Vattel.
A contemporary of Bynkershoek was Christian de Wolff (1679-1754), a
philosopher, mathematician, theologian, lawyer and disciple of Leibnitz.
Wolff's great work on the _Institutions of the Law of Nature and
Nations_ is a learned and accurate treatise drawn from all the
well-known sources of knowledge, and, just as Grotius based his
demonstrations on the then imperfect knowledge of public events of his
time, Wolff based his on the more accurate sources of information which
had grown up under the influence of Leibnitz, and created a connected
system out of the scattered fragments available. But his book was
written in Latin at a period when scholarship had declined, and its
influence was only felt after Vattel (1714-1767) wrote his _Droit des
gens, ou principes de la loi naturelle appliquees a la conduite et aux
affaires des nations et des souverains_ (1758). His book had all the
charm, although Vattel was a Neufchatelois, of the French writers of his
time, and he it was who popularized the study of International Law. His
book was based chiefly on the work of Wolff, but in it he gave what was
best amongst his predecessors without attempting to add anything
original of his own. It became the handbook of statesmen and jurists,
and has never ceased to be quoted by them down to the present day.
But the opinions of jurists in International Law can have little more
than the value of criticism and co-ordination. They have seldom served
to make law, though they have the weight of all statements made by those
who have made a special study of any branch of law, as to what they had
gathered to be the existing practice at the time when they wrote, or as
to the trend which they showed that practice might be taking. Great
lawyers and writers like those we have mentioned, and such as Lord
Mansfield, Sir William Scott, Chief-Justice Marshall and others, have
done the work of classifying facts, deducing conclusions from them and
connecting rules with psychological and ethical motives, and have thus
sent a current of higher intelligence through the subject which has
raised it to its present methodical form. Still International Law
remained a wide field for controversy. Authors were agreed on general
principles, but when these general principles were applied in practice,
the shortcomings of unwritten usage often caused as much difficulty as
that which the appeal to principles was intended to overcome.
Hague and London Conferences.
What may be called the first enactment of rules of International Law was
the Declaration of Paris of 1856, but the great work of codification, or
rather of reducing into writing the rules which had been floating as an
unwritten law in the conscience of Europe, was undertaken by the Hague
Conferences, which may be said to be and to have created an entirely new
factor in the domain of International Law. Two of the conventions
adopted in 1899 completed work which had already been commenced long
before, viz. those on the usages of war and on the adaptation of the
Geneva Convention to naval war. The third established methods for the
pacific settlement of international difficulties, including the
formation of the Hague Court of Arbitration. Recourse to the latter was
purely optional, but the other two conventions have been absorbed into
the national law of the ratifying countries, and thus have also the
domestic sanction states give to their own laws. The work of the
Conference of 1907 was of a much wider and more exhaustive character
than that of 1899. It comprised, besides revised conventions on the
matters dealt with in 1899, new Conventions on the following subjects:
Opening of hostilities; Position in naval war of enemy's merchant ships
at beginning of hostilities; Conversion of merchant vessels into
warships; Rights and duties of neutral states in naval war; The laying
of automatic submarine contact mines; The bombardment of undefended
places by naval forces; Treatment of fishing vessels, postal
correspondence and capture generally in maritime war; and Recovery by
force of contract debts. It also adopted a convention for the creation
of an International Prize Court of Appeal, which led to the calling of a
fresh Conference on Prize Law. This conference sat in London from
December 4, 1908, to February 26, 1909, and was confined to
representatives of the following countries: Great Britain, France,
Germany, United States of America, Italy, Austria-Hungary, Russia,
Japan, Holland and Spain. It adopted a series of rules on naval warfare
relating to Blockade in time of war; Contraband of war; Unneutral
service; Destruction of neutral prizes; Transfer to neutral flag; Enemy
character; Convoy; and Resistance to search and Compensation.
The revolution effected in the relations of states by the Hague and
London Conferences, however, is not confined to the reduction into
writing of more or less vague usages nor to the elaboration of details
which no usage can possibly determine. Until a machinery was provided
for the reform of the law it was futile to speculate on the advantages
or disadvantages of any rule admitted by the majority of civilized
nations. The territorial waters 3 m. limit, for instance, had its origin
in the distance seawards of cannon-range in a past period. Its almost
universal recognition only came long after the range of coast-guns had
far exceeded this distance. This superannuated rule has now no legal
basis at all except the so-called "common consent of nations," a boon no
doubt which outweighs any consideration of absolute fitness still
unrecognized, but of which the learned Barbeyrac truly said,[14] "Ce
commun consentement des peuples que l'on suppose avoir force de loi est
une chose qu'on ne prouvera jamais." The institution of the Hague
Conferences has now provided a method of obtaining the consent of
nations, not only to existing rules, but to their reform and to the
introduction of new rules. It is now an understanding among the states
of the world, that these conferences shall be held periodically. It is,
of course, possible for one great state to hold aloof and thus wreck the
chances of universal agreement, but even then we have the power of the
majority as against that of the minority. A case actually arose in a
recent war between non-signatories of the declaration of Paris of 1856.
Neither the United States nor Spain was a party to that declaration, yet
neither ventured to disregard it.
The chief source of International Law will, therefore, in all
probability for the future be that "Parliament of mankind," the Hague
Conferences. The Hague Court and its adjunct in time of war, the
proposed International Prize Court of Appeal, will form the Judicature
applying and construing the enactments of the Conferences acting as a
sort of international Legislature.
Standard of right conduct.
_Fundamental Principles._--Underlying the details of both the new
International Legislature and the new International Judicature are
certain principles which may some day have to be officially defined.
