, are
influences deserve ns; .ut two. of these retarding
imprint which they h notice because of the
modern state. ave e t even to this day on the
Q) The first of these was feudalism . .
research has taught -h ---- --- Modern h1stoncal
1
us t at while it
spea' of a feudal .ry t h Is a mistake to
convenient way of s ;m,, t e word 'feudalism' is a
. '1 . re,errmg to cert . fi d
Silll! anties which . am un amen tal
b
. ' m spite of large 1 1 . .
can e discerned in th . I oca vanations,
peoples of Western E e development of all the
the thirteenth centuri urop;. about the ninth to
feudalism in the h op Stubbs, speaking of
Conquest, says: I a reached at the Norman
'It may be described as a co
tJ_trough the medium of la,:plete of society
kmg down to the 1 tenure, In whxch from the
together by obligatio;w;st la.ndowner all are bound
o service and defence: the lord
ORIGIN AND CHARACTER 3
protect his vassal, the vassal to do service to his lord;
defence and service being based on and regulated by
nature and extent of the land held by the one of the
In those states which have reached the territorial
stage of development, the rights of defence and service
are supplemented by the right of jurisdiction. The lord
judges as well as defends his vassal; the vassal does suit
as well as service to his lord. In states in which feudal
government has reached its utmost growth, the political,
financial, judicial, every branch of public administra-
tion is regulated by the same conditions. The central
authority is a mere shadow of a name.'
1
Thus to speak of a feudal 'state' is really a misuse
of terms; Ior a feudal organization of society was
a substitute for its organization in a state, and a
perfectly feudal condition of society would be not
merely a weak state, but the negation of the state
altogether. Such a condition was never completely
realized at any time or anywhere; but it is obvious
that the tendency to disperse among different
classes those powers which in modern times we re-
gard as normally concentrated in the state, or at
any rate as under the state's ultimate control, had
to pass away before states in our sense could come
into existence.
On the other hand there were elements in the
feudal conception of society capable of being pressed
into the service of the unified national states which
were steadily being consolidated in Western Europe
from about the twelfth to the sixteenth centuries,
l Constitutional History cif England, vol. i, p, 274
B2
4 LAW OF NATIONS
and influential in determining the form that those
states would take. Thus when its disintegrating
effects on government had been eliminated, the
duty of personal loyalty of vassal to lord which
feudalism had made so prominent was capable of
being transmuted into the duty of unquestioning
allegiance of subject to monarch in the national
state; the intimate association of this personal
relationship with the tenure of land made the
transition to territorial monarchy easy and natural;
and the identification with rights of property of
rights which we regard as properly political led up
to the notions of the absolute character of govern-
ment, of the realm as the 'dominion' or property of
the monarch, and of the people as his 'subjects'
rather than as citizens. Feudalism itself had been
an obstacle to the growtltof the national state,. b11t
it left a legacyof conceptions to its victoriolls riv;>l
which. strongly emphasized the absoiufe chm:acter
of government . . . . .. . .. . ..
The other influence which. retarded the growth
of states in the Middle Ages was the It
is not necessary here to speak of the long struggle
between Pope and Emperor, although one incidental
effect of this was to assist the growth of national
states by breaking up the unity of Christendom.
More significant in the present context is the fact
that never until after the Reformation was tile ciyil
authority in any country regarded as supreme,
Always governmental authority was divided; the
Cnufcli claimed B:nd received the obed!erice of those
ORIGIN AND CHARACTER . 5
. sub' ects of the state, even m
wer; albso purely spiritual sphere.
,ar eyo h ti under
. land always somew at res ve
Even m Eng ' th . dea of the omni-competence
have been unthinkable.
of the CIVil p_ow actl how far the powers of
Men might extended; but that there
each of the nva au f the state that the
were limits to the power o the members of the
h d me powers over b
Church a .so . derived from nor held y
state which It neither was certain'. States might
the sufferance of, the absolute state of the
often act as might struggle agair:st
post-Reformatro:;t wo f the Church. but neither m
this or o the absolute. But just as
theory nor Ill .LTi<Iatlng its power
ihe'Sfate was g.radually t of feudalism
against th.e fissiparous ae":nore resisting the clivi-
within, so 1t !:;'ore upon it by the Church
. f authonty 1mpose
1
. t d in
swn o . . d this latter process cu mma e
from without' an h' h . of its most important
R f,
ation w Jc m one . h
. the e orm ' b 11' f the states agamst t e
asareewno h .. 1
aspects w eclared the determination of t e Civ:
Church. It d . 't own territory; and Jt
t b supreme m 1 s
authonty o e d . . defeat of the last rival to the
resulted in the I tate Over about half
. . nified natrona s . I 1
emergmg u hellion was camp ete y
of Europe ::a even in those countries
and evidently success u ' . as a religion, the
h' h ted Protestantism
w Jc reJec hak that it could no longer com-
Church was so s en . . " The Peace of
. h the state as a pohtrca!,orce. --.. pete w1t c
6 LAW OF NATIONS
'Y estpllali_a, which brought to . an. end in I 648
15reat Th!fty Y ear8 War .. of religion, mm'ked the
acceptance of the new political order in Europe.
The new order led naturally to a new theory of
the nature of the. state, of 'sover<;ignty',
first perhaps exphcitly stated by Jean B
0
ciin in his
.f2e repubhca, in. 15 76. to Bodin
It ofevery state that there should
",XISt Withm It a central force, whJcJi WaS the sole
of laws, but itself bound by them;
est su'!'ma cives ac subditos legibusque soluta
potestas . . This mayestas or sovereignty was not
n"ce,ssanly yes ted in an individual monarch, though
thought it best that it should be; theoretically
It might equally well be in a of thecitizens,
when the state would be an aristocracy or in a
':'!".igri!y> )hen be a democracy. 'In Bodin
the full_ rigour of the theoiy was mitigated
by bemg combmed with the medieval doctrine of
the law of nature; though not bound
l;>y binirid by divineia"IV,
and also by the laWs of nations.
he hel_d, though rather inconsistently with
hrs mam doctrme, that even some laws of the state
were so fundamental that the sovereign might not
them; these mitigations of the theory
drsappeared m later political speculation. The
wh?l.e theory was essentially a deduction from the
pol; tical facts existing at the time of its formulation,
whrch ?ave been shortly described above. Every-
where m Western Europe unified national states
ORIGIN AND CHARACTER 7
;ijM.erce out of the loosely compacted and
states of medieval times. Everywhere too,
authority of government was decisively
its supremacy over the ecclesiastical
. and every other. rival claimant of po':"er, and the
' rocess was taking the form of the nse of strong
p rsonal monarchies. The doctrine exactly ex-
these, the most conspicuous, facts. in the
political aspect of Europe at the end of the sixteenth
but it never expressed the whole truth,
the truth that it expressed was not an eternal
one. It was not the whole truth because even in the
age of European absolutism which followed in the
seventeenth and eighteenth centuries, no monarch's
power was ever wholly without limitations; and its
tr:uth was not eternal, because, as we now know,
the age of absolutism was only a temporary phase
in European history.
The implications of such a theory in a world in
which different states have to live in relations with
one another were full of portent, for it led logically
to the assertion of the complete separateness and
irresponsibility of ev:ry state. !t
to the lingering notiOn that ChnstendoiT\, m sprte of
L;,<,'<"n;f,, quarrels, was in some sense still aunity, and
the relations between states n"ot only uncontrolled
, "" "'u as they had often been before, but uninspired
anv unifying ideal. For the first time the state
seem<:d. to have become the final goal of unity.
