Transcriber's note:
Text enclosed by underscores is in italics (_italics_).
Text enclosed by equal signs is in bold face (=bold=).
Text enclosed by plus signs is in mixed large and small
capitals (+SMALL CAPITALS+). Text which was all small
capitals in the original text has been transliterated
into uppercase letters.
INTERNATIONAL LAW
by
GEORGE GRAFTON WILSON, Ph.D.
Professor in Brown University
and
GEORGE FOX TUCKER, Ph.D.
Lately Reporter of Decisions of the Supreme Judicial Court of
Massachusetts
[Illustration]
Silver, Burdett and Company
New York Boston Chicago
Copyright, 1901,
By Silver, Burdett and Company.
PREFACE
The authors have aimed to prepare a brief introduction to the subject of
International Law. They have freely used the substantive material as
found in cases, codes, etc., which involve the principles of
International Law. Owing to the increasing importance of international
negotiation, relatively more attention than usual has been given to
matters connected with diplomacy. The appendices contain material which
the authors have found advantageous to have easily accessible to each
student. The study of this book should in all cases be supplemented by
reference to a considerable number of the books mentioned in the
bibliography.
G. G. W.
G. F. T.
+September+, 1901.
CONTENTS
PAGE
+Bibliography+ xix
+Abbreviation of Cases Cited+ xxi
+Table of Cases Cited+ xxiii
PART I
_GENERAL AND HISTORICAL_
CHAPTER I
+Definition and General Scope+ 3
1. +Definition.+
(_a_) Philosophical: what ought to be.
(_b_) Scientific: what is.
2. +Divisions.+
(_a_) Public.
(_b_) Private.
3. Scope.
CHAPTER II
+Nature+ 6
4. +Early Terminology.+
(_a_) _Jus naturale._
(_b_) _Jus gentium._
(_c_) Other terms.
5. +Historical Bases.+
6. +Ethical Bases.+
7. +Jural Bases.+
(_a_) Roman law.
(_b_) Canon law.
(_c_) Common law.
(_d_) Equity.
(_e_) Admiralty law.
8. +International Law and Statute Law.+
9. +How far is International Law entitled to
be called Law?+
CHAPTER III
+Historical Development+ 12
10. +Early Period.+
(_a_) Greece.
(_b_) Rome.
11. +Middle Period.+
(_a_) Roman Empire.
(_b_) The Church.
(_c_) Feudalism.
(_d_) Crusades.
(_e_) Chivalry.
(_f_) Commerce and Sea Laws.
(_g_) Consulates.
(_h_) Discovery of America.
(_i_) Conclusion.
12. +Modern Period from 1648.+
(_a_) 1648-1713.
(_b_) 1713-1815.
(_c_) 1815- .
13. +Writers.+
CHAPTER IV
+Sources+ 29
14. +Practice and Usage.+
15. +Precedent and Decisions.+
(_a_) Prize and Admiralty Courts.
(_b_) Domestic Courts.
(_c_) Courts of Arbitration.
16. +Treaties and State Papers.+
17. +Text Writers.+
18. +Diplomatic Papers.+
PART II
_PERSONS IN INTERNATIONAL LAW_
CHAPTER V
+States+ 39
19. +Definition.+
(_a_) Political.
(_b_) Sovereign.
20. +Nature.+
(_a_) Moral.
(_b_) Physical.
(_c_) Communal.
(_d_) External conditions.
21. +Recognition of New States.+
(_a_) _De facto_ existence.
(_b_) Circumstances of recognition.
(1) By division.
(2) By union.
(3) By admission of old states.
(4) By admission of former barbarous communities.
(5) Individual and collective recognition.
(_c_) Act of recognition.
(_d_) Premature recognition.
(_e_) Conditions.
(_f_) Recognition irrevocable.
(_g_) Consequences.
(1) The Recognizing state.
(2) The Recognized state.
(3) The Parent state.
(4) Other States.
CHAPTER VI
+Legal Persons having Qualified Status+ 50
22. +Members of Confederations and Other Unions.+
23. +Neutralized States.+
24. +Protectorates, Suzerainties.+
25. +Corporations.+
(_a_) Private.
(_b_) Exercising political powers.
26. +Individuals.+
27. +Insurgents.+
(_a_) Definition.
(_b_) Effect of admission of insurgency.
28. +Belligerents.+
(_a_) Definition.
(_b_) Conditions prior to recognition.
(_c_) Grounds of recognition.
(_d_) Who may recognize.
(_e_) Consequences.
(1) Recognition by a foreign state.
(2) Recognition by the parent state.
29. +Communities not fully Civilized.+
PART III
_INTERNATIONAL LAW OF PEACE_
CHAPTER VII
+General Rights and Obligations of States+ 67
30. +Existence.+
31. +Independence.+
32. +Equality.+
33. +Jurisdiction.+
34. +Property.+
35. +Intercourse.+
CHAPTER VIII
+Existence+ 71
36. +Application of the Right in General.+
37. +Extension of the Right to Subjects of the
State.+
CHAPTER IX
+Independence+ 74
38. +Manner of Exercise.+
39. +Balance of Power.+
40. +Monroe Doctrine.+
41. +Non-intervention.+
42. +Practice in Regard to Intervention.+
(_a_) For self-preservation.
(_b_) To prevent illegal acts.
(_c_) By general sanction.
(_d_) Other grounds.
(1) +Treaty stipulations.+
(2) +Balance of power.+
(3) +Humanity.+
(4) +Civil war.+
(5) +Financial.+
(_e_) Conclusion.
CHAPTER X
+Equality+ 88
43. +Equality in General.+
44. +Inequalities among States.+
(_a_) Court precedence.
(_b_) Matters of ceremonial.
(_c_) Weight of influence in affairs.
CHAPTER XI
+Jurisdiction+ 94
45. +Jurisdiction in General.+
46. +Territorial Domain and Jurisdiction.+
47. +Method of Acquisition.+
(_a_) Discovery.
(_b_) Occupation.
(_c_) Conquest.
(_d_) Cession.
(1) Transfer by gift.
(2) Transfer by exchange.
(3) Transfer by sale.
(4) Cession of jurisdiction.
(_e_) Prescription.
(_f_) Accretion.
48. +Qualified Jurisdiction.+
(_a_) Protectorates.
(_b_) Sphere of influence.
49. +Maritime and Fluvial Jurisdiction.+
50. +Rivers.+
(_a_) Which traverse only one state.
(_b_) Flowing through two or more states.
(_c_) Under jurisdiction of two states.
51. +The Navigation of Rivers.+
52. +Enclosed Waters.+
(_a_) Wholly enclosed.
(_b_) Gulfs, bays, estuaries.
(_c_) Straits: Danish Sounds, Dardanelles.
(_d_) Canals: Suez, Panama, Nicaraguan, Corinth,
Kiel.
53. +The Three-mile Limit.+
54. +Fisheries.+
(_a_) Deep sea.
(_b_) Canadian.
(_c_) Bering Sea.
55. +Vessels.+
(_a_) Classes.
(1) Public.
(2) Private.
(_b_) Nationality.
(_c_) Jurisdiction.
(1) Public.
(2) Private.
(3) Semi-public.
56. +Personal, General--Nationality.+
57. +Natural-born Subjects.+
58. +Foreign-born Subjects.+
59. +Acquired Nationality.+
(_a_) By marriage.
(_b_) By naturalization.
(_c_) By annexation of territory.
(_d_) Effect of naturalization.
(_e_) Incomplete naturalization.
60. +Jurisdiction over Aliens.+
(_a_) Over subjects abroad.
(1) Emigration laws.
(2) Recall of citizens.
(3) Penal jurisdiction.
(4) Protection of subjects.
(_b_) Over aliens within territory.
(1) Exclusion.
(2) Expulsion.
(3) Conditional admission.
(4) Settlement.
(5) Taxes.
(6) Sanitary and police jurisdiction.
(7) Penal jurisdiction.
(8) Maintenance of public order.
(9) Military service.
(10) Freedom of commerce.
(11) Holding property.
(12) Freedom of speech and worship.
(_c_) Passports.
61. +Exemptions from Jurisdiction--General.+
62. +Sovereigns.+
63. +State Officers.+
(_a_) Diplomatic agents.
(_b_) Consuls.
(_c_) Army.
(_d_) Navy.
64. +Special Exemptions.+
(_a_) In Oriental countries.
(1) Penal matters.
(2) Civil matters.
(_b_) In Egypt.
65. +Extradition.+
(_a_) Persons liable.
(_b_) Limitations.
(_c_) Conditions.
(_d_) Procedure.
66. +Servitudes.+
(_a_) International.
(_b_) General.
CHAPTER XII
+Property+ 148
67. +Property in General.+
68. +State Property in International Law.+
CHAPTER XIII
+Diplomacy and International Relations in Times of
Peace+ 150
69. +General Development.+
70. +Diplomatic Agents.+
(_a_) Historical.
(_b_) Rank.
(1) Diplomatic agents of first class.
(2) Envoys extraordinary.
(3) Ministers resident.
(4) Chargés d'affaires.
71. +Suite.+
(_a_) Official.
(_b_) Non-official.
72. +Who may send Diplomatic Agents.+
73. +Who may be sent.+
74. +Credentials.+
75. +Ceremonial.+
(_a_) General.
(_b_) Reception.
(_c_) Precedence and places of honor.
(_d_) Prerogatives.
76. +Functions.+
(_a_) Internal business.
(_b_) Conduct of negotiations.
(_c_) Relation to fellow-citizens.
(_d_) Reports to home government.
77. +Termination of Mission.+
(_a_) Through death of agent.
(_b_) In ordinary manner.
(_c_) Under strained relations.
(_d_) Ceremonial of departure.
78. +Immunities and Privileges.+
(_a_) Inviolability.
(_b_) Exterritoriality and exemptions.
(1) Criminal jurisdiction.
(2) Civil jurisdiction.
(3) Family and suite.
(4) House of ambassador.
(5) Asylum.
(6) Taxation.
(7) Religious worship.
79. +Diplomatic Practice of the United States.+
80. +Consuls.+
(_a_) Historical.
(_b_) Grades.
(_c_) Nomination and reception.
(_d_) Functions.
(_e_) Special powers in Eastern states.
(_f_) Privileges and immunities.
(_g_) Termination of consular office.
CHAPTER XIV
+Treaties+ 198
81. +Definition.+
82. +Other Forms of International Agreements.+
(_a_) Protocol.
(_b_) Declarations.
(_c_) Memoranda.