These principles have necessarily fluctuated with the standard of morals
of each period. With the contemporary development of the public
conscience, they are undergoing changes and a betterment which it is not
desirable to check by yet nailing them up as immutable articles of
faith. Till quite recently it was usual to speak of the common standard
of right conduct prevailing throughout the Christian world, a standard
to which responsible statesmen tried to adjust their direction of the
affairs of state. The admission of Japan into the councils of the great
powers has introduced a non-Christian element whose standard of conduct
was not identical with nor based upon Christian morals. Turkey, though
admitted in 1856 to European Councils, remained rather the occasion of
their deliberations than a deliberating party. Her new position as a
constitutional state, with a code of morals at any rate in some
essentials distinct from that of Christian peoples, will add a further
new non-Christian element into the moral foundations of international
conduct. The influence of western Europe, however, in both Japan and
Turkey, has hitherto in all external development been paramount. Japan,
after examining all the existing systems, has even adopted the best she
found in Western morals, and in her schools inculcates Christian ethics
as a subject _per se_ without reference to divine revelation or
authority. Turkey too has the advantage of possessing a code of morals
which produces so high a standard of right conduct in private life that
very little in the way of moral lessons will have to be learned by the
Ottomans from Western civilization. As regards practice, it is
unreasonable to expect that the high estimate of the moral standard of
west European civilization, which is cherished by those who profess its
principles, should be accepted by other peoples with unqualified assent.
Are not the nations of western Europe still vaguely influenced by the
instincts of their conquering ancestors, and by the traditions of--
"... the good old rule,
... The simple plan,
That they should take who have the power
And they should keep who can"?
There is nothing essentially different between many recent wars and
military enterprises undertaken by Western nations against heathen
peoples, and wars and conquering enterprises undertaken by the Northmen
of a thousand years ago. In his _Northern Antiquities_ Mallet[15]
describes the primitive feeling of the Northmen in the following
passages:--
"The rules of justice, far from checking their prejudices, had been
themselves warped and adapted to their bias. It is no exaggeration to
say that all the Teutonic nations entertained opinions on this subject
quite opposite to the theory of our times. They looked upon war as a
real act of justice, and esteemed it an incontestable title over the
weak, a visible mark that God had intended to subject them to the
strong. They had no doubt but the intentions of this divinity had been
to establish the same dependence among men which there is among
animals, and setting out from the principle of the inequality of men,
as our modern civilians do, from that of their equality, they inferred
thence that the weak had no right to what they could not defend. This
maxim which formed the basis of the law of Nations among the ancient
inhabitants of Europe being dictated by their most darling passion, we
cannot wonder that they should so steadily act up to it in practice.
And, which after all is worst, to act and think as they did, or, like
the moderns, with better principles, to act as ill? As to the ancient
nations, we attribute nothing to them here but what is justified to
them by a thousand facts. They adopted the above maxim in all its
rigour and gave the name of Divine Judgment not only to the Judiciary
Combat, but to conflicts and battles of all sorts: victory being in
their opinion the only certain mark by which Providence enables us to
distinguish those which it has appointed to command others."
What is a civilized state?
The very notion of the "right of conquest," and that the victorious are
entitled to an indemnity without reference to any question of right and
wrong or of justice and injustice, shows that there are principles in
actual practice which lie outside and have no analogy in the principles
of private law. In the partition of Africa native states have been
treated as non-existent except as local bodies. They have been annexed
to European states without reference to their will or consent. Treaties
have indeed been made with them, but they have rather been regarded as
evidence of prior occupation than as involving any question of native
right. The test in the distinction between civilized and uncivilized
states which is regarded as warranting exclusion from enjoyment of the
right to consideration as independent states, and admission to the
community of the civilized world, is in practice the possession of a
regular government sufficient to ensure to Europeans who settle among
them safety of life and property. Every country, in principle,
possessing such a government has prima facie the rank of a state and is
entitled to treatment as a civilized community. Treaties made with it
for the purpose of extra-territorial jurisdiction are intended merely to
take into account a difference of judicial institutions but are not
supposed to detract otherwise from the possession of such equality and
independence. This principle has no analogy in private morals, and has
been, slight as it is, more honoured in the breach than the observance.
If indifference to native right has provoked reaction, it has been on
the part rather of philanthropists than of statesmen. Their movement for
the protection of African aborigines has, however, resulted in at least
one great international charter for the prevention of the further
degradation of African aborigines, viz. the General Act of Brussels of
1885. A vigorous outcry has also been raised against the methods of the
government of the Congo State. But the agitation ought not to be
confined to this part of Central Africa. Other governments are also in
fault. In fact, the contact of the European with Central Africa has,
throughout, with few exceptions, been one of barbarous practice quite
inconsistent with the principles which Christian missionaries have been
sent to teach the African native.
In the case of European enterprise in Asia, the "good old rule" has had
still less justification. The action taken for the repression of the
Boxer movement in China, like previous European incursions, had no
essential characteristic distinguishing it from the expeditions of the
Northmen described by Mallet in the above-quoted passage. The Japanese
took part in the "Boxer" expedition, and the example of respect for
native right and of orderly self-restraint they set has been universally
acknowledged. But the lesson is one of greater significance than one of
comparative ethics. The rise of the power of Japan and her obvious
determination to constitute herself the champion of the races of eastern
Asia has widened the scope of International Law, and we may now regard
China as henceforth under the protection of the same principles as
European states.
The three chief principles of interstate intercourse, those, in fact, on
which International Law is based are:--