Prince, written in I5I3, though it did
not formulate a theory, is a relentless analysis of
8
LAW OF NATIONS
the art of government based on this conception
of the nature of the state, as an entity absolutely
self-sufficing and non-moral. But, fortunately, at
the very time when European political develop-
ment seemed about to justify the whole theory of
sovereignty, other causeswere at work which weie
to make it impass!Eiefor to accept the
aosen-ce"ofiiiy l:ionds between state and state which
Was-its iogJcafconseguence, andto show that the
n'ew-natiOnaf-states; so far from being destined to
li'Ve lil1solatioitfrom one another, would be brought
into far more intimate and constant relations than
in the days when their theoretical unity
everywhere. I ArrlOri&" these causes may be 1llen-
tionea (I) the impetus to COTlUUerce and adventure
caused by the discovery- of America and the new
route to the Indies; (<i) the common intellectqal
background createdby(heR:enaissan_ce; (3) the
sympathy which in different states
felt for one another, - creating a loyalty which
and (4) the
co!Ilmoii fee1iiigoftevulsion againSt war, caused.py
Hie savager}'" with which the wars of religion were
wage<;!, All these callses eo-operated to make it
certain tliaf--rhe state, such as the theory of
s"Dvereignty conceived it, could never in reality be-
come the final . and perfect . form of human
association, and that i!l the modern as in the
medieval worldit would be necessaryto-recognize_
the existence of a wider unity. The rise of inter-
1 C Westlake, Collected Pafters, p. 55
10
LAW OF NATIONS
ledge of what a medieval writer meant by the term
is necessary if we would understand either how inter- ,
national law arose, or how it develops to-day.
A long and continuous history,' extending at least
as far back as the political thought of the Greeks,
lies behind the conception; but its influence on
international law is so closely interwoven with that
of Roman law that the two may here be discussed
together. The early law ofthe primitive Roman
city-state :was develop: into a law aclequate
to the of a . highly civilized world .empire,
because it showed a peculiar capacity of expansion
arid brobi through ilie archaic
J'ormalism--wliich originally characterized it, as it
characterizes all primitive law. In brief, the process
of expansion and adaptation took the form of
admitting side by side with the jus civile, or original
law peculiar to Rome, a more liberal and progressive
element, the jus gentium, so called because it was
believed or be of universal application,
its principles being regarded as so simple and
reasonable that it was assumed they must be recog-
nized everywhere and by every one. This prac;tical
deyelopment was towardsthe end of the
Republic:in era hy ihephilosophical conception of a
jus naturale i<fliich, as developed bythe inGree.ce
i'nd borrowed froll1 thern by the- Romans, meant, in
effect, the sum of tho,se principles which ought to \
-1ii.:ri-ri'ln cpndlJ.C::t, beqmse_ founded in the /1
very natllre of man as a.rational and social being, '
1
Cf. Pollock, Essays in the Law, ch. ii.
12
. LAW OF NATIONS
but part of the order of
sovereigns were subjected t? which even
. standin fo ,2er_":,g-mnst theory
separation of the .states !f E:r:he. new nationalistic
of nature den . . , pe? was set the theory
the finality oftheir iJing thenIrresponsibility and
No doubt it was im ossidepende':ce of one another.
text of this Jaw, a!d d?ke to to any authentic
were possible. but th I mterpretations of it
appearance th' e who] e Ief that in spite of all
h
' e umver d
t e relations of so . se, an mcluded in it
ruled by law v_eredtgns to one another, must be
d
. ' ... ame . Moreov th d.ffi
Iscovering the dictates . er, e ' JCulty of
to a medieval writer thts law presented itself
does to the mod w:- much less force than it
ern mmd For h h d
spena] guide ready to hi h . e a m fact a
. The position of Roms and Roman law. .
Sixteenth century h ":' law m Europe in the
beginnings of int as Important bearing on the
. ernatwnal Ia Th
countnes such as G . w. ere were some
fR
' ermany m wh h , .
o oman Jaw h d t k ' Ic a receptwn'
driven out the Ia Ia en place; that is to say, it had
oca customar ] d
accepted as the b. d. y aw an had been
countries the of the land. In other
but even in these t1 .not gone so far as this.
held in great of Roman Jaw
no rules of local Ia an appealed to whenever
factl{oman law uded them.
and a as.the ratzoscripta,
expound the Jaw f Ieval wnter, seeking to
h
. o nature had 1
tm to see actually . . on y to look about
operative m the world
a system
ORIGIN AND CHARACTER r 3
which was the common heritage of every
revered everywhere as the supreme triumph
t h1am.an reason. Moreover, this law had a further
;fii:lailtn to respect from its close association with the
j'(Jarton law of the Church.
Thus Roman law reduced the difficulty of finding
contents of natural law almost to vanishing
and in fact the founders of internationalJilw
to K6maii-Taw.for rules
-- system, wherever tlie -relations between
seemed to them to be analogous to those of
> ..
0
rj[vat< persons. Thus, for example, the rights of a
over territory, especially when governments
almost everywhere monarchical and the terri-
"""" notions offeudalism were still powerful, bore an
:/ oJ:>vi<)US resemblance to the rights of an individual
property, with the result that the international
relating to territory are still in essentials the
rules of property. It is not difficult, there-
to see how the belief in an ideal system of law
;
1
,h<,rently and universally binding on the one hand,
the actual existence of a cosmopolitan system of
everywhere revered on the other, should have led
the founding of international law on the law
nature. We have to inquire further, however,
.. wlietlller this foundation is valid for us to-day.
The medieval conception of a law of nature is
-: nr>en to certain criticisms. In the first place, when
allowances have been made for the aid afforded
Roman law, it has to be admitted that it implied
in the rationality of the universe which seems
r4 LAW OF NATIONS
to us to be exaggerated. It is true that when
medieval writers spoke of natural law as bein
discoverable by reason, they meant that the
human reasoning could discover it, and not, of
th,at the results to which any and every
IndiVIduals reasoning led him was natural law
The .foolish criticism of Jeremy Bentham: 'a
multitude of people are continually talking of the
law _of nature; and then they go on giving you their
sentiments about what is right and what is wrong
and these sentiments, you are to understand are
many chapters and sections of the law of u'ature ''
me;ely showed a contempt for a great
which Bentham had not taken the trouble to under-
stand. Medieval controversialists might use argu-
ments drawn from natural law to support almost
any case, but there was nothing arbitrary about the
itself, any more than a text of Scripture
IS arbitrary, because the Devil may quote it. But
what med;eval writers did not always realize was
that what IS reasonable, or, to use their own termin-
ology, what the law of nature enjoins, cannot
;eceive a final definition: it is always, and above all
I? the sp?ere of human conduct, relative to condi-
ti:ms of time and place. We realize, as they hardly
did, that these conditions are never standing still.
For us as for them, a rational universe even if we
ca t b '
nno prove It to e a fact, is a necessary postulate
both of thought and action; and the difference
between our thought and theirs is mainly that we
I Principles of 11-forals and Legislation, ch. ii.
ORIGIN AND CHARACTER
1
5
different ways of regarding the world and
society. When a modern lawyer asks
he looks only for an answer that IS
now and here, and not for one that is finally
hereas a medieval writer might have said that
0;i;)tlt1le; W b
''''i;t;,,lti[mate truth eludes our grasp, It 1s not ecause
undiscoverable, but because our reasoning
Some modern writers have expressed thiS
'.cii!ifferen<ce by saying that what we ?ave a ;ight to be-
in to-day is a law of nature a content.
the second place, when medieval.':'nters
law as able to overrule positive law m a
they were introducing an a':'archical
which we must reject. But this was a
which died hard, and even in the eigh-
j:Jiin<:ipcleentury Blackstone could write: 'This law of
;; .. mtture being coeval with manki.nd :"'d by
himself is of course supenor m obligation to
; . ;!Jouother. It is binding all over the globe in all
and at all times; no human laws are of any
....,.va#ditv, if contrary to this." In
words were mere lip-service to a tradition, and
" S!ICHno effect on his exposition of the law. To hold,
that unreasonableness can invalidate a
of law is to confuse the function of legislation
with that of ascertaining what existing law is. Law
. cmlln never perform its proper function of .a con-
tr<olling force in society if courts of law did not
themselves bound to subordinate their own
ideas of what is reasonable to an assumed superior
1 Commentaries on the Laws of England, Introduction.
II
'
z6
LAW OF NATIONS
reasonableness in the law; and evenifthat a,;sumj>ti<>n
is not always well founded, it is still necessary to
social security that it should be acted upon
the law is altered.