(_d_) Letters, notes.
(_e_) Sponsions.
(_f_) Cartels.
83. +The Negotiation of Treaties.+
(_a_) The agreement.
(_b_) The draft.
(_c_) Signs and seals.
(_d_) Ratification.
84. +The Validity of Treaties.+
(_a_) International capacity.
(_b_) Due authorization.
(_c_) Freedom of consent.
(_d_) Conformity to law.
85. +The Classification of Treaties.+
86. +The Interpretation of Treaties.+
87. +The Termination of Treaties.+
CHAPTER XV
+Amicable Settlement of Disputes and Non-hostile
Redress+ 217
88. +The Amicable Settlement of Disputes.+
(_a_) Diplomatic negotiation.
(_b_) Good offices.
(_c_) Conferences and congresses.
(_d_) Arbitration.
89. +Non-hostile Redress.+
90. +Retorsion.+
91. +Reprisals.+
92. +Embargo.+
93. +Pacific Blockade.+
PART IV
_INTERNATIONAL LAW OF WAR_
CHAPTER XVI
+War+ 229
94. +Definition.+
95. +Commencement.+
96. +Declaration.+
97. +Object.+
98. +General Effects.+
CHAPTER XVII
+Status of Persons in War+ 235
99. +Persons affected by War.+
100. +Combatants.+
101. +Non-combatants.+
CHAPTER XVIII
+Status of Property on Land+ 239
102. +Public Property of the Enemy.+
103. +Real Property of Enemy Subjects.+
104. +Personal Property of Enemy Subjects.+
CHAPTER XIX
+Status of Property at Sea+ 245
105. +Vessels.+
(_a_) Public vessels.
(_b_) Private vessels.
106. +Goods.+
107. +Submarine Telegraphic Cables.+
CHAPTER XX
+Conduct of Hostilities+ 250
108. +Belligerent Occupation.+
109. +Forbidden Methods.+
110. +Privateers.+
111. +Volunteer and Auxiliary Navy.+
112. +Capture and Ransom.+
113. +Postliminium.+
114. +Prisoners and their Treatment.+
(_a_) Quarter and retaliation.
(_b_) Employment.
(_c_) Exchange.
(_d_) Parole.
(_e_) Sick and wounded.
115. +Non-hostile Relations of Belligerents.+
(_a_) Flag of truce.
(_b_) Cartels.
(_c_) Passports, safe-conducts, safeguards.
(_d_) License to trade.
(_e_) Suspension of hostilities, truce, armistice.
(_f_) Capitulation.
CHAPTER XXI
+Termination of War+ 270
116. +Methods of Termination.+
117. +By Conquest.+
118. +By Cessation of Hostilities.+
119. +By a Treaty of Peace.+
PART V
_INTERNATIONAL LAW OF NEUTRALITY_
CHAPTER XXII
+Definition and History+ 277
120. +Definition.+
121. +Forms of Neutrality and of Neutralization.+
122. +History.+
123. +Declaration.+
124. +Divisions.+
CHAPTER XXIII
+Relations of Neutral States and Belligerent States+ 285
125. +General Principles of the Relations between
States.+
126. +Neutral Territorial Jurisdiction.+
127. +Regulation of Neutral Relations.+
(_a_) To belligerent troops.
(_b_) Asylum for vessels.
(_c_) Ordinary entry.
(_d_) Sojourn of vessels.
128. +No Direct Assistance by Neutral.+
(_a_) Military.
(_b_) Supplies.
(_c_) Loans.
(_d_) Enlistment.
129. +Positive Obligations of a Neutral State.+
CHAPTER XXIV
+Neutral Relations between States and Individuals+ 298
130. +Ordinary Commerce.+
(_a_) Destination.
(_b_) Ownership of goods.
(_c_) Nationality of vessel.
(_d_) Declaration of Paris.
131. +Contraband.+
132. +Penalty for Carrying Contraband.+
133. +Unneutral Service.+
134. +Visit and Search.+
(_a_) Right.
(_b_) Object.
(_c_) Method.
(_d_) Ship's papers.
(_e_) Grounds of seizure.
(_f_) Seizure.
135. +Convoy.+
136. +Blockade.+
(_a_) Historical.
(_b_) Conditions of existence.
(_c_) A war measure.
(_d_) Who can declare.
(_e_) Notification.
(_f_) Must be effective.
(_g_) Cessation.
137. +Violation of Blockade.+
138. +Continuous Voyages.+
139. +Prize and Prize Courts.+
+Appendices+ 331
+Index+ 447
BIBLIOGRAPHY
This list contains the titles of books most frequently cited in the
following pages:--
+Bluntschli, J. C.+ Le droit international. (Lardy), 1886.
+Bonfils.+ Droit International Public. (Fauchille), 1898.
+Calvo, Ch.+ Droit International. 5e éd. 6 vols. 1896.
+Cobbett, Pitt.+ Leading Cases and Opinions on International Law. 2d
ed, 1892.
+Dahlgren, J. A.+ Maritime International Law. 1877.
+Davis, G. B.+ The Elements of International Law. 1901.
+Despagnet.+ Droit International Public. 2d ed. 1899.
+Field, D. D.+ Outline of an International Code. 1876.
+Glass, H.+ Marine International Law. 1884.
+Glenn, E. F.+ Hand Book of International Law. 1895.
+Grotius, H.+ De Jure Belli ac Pacis. 3 vols. Whewell. 1853.
+Hall, W. E.+ International Law. 4th ed. 1895.
+Halleck, H. W.+ Elements of International Law. 3d ed. Baker. 1893.
+Heffter, A. G.+ Droit International. 4th ed. Geffeken. 1883.
+Hertslet, E.+ Map of Europe by Treaty, 1815-1891. 4 vols. 1875-1891.
+Holls, F. W.+ The Peace Conference at the Hague. 1900.
+Hosack, J.+ Rise and Growth of the Law of Nations. 1882.
+Kent, J.+ Commentaries on American Law. 14th ed.
+Lawrence, T. J.+ Principles of International Law. 2d ed. 1901.
+Lehr, E.+ Manuel des Agents Diplomatiques et Consulaires. 1888.
+Maine, H.+ International Law. 1888.
+Moore, J. B.+ Extradition and Interstate Rendition. 2 vols. 1891.
---- International Arbitrations. 6 vols. 1898.
+Ortolan, T.+ Diplomatie de la Mer. 4th ed. 2 vols. 1864.
+Perels, F.+ Manuel de Droit Maritime International par Arendt. 1884.
+Phillimore, R.+ International Law. 3d ed.
+Pomeroy, J. N.+ International Law in Times of Peace. 1886.
+Pradier-Fodéré, P.+ Trait de Droit International Public Européen et
Americain. 7 vols. 1885-1897.
+Rivier, A.+ Principes du Droit des Gens. 2 vols. 1896.
+Snow, F.+ Cases and Opinions on International Law. 1893.
---- American Diplomacy. 1894.
---- International Law. Naval War College. Prepared by Stockton. 2d
ed. 1898.
+Takahashi, S.+ Cases on International Law, Chino-Japanese. 1896.
+Treaties and Conventions+ between the United States and Other Powers,
1776-1887. 1887.
+Treaties in Force+, Compilation of United States. 1899.
+Vattel, E.+ Law of Nations. Trans. Ingraham. 1876.
+Walker, T. A.+ Science of International Law. 1893.
---- Manual of Public International Law. 1895.
---- History of the Law of Nations, vol. 1. 1899.
+Westlake, J.+ Chapters on Principles of International Law. 1894.
+Wharton, F.+ Digest of International Law. 3 vols. 2d ed. 1887.
+Wheaton, H.+ Elements of International Law. 1836.
---- Edited by Lawrence, W. B. 1863.
---- Edited by Dana, R. H. 1865.
---- Edited by Boyd, A. C. 2d ed.
+Woolsey, T. D.+ International Law. 6th ed. 1891.
ABBREVIATIONS OF CITATIONS
The following are the important abbreviations of citations:--
Ann. Cycl. Appleton's Annual Cyclopædia.
Br. & For. St. Pap. British and Foreign State Papers.
C. Rob. Chr. Robinson's English Admiralty Reports.
Brussels Code Conference at Brussels, 1874, on Military
Warfare.
Cr. Cranch's United States Reports.
Fed. Rep. Federal Reporter.
Gould & Tucker Gould and Tucker's Notes on the United
States Statutes.
Hall Hall's International Law (4th ed.).
Hertslet Hertslet Map of Europe by Treaty.
How. Howard United States Reports.
Instr. U. S. Armies. Instructions for the Government of Armies
of the United States in the Field.
Kent's Com. Kent's Commentaries (14th ed.).
Lawrence Lawrence's Principles of International Law.
Oxford Manual Manual of the Laws of War on Land, Oxford,
1880.
Pet. Peters's United States Reports.
Schuyler Schuyler's American Diplomacy.
Takahashi Takahashi's Cases during the Chino-Japanese
War.
Treaties of U. S. Treaties and Conventions of the United
States, 1776-1887.
U. S. For. Rel. United States Foreign Relations.
U. S. Naval War Code United States Naval War Code.
U. S. United States Reports.
U. S. Rev. Sts. United States Revised Statutes.
U. S. Sts. at Large United States Statutes at Large.
Wall. Wallace, United States Reports.
Whart. Wharton's International Law Digest.
Wheaton D. Wheaton's International Law (Dana's edition).
Wheat. Wheaton's United States Reports.
TABLE OF CASES CITED
Alabama, The, 297, 435.
Alcinous _v._ Nigreu, 238, 432.
Alexandra, The, 436.
Anna, The, 102.
Anne, The, 287.
Atalanta, The, 308, 443.
Bermuda, The, 322, 444.
Bolton _v._ Gladstone, 31, 430.
Brown _v._ United States, 241, 432.
Caroline, The, 71, 289, 434.
Chesapeake, The, 145.
Commercen, The, 305, 441.
Constitution, The, 138.
Exchange _v._ M'Faddon, 138.
Florida, The, 436.
Foster _v._ Neilson, 46.
Friendship, The, 442.
Gen. Armstrong, Case of the, 287.
Georgia, The, 436.
Grotius, The, 258, 433.
Harcourt _v._ Gaillard, 42, 430.
Huascar, The, 57.
In the Matter of Metzger, 142, 431.
Jones _v._ United States, 46, 431.
Jonge Tobias, The, 306, 441.
Juffrow Maria Schroeder, 320, 443.
Koszta, The Case of, 128, 129.
Kow-Shing, 310, 442.
La Manche, The, 327, 444.
Magnus, The, 441.
Maria, The, 310, 321, 444.
Marianna Flora, The, 310.
M'Ilvaine _v._ Coxe's Lessee, 42.
Montezuma, The, 57.
Nassau, The, 326.
Orozembo, The, 309, 442.
Pampero, The, 436.
People _v._ McLeod, 434.
Peterhoff, The, 303, 440.
Prize Cases, 231, 323.
Regina _v._ Keyn, 112.
Rothschild _v._ Queen of Portugal, 136.
Santa Cruz, The, 30, 433.
Santissima Trinidad, The, 69.
Sea Lion, The, 267, 433.
Shenandoah, The, 436.
Sir William Peel, The, 327.
Sophie, The, 273, 434.
Springbok, The, 327.
Staadt Embden, The, 306.
State of Mississippi _v._ Johnson, 46, 431.
Stephen Hart, The, 322, 443.
Swineherd, Case of the, 273.
Twee Gebroeders, The, 288, 435.
Two Friends, The, 261, 433.
United States _v._ Ambrose Light, 57.
United States _v._ Baker, 254, 432.
United States _v._ Rauscher, 31, 430.
Vavasseur _v._ Krupp, 135.
Venus, The, 266, 433.
Virginius, The, 71.
Wildenhus's Case, 120, 431.
Williams _v._ Suffolk Insurance Company, 46, 431.
William, The, 321.
PART I
GENERAL AND HISTORICAL
INTERNATIONAL LAW
CHAPTER I
DEFINITION AND GENERAL SCOPE
1. +Definition.+
(_a_) Philosophical: what ought to be.
(_b_) Scientific: what is.
2. +Divisions.+
(_a_) Public.
(_b_) Private.
3. +Scope.+
§ 1. Definition
International law may be considered from two points of view, viz.:--
(_a_) =From the philosophical point of view=, as setting forth the rules
and principles which _ought to be observed_ in interstate relations.
(_b_) =From the scientific point of view=, as setting forth the rules
and principles which _are_ generally observed in interstate relations.
Wheaton, D., 23: "International law, as understood among civilized
nations, may be defined as consisting of those rules of conduct which
reason deduces, as consonant to justice, from the nature of the
society existing among independent nations; with such definitions and
modifications as may be established by general consent." See also I.
Pradier-Fodéré, pp. 8, 41.
Early writers treated especially of those principles which _ought to be_
observed in interstate action, and the wealth of quotation and testimony
introduced to establish the validity of principles now considered almost
axiomatic, is overwhelming. In the days of Ayala, Brunus, Gentilis,
Grotius, and Pufendorf, all the argument possible was needed to bring
states to submit to these principles. The conditions and relations of
states have so changed that at the present time a body of fairly
established rules and principles _are_ observed in interstate action,
and form the subject-matter of international law.[1]
§ 2. Divisions
International law is usually divided into:--
(_a_) =Public international law=, which treats of the rules and
principles which are generally observed in interstate action, and
(_b_) =Private international law=, which treats of the rules and
principles which are observed in cases of conflict of jurisdiction in
regard to private rights. These cases are not properly international,
and a better term for this branch of knowledge is that given by Judge
Story, "The Conflict of Laws."[2]
International law, in the true sense, deals only with state affairs.
§ 3. Scope
International law is generally observed by civilized states; even some
of those states not fully open to western civilization profess to
observe its rules.[3] The expansion of commerce and trade, the
introduction of new and rapid means of communication, the diffusion of
knowledge through books and travel, the establishment of permanent
embassies, the making of many treaties containing the same general
provisions, and the whole movement of modern civilization toward
unifying the interests of states, has rapidly enlarged the range of
international action and the scope of international law. Civilized
states, so far as possible, observe the rules of international law in
their dealings with uncivilized communities which have not yet attained
to statehood. International law covers all the relations into which
civilized states may come, both peaceful and hostile. In general, it
should not extend its scope so as to interfere with domestic affairs or
to limit domestic jurisdiction, though it does often limit the economic
and commercial action of a given state, and determine to some extent its
policy.
CHAPTER II
NATURE
4. +Early Terminology.+
(_a_) _Jus naturale._
(_b_) _Jus gentium._
(_c_) Other terms.
5. +Historical Bases.+
6. +Ethical Bases.+
7. +Jural Bases.+
(_a_) Roman law.
(_b_) Canon law.
(_c_) Common law.
(_d_) Equity.
(_e_) Admiralty law.
8. +International Law and Statute Law.+
9. +How far is International Law entitled to be called Law?+
§ 4. Early Terminology
The conception of those rules and principles of which international law
treats has varied greatly with periods, with conditions, and with
writers.
The early terminology indicates the vagueness of the conceptions of the
principles governing conduct of man toward his fellows.
(_a_) =Jus naturale= is defined broadly by Ulpian[4] as "the law which
nature has taught all living creatures, so as to be common to men and
beasts." Grotius also uses this term, defining it as "the dictate of
right reason, indicating that any act from its agreement or disagreement
with rational nature has in it moral turpitude or moral necessity, and
consequently such act is either forbidden or enjoined by God, the author
of nature."[5] Lieber says, "The law of nature, or natural law ... is
the law, the body of rights, which we deduce from the essential nature
of man."[6] The discussion of _jus naturale_ has been carried on from an
early period,[7] covering many portions of the field of modern
international law, and making possible the broadening and strengthening
of its foundation.
(_b_) =Jus gentium=, according to Justinian, is "that which natural
reason has established among all men, that which all peoples uniformly
regard."[8] "_Jus gentium_ is common to the whole human kind."[9] This
idea of a body of law common to all men assumed a different meaning when
states multiplied and writer after writer redefined and qualified its
meaning. _Jus gentium_ became the subject of many controversies.[10]
Among the qualifying terms were "internal," "necessary," "natural,"
"positive."
(_c_) =Other terms= were used to name the field or portions of the field
of modern international law. _Jus fetiale_ applied particularly to the
declaration of war and sanction of treaties.[11] _Jus inter gentes_ was
used by Zouch in 1650 to name the real field of international law. _Law
of nations_ was the term commonly used in England till the days of
Bentham; since that time the term _international law_, which he adopted,
has steadily grown in favor, till almost universal in the English
language.[12]
The change in terminology shows in a measure the growth in demarking the
field of international law.
§ 5. Historical Bases
International law in its beginning may have been largely determined by
abstract reasoning upon what _ought to be_ the principles and rules
governing interstate relations; but in its later development, as it has
become more and more recognized as a safe guide for the conduct of
states in their relations with other states, not abstract reasoning as
to what _ought to be_, but direct investigation of what _is_, has
determined the character of the rules and principles. What _is_ state
practice in a given case can only be determined by reference to history.
From the history of cases and practice, the general rule and principle
is derived, and modern international law thus comes to rest largely upon
historical bases.
§ 6. Ethical Bases
While international law now looks to history as one of its most
important bases, it must nevertheless accord somewhat closely with the
ethical standards of the time, and will tend to approximate to them. The
growth of the body of law upon slavery has rested on both ethical and
historical bases. International law is principally an output of
civilized nations having certain ethical standards. Such ancient
practices as the giving of hostages for the fulfillment of treaty
stipulations have disappeared, and ethical bases are generally
recognized in determining practice.[13] While these ethical bases should
be recognized, international law cannot be deduced from the subtle
reasoning upon the abstract ideas of what it _ought to be_. Modern
international law treats mainly of what _is_, but what _is_ in
international relations is always conditioned by a recognition of what
_ought to be_.
§ 7. Jural Bases
The nature of modern international law is in part due to the jural bases
upon which it rests.
(_a_) =The Roman law= was the most potent influence in determining the
early development, particularly in respect to dominion and acquisition
of territory. International law gained a certain dignity and weight from
its relation to the Roman law, the most potent legal institution in
history.
(_b_) =The canon law=, as the law of the ecclesiastics who were supposed
to recognize the broadest principles of human unity, gave an ethical
element to early international law. Gregory IX. (1227-1241), the
Justinian of the Church, reduced canon law to a code. The abstract
reasoning upon its principles among the clergy and counsellors of kings,
made it a part of the mental stock of the early text writers, while it
strongly influenced state practice. The canon law gave a
quasi-religious sanction to its observance, and in so far as
international law embodied its principles, gave the same sanction to the
observance of international equity. This may be seen in the religious
formula in treaties, even to a late date.
(_c_) =The common law=, itself international as derived from three
systems, according to tradition, by Edward the Confessor, and
subsequently modified by custom, furnished a practical element in
determining the nature of international law.
(_d_) =Equity= promoted the development of the recognition of principles
in international law. In the early days of England cases arose which
were not within the cognizance of the common law judges. The petitioner
having applied to the king in Parliament or in council for justice, his
petition was referred to the chancellor, the keeper of the king's
conscience, who, after a hearing, required that what was equitable
should be done. Thus the simpler matters came before the common law
court, the more difficult before the equity court. Even now a jury
largely deals with questions relating to the recovery of money, and
their decision is a _verdict_, which is followed by a judgment. In an
equity court, the more difficult problems of business and commerce are
considered; and the decision of the judge is a _decree_.
(_e_) =Admiralty law= may be defined as in one sense the law of the sea.
Anterior to and during the Middle Ages, the maritime relations of states
gave rise to sea laws, many of which are to-day well-recognized
principles of international law.
§ 8. International and Statute Law
Statute law proceeds from legislative enactment, and is enforced by the
power of the enacting state within its jurisdiction.
International law, on the other hand, is not formally enacted, and has
no tribunal for its enforcement. Resort may be had to war in case of
infraction of its rules, but the issue may rather depend upon the
relative powers of the two states and not upon the justice of the cause.
§ 9. How far is International Law entitled to be called Law?
If law is defined, as by Austin, "A rule laid down for the guidance of
an intelligent being by an intelligent being having power over him,"[14]
it would not be possible to include under it international law without
undue liberality in the interpretation of the language.
In form, however, law is a body of rules and principles in accord with
which phenomena take place. If these rules are not followed as
enunciated by the state in case of statute law, certain penalties are
inflicted. The nature of the penalty must to a great extent depend on
the source. International law is the body of rules and principles, in
accord with which, interstate phenomena take place. Violations of
international law do not meet the same penalties as those of statute
law, as they do not have the same source nor an established tribunal for
their enforcement. International law is, however, in form law and in
practice so regarded.[15]
CHAPTER III
HISTORICAL DEVELOPMENT
10. +Early Period.+
(_a_) Greece.