These are valid criticisms, but they do not
the permanent truths in the conception of a law
nature, and those truths are in fact recognized and
acted upon as fully to-day as they ever were. For
one thing it stands for the existence of purpose in law,
reminding us that law is not a meaningless set of
arbitrary principles to be mechanically applied by
courts, but that it exists for certain ends, though
those ends have to be differently formulated in
different times and places. Thus where we might
say that we attempt to embody social justice in law,
giving to that term whatever interpretation is
current in the thought of our time, a medieval
thinker might have said that positive law ought to
conform to the higher law of nature. Natural law,
theref?re, or a likeprinciJ>Ie under
iS aii- eiisentialunderlyil1g principle of the art!)f
But thaf is not all; itis a1so a pdriCiple
that is necessarily admitted into the actual adminis-
tration oflaw. This is so because the life with which
any system of law has to deal is too complicated,
and human foresight too limited, for law to be com-
pletely formulated in a set of rules, so that situations
perpetually arise which fall outside all rules already
formulated. Law cannot and does not refuse to
solve a problem because it is new and unprovided
for; it meets such situations by resorting to a
c
18
LAW OF NATIONS
seventeenth and eighteenth centuries the uuou10:va
tradition began to be distorted by later w ,-ut:rs,
whose use of the old terminology in senses of
own went far to justify the obloquy which has
poured on the whole conception in modern
But before considering this development and
unfortunate effects on international law it will
convenient to say something of the men w1nn,,.
writings first gave it systematic form.
3 The classical writers on International Law.
The first writer of a work which canproperly be
called a work on is M6erico
Gentili, . commonly known as GentiHs, who lived
from '55' to I6o8. Earlier writers- had -written on
some of the topics which fall within modern inter-
national law, especially on the treatment of
ambassadors and on the usages of war; but they did
not separate the .. legal .. from .. the . theological and
etlllca!, nor the domestic froiD. the
aspects c)("'nchqllesJiQn;, Thus by side with
questions such as whether war is ever justified, what
causes for going to war are lawful and what unlaw,
ful, what means of waging war are permissible, and
the like, they discussed questions of tactics, of
military discipline, or of the duties of a vassal to
help his lord, without feeling that they were treating
together topics which properly belonged to different
subjects. Gentilis's service .w":s _that_ he definitely
I.i_l'rc)ll1_ theo].,gy ."'nd
ethics'!":? _m":de it a branch_ '?fj11risprudence. 'Let
20
LAW OF NATIONS
but really turning on the political question wlletheJr.
the provinces of Holland should form a loose
federal union or be consolidated under the House
Orange. Grotius supported the former and the
losing cause. He was imprisoned for over two years,
escaped by the devotion of his wife in a box supposed
to contain books, and eventually became ambassador
of Sweden at the French Court.
Grotius wrote two works on international law,
the-7Je]urepiaeifae in. r6o4, ancitlie 1Ye]ure belliac
. p{icis in r!25 The J'oimer of these, in which he
. supported the claim of the Dutch East India
Company to the capture of a prize from the Portu-
guese, was never published, and was only discovered
in r872. It was then found that a short work which
he published anonymously in r6og, the Mare
liberum, contending, in opposition to the claims of
the Portuguese, that the open sea could not be
appropriated by any state, had been written as one
of the chapters of the De jure praedae.
Few books have won so great a reputation as the
De jure belli ac pacis. This was not wholly due to the
merits of the book itself, though they are great; it
was partly due to the time and circumstances of its
publication. When he wrote it in r625 Grotius was
already so eminent that anything from his pen
would have attracted attention. Further, he had the
advantage of belonging to the country which in the
seventeenth century was in many ways the leading
country in Europe. The successful war of liberation
by the Dutch against'"Spaiii iidhe previous
-,co_-,-,-,-,_, __-, -,;.,._ '-' - - '- " ,,_,,, 1 Prolegomena, 28.
22 LAW OF NATIONS
In contrast with this anarchy he proclaimed
even-states ought to regard themselves as .. -
6fa society; bound together by . the ,,nrversa]
supremacy of justice. Man, he said, is not a oureJv
selfish animal, for among the qualities that beolon.g
to him is an appetitus societatis, a desire for the soci<:ty
of his own kind, and the need of
the_s(}llrce '?f law,
as:
'The dictate of right reason, indicating that an act,
from its agreement or disagreement with the rational
and social nature of man, has in it moral turpitude or
moral necessity, and consequently that such an act is
either forbidden or commanded by God the author of
nature.'
1
Besides being subject to natural law, he says, the
relations of peoples are subject to Jus gentium; for just
as in each state the civil laws look to the good of the
state, so there are laws established by consent which
look to the good of the great community of which
all or most states are members, and these laws make
up Jus gentium. It is obvious that this is a very
different meaning from that which the term bore in
the Roman law; there, as we have seen, it stood for
that part of the private law of Rome which was
supposed to be common to Rome and other peoples;
whereas in Grotius it has come to be a branch of
public law, governing the relations between one
people and another. It is important, Grotius tells ns,
to keep the notions of the law of nature and the law
1
Book I, ch. i, . 10 (1).
ORIGIN AND CHARACTER . . 23
(
t adopt a mistranslation of JUS gentium)
o . makes almost necessary
't new meanmg . If Nor
1 s f doing so h1mse .
b;rt he is .':_ so, as is apparent from
it possrble for hi f how their respective conten:s
own statement o H d he tells us the testr-
d' ered e use ' '
to be h . historians, poets, and orato::s,
of phrlosop ers, themoelves conclusive wrt-
they were " d to be
h they were ,oun
but because w en ld only be ex-
their agreement cou . d
s. either what they sar
in one of two fi om the principles of
be a correct of nature; or it
and so a ru e o . on consent existed,
be a matter in winch fcom':' Thus in effect
1
f the law o natwns. h
so a ru e o h 1 eady seen are still t e
ti as we ave a r ' .d
two no ons, . 1 . des of the same 1 ea.
he<Jretlc":' and the practrca S1 t understand the
all thinkers who gy ti o s had to meet the
and bases oflaw, ro u f those who
" 1 'ble arguments o
and p ausr . Tty His answer
identify justice wrth mert: utlhle is indeed
Jusrce
clear and convmcmg. 1 ' that ground
Tt and mere y on
highest utr 1 y, 't of states can be
a state nor the comn:un; y also more than
'thout it But rt rs . f
it is of the true
. and that is its real of
(
:lrctitts-8 work then consrs e . fi he says:
t 1 rinciples to war' or
fundamen a p d r't as some imagine,
f
b -0 g right to a m ' b
so far rom el th ought never to e
in war all rights cease, at war
24 LAW OF NATIONS
undertaken except to obtain a right; nor, when
taken, ought it to be carried on except within the
of right and good faith. . . . Between enemies
laws which nature dictates or the consent of """UJOS
institutes are binding.' 1
The_ first book,. therefore, inquires
can" evel:"1ie}usium, lawfUl or reguhir; ancl as lTJ:otim
was ofopillion.that one requirement necessary
make a war lawful was that it should be waged
the authority of one who held supreme power
the state, he was led to inquire into the natme
of sovereignty. His treatment of this subject was
confused and unsatisfactory, because for .
reasons it was necessary for him, writing when
did, to admit the lawfulness of wars waged by princes
who were sometimes far from being independent.
In the second book he dealt with the causes
wars;-and-iri effect reduced the causes oflawful
fo t"'o, the defence ()f person or propertyanc!the
punishment . of. ()ffe!lc:Jers. This necessitated an
examination both of what constituted the property
of a state, for example, how far the sea may do so,
and how property is acquired and lost, and of many
other questions which a modern writer would either
place under the international law of peace, or e)\-
clude from international law altogether. In the
third bookhe dealt with topics which fallunder
th"emodern laws say, with
question what acts are permissible . and what are
forbidden iri the conduct.()[ war. Here his plan
1
Prolegomena, Q5, 26.