(_b_) Rome.
11. +Middle Period.+
(_a_) Roman Empire.
(_b_) The Church.
(_c_) Feudalism.
(_d_) Crusades.
(_e_) Chivalry.
(_f_) Commerce and Sea Laws.
(_g_) Consulates.
(_h_) Discovery of America.
(_i_) Conclusion.
12. +Modern Period from 1648.+
(_a_) 1648-1713.
(_b_) 1713-1815.
(_c_) 1815- .
13. +Writers.+
§ 10. Early Period
The history of the development of those rules and principles now
considered in international law naturally falls into three periods,
early, middle and modern.[16]
The =early period= dates from the time of the development of early
European civilization, and extends to the beginning of the Christian
Era. During this period the germs of the present system appear.[17]
(_a_) =Greece.= The dispersion of the Greeks in many colonies which
became practically independent communities gave rise to systems of
intercourse involving the recognition of general obligations.[18] The
maritime law of Rhodes is an instance of the general acceptance of
common principles. The main body of this law has not survived, yet the
fragment appearing in the Digest, _De Lege Rhodia de Jactu_,[19] is,
after more than two thousand years, the basis of the present doctrine of
jettison. It is reasonable to suppose that though the words of other
portions of the Rhodian law are lost, the principles may have entered
into formation of later compilations. The recognition by Greece of the
existence of other independent states, and the relations into which the
states entered, developed crude forms of international comity, as in the
sending and receiving of ambassadors[20] and the formation of
alliances.[21]
(_b_) =Rome.= Rome made many contributions to the principles of
international law in the way of the extension of her own laws to wider
spheres, and in the attempt to adapt Roman laws to conditions in remote
territories. In this early period Rome may be said to have contributed
to the field of what is now considered private international law rather
than to that of public international law. This is evident in the laws in
regard to marriage, contract, property, etc. The dominance of Rome
impressed her laws on others, and extended the influence of those
principles which, from general practice, or conformity to accepted
standards, gained the name _Jus Gentium_.[22]
§ 11. Middle Period
The varied struggles of the middle period--from the beginning of the
Christian Era to the middle of the seventeenth century--had a decided
influence upon the body and form of international law.
(_a_) =Roman Empire.= The growth of the Roman Empire, as the single
world power and sole source of political authority, left small need of
international standards. The appeal in case of disagreement was not to
such standards, but to Cæsar. The idea of one common supremacy was
deep-rooted. Political assimilation followed the expansion of political
privileges.
(_b_) =The Church.= A similar unifying influence was found in the growth
of the Christian Church which knew no distinction--bond or free, Jew or
Gentile. Christianity, called to be the state religion early in the
fourth century, modeled its organization on that of the Roman Empire;
and from the sixth century, with the decay of the Empire, the Church
became the great power. The belief in the eternity and universality of
Roman dominion was strengthened by the Church, although materially
changed in its nature.[23] Whatever the inconsistencies in Church and
State during the first ten centuries of our era, there had grown up the
idea, of great importance for international law, that there could be a
ground upon which all might meet, a belief which all might accept, both
in regard to political and religious organization. For five hundred
years before the days of Boniface VIII. (1294-1303), the holder of the
papal office had from time to time acted as an international judge.
The canon law, codified by Gregory IX. (1227-1241), was planned to rival
the Corpus Juris Civilis. The Popes, with varying degrees of success,
tried to render such international justice as the discordant elements
introduced by the growth of cities and rise of nationalities
demanded.[24] From the Council of Constance (1414-1418), which was a
recognition of the fact of nationality, and at which the emperor for the
last time appeared as the great international head, the decline of both
the Church and the Empire as direct international factors was rapid.
(_c_) =Feudalism.= By the eleventh century feudalism had enmeshed both
the temporal and spiritual authorities. This system, closely related to
the possession of land and gradation of classes, discouraged the
development of the ideas of equality of state powers necessary for the
development of international law, though it did emphasize the doctrine
of sovereignty as based on land in distinction from the personal
sovereignty of earlier days.
(_d_) =The Crusades= (1096-1270), uniting Christendom against the
Saracen for foreign intervention, awakening Europe to a new
civilization, expanding the study and practice of the Roman law which
feudal courts had checked, weakening many feudal overlords,
enfranchising towns, freeing the third estate, spreading the use of the
Latin language, enlarging and diversifying commerce, teaching the
possible unity of national interests, led to the apprehension of a
broader basis in comity which made the growth of interstate relations
more rapid.[25]
(_e_) =Chivalry.= The code of chivalry and the respect for honor which
it enjoined introduced a basis of equable dealing which on account of
the international character of the orders of chivalry reacted upon
state practice throughout Christian Europe.
(_f_) =Commerce and Sea Laws.= The expansion of commerce, especially
maritime, emphasized the duties and rights of nations. The old Rhodian
laws of commerce, which had in part been incorporated in and expanded by
the Roman code during the days before the overthrow of the Empire,
formed a basis for maritime intercourse. From the fall of the Empire to
the Crusades commerce was attended with great dangers from pirates on
the sea and from exactions in the port. The so-called _Amalfitan Tables_
seem to have been the sea law of the latter part of the eleventh
century. The much more detailed _Consolato del Mare_ of doubtful origin
between the twelfth and fourteenth centuries derived some of its
principles from the eleventh-century code. The _Consolato_ was
recognized by maritime powers as generally binding, and made possible
wide commercial intercourse. Many of its principles have stood to the
present day, though touching such questions as the mutual rights of
neutrals and belligerents on the sea in time of war.[26] As the
_Consolato_ formed the code of Southern Europe, the _Laws of Oleron_
formed the maritime code for Western Europe, and were compiled the
latter part of the twelfth century, whether by Richard I. or by his
mother Queen Eleanor is a disputed question. These laws are based in
large measure on the other existing systems. The _Laws of Wisby_, dating
from about 1288, supplemented the _Laws of Oleron_, and formed the
fundamental law of maritime courts of the Baltic nations.[27] The
Hanseatic League in 1591[28] compiled a system of marine law, _Jus
Hanseaticum Maritimum_, based on the codes of Western and Northern
Europe. The maritime law of Europe was practically unchanged for nearly
a hundred years, when systematized in 1673 under Louis XIV. Similar to
the maritime codes are the "Customs of Amsterdam," the "Laws of
Antwerp," and the "Guidon de la Mar."[29]
(_g_) =Consulates.= Closely connected with the development of maritime
law during the latter part of the middle period was the establishment of
the office of consul. The consuls, under the title of _consules
marinariorum et mercatorum_, resident in foreign countries, assisted by
advice and information the merchants of their own countries, and
endeavored to secure to their countrymen such rights and privileges as
possible. These seem to have been sent by Pisa early in the eleventh
century, and were for some time mainly sent by the Mediterranean
countries to the East.
(_h_) =The discovery of America= marked a new epoch in territorial and
mercantile expansion, and introduced new problems among those handed
down from an age of political chaos.
(_i_) =Conclusion.= The middle period, with all its inconsistencies in
theory and practice, had nevertheless taught men some lessons. The
world-empire of Rome showed a common political sovereignty by which the
acts of remote territories might be regulated; the world-religion of
the Church of the middle period added the idea of a common bond of
humanity. Both of these conceptions imbued men's minds with the
possibility of a unity, but a unity in which all other powers should be
subordinate to a single power, and not a unity of several sovereign
powers acting on established principles. The feudal system emphasized
the territorial basis of sovereignty. The Crusades gave to the Christian
peoples of Europe a knowledge and tolerance of each other which the
honor of the code of chivalry made more beneficent, while the growth of
the free cities opposed the dominance of classes feudal or religious.
The fluctuations and uncertainties in theory and practice of
international intercourse, both in peace and war, made men ready to hear
the voice of Grotius (1583-1645), whose work marks the beginning of the
modern period.
§ 12. Modern Period (1648- )
The modern period may be divided into three epochs for International
Law: (_a_) from the Peace of Westphalia, 1648, to the Peace of Utrecht,
1713; (_b_) from the Peace of Utrecht, 1713, to the Congress of Vienna,
1815; (_c_) from the Congress of Vienna, 1815, to the present time.
(_a_) =1648-1713.= It became evident at the termination of the Thirty
Years' War in 1648 that the old doctrines of world-empire, whether of
Pope or Emperor, could no longer be sustained. The provisions of the
Peace of Westphalia, while not creating a code to govern international
relations, did give legal recognition to the existence of such
conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz.:
sovereign states, equal regardless of area and power. The decree of
James I., in 1604, establishing a neutral zone by "a straight line drawn
from one point to another about the realm of England," in which neither
of the parties to the war between the United Provinces and Spain should
carry on hostilities, formed a precedent in maritime jurisdiction, even
though the decree was but imperfectly enforced. This early part of the
modern period was especially fruitful in treatises and discussions upon
the nature of international law, and upon what it _ought to be_, and
also upon the law of the sea particularly Grotius's "Mare Liberum,"
1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio
Maris," 1702.[30] During this period the public law was diligently
studied, the right of legation became generally recognized, French
gradually took the place of Latin in international intercourse,[31] with
a corresponding modern spirit in the practice, though the discussions
were usually ponderous and abstract, the idea of the balance of power
flourished and formed a subject of frequent controversy, the principle
of intervention upon political grounds was propounded and acknowledged,
and the opinions of the great publicists, such as Grotius, gained great
weight and were widely studied. The general principles of neutral trade,
including "free ships, free goods," were laid down, prize laws and
provisions as to contraband were adopted, numerous treaties of commerce
gave witness of the growth of international intercourse, and both men
and states became somewhat more tolerant.