ORIGIN AND CHARACTER 25
to state the strict laws of w_ar,_ but to
not onlhe called temperamenta, allevtatwns or
what . d k war more humane.
.. designe to rna e . t
1C 1 in estimating the work of Grotms
IS us_ua k ble and instantaneous success'
of 1ts remar a h" fi years
. . of of success that wit m a ew .
iflt IS a pro h his book had become a um-
author s cleat . t has since been often
text-book, that
1
that it
to in international controversies, .
bl" hed and translated scores of times,
been repu IS riter treats his name
that every subsequent V:d 1 he may depart
however WI e Y d
h Grotius must be accounte
his teachmg, t en . nt that the doc-
But if by success lS mea
epted bv state&
f Grotius as a whole were ace . . h"
o f h law which has smce IS
became part o t e . his work was
. lated their relations, then f
regu il It is true that some o
almost complete ureb. me established law.
d
8 have since eco
octrme d . that the open sea cannot
instance, the octrme . of any state, and
subjected to the that he suggested
of the temperamen
0
":' a1 Jaw hut
been incorporated mto as
articular changes were . . d in
h
.P es in the character of navigation . an At
c ang ti ly as to Grotius.
. technique. of war relspetch v.:tt .. empt to .distinguish
h t fh1s system ay e ,c.- - I 1
ear o . . -C.. .. . r. ...... t ...c.war. he saw c ear Y
. and un aw u . '
1
h t
. -- . , -- is -precarious un ess t a
stiiiction can be established,
be precarious if the law Withm
LAW OF NATIONS
not distinguish between the lawful and the unJa,vtiJ
1
1
use of force. Yet this distinction never ,J:!,<!I
of actual law; and even in the
ofthe subject it retained by most of Grotius's
successors more as an ornament to their theme than
as a doctrine in which they seriously believed.
Finally it disappeared even from theory, and inter-
national law frankly to recognize
ire As the most authoritative of
modern English writers on the subject says:
'International law has no alternative but to accept
war, independently of the justice of its origin, as a rela.
tion which the parties to it may set up if they choose,
and to busy itself only in regulating the effects of the
relation. Hence both parties to every war are regarded
as being in an identical legal position, and consequently-
as being possessed of equal rights.'
1
It was not until the foundation of the League of
i Nations in rgrg that any real attempt was made
! to falsify this confession of weakness and to embody
in actual law the cardinal principle of Grotius's
system.
(?r?ti':s supp[ied then, 11ot a Sfste!U of but a
philosophy of inter-state relations which could .he
set against brutal description of those
relations as they often were, and he is great enough
to dispense with the undiscriminating adulation
which is often showered upon him. This adulation
has done disservice to international law by encourag-
ing a servile imitation of his methods. It was natural
I W. E. Hall, International Law, 8th ed., p. 82.
28 LAW OF NATIONS
writer. o11legal suiJjeocts.:
among hrs works being one on international
Jus.[eciqle, published in r6so. Without
I""' of n"t11re as one of the oases
ZoUche'S main interest--waf-iii-
actual practice of st":i:es: ... tife Ceniilishetoi-e
he -,vas therefore a. precursor of the . sci.IIO<Jl
of international lawyers, who regard
states as the only source of law. Zouche iritrc>ditced
one important .improvement of method
was the first writer to make a clear divisionn 2' ;e.t-,v<:en
the law ofpeace mid the law of war. :;
necessary before war could be regarded, as it ought
to be, as an abnormal relation between states.
Samuel Pufendorf, 1632-94, Professor at Heidel-
berg, and afterwards at Lund in Sweden
lished his [Jejure 'faturae e( gentium in r67;, and
of the so,called 'naturalist'. school
_of Wfrters.: .. d"_nied. all binding_ lOree to the
]Jractice ofJ1ationsand based. hls system 'Yholly on
11atural Iaw,but on :tnaturai law in new and
fo:lllofalaw supposed to be . . . ...
state of nature. There are
of thrs conception in 9rotius, but it had little in-
fluence on his system; "ro!'.])is law of narure was a
1,"\V_()freaS(m directing men a fall whether
in political societies or not, and only
m sense has the conception any permanent
vahdrty.
. Cornelius van Bynkershoek (r673-1743), a Dutch
Judge, was the author of works on special parts of
ORIGIN AND CHARACTER 29
terJnattioJnal law, of which the most important was
Quaestiones juris publici, published in I ?37
had an intimate knowledge of ql!estrons

in the dev!'_)ppll)entof tlmt i.!iv
He belongs to the 'positive'
writers, b11the
held that custom_ml!st be c.or:
-fly. reason, ref:rs to as ratw ;urzs
magistra' .' In grvmg thrs twofold baSIS to
terJnatlOI"'! law he anticipated the best modern I
He rightly held also that the recent
of states was more valuable evidence of
th= the illustrations from ancient history
which his predecessors had generally adorned
works, since, 'as customs chaJJge, so the
chaJJges';
2
but he more t
stipulations of particular treatres as evrder;ce
existence of custom than modern practice
allow. .
Vattel (I7I4-6g), whose work Le droit
in I 758, was a Swiss who
in the diplomatic service of Saxony.
his work as a manual for men ofafalrs,
a popuhtrizer or other
original thinker; . yet he .. has probably
a greater agy
"' on law, andhrs \Vork1s
co:nstanny cited a,;-ar11u1tlwrlty in international
He the doctrine of the
Ibid., Ad lectorem.
30 LAW OF NATIONS
state qf nature; 'nations being composed
naturally free and independent, and who before
establishment of civil societies lived together in
state of nature; .t;lations or sovereign states must
regarded as so many free persons living together
the state of nature'; and since men are natmcall!y
equal, so are states; 'strength or weakness pnod11ce
in this regard no distinction. A dwarf is as
a man as a giant is; a small republic is no less
sovereign state than the most powerful KJJag,aom
(Introduction). Thus the doctrine of the
states, a misleading deduction from unsound pr,erndse:s
and not found in Grotius, was introduced
theory of international law.
According to Vattel the law of nations in its
origin is merely the law of nature applied to nations,
it is not subject to change, and treaties or cu.st<Jms,
contrary to it are unlawful. But other el<,ments
have been admitted into the law; for, says
natural law itself establishes the freedom and
pendence of every state, and therefore each is the
sole judge of its own actions and accountable for its
observance ofnaturallaw only to its own consc:ieJaC<,.
Other states may request it to reform its conduct;
bnt what they may actually demand from it is some'
thing much less. Thi0_ower standard of enfo'E!!I!.le
duties Vattel_c:,Jls_, the -voluntary law-of nati<Jllh
!tis t_o be presumed that states have
to it, in contrast' with the other dement of natural
or; as'he calls it
1
necessary Ia;v. 'Let each
make the necessary law the constant rule of his
ORIGIN AND CHARACTER 3'
he must allow others to take advantage
luntmy law of nations' (Book III, ch. 12).
voexaggerated emphasis on the independe':'ce
had the effect in Vattel's system of reducmg
natural law, which Grotius had use:J as a
barrier against absolute conceptlons of
to little more than an aspiration after
relatroilS between states; yet for voluntary
h' h was the only part of Vattel s system
w a real relation to the practice of states, he
no sound basis in theory, for he was unable
rov,u<.u the source of the obligation of to
i. el<pla.J .. tn The results of this unsatisfactory diVISIOn
For instance, Vattel tells
u h duty to mamtam
necessary Jaw a state as a , . d
of commerce, because this IS for the a -
of the human race; but by the
iffipose such restrictions upon It suit Its
i.nveniience, for its duties to itselfaremoreimportant
its duties to others (Book II, ch. 2). By
1 W
again there are only three lawful
a ' ' f and
of war self-defence, redress o lllJUry,
of offences; but by voluntary law we
always assume that each side has a lawful
for going to war, for 'princes may ha.
and just reasons for acting thus, and t at IS
at the tribunal of the voluntary law of
(Book II, ch. r8).
some respects, however, Vattel's system was
d ce on those of his predecessors. He stood
avan h 'ht fwar He
a humaner view of t e ng s o .
h
\,
'II
i,
l!l
II
I'
II
I' ,,
32 LAW OF NATIONS
\ emphatically rejected the patrimonial theory of
I
nature ?f government; 'this pretended right
ownership attnbuted to princes is a chi"r ne:t,
, begotten of an abqse of the laws relating to
' inheritances of individuals. The state is not,
cannot be a patrimony, since a patrimony exists
the good of the owner, whereas the prince
appointed. only for the good of the state' (I.
He recogmzed in certain circumstances the right
part of a nation to separate itself from the
(I. I7), a doctrine which partly explains his
popularity in the United States, where a copy
the work was first received in I 775 Professor
Lapradelle has justly written of him that,
' before the great events of I 776 and 1789 occurred
had written an international law based on the '
of public law which two the
and the French, were to make effective. . . .
Law of Nations is international law based on the
ciples of ... the projection upon the plane
law of natwns of the great principles of legal
viduaJism. That is what makes Vattel's work irn:nort<mt.
what accounts for his success,
and eventually, likewise, measures his
Grotius had written the international law
Vattel has written the international law
liberty.'
1
None the less the survival of
an age when the 'principles of legal i1
ISm are no longer adequate to international needs,
1
Introduction to Carnegie edition ofVattel, 1916.
ORIGIN AND CHARACTER 33
cr were has been a disaster for international
ev ' h ' t 1' state
By making independence t e na u:a .
he made it impossible to explam or JUS-
nath.nci>ur"s'ubjection to law; yet their independence
':nore 'natural' than their
are facts of which any true theory of
relations must take account; the former IS
a more conspicuous, but not a more real, fact
latter. It is true that in Vattel's o":n day
of states was less conspicuous
drtte:rmm<m<u practice than it is to-day.; and this
excuses the one-sidedness of his
the less by cutting the frail moorinp .which
international law to any sound prmciple of
he did it an injury which has not yet
repaired.
Modem Theories of the Basis of Obligation in
4
International Law.
traditional division between: the
. the positivist schools above re:erred IS
in the current literature of mternatwnal
un1:aBirutetd.a purely naturalist view,
fendQfl,i:leriyirig any obliga(OJ:Y :1 positive
law of nations is o]Jsolete;
naturalist school generally adopts an
position, and a twofold
in natl1ral and positive Ia": .. This school. has
called the 'eclectic' school; It IS also sometimes
. as the 'Grotian' school, on the ground
too based his system on the twofold basis
D
32 LAW OF NATIONS
l
emphatically rejected the theory of
nature of government; 'thrs pretended
ownership attributed to princes is a
[ begotten of an abuse of the laws relating to the
' inheritances of individuals. The state is not,
cannot be a patrimony, since a patrimony exists
the good of the owner, whereas the prince
appointed only for the good of the state' (I. 5),
He recognized in certain circumstances the right
part of a nation to separate itself from the
(I. r7), a doctrine which partly explains his great
popularity in the United States, where a copy of
the work was first received in I 775 Professor De
Lapradelle has justly written of him that,
' before the great events of r 776 and I 789 occurred, he
had written an international law, based on the principles
of public law which two Revolutions, the American
and the French, were to make effective . ... Vattel's
Law of Nations is international law based on the prin-
ciples of 1789 ... the projection upon the plane of the
law of nations of the great principles of legal in(Ji.
vidualism. That is what makes Vattel's work important,
what accounts for his success, characterizes his influence,
and eventually, likewise, measures his shortcomings.
Grotius had the international law of absolutism,
Vattel has wntten the international law of political
liberty.'
None the less the survival of Vattel's influence
into an age when the 'principles of legal individual-
ism' are no longer adequate to international needs,
Introduction to Carnegie edition ofVattel, rgr6,
ORIGIN AND CHARACTER 33
ever were, has been a disaster for international
By making independence the 'natu:al'
ations he made it impossible to explam or JUS
n ' h' 'd d
their subjection to law; yet t err m epen ence
more 'natural' than their interdependence.
are facts of which any true theory of
iialtioJaal relations must take account; the former IS
a more conspicuous, but not a more real, fact
latter. It is true that in Vattel's own day
interdependence of states was less conspicuo':s
international practice than it is to-day; and this
excuses the one-sidedness of his system.
the less by cutting the frail .which
international law to any sound prmcrple of
he did it an injury which has not yet
repaired.
4 Modern Theories of the Basis of Obligation in
International Law.
The traditional division betweeU: the
the positivist schools above re:erred :o IS
'ml>intmnea in the current literature of mternatwnal
But a . 11aturalist view, likt: tha,t.Pf
?ufen,d0irt,.aer1 Y.ing any obligatory f<;>rc.e. to a
volm1t<try jaw ofnaiions is. obsqlete;
m<)dt'rn naturalist school generally adopts an
position, and recognizes a twofold
in natural and positive law. This school has
called the 'eclectic' school; it is also sometimes
Kno"'n as the 'Grotian' school, on the ground that
too based his system on the twofold basis
D
34 LAW OF NATIONS
of jlfl_Jlafurae and jus gentium. But the claim of this
school to carry- on tne Grotian tradition cannot be
sustained, because it is not to the Grotian law of
nature, but to Pufendorf's and Vattel's debased
version of it that the school generally appeals. Minor
differences of doctrine must here be disregarded
but it may be said that on the whole the field
divided fairly equally between writers who agree in
recognizing an element of natural law in this sense
by the side of a positive law element, and those who
profess to recognize nothing but positive law.
Almost all English and American writers belong to
the positivist school. Most ofthe adherents ofboth
schools are agreed in of international
law. as a law between states only; states are 'inter-
natwrial persons', the only true 'subjects' of the law,
and individuals are merely 'objects' of the law, with
a status comparable to that of an animal in muni-
cipal law. The two views which may be regarded
as in the orthodox tradition of international legal
theory are therefore ( r) a naturalist view, __holding
that the principlesof the!aw or-li,fleastthe most
fundamental of ihem . can be .. deduced. the
nature. of state-persons;and ( 2) positivist
view which regards the law the .. sum of
t/;le rules by which these state,pers(}ns h:we. con-
sented to be bound, Either view involves a
conception of the of the state which is tending
to .disappear from progressive political thought, and
ne1ther affords an adequate explanation of the fact
for which it professes to account, namely, inter-
ORIGIN AND CHARACTER 35
national law as it may be observed in actual
operation in the intercourse of states.
The former of these twodoctrinesh()lds that every
state;oy the very fact that it is a is endowed
with certain fundamental, or inherent, or natural,
rights. Writers differ in enumerating what .these
dghts are, but generally five rights are cla1m;d,
namely, self-preservation, independence,eguaJity,
respect, ancqntercoiirse: It is obvious that the
Cloctrine -of -fundamental rights is merely the old
doctrine of the natural rights of man transferred to
states. That doctrine has played a great part in
history; Locke justified the English Revolution by
it and from Locke it passed to the leaders of the
American Revolution and became the philosophical
basis of the Declaration of Independence. But
hardly any political scientist to-day would regard
it as a true philosophy of political relations, and all
the objections to it apply with even greater force
when it is applied to the relations of states .. It
implies that men or states, as the case may be, bnng
with them into society certain primordial rights not
derived from their membership of society, but
inherent in their personality as individuals, and
that out of these rights a legal system is formed;
whereas the truth is that a legal right is a meaning-
less phrase unless we first assume an objective legal
system from which it gets its validity. Further, the
doctrine implies that the social bond between man
and man or between state and state, is somehow
less natu;al, or less a part of the whole personality,
D2
36 LAW OF NATIONS
than is the individuality of the man or the state, and
that is not true; the only individuals we know are
individuals-in-society. It is especially misleading to
apply this atomistic view of the nature of the social
bond to states. In its application to individual men
it has a certain plausibility because it seems to give
a philosophical justification to the common feel-
ing that human personality has certain claims on
society; and in that way it has played its part in the
development of human liberty. But in the society
?f the need is not for greater liberty for the
mdrVIdual states, but for a strengthening of the
social bond between them, not for the clamant
assertion of their rights, but for a more insistent
reminder of their obligations towards one another.
the doctrine is really a denial of the possi-
brhty of development in international relations
when it asserts that such qualities as
and equality are inherent in the very nature of
states, it overlooks the fact that their attribution to
states is merely a stage in an historical we
know that until modern times states were ' not
regarded either as independent or equal and we
have no right to assume that the process of develop-
has stopped. On the contrary it is not
Improbable, and it is certainly desirable, that there
should be a movement towards the closer inter-
dependence of states, and therefore away from the
state of things which this doctrine would stabilize
as though it were part of the fixed order of nature.