(_b_) =1713-1815.= The Treaty of Utrecht (1713) contained recognition of
many of the principles which had become fairly well accepted during the
years since 1648. There are evidences of the growing influences of the
New World upon the policy of the Old; the American fisheries question
appears; the international regulations in regard to commerce are
multiplied, and the central subject of the preamble is the subject of
"the balance of power."[32] For many years the question of succession to
the various seats of royal and princely power formed the chief subject
of international discussion. During the eighteenth century the steady
growth of England as a maritime power and the European complications
over trans-Atlantic possessions brought new international issues. The
basis of modern territorial acquisition was found in the Roman law of
_occupatio_, and its laws of river boundaries were almost exactly
followed.[33] From the Treaty of Aix-la-Chapelle (1748), in which former
treaties were generally renewed, to 1815, the growth and observation of
the principles of international law was spasmodic. By the Peace of Paris
and by the Peace of Hubertsburg (1763), many questions of territorial
jurisdiction were settled. England, now become the dominant power in
North America, with greatly extended power in the East, impresses upon
international practice adherence to actual precedent rather than to
theoretically correct principles. At the same time in Central Europe
the conditions were ripe for that violation of international justice,
the partition of Poland in 1772, followed by the further partition in
1793 and 1795. The rights which the concert of nations was thought to
hold sacred were the ones most ruthlessly violated by the neighboring
powers. The American Revolution of 1776 and the French Revolution of
1789 introduced new principles. The "armed neutrality" of 1780,[34]
while maintaining the principle "free ships, free goods," made
impossible the converse, "enemy's ships, enemy's goods," which had been
held. Both the American and French Revolution made evident the necessity
of the development of the laws of neutrality hitherto greatly confused
and disregarded.[35] During the French Revolution it seemed that to
Great Britain alone could the states of Europe look for the practice of
the principles of international law. After the French Revolution it was
necessary to define _just intervention_ that Europe might not be again
convulsed. It became clear that the state was an entity and distinct
from the person of its king. No longer could the king of France or of
any European state say "L'état c'est moi." Even though personal
selfishness of monarchs might pervade the Congress of Vienna, the spirit
of nationality could not long be restrained. The period from 1713 to
1815 had tested the general principles propounded during the seventeenth
century, and it was found necessary to expand their interpretation,
while the growth of commerce and intercourse made necessary new laws of
neutrality and new principles of comity, such as were in part
forthcoming in the early days of the nineteenth century, as seen in the
resistance to the right of search, the declaration against African slave
trade, establishment of freedom of river navigation, improved
regulations in regard to trade in time of war, neutralization of
Switzerland, placing of protectorate over Ionian Islands, and the
determination of precedence and dignities of the various diplomatic
agents and the states which they represented. By the year 1815 the
theory of the seventeenth century had been severely tested by the
practice of the eighteenth century, and it remained for the nineteenth
century to profit by the two centuries of modern political experience.
(_c_) =1815 to date.= The Peace of Westphalia (1648), the Peace of
Utrecht (1713), and the Treaty of Vienna (1815) are the three celebrated
cases of combined action of modern European powers. The "balance of
power" idea had gradually been supplemented by "the concert of the
powers" idea, which would not merely maintain the relative _status quo_
of "the balance," but might enter upon a positive policy of concerted
action. The "Holy Alliance" of 1815, to promote "Justice, Christian
Charity, and Peace,"[36] was first broken by its originators. There was
a strong feeling that the principles of international law should be
followed, however, and this, the "Declaration of the Five Cabinets,"
Nov. 15, 1818, distinctly avowed in "their invariable resolution, never
to depart, either among themselves, or in their relations with other
states, from the strictest observation of the principles of the Rights
of Nations."[37] The attempt to extend the principle of intervention in
favor of maintaining the various sovereigns on their thrones, and in
suppression of internal revolutionary disturbances by foreign force was
made in the "Circular of the Three Powers," Dec 8, 1820.[38] Under many
forms intervention has been one of the great questions of the nineteenth
century, and the growing proximity and multiplication of relations of
states during the century has added many complications.[39] The Grecian
War of Independence (1821-1829) brought the new principle of pacific
blockade (1827), and at its conclusion the powers guaranteed the
sovereignty of Greece. The subjects of right of search, foreign
enlistment, Monroe Doctrine, freedom of commerce and navigation,
expatriation, extradition, neutralized territory, ship canals, consular
rights, neutral rights and duties, arbitration, reciprocity, mixed
courts, international postage, weights and measures, trade-marks and
copyright, rules of war, sub-marine cables, and sphere of influence,
which have come to the front during the nineteenth century, indicate in
a measure the subject-matter of international negotiation. Throughout
the period since 1815 the tendency has been rather to regard what _is_
the international practice.
§ 13. Writers
Among the writers upon subjects connected with international law before
the days of Grotius the most prominent are Victoria ( -1550?), Ayala
(1548-1584), Suarez (1548-1617), and Gentilis (1551-1611). While in
many respects their contributions to the science were valuable, the work
of Grotius stands out preëminent among all the early writers.
=Hugo Grotius= (b. Delft, Apr. 10, 1583; d. Rostock, Aug. 28, 1645).
Scholar; jurist; statesman; good family; precocious; prodigious learning
in many branches; at fifteen with special embassy to France; at twenty
historiographer to the United Provinces; at twenty-five advocate-general
of the fisc of Holland and Zealand; married next year Mary van
Riegesberg, a worthy help-meet; at thirty pensionary of city of
Rotterdam; same year one of deputation to England to settle maritime
disputes. Grotius took active part in religious disputes, on which
account in 1619 he was sentenced to imprisonment for life and
confiscation of his property. Two years later, through cleverness of his
wife, he escaped to Paris. Here days of adversity and study. In 1625 "De
Jure Belli ac Pacis" published; brought no profit but immediate and
lasting fame. Disappointed in his hope to return to permanent residence
in Holland; is appointed Swedish ambassador at French Court, 1635-1645.
Declines further service in 1645. Retires, honored in all lands;
shipwrecked; died at Rostock, Aug. 28, 1645.[40]
Grotius's "De Jure Belli ac Pacis" (1625). An attempt to bring into a
systematic treatment those principles which have since become known as
international law. Touches upon many other subjects; rich in quotations;
broad philosophical basis gives it permanent value. Conditions in Europe
at time of appearance of work gave it immediate and powerful influence
in determining course of modern political history. Upon the foundation
laid by Grotius the modern science has been largely built. Of course,
many of the principles expounded by Grotius are no longer applicable,
and many new principles, as the doctrine of neutrality, have gained
recognition.
=Zouch= (=1590-1660=), the successor of Gentilis, as professor of Roman
Law at Oxford, while a follower of Grotius in matter and method,
deserves mention for his distinction between _jus gentium_ and that law
to which he gives the name _jus inter gentes_, in the French translation
called _Droit entre les Gens_, later _Droit International_, and in the
English, Law of Nations, and since the latter part of the eighteenth
century when Bentham led the way, International Law.
=Pufendorf= (=1632-1694=) in his voluminous works in general follows
Grotius.
Toward the end of the seventeenth century a school opposing the earlier
writers arose. This school, headed by =Rachel= (=1628-1691=), assigned a
stronger authority to the principles of international law, and gave more
attention to usage, whether tacitly admitted or plainly expressed, and
to compacts.
=Bynkershoek= (=1673-1743=), limiting his work to particular subjects in
international law, gave to the eighteenth century several authoritative
treatises which are justly regarded as of the highest worth. He
especially defined the laws of maritime commerce between neutrals and
belligerents (_De Dominio Maris_, 1702), gave an outline of
ambassadorial rights and privileges (_De Foro Legatorum_, 1721), besides
contributing to a much clearer understanding of the general subject of
international law.
=Wolfe= (=1679-1754=) published in 1749 his "Jus Gentium." This bases
international law on a sort of state universal, _civitas maxima_, made
up of the states of the world in their capacity as voluntarily
recognizing a natural law.
=Vattel= (=1714-1767=), an ardent admirer of Wolf, published in 1758 his
"Law of Nations," which he based upon the work of Wolf. This work of
Vattel was clear and logical and gained an immediate and wide influence,
far surpassing that of his master.
=Moser= (=1701-1786=) brings into the science the positive method which
Rachel had hinted at in his work a hundred years before. He narrows his
view to the principles underlying the cases of his own day, and would
build the science on recent precedents. The method thus introduced has
strongly influenced succeeding writers.
=G. F. de Martens= (=1756-1801=) combines in a measure the method of
Vattel with the positive method of Moser in his "Précis du Droit des
Gens Moderne de l'Europe," 1789. This treatise has been a recognized
standard.
Many special and general works appeared in the latter years of the
eighteenth and early years of the nineteenth century.
=Wheaton= (=1785-1848=), the foremost American writer on international
law, published in 1836 his "Elements of International Law," which has
long been recognized as a standard throughout the world.
Beside the great work of Wheaton justly stands Phillimore's
"Commentaries upon International Law."
Many other works of highest merit have appeared during the latter half
of the nineteenth century, such as those of Bluntschli, Travers Twiss,
Calvo, Wharton, Pradier-Fodéré, and of the eminent authority, the late
William Edward Hall. There are also many living writers whose
contributions are of greatest worth.[41]
CHAPTER IV
SOURCES
14. +Practice and Usage.+
15. +Precedent and Decisions.+
(_a_) Prize and Admiralty courts.
(_b_) Domestic courts.
(_c_) Courts of arbitration.
16. +Treaties and State Papers.+
17. +Text Writers.+
18. +Diplomatic Papers.+
§ 14. Practice and Usage
If for a time international intercourse follows certain methods, these
methods are regarded as binding in later intercourse, and departure from
this procedure is held a violation of international right. That
collection of customs known as "The Law Merchant" is an example of a
source of this class. Of this it has been said, "Gradually, the usages
of merchants hardened into a cosmopolitan law, often at positive
variance with the principles of local law, but none the less acquiesced
in for mercantile transactions, and enforced by tribunals of commanding
eminence and world-wide reputation, such as the courts of the Hanseatic
League and the _Parloir aux Bourgeois_ at Paris."[42]
Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of
Admiralty have a law and a usage on which they proceed, from habit and
ancient practice."[43]
§ 15. Precedent and Decisions
The domestic courts of those states within the family of nations, may by
their decisions furnish precedents which become the basis of
international practice.
(_a_) =Prize and Admiralty courts= decisions form in themselves a large
body of law. Jurisdiction in admiralty and maritime causes in the United
States rests in the District Courts, the Circuit Courts, and the Supreme
Court. The District Courts have original jurisdiction in civil causes of
admiralty and concurrent jurisdiction with the Circuit and State Courts
in suit of an alien, because of violation of international law or treaty
of United States. The District Court also has full prize court powers.