ORIGIN AND CHARACTER 37
of states and not to a priori deductions . for the


_ b;rt\tgenerally also
;;:!tempts to explain
as arising:Jrom the .. supposed fact that sj:ates have
be bound by them, and this latter
part of the doctrine is both untrue in its assumptions
and inadequate as an explanation. Law by i!s __yery
nature is imperative; there must eX!s:Can
to obeyjt, h()wever we may exphiin the origin gf
that- sentirne11t .. But to say that a man or state is
o6rifidonly by what he or it consents to is meaning-
less; no obligation can arise in such a case. If we
say, as of course most positivist writers imply, that
consent once given cannot be retracted, we are
deserting our premises and calling to our aid an
unacknowledged source of obligation, which, what-
ever it may be, is certainly not the consent of the
state, for that may have ceased to exist. Modern
German writers do not shrink from facing the full
consequences of the theory of a purely consensual
basis for the law; they have inherited from Hegel a
doctrine known as the 'auto-limitation of sovereignty',
which teaches that states are sovereign persons,
possessed of wills which reject all external limitation,
so that if we find, as we appear to do in international
law, something which limits their wills, this limiting
something can only proceed from themselves.
Most of these writers admit that a self-imposed
limitation is no limitation at all; and they conclude
therefore that so-called international law is nothing
but 'external public law' (iiusseres Staatsrecht),
3s LAW OF NATIONS
binding the state only because, and only so long as,
it consents to be bound. There is no flaw in this
argument; the flaw lies in the premises, because
these are not derived, as all positivist theory pro-
fesses to be, from an observation of international
facts.
It is quite impossible to fit the facts into a consis-
tently consensual theory. Every positivist writer has
to admit that we cannot point to an express consent
?Y every state to every rule of international law; it
IS necessary to rely on an implied or tacit consent in
order to establish most of the rules. But this may
mean either of two things: it may mean that a state
has in fact consented to a certain rule, but that it
has done so not in express words but by conduct
fro':' which we are justified in inferring consent;
or It may mean that although there has been no
consent in fact we must presume consent, and treat
the state in question as though it had consented.
If 'implied consent' has the former meaning, then
the doctrine does not fit the facts; international
practice habitually treats a state as bound by rules
of international law, though it may be clear that it
has never consented to them in any way whatever,
for example, a state newly come into existence. If
the phrase has the latter meaning, we are entitled
to ask why, for the sake of supporting an untenable
theory, we should be asked to import a fiction into
our attempt to find the true nature of international
rules. In actual fact, states do not regard their
international legal relations as resulting from
ORIGIN AND CHARACTER 39
consent, except when the consent is express;' and
what gives a certain plausibility to the consensual
t],eory is merely the fact that, in the absence of any
international machinery for legislation by majority
vote, a new rule of law cannot be imposed upon a
state merely by the will of other states. Obligations
may arise from consent, as in a contract or a treaty,
but only witliin a legal system which has already,
somehow or other, binding force; the system cannot
be founded on a consensual basis.
Both the doctrines of tlie nature of international
Jaw which we have considered proceed by making
certain assumptions about tlie nature of-states; the
naturalist that they have certain rights inherent in
their statehood, the positivist tliat they are incap-
able of being 'bound' by anything outside their own
wills. These assumptions we shall examine later.> In
the meantime we shall consider from what sources
the rules and principles of law which states actually
observe towards one another in their intercourse
are derived.
5 Sources if Modern International Law.
The sources of international law are custom and
reason. To these we are probably now justified in
adding treaties.
(a) Custom as a source if the law.
Custom in its legal sense means something more
&an mere habit or usage; it is a usage felt by those
who follow it to be an obligatory one. There must
l Cf. Reeves, La Communaute internationale, p. 40. a Infra, p. 62.
40 LAW OF NATIONS
be present a feeling that if the usage is departed
from some sort of evil consequences will probably,
or at any rate ought to, fall on the transgressor- in
technical language there must be a
the e:ract of this need not be ver;
distmctly envisaged. Evidence that a custom in this
sense exists in the international sphere can be found
only by examining the practice of states; that is to
say, we must look at what states do in their relations
with m;e a';'d attempt to understand why
they do. It, and m particular whether they recognize an
obligation to adopt a certain course. Such evidence
":ill obviously be very voluminous and also very
diverse. There are multifarious occasions on which
persons who act or speak in the name of a state do
or make. declarations which either express or
Imply some view on a matter of international law.
Any such act or declaration may so far as it goes
b 'd ' '
e some eVI ence that a custom and therefore that
a rule of inte;national law, or does not exist;
but of c;ourse Its value as evidence will be altogether
determmed by the occasion and the circumstances.
like individuals, often put forward conten-
tions for. the purpose of supporting a particular
case which do not necessarily represent their
or impartial opinion; and it is that opinion
which has to be ascertained with as much certainty
as the nature of the case allows. Particularly im-
portant as sources of evidence are diplomatic
correspondence; official instructions to diplomatists
consuls, naval and military commanders ; acts of
ORIGIN AND CHARACTER 41
legislation and decisions of state courts, which,
may presume, will not deliberately contravene
any rule regarded as a rule of internatio';'al law by
the state; opinions of law officers, e.speCially
these are published, as they are m the ymted
States. The decisions of international tnbunals
are becoming a more and more important source of
evidence of what the rules of international law are,
, though they do not possess the binding force as
precedents which English law ascribes to the de-
cisions of English courts.
Besides these more or less direct forms of evidence
of the practice of states, the writings of text-writers
of repute are useful for the same purpose. No text-
writer can create international law, but what he says ,
may be valuable evidence of the is. This
function is universally recogmzed, and It has been
expressed by Mr. Justice Grey, delivering the judge-
ment of the Supreme Court of the United States, in
these words:
'International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction, as often as of
depending upon it are duly presented f?r theu
nation. For this purpose, where there IS no treaty, and
no controlling executive or legislative act or judicial
decision, resort must be had to the customs and usages
of civilized nations; and as evidence of these, to the works
of jurists and commentators who by years of labour,
research, and experience have made pecu-
liarly well acquainted with the subjects of wh1ch they
treat. Such works are resorted to by judicial tribunals,
42 LAW OF NATIONS
not for the speculations of their authors concerning what
the law ought to be, but for trustworthy evidence of
what the law really is.'
1
This function of text-writers is unfamiliar to
lawyers trained in the English common law. Our
system is based on the authority of judicial decisions,
and any system which attaches great weight to the
words of judges almost inevitably comes to attach
very little to what is said by the writers of text-
books. But the converse of this is true also: where
little weight is given to judicial utterances, much
tends to be given to text-writers. This was the
position in the classical Roman law; it is the position
that is instinctively taken by lawyers trained in
those systems which derive from Roman law and it
'
is the position in international law, where hitherto
no competition for influence between judges and
text-writers has been possible.
Text-writers, however, have another function in
international law. What Mr. Justice Grey in the
passage cited above calls 'their speculations con-
cerning what the law ought to be' may also have a
great, though a different, importance; for they may
help to create opinion which may influence the
conduct of states and thus indirectly in the course of
time help to modify the actual law. Whether the
speculations of any particular author are likely to
have this active influence depends mainly on his
prestige, and on the persuasiveness witl1 which he
presents his arguments. But it is important not to
1
Paquete Habana, (18gg) American Prize Cases, p. 1938.