Appeals from prize courts decisions go directly to the Supreme Court for
final judgment; appeals from admiralty decisions go to the Circuit Court
for final judgment.[44] The prize courts of other powers vary in
jurisdiction, nature, and procedure. British and American courts rely
more particularly upon precedents, while the Continental courts follow
more distinctly the general principles laid down in codes and text
writers, and place less reliance upon previous interpretation of these
principles as shown in court decisions.[45] Whatever the method of the
prize court, its decision, if legally rendered, stands as valid in all
states.[46]
(_b_) The decisions of =domestic courts= upon such matters as
extradition,[47] diplomatic privileges, piracy, etc., tend to become a
source of international law. In the United States the Supreme Court has
original jurisdiction "in all cases affecting ambassadors, other public
ministers, and consuls."[48]
(_c_) The decisions of =courts of arbitration= and other mixed courts
are usually upon broad principles. Some of the principles involved may
become established precedents, yet the tendency to render a decision,
which by a compromise may be measurably acceptable to both parties, may
lessen the value of the decision as a precedent. As arbitration is of
necessity voluntary, there is generally a consensus upon certain points,
even though the decision rendered may not become a precedent. The growth
of the practice of arbitration of disputes is an indication of the
general recognition of mutual confidence between states. The principles
upon which the court of arbitration bases its decision, rather than the
decision itself, furnish material valuable for international law.
§ 16. Treaties and State Papers
Treaties and state papers of whatever form[49] indicate the state of
opinion, at a given time, in regard to the matters of which they speak.
Since they are binding upon the parties to them, treaties may be
regarded as evidence of what the states, bound by their terms, accept as
law. When the same terms are generally accepted among nations, treaties
become a valuable evidence of concrete facts of practice and proper
sources of international law. The principles may be so well established
by successive treaties as to need no further treaty specification.
Treaties and state papers vary greatly in value as sources of
international law, however.
(_a_) Treaties and state papers may lay down new rules or outline the
operation of old rules. As instances of those laying down new rules may
be taken the Clayton-Bulwer Treaty of April 19, 1850, the convention for
the protection of Submarine Cables, March 14, 1884, the Geneva
Convention of 1864; of those outlining and determining the operation of
old rules, there are many instances, the most numerous in the treaties
in regard to maritime affairs and consuls.
(_b_) Treaties and state papers may enunciate established rules as
understood by the parties to the treaty. The Declaration of the
Conference of London, Jan. 17, 1871, to which the major European states
were parties, announces that the signatory powers "recognize that it is
an essential principle of the Law of Nations that no Power can liberate
itself from the engagements of a Treaty, nor modify the stipulations
thereof, unless with the consent of the Contracting Powers by means of
an amicable agreement."[50]
(_c_) Treaties and state papers may agree as to rules which shall be
held as binding upon the parties to the treaty or paper. The
Declaration of Paris, 1856, agreed as to certain principles and rules of
maritime international law, which should be held as binding the
signatory powers or those later agreeing to its provisions. This
Declaration may be held as generally binding. The United States, by
Proclamation of April 26, 1898, announced its adherence to the
principles of the Declaration, and during the same year Spain acquiesced
in its principles.
(_d_) Most treaties and state papers, however, deal with matters of
interstate politics, and are not in any sense sources of international
law. They are in most cases little more than interstate compacts.
§ 17. Text Writers
During the seventeenth and the first half of the eighteenth century, the
writings of the great publicists were regarded as the highest source of
authority upon matters now in the domain of international law. These
writings not only laid down the principles which should govern cases
similar to those which had arisen, but from the broad basis given the
law of nations, deduced the principles for such cases as might arise.
This latter method was especially common among the early writers, such
as Victoria and Suarez in the sixteenth century. The philosophical
school, from Grotius to the middle of the eighteenth century, continued
to propound the principles which should govern in supposed cases, should
they ever actually arise. Statesmen looked to these treatises as
authoritative sources. The prolific Moser, in the middle of the
eighteenth century, made the historical method more prominent by giving
less attention to the natural law, and by founding his system on usage
and treaties. Bynkershoek (1673-1763) had anticipated him in this method
in special lines, but Moser extended the system and made it most ample.
Succeeding writers mingled the two systems, inclining to the one or the
other. In the early days of the modern period, the writers upon the law
of nations, outlined the course which states should pursue in their
relations to one another. In the later days of the modern period, the
writers upon the law of nations, while sometimes discussing problems
before they arise, in general attempt to expound the rules and
principles which have entered already into interstate action. The works
of the text writers, from Grotius to the present, must be regarded as
sources of highest value.
§ 18. Diplomatic Papers
The diplomatic papers, as distinct from the state papers to which more
than one state becomes a party, are simply papers issued by a state for
the guidance of its own representatives in international intercourse.
The papers are sometimes named state papers or included among the papers
to which other states are parties,--in the United States, in the series
known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations"
since 1870; and in Great Britain in the "British and Foreign State
Papers."
These papers, showing the opinions of various states from time to time
upon certain subjects which may not come up for formal state action,
afford a valuable source of information upon the attitude of states
toward questions still formally unsettled. The simple expression to
state agents in the way of instructions or information as to the
position of the state on a given matter may, if continued and long
accepted, give to the principle involved the force of international
sanction. This was almost the case in the so-called Monroe Doctrine. In
these papers may often be found an indication of the line which the
principles of international law will subsequently follow and a general
consensus by several states in diplomatic instructions may be considered
strong evidence of what the law is on a given point.
PART II
PERSONS IN INTERNATIONAL LAW
CHAPTER V
STATES
19. +Definition.+
(_a_) Political.
(_b_) Sovereign.
20. +Nature.+
(_a_) Moral.
(_b_) Physical.
(_c_) Communal.
(_d_) External conditions.
21. +Recognition of New States.+
(_a_) _De facto_ existence.
(_b_) Circumstances of recognition.
(1) By division.
(2) By union.
(3) By admission of old states.
(4) By admission of former barbarous communities.
(5) Individual and collective recognition.
(_c_) Act of recognition.
(_d_) Premature recognition.
(_e_) Conditions.
(_f_) Recognition irrevocable.
(_g_) Consequences.
(1) The recognizing state.
(2) The recognized state.
(3) The parent state.
(4) Other states.
§ 19. Definition
A State is a sovereign political unity. It is of the relations of states
that public international law mainly treats. From the nature of its
subject-matter it is a juridical, historical, and philosophical
science.[51] These sovereign political unities may vary greatly. The
unity however
(_a_) Must be =political=, _i.e._ organized for public ends as
understood in the family of nations and not for private ends as in the
case of a commercial company, a band of pirates, or a religious
organization.
(_b_) Must possess =sovereignty=, _i.e._ supreme political power beyond
and above which there is no political power. It is not inconsistent with
sovereignty, that a state should voluntarily take upon itself
obligations to other states, even though the obligations be assumed
under stress of war, or fear of evil.
§ 20. Nature
From the nature of the state as a sovereign political unity it must be
self-sufficient, and certain conditions are therefore generally
recognized as necessary for its existence from the standpoint of
international law.[52]
(_a_) =Moral.= In order that a state may be regarded as within the
"family of nations," and within the pale of international Law, it must
recognize the rights of other states and acquiesce in its obligations
toward them. This is considered a moral condition of state existence.
(_b_) =Physical.= A state must also possess those physical resources
which enable it to exist as territory, etc.
(_c_) =Communal.= A state must possess a body of men so related as to
warrant the belief in the continued existence of the unity. Each state
may be its own judge as to the time when these relations are established
in a given body of men, and the recognition of a new state is fitting.
That such conditions are recognized as prerequisites of state existence
from the point of view of international law is not due to the essential
nature of the state, but rather to the course of development of
international law; as Hall says, "The degree to which the doctrines of
international law are based upon the possession of land must in the main
be attributed to the association of rights of sovereignty or supreme
control over human beings with that of territorial property in the minds
of jurists at the period when the foundations of international law were
being laid."[53]
(_d_) =External Conditions.= The external relationship of the state
rather than the internal nature is the subject of consideration in
international law. For local law a community may enter upon state
existence long before this existence is recognized by other nations, as
in the case of Switzerland before 1648. Until recognition by other
states of its existence becomes general, a new state cannot acquire full
status in international law; and this recognition is conditioned by the
policy of the recognizing states.
§ 21. Recognition of New States
(_a_) =State existence de facto= is not a question of international law
but depends upon the existence of a sovereign political unity with the
attributes which necessarily appertain to it. This _de facto_ existence
is not dependent upon the will of any other state or states.[54] The
entrance of the state into the international statehood, however, depends
entirely upon the recognition by those states already within this
circle. Whatever advantages membership in this circle may confer, and
whatever duties it may impose, do not fall upon the new state until its
existence is generally recognized by the states already within the
international circle. These advantages and duties, as between the
recognizing and recognized state, immediately follow recognition but do
not necessarily extend to other states than those actually party to the
recognition. The basis of this family of nations or international circle
which admits other states to membership is historical, resting on the
polity of the older European states. These states, through the relations
into which they were brought by reason of proximity and intercourse,
developed among themselves a system of action in their mutual dealings;
and international law in its beginning proposed to set forth what this
system was and should be.[55] This family of states could not permit new
accessions to its membership unless these new states were properly
constituted to assume the mutual relationships, and as to the proper
qualifications for admission in each case, the states already within the
family claim and exercise the right to judge.
(_b_) =The circumstances of recognition vary.=
(1) The most numerous instances are in consequence of _division_ which
involves the recognition of the existence of more than one state within
the limits which had formerly been under a single jurisdiction. This may
be preceded by recognition of the belligerency of a revolted community
within the jurisdiction of an existing state, or may be preceded by
division of an existing state into two or more states.[56] In the first
case recognition is a question of national policy, in the second case
recognition is usually readily accorded.
(2) In modern times a new state has frequently been formed by the
_union_ of two or more existing states.[57] The recognition in such a
case usually follows immediately.
(3) A state _after existence for a period of years_ may be formally
admitted into the family of states. Japan, for centuries a _de facto_
state, was only recently fully admitted to international statehood.[58]
Turkey, so long the dread of Europe, was formally received by the Treaty
of Paris, 1856.
(4) New states may be formed in _territory hitherto outside_ any _de
facto_ state jurisdiction, or within regions _hitherto considered
savage_. The examples of this class are mainly Africans, as in the
creation of the Congo Free State under the International Association of
the Congo. The United States recognized the Congo Free State by
acknowledging its flag, April 22, 1884. Liberia, originally established
by the American colonization Society in 1821, as a refuge for negroes
from America since 1847, has been recognized as an independent republic.
(5) From another point of view _recognition may be individual or
collective_. Recognition is individual when a state, independently of
any other, acknowledges the international statehood of a new state. This
was the method of recognition of the United States. Collective
recognition is by the concerted action of several states at the same
time. This has taken place most often in the admission of minor states
to the European family of states, as in the cases of Greece by the
powers at the Conference of London, 1880; Belgium, 1831; Montenegro,
Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free
State was acknowledged by the International Congo Conference at Berlin,
1885.
(_c_) =The act constituting recognition= of a new state may be formal,
as by a declaration, proclamation, treaty, sending and receiving
ambassadors, salute of flag, etc., or informal, by implication through
the grant of an _exequatur_ to a consul from the new state, or other act
which indicates an acknowledgment of international rights and
obligations.[59] It should be observed, however, that the appointment
by, or reception within, an existing state of agents to carry on
necessary intercourse between the existing state, and the aspirant for
recognition does not constitute recognition. It may be essential to have
relations with a community the statehood of which is not established,
because of commercial and other matters pertaining to the rights of the
citizens of the existing state whose interests, or who in person may be
within the jurisdiction of the unrecognized community.[60] The definite
act of recognition is, however, in accord with the decision of the
internal authority to which this function is by state law ascribed. As
foreign states usually take cognizance of the acts of the executive
department only, it is the common custom to consider recognition as an
executive function, or as a function residing in the head of the state.
In the United States, the President is for foreign affairs the head of
the state, and has the authority to recognize new states in any manner
other than by those acts, which by the Constitution require the advice
and consent of the Senate, as in the conclusion of treaties, and
appointment of ambassadors, other public ministers, and consuls.
President Grant, in his second annual message, Dec 5, 1870, said, "As
soon as I learned that a republic had been proclaimed at Paris, and that
the people of France had acquiesced in the change, the minister of the
United States was directed by telegraph to recognize it, and to tender
my congratulations and those of the people of the United States."[61] As
President Jackson had in his message in December, 1831, and in the
official correspondence with Buenos Ayres denied that country's
jurisdiction over the Falkland Islands, Justice McLean said, in
rendering his opinion in Williams _v._ Suffolk Insurance Company, "And
can there be any doubt that when the executive branch of the government
which is charged with our foreign relations, shall, in its
correspondence with foreign nations, assume a fact in regard to
sovereignty of any island or country, it is conclusive on the judicial
department? And in this view it is not material to inquire, nor is it
the province of the court to determine, whether the executive be right
or wrong. It is enough to know that in the exercise of his
constitutional functions he has decided the question."[62] "The
President is the executive department."[63]
(_d_) Recognition may be =premature= and the recognized community may
not be able to maintain its place in the international circle, or in
case of a struggle with another state may be defeated. The recognizing
state must assume in such case whatever consequences may come from its
misjudgment, and the parent state may justly question the right of the
recognizing state in its action, _e.g._ the recognition by France of the
United States in 1778 could justly be regarded by England as premature
and as a hostile act.
(_e_) The recognition of a new state is the recognition of the existence
of certain political =conditions=. This recognition of the state carries
with it the acknowledgment of sovereignty, independence, equality, etc.
It is an essential condition to just recognition that the new aspirant
possess these qualifications absolutely or potentially to a reasonable
extent.
(_f_) From its nature, =recognition is irrevocable= and absolute, unless
distinctly conditional. Even when conditional, if the recognition is
prior to the fulfillment of the condition by the recognized state, the
recognition cannot be withdrawn because of non-fulfillment of the
condition, but the recognizing state may resort to any other means which
would be admitted in international law as justifiable against any other
state failing to fulfill its obligations, _e.g._ suspension of
diplomatic relations, retorsion, reprisals, or even war.[64] In the case
of Belgium, the definition of its boundaries and establishing of
permanent neutralization was an act subsequent to the recognition of its
international statehood, and in case of violation of the treaty
stipulations, Belgium would not lose its position as a state, but would
be liable to such measures of reparation as the other parties to the
treaty might employ.[65] If recognition could be withdrawn, it would
work injustice to the recognized state, and to other states who, as
third parties, will not permit their rights to be subject to the will of
the recognizing state or states.
(_g_) The =consequences of recognition= immediately touch the relations
of (1) the recognizing state, (2) the recognized, (3) the parent state
if the new state is formed from an existing state, and (4) in a minor
degree other states.
(1) The _recognizing state_ is bound to treat the new state in all
respects as entitled to the rights and as under duties accepted in
international law.
(2) The _recognized state_ is, as related to the recognizing state,
entitled to the rights, and under the obligations prescribed in
international law. As it is a new person in international law, it is
entitled to full personal freedom in entering into relations with other
states. So far, however, as the territory within the new state was under
local obligations, these obligations are transferred to the new state.
The general obligations resting on the parent state, by reason of
treaties and responsibilities of all kinds which have been assumed by
the parent state in the capacity of a legal unity, are not transferred,
because the identity of the parent state remains intact.[66]
(3) The _parent state_, in cases where the new state is formed by
separation from one already existing, is, as regards the recognizing
state, on the same international footing as the new state. Both states
are entitled to equal privileges, and under like obligations. The
relations to other states are not necessarily much changed.
(4) The _relations_ of the _states other than the recognizing_,
_recognized_, and _parent states_ are changed to the extent that they
must respect the _de facto_ relations set forth in (1), (2), and (3)
above, _i.e._ while not recognizing the new state, they must accept the
fact that the recognition exists for the states who are parties to it,
and they are not entitled to pass judgment as to the justice of the
recognition.
CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS
22. +Members of Confederations and other Unions.+
23. +Neutralized States.+
24. +Protectorates, Suzerainties.+
25. +Corporations.+
(_a_) Private.
(_b_) Exercising political powers.
26. +Individuals.+
27. +Insurgents.+
(_a_) Definition.
(_b_) Effect of admission of insurgency.
28. +Belligerents.+
(_a_) Definition.
(_b_) Conditions prior to recognition.
(_c_) Grounds of recognition.
(_d_) Who may recognize.
(_e_) Consequences.
(1) Recognition by a foreign state.
(2) Recognition by the parent state.
29. +Communities not fully Civilized.+
§ 22. Members of Confederations and other Unions
A state in the sense of public law is not sovereign in the sense of
international law, if there are any limitations upon its power to enter
into relations with other states. Such a state may be a member of a
confederation and exercise certain powers giving it a qualified
international status. These loose unions may, as in the German
Confederation from 1815 to 1866, leave to the local states a certain
degree of autonomy in regulating international affairs while granting to
the central government certain specified powers. This division of
international competence is usually a temporary compromise ending in new
states or in a close union. "Inasmuch as both the central and the
separate states carry on diplomatic intercourse with foreign powers,
they must each and all be regarded as Subjects of International Law; and
inasmuch as they carry on such intercourse only in a limited degree,
they cannot be regarded as fully and absolutely sovereign."[67]
In the examples of personal and real unions and the like, the nature of
the state is a matter of public law and little concerns international
law. As related to international law, the question is how far are such
states restricted in their dealings with other states. A union, such as
that existing in the case of the ruler of the United Kingdom of Great
Britain and Ireland and Empire of India, is of importance to
international law only in its united capacity, while for public law the
nature of the union is of much significance. The same might be said of
the unions of Austria-Hungary, and Sweden-Norway.
§ 23. Neutralized States
Neutralized states are sovereign only in a qualified degree. While such
states have a certain formal equality, their actual competence is
limited in regard to the exercise of sovereign powers. This limitation
as to neutrality may be externally imposed or externally enforced, as in
the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till
1900, Samoa. This neutralization may take place for political or
philanthropic reasons.[68] The degree of external sovereignty possessed
by neutralized states varies. The fact that these states are not fully
sovereign in the field of international law in no way affects their
competence except in respect to matters covered by the conditions of
neutralization. Such states are deprived of the right of offensive
warfare, and have not therefore that final recourse possessed by fully
sovereign states for enforcing their demands.
§ 24. Protectorates, Suzerainties
States under protectors--_protectorates_--usually possess all powers not
specifically resigned. States fully sovereign may demand (1) that states
under protectors afford reasonable protection to the subjects and to the
property of subjects of fully sovereign states, and (2) that the
protecting state use reasonable measures to give effect to the
protection which it has assumed. Just how much responsibility the
protecting state has depends upon the degree of protection exercised and
assumed. The protectorate of Great Britain over the South African
Republic by the agreement of 1884 was of a very moderate form. The right
to veto within a certain time any treaty made with a foreign state,
other than the Orange Free State and native princes, constituted
practically the only restriction on the independence of the Republic.
Great Britain has several other protectorates in Africa over which the
degree of authority varies. In many instances protectorates easily pass
into colonies, as in the case of Madagascar, which Great Britain
recognized as under French protection in 1890, which protection the
queen of Madagascar accepted in October, 1895, and in August, 1896,
Madagascar was declared a French colony.[69]
As distinct from a state under a protectorate which possesses all
competence in international affairs which it has not specifically
resigned, a state under _suzerainty_ possesses only such competence as
has been specifically conferred upon it by the suzerain. The relations
are usually much closer than between protecting and protected states;
and in many cases only the suzerain has international status, while the
vassal is merely tributary, though having a certain degree of internal
independence which may be in some instances almost complete. By the
first article of the Treaty of Berlin, Bulgaria is made a tributary and
autonomous principality under the suzerainty of the Sultan of Turkey.
Under Russian suzerainty are such vassal states as Bokhara and Khiva.
Some of the states under the suzerainty of European states have no
status in international law, as in the case of Bokhara and Khiva. There
exist such anomalous cases as the co-suzerainty of the republic of
Andorra, the collective suzerainty of the Samoan Islands till 1900,[70]
and the absolute suzerainty of the United States over the "domestic
dependent nations" of Indians.
§ 25. Corporations
From the point of view of international law, corporations are generally
of two kinds: corporations organized for private purposes, and
corporations organized for purposes involving the exercise of delegated
sovereign powers.
(_a_) Corporations organized for =private purposes= come within the
field of international law, when in time of war their property or other
rights are impaired, when maritime law, whether of peace or war, may
have been infringed, and when their rights are involved in the domain of
private international law.
(_b_) Corporations organized for purposes involving the =exercise of
political powers= have from time to time, for several centuries, been
chartered and have often acquired a quasi-international status. While
restricted to the performance of functions intrusted to them by their
charters, the home governments have often sanctioned acts for which
their charters gave no warrant. The companies that early entered
America, India, Africa, and the later African companies, are of this
kind. The development of the late doctrine of "the sphere of influence"
has given an important position to these companies organized within
those states desirous to share in "the partition of Africa."
Among the most notable of the earlier companies was the English East
India Company,[71] which received its first charter in 1600. During more
than two hundred and fifty years this company exercised practically
sovereign powers, until by the act of Aug. 2, 1858, the government
heretofore exercised by the company was transferred to the crown, and
was henceforth to be exercised in its name.