ORIGIN AND CHARACTER 43
confuse these two functions, the providing of evi-
dence of what the law is, and the exercise of influence
on its development. Continental writers draw the
distinction less clearly than English and American,
partly because the training of the leads t?em
to be cautious in accepting the opmwns of wnters
of text-books, and partly because English is the only
great language which has two different words. to
express the ideas of 'law', i.e. the rules do e;nst:
and 'right', i.e. the rules that ought to exiSt. Jus
in Latin, 'droit' in French, 'Recht' in German,
combine both these meanings, and it is therefore easy
for writers in these languages to pass unconsciously
from the idea of international law to what seems to
us the very different idea of international right. ?n
the other hand, language makes it easy for
writers to treat the difference as greater than It IS
in fact, and to forget that there is a necessary
connexion between the two ideas in international,
even more than in national, law. For even if law
and right are sometimes separated in fact, law _ca:'
only be true to its purpose if it is perpetually assimi-
lating what is felt to be right.
In applying the forms of evidence hav.e been
enumerated above in order to establish the existence
of an international custom what is sought for is a
general recognition among states of a certain p;actice
as obligatory. It would hardly ever be pracuca?l?,
and even the strictest of positivists admits that It IS
not necessary, to show that every state has recog-
nized a certain practice, just as in English law the
44 LAW OF NATIONS
existence of a valid local custom or custom of trade
can be established without proof that every
individual Jiving in the locality, or engaged in the
trade, has practised the custom. This test of general
recognition is necessarily a vague one; but it is of
the nature of customary law, whether national or
international, not to be susceptible of exact or final
for"';ul.ation. When a system of customary law is
admm1stered by courts, which perpetually reformu-
late and develop its principles, as in England, its
uncertainty is so much reduced that it is hardly, if
at all, greater than the uncertainty which attaches
:ven to enacted or to codified law; but the clarifying
mfluence of courts has as yet hardly begun to be felt
i? international law. It is therefore even less pos-
sible to formulate its principles dogmatically than
those of a national system of law. The difference,
however, is not one between uncertainty and
certainty in formulation, but merely between a
greater and a less degree of uncertainty.
(b) Reason as a source if the law.
In our discussion of natural law we saw that no
system of law consists only of formulated rules, for
these never be .sufficiently detailed or sufficiently
foreseemg to proVJde for every situation that may
call for a legal decision; those who administer law
must meet new situations not precisely covered by
a formulated rule by resorting to the principle
which medieval writers would have called natural
law, and which we generally call reason. Reason
ORIGIN AND CHARACTER 45
hi this context does not mean the
ing powers of any intelligent man, but a JUdicial
ason which means that a principle to cover the
situation is discovered by applying methods
f reasoning which lawyers everywhere accept as
for example, the consideration of precedents,
the finding of analogies, the fr?m
ccidental circumstances of the prmCip!es underlymg
:ules oflaw already established: This source of new
rules is accepted as valid and IS
to in the practice of states, both m the deciSions of
international tribunals and in the legal arguments
conducted by foreign offices with on: a:'-other, so th.at
a positivism which refuses to accept It IS untrue to Its
own premises. As Lord Mansfield, perhaps the great-
est judge who ever sat on the English bench,
when giving his opinion as a law officer on queshon
raised by Frederick the Great's sequestratiOn of the
Silesian loan: 'The law of nations is founded. on
justice, equity, convenience, and the reason if the thzng,
and confirmed by long usage.'
(c) Treaties as a source if the law. .
Treaties are not always treated as an mdependent
source of international law, and certainly it is
a very special class of treaty which has any cla;m
to be so regarded. The ordinary treaty by. which
. two or more states enter into engagements w1th one
another for some special object can very rarely be
safely used 'as evidence to establish the existence of
a rule oflaw; it may well be that the very reason of
LAW OF NATIONS
the treaty was to create an obligation which-would
not have existed by the general law, or to exclude an
existing rule which would otherwise have applied.
Still !ess can such treaties be regarded as actually
creahng new law. The only class of treaties which
it is admissible to treat as a source of law are those
which a large number of states have concluded for the
purpose either of declaring their understanding of
what the law is on a particular subject, or of laying
down a new general rule for future conduct or of
. . '
creatmg some mternational institution. Such treaties
are conveniently referred to as 'law-making'
and their .number is increasing to-day so
rapidly that the conventional law of nations'
which given to the law which the;
create, IS takmg Its place beside the older customary
law perhaps already surpasses it in importance.
There IS, however, an objection of theory to these
terms, 'law-making treaties' and 'conventional law
of nations'. For any treaty is essentially a contract
between states, and the stipulations of a contract
do not ?ind persons or states not parties to it. Thus,
m the almost impossible event of every state
m the world becoming a party to one of these
treaties, terms will not be law for every state.
So':'e wnters attempt to meet this difficulty by
sa)'lng that the law which these treaties create is
'general', but not 'universal', international law but
the terminology is not very happy, nor it
n;eet the of the difficulty. The real
JUstificahon for ascnbmg a law-making function to
ORIGIN AND CHARACTER 47
these treaties is a practical one. , They do in fact
perform the function which a legislature performs
in a state, though they do so only imperfectly; and
so long as there is no form of majority rule among
states, they are the only machinery which exists
for the purposive adapting of international law to
new conditions and in general for strengthening the
force of the rule of law between states. Moreover,
there is something artificial in saying, even if it is
strictly true in theory, that such important institu-
tions of international life as the Postal and Telegraph
Unions, or the European Danube Commission, or the
International Court of Justice, or the League of
Nations with its multifarious activities, are nothing but
contractual arrangements between certain states. We
have to look below the form of these treaties to their
really substantial effect, which is the tentative laying
of the foundations of a constitution for the society
of states, and, in some spheres, of a rudimentary
international government or administrative system.
6. General Character of the Modern System.
It is sometimes suggested that international law
ought properly to be classified as a branch of ethics
rather than of law. The question is partly one of
words, because its solution will clearly depend on
the definition of law which we choose to adopt,
and will not affect the value of the subject one way
or the other. But in fact it is both practically
inconvenient and also contrary to the best juristic
thought to deny its legal character. It is incon-
LAW OF NATIONS
venient because if international law is nothing but
international morality, it is certainly not the whole
of international morality, and it is difficnlt to see
how we are to distingnish it from those other ,
admittedly moral standards which we apply in
forming onr jndgements on the conduct of states.
For ordinary usage certainly uses two tests in
judging the 'rightness' of a state's act, a moral test
and one which is somehow felt to be independent
of morality. For instance, from rgrg to rg22 Great
Britain, contrary to her usual policy in imperial
affairs, imposed a differential export duty on palm
kernels from British West Africa to all countries
outside the Empire, with the declared object of mono-
polizing an essential raw material, and with the inci-
dental effect of forcing the native producer to sell
for less than he could obtain in the open market.