In recent years the African companies chartered by the European states
seeking African dominions have had very elastic charters in which the
home governments have generally reserved the right to regulate the
exercise of authority as occasion might demand. These companies advance
and confirm the spheres of influence of the various states, govern under
slight restrictions great territories, and treat with native states with
full authority. The British South Africa Company, chartered in 1889, was
granted liberal powers of administration and full capacity, subject to
the approval of the Secretary of State for the Colonies, to treat with
the native states. The field of operations of this company was extended
in 1891, so that it now includes over six hundred thousand square miles
of territory. Of this company Lawrence says: "Clearly then it is no
independent authority in the eye of British law, but a subordinate body
controlled by the appropriate departments of the supreme government.
Like Janus of old, it has two faces. On that which looks towards the
native tribes all the lineaments and attributes of sovereignty are
majestically outlined. On that which is turned towards the United
Kingdom is written subordination and submission."[72] The acts of these
companies become the basis of subsequent negotiations among the various
European states, and the companies have a very important influence in
molding the character of African development.
§ 26. Individuals
Without entering into discussion of "the doctrine of the separability of
the individual from the state," it is safe to affirm that individuals
have a certain degree of competence under exceptional circumstances, and
may come under the cognizance of international law. By the
well-established dictum of international law a pirate may be captured by
any vessel, whatever its nationality. General admiralty and maritime
procedure against a person admit the legal status of an individual from
the point of view of international law. The extension of trade and
commerce has made this necessary. This is particularly true in time of
war, when individuals wholly without state authorization, or even in
contravention of state regulations, commit acts putting them within the
jurisdiction held to be covered by international law, as in the case of
persons brought before Prize Courts. The principles of private
international law cover a wide range of cases directly touching
individuals.
§ 27. Insurgents
(_a_) =Definition.= Insurgents are organized bodies of men who, for
public political purposes, are in a state of armed hostility to an
established government.
(_b_) =Effect of Admission of Insurgency.= The practice of tacitly
admitting =insurgent rights= has become common when the hostilities have
assumed such proportions as to jeopardize the sovereignty of the parent
state over the rebelling community, or seriously to interfere with
customary foreign intercourse.[73] The general effect of the admission
is shown as follows:[74]
(1) Insurgent rights cannot be claimed by those bodies seeking other
than political ends.[75]
(2) Insurgent acts are not piratical, as they imply the pursuit of
"public as contrasted with private ends."[76]
(3) The admission of insurgent rights does not carry the rights of a
belligerent, nor admit official recognition of insurgent body.[77]
(4) The admission of insurgent rights does not relieve the parent state
of its responsibilities for acts committed within its jurisdiction.[78]
(5) When insurgents act in a hostile manner toward foreign states, they
may be turned over to the parent state, or may be punished by the
foreign state.[79]
(6) A foreign state must in general refrain from interference in the
hostilities between parent state and insurgents, _i.e._ cannot extend
hospitality of its ports to insurgents, extradite insurgents, etc.[80]
(7) When insurgency exists, the armed forces of the insurgents must
observe and are entitled to the advantages of the laws of war in their
relations to the parent state.[81]
* * * * *
+Note.+ During the struggles between the parties in the United States
of Colombia in 1885, the President of Colombia decreed: (1) That
certain Carribean ports held by the opposing party should be regarded
as closed to foreign commerce, and trade with these ports would be
considered illicit and contraband, and that vessels, crews, etc.,
involved in such trade would be liable to the penalties of Colombian
laws. (2) That as the vessels of the opposing party in the port of
Cartagena were flying the Colombian flag, it was in violation of
right, and placed that party beyond the pale of international law.[82]
The United States refused to recognize the validity of the first
decree unless Colombia should support it by an effective blockading
force.[83] (For similar position on part of Great Britain, see Parl.
Deb. H. C., June 27, 1861.)
The United States also refused to recognize that the vessels of the
insurgents were beyond the pale of international law or in any sense
piratical.
The United States did not deny that closure might be a domestic
measure similar to blockade in accord with municipal law, but
emphatically maintained that effective blockade only could close a
port in time of such insurrection.
It was further maintained that "The denial by this [U.S.] Government
of the Colombian proposition did not, however, imply the admission of
a belligerent status on the part of the insurgents." Message Pres.
Cleveland, Dec. 8, 1885.[84]
The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly
mention a status of insurgency as existing in Cuba.
During the rebellions in Chili in 1891 and in Brazil in 1894, the
insurgents, while not recognized as belligerents by third powers, were
nevertheless given freedom of action by these powers.
§ 28. Belligerents
(_a_) =Definition.= A community attempting by armed hostility to free
itself from the jurisdiction of the parent state may, under certain
conditions, be recognized as a belligerent.
(_b_) The general =conditions prior to recognition= are: (1) that the
end which the community in revolt seeks shall be political, _i.e._ a
mere mob or a party of marauders could have no belligerent rights, (2)
the hostilities must be of the character of war and must be carried on
in accord with the laws of war, (3) the proportions of the revolt must
be such as to render the issue uncertain and to make its continuance for
a considerable time possible, (4) the hostilities and general government
of the revolting community must be in the hands of a responsible
organization.
As each state, including the parent state, must judge as to the fact
whether the conditions warranting recognition of belligerency exist,
there may be great divergency of opinion in cases of recognition,[85]
but the question of belligerency is a question of fact and never a
question of theory.
(_c_) A community carrying on, in accord with the rules of war, an armed
revolt of such proportions as to make the issue uncertain and acting
under a responsible organization may not be recognized without offense
to the parent state except upon certain =grounds=. The generally
admitted ground is, that the interests of the recognizing state be so
far affected by the hostilities "as to make recognition a reasonable
measure of self-protection."[86] "The reason which requires and can
alone justify this step [recognition of belligerency] by the government
of another country, is, that its own rights and interests are so far
affected as to require a definition of its own relations to the
parties.... A recognition by a foreign state of full belligerent rights,
if not justified by necessity, is a gratuitous demonstration of moral
support to the rebellion, and of censure upon the parent
government."[87]
(_d_) =Recognition= of belligerency is naturally =an act of the
executive authority=.[88]
The following is the proclamation of Queen Victoria of May 13, 1861:--
"Whereas we are happily at peace with all sovereign powers and states:
"And whereas hostilities have unhappily commenced between the
Government of the United States of America and certain states styling
themselves the Confederate States of America:
"And whereas we, being at peace with the Government of the United
States, have declared our royal determination to maintain a strict and
impartial neutrality in the contest between the said contending
parties:
"We, therefore, have thought fit, by [and with] the advice of our
privy council, to issue this our royal proclamation:
"And we do hereby strictly charge and command all our loving subjects
to observe a strict neutrality in and during the aforesaid
hostilities, and to abstain from violating or contravening either the
laws and statutes of the realm in this behalf or the law of nations
in relations thereto, as they will answer to the contrary at their
peril."
(_e_) =Certain consequences= follow the recognition of belligerency.
(1) _If recognition is by a foreign state._
(a) From the date of recognition, the parent state is released from
responsibility to the recognizing state for the acts of the
belligerents.
(b) So far as the recognizing state is concerned, the parent state and
the belligerent community would have the same war status, _i.e._ in the
ports of the recognizing state, the vessels of both parties would have
the same privileges, the merchant vessels of the recognizing state must
submit to the right of search as justly belonging to both parties; in
fine, so far as the prosecution of hostilities is concerned, the
recognizing state must accord the belligerent community all the
privileges of a full state.
(c) The recognizing state may hold the belligerent community, if it
subsequently becomes a state, accountable for its acts during the period
after the recognition of its belligerency. If, however, the parent state
reduces the revolting community to submission, the recognizing state can
hold no one responsible for the acts of the recognized community from
the date of recognition.
(d) This recognition does not necessarily affect other than the three
parties, the recognizing state, the belligerent community, and the
parent state.
(2) _If recognition_ of belligerency is by the _parent state_.
(a) From the date of recognition, the parent state is released from
responsibility to all states for the acts of the belligerents.
(b) So far as the prosecution of hostilities is concerned, the
community, recognized as belligerent by the parent state, is entitled to
full war status.
(c) From the date of recognition by the parent state, the belligerent
community only is responsible for acts within its jurisdiction, and if
subdued by the parent state, no one can be held responsible, _i.e._
contracts made with a belligerent, or responsibilities assumed by a
belligerent, do not fall upon the parent state, when victorious in the
contest.
(d) Recognition of belligerency by the parent state gives the revolting
community a war status as regards all states.
* * * * *
In a broad way, recognition by the parent state makes general those
conditions which may exist only for the parties directly concerned, when
recognition is by a single foreign state. In cases where several states
recognize the belligerency of a hostile community, other states that
have not recognized its belligerency may, without offense to the parent
state, treat the hostile community as a lawful belligerent, which
treatment would be constructive recognition. The general effect of
recognition is to extend to the belligerent all the rights and
obligations as to war that a state may possess, and to free the parent
state from certain obligations while giving some new rights. The parent
state may use the proper means for the enforcement of neutrality and
demand reparation for any breach of the same, may maintain blockade,
prize courts, and take other measures allowable in war.
The condition of insurgency is usually tacitly admitted for a period
prior to the recognition of belligerency, and the vessels of the
insurgents are not regarded as pirates either in practice or theory.
They have not the _animus furandi_. The admission of insurgent status or
the recognition of belligerency does not imply anything as to the
political status of the community. In the first place there is conceded
a qualified war status, and in the second full war status.
§ 29. Communities not fully Civilized
While there is no agreement as to what constitutes civilization, still
international law is considered as binding only upon states claiming a
high degree of enlightenment. Communities, whether or not politically
organized and not within the circle of states recognized by
international law, because they are not regarded as sufficiently
civilized, are not treated as without rights. It is held that these
communities not fully civilized should be treated as civilized states
would be treated so far as the time and other circumstances permit.
Unduly severe measures, whether in war or peace, should not be used by
civilized states in dealing with those not civilized. It may be
necessary that barbarians should be used as auxiliary forces in contests
with barbarians, but it is now held that such forces should be officered
and controlled by the civilized state. Extreme measures, in the way of
devastation and destruction, have been used with the idea of impressing
upon the minds of barbarians respect for the power of a state, but it is
now questioned how far this is fitting for states claiming civilization.
Many states not admitted to the circle of nations have now acquired such
a status as entitles them to the general privileges of international law
to the extent to which their action has not violated its provisions, and
it is generally so accorded, as for many years to China, Persia, and
other Asiatic states.
PART III
INTERNATIONAL LAW OF PEACE