The action was not contrary to international law;
but we do not necessarily judge it for that reason to
have been 'right'. It is confusing and pedantic to
say that both these tests are moral. Moreover, it
is the pedantry of the theorist and not of the
practical man; for questions of international law are
invariably treated as legal questions by those who con-
duct our international business and in the courts,
national or international, before which they are
brought; legal forms and meth0ds are used in
diplomatic controversies and in judicial and arbitral
proceedings, and authorities and precedents are cited
in argument as a matter of course. In this connexion
also it is a significant fact that when a breach of
ORIGIN AND CHARACTER 49
. I . s alleged by one party to a con-
internahonal i u ned is literally never
trovers_r, hf of private judgement, which
by clmmmg t g I defence if the issue concen;ed
would be act. but always by attemptmg
the morahty o t r:le has been violated. This. was
to prove that a! able breaches of international
true even p in rgr4, or the born-
law as the Invaswn .o
bardment _of ?orfu character of inter-
The objeCtiOn to fi the followers of those
national law comes b:om d Austin who regard
writers, such as h the will' of a
nothing as Ia':" wh iC er is a misleading and m-
. r This owev ' f t t . i.t
supeno . ? . n of the law o a sa e,
adequate desc;iptwn eveccount for the existence of
does not, for mstance,L a . but even if it were true
the English Common . aw' ld still be true that that
: law of the state, it wou . Professor
. of a Wlder genus.
is only one species d I s 'a body of rules
, Oppenheim has h" a;; c:mmunity which by
',< human conduct Wit. m nit shall be en-
, < <. consent of -loman Catholic
has its body of rules
" is a commumty w Catholics feel thatthese
,.< the Canon
not mere Y r d by the power o
, < h ght to be en,orce
that t ey ?u. I h bod of states forms a com-
Church. Similar y t e I y I knit by common
not of so c ose y as is a single state,
and regular mtercourse
'inter<eSTE I International Law, vol. i, p. 6.
E
50 LAW OF NATIONS
but tending to become closer by the growth of all
those moral and material influences such as religion,
science, trade, railways, posts, and the like, which
bring states into contact with one another. It is
true, of course, that this community has not yet
like the state, developed regular machinery for
enforcement of its law, but its imperative character,
as has been mentioned, is never denied by any of
the members. The imperative character of national
law is so strongly felt that national law has developed
a machinery of enforcement or 'sanctions', which
generally work smoothly, though never so smoothly
as to make violations of law impossible. If the
imperative character of international law were
equally strongly felt, the institution of definite inter-
national 'sanctions' would easily follow. But this
contrast only means that national law in modern
times is generally a strong, whereas international
law is still a weak form of law; it does not justify us
in denying the fundamental similarity of the two.
The difference is one of the stage of development
which has been reached; international law is merely
law at an earlier stage than the law of a well-
ordered modern state.
International law is in fact just a of
E_nStoiiiary lla:sbeen-erected" _
.
of C()nventioni'll law in the SC)J.[e
11:lready e){plained.- By what process a sen;-,; of
obligation. comes to be attached to certain usages
and not to others, whether and if so on what ground
ORIGIN AND CHARACTER 5'
of obligation is valid, are questions to
ncuc
6
, .. philosophers will return varying answers;
they are questions which apply not especially
international law, but to all law, and for that
to all morality also. The lawyer is entitled
take a pragmatic standpoint and to assume that
a certain course of conduct is generally felt
those to whom it applies to be obligatory, it is
for him; in such an assumption he does
any ultimate truth or even anything
l)]}jectively valid outside the system with which he
concerned. At any rate the international lawyer
no special explanation of the obligatory force of
jn1:enoa1im1allaw, beyond the explanation, whatever
>r<uv be, of the obligatory force oflaw in general.
The defects of international law are precisely
which the history of law teaches us to expect
system of customary law. It is a common
mist;tke to suppose that among those defects is the
of its violation. Violations of the law
are extremely rare in any customary system, and
they are so in international law. The common
impression to the contrary arises from the unfortu-
nate concentration of popular interest on the laws
of war, and a consequent failure to observe that the
less sensational but far more important part of the
system, the laws of peace, is constantly and un-
obtrusively observed in the daily intercourse of
states. It follows that the efforts of those who would
seek to cure the defects of international law merely
by devising a better system of sanctions to secure
E2
52 LAW OF NATIONS
its enforcement are misdirected; it is not the exis-
tence of a police force that makes a system of law
strong and respected, but the strength of the law
that causes a police force to be organized.
(
' !h.e weakness of international law lies deeper than
thrs; rtmay be Slimmed up by saying that a customary

law can never be adequate to the needs of any but
a most primitive society, and the international
society of to-day is not, except in the matter of its
law, at the primitive stage. More explicitly we may
say that the inadequacy of the present law manifests
itself in three ways, all of which are characteristic
of customary law in general: in the smallness of its
in the uncertainty of many of its rules, and
m the slowness of its development.
The first of these defects may be illustrated by
the weakness of the institutional side of international
law. Thus there is no international legislature to
keep the law abreast of new needs in international
society. There is no international executive power
to enforce the law. There have been created with-
. '
m the last two generations, certain international
administrative bodies, important in themselves but
still quite inadequate to the mass of
business which ought to be treated to-day as of
international concern. There have also been brought
into existence in recent years international courts
of justice, but their range of action is limited because
resort to them is not yet compulsory. The same
defect may be further illustrated by noting that far
the greater part of international relations does not
ORIGIN AND CHARACTER 53
within the regulating influence of international
at all. The conduct of a state is not brought
international law merely because it may affect
interests of other states; this may be true and yet
matter in question may fall within what is called
'domestic jurisdiction' of a single state. For
.f:xarrLple, legislation restricting immigration into the
;n,,it.rl States is not a matter which affects American
in1:en"ts only; on the contrary it has created
'.ller:ioiiS difficulties for countries such as Italy whrch
a surplus of population. This latter fact,
;ltr>W<,ver, is irrelevant from a legal point of view, for
intmigration, though it is only one side of a problem
great international concern, the of
migration of population, is a matter entirely
the control of international law. Other
of matters which at present belong to
.'dlonae,;uc jurisdiction' and not to international law
a state's treatment of its own subjects, its choice
a form of government, its naturalization laws,
its action on any of these matters may
repercussions on the interests of other
But the most serious limitation on the range
international law is that practically the whole
of international economic relations, except \
a few cases where mutual concessions have been \
; by treaty, belongs to domestic jurisdiction. 1
::::-:_ bounties, preferences, raw materials, markets \,
the like are the matters which generally under-
the rivalries of modern states and provide the
if not the occasions, of their disputes; yet
54 LAW OF NATIONS
international law can very rarely interpose its
regulating influence here. Law will never play a
really effective part in international relations until
it can annex to its own sphere some of the matters
which at present lie within the 'domestic jurisdic-
tions' of the several states; for so long as it has to be
admitted that one state may have its reasonable
interests injuriously affected by the unreasonable
action of another, and yet have no legal basis for
complaint, it is inevitable that the injured state, if
it is strong enough, will seek by other means the
redress that the law cannot afford it. At the best
the present state of things leads to the maintenance
by powerful states of policies outside the law, con-
ceived in their own interests, and paying only so
much regard to the interests of the other states as
dictates. Such policies cannot even, as
thmgs are, be wholly condemned, because the
interests which they protect are often perfectly
reasonable interests such as any really adequate
system of law would recognize and safeguard; but,
unfortunately, there is at present no securitywhatever
that these policies will be confined to the protection
of the reasonable interests of the states concerned.
The uncertainty of many of the rules of inter-
national law is an inevitable consequence of the
absence of any authoritative law-declaring machi-
nery. It is not in the nature of any law to pro-
vide mathematically certain solutions of problems
which may be presented to it; for uncertainty
cannot be eliminated from law so long as the possible
ORIGIN AND CHARACTER 55
of facts remain infinitely various.
the difficulty of formulating the rules of inter-
Jaw with any precision will be apparent
the discussion in 5 above of the kinds of
)id,enc:e upon which we have to rely in order to
,talbli,;h them; and a further cause of uncertainty,
Jet;m.a to international law, lies in the persistence
traditions, the Anglo-American and the
Z:o
1
ntineJJta.l, which often assert conflicting rules on
same matter.
two defects which we have considered would
Jess serious if the means of developing the law
more adequate than they are. The growth of
custom is inevitably an exceedingly slow
and the hope of advance must lie mainly
a of the conventional element in
law. In this direction the machinery of the
of Nations has already led to results of great
but international law is inevitably and
permanently at a great disadvantage in
respect as compared with a national system,
the law-making treaty is an ineffective instru-
for developing the law compared with a
acting by majority vote. But perhaps an
greater handicap is the general failure to appre-
not so much that it is necessary to substitute
for anarchy in international relations, as that
a process cannot be carried through without
great apparent, though not on a long view real,
ac1ifices of special national interests.