DUTIES OF NATIONS AMONG THEMSELVES--INTERNATIONAL LAW.
SUMMARY.
=General principles of international law.=--They are the principles of
the natural law applied to the relations nations sustain to each
other.
=Of war.=--War founded on the right of self-defense. The reasons for a
just war.
=Defensive and offensive wars.=--This division does not necessarily
correspond to that of just or unjust wars.--Precautions and
preparations.--Duties in times of war: to reconcile as much as
possible the rights of humanity with those of patriotism.--Rights of
war concerning the enemy's property.--Conquest.--Neutrality.
=International treaties=: their character; their forms; their different
species.--Essential conditions for public treaties: they are the same
as for private contracts.
=Observance of treaties.=--Obligatory character of treaties: testimony
of Cardinal Richelieu.
The human race being divided into divers particular societies called
_States_ or _nations_, those different bodies stand toward each other as
individuals; they are subject to the primitive laws existing naturally
among all men, and they are obliged to practice certain duties toward each
other.
=112. International law.=--General principles.--It is this body of laws
which is called _international law_, and which is nothing more than the
natural law itself, or the moral law applied to nations.
It is by virtue of this natural law that the nations ought to consider
each other equals, and independent of each other; that they should not
injure each other, and should make each other, on the contrary, reparation
for injury done. Hence the right of self-defense in case of attack, of
repelling and restraining by force whatever violence may threaten or
oppress them.
When nations practice toward each other the prescriptions of the natural
law, they are in a state of _peace_ with each other; when they are obliged
to resort to force to repel injustice, they are in a _state_ of _war_.
=113. War.=--It is evident that in all nations the ruler, whoever he be
(the people, nobles, or king), ought to have the right to carry on war;
for it is nothing else than the _right of self-defense_, and this right is
the same for the nation as for individuals. War is, then, legitimate in
principle; but in fact, it may be _just_ or _unjust_ according as it takes
place for good or bad reasons, and sometimes for no reason at all.
=114. Reasons of a just war.=--It is not easy to say in advance and in a
general manner, what may be the reasons of a just war; for they vary
according to circumstances; they may be all reduced to one fundamental
principle, namely, the defense of the national territory when threatened.
Moreover, a war may be undertaken not only in self-defense, but to protect
allies when they are unjustly attacked. As for the following reasons, more
or less frequently alleged as pretexts for war, good morality cannot
justify them:
1. Thus, the fear of the powerful neighbor, giving, for example, as a
pretext that he erects new citadels on his lands, organizes an army,
increases his troops, etc., is not a sufficiently just reason for war.
2. Utility does not give the same right as necessity: for example, arms
could not legitimately be resorted to in order to gain possession of a
place which might suit our convenience, and be proper to protect our
frontiers.
3. The same may be said of the desire to change dwelling-place, to leave
marshes, deserts, in order to settle in a more fertile country.
4. It is no less unjust to make attempt upon the rights and liberties of a
people under pretext that they are less intelligent or less civilized than
we are. The cause of civilization is, then, not a cause for just war so
long as we have not ourselves been attacked by barbarians.
5. Nor is it just to conquer a people under pretext that our conquest may
be to its advantage, bring it riches, or liberty, or morality, etc.
=115. Defensive and offensive wars.=--We distinguish two kinds of war,
_defensive_ and _offensive_. The first consists in defending the national
territory, the second, in attacking the enemy's territory.
It would be a mistake to confound defensive and offensive wars with just
and unjust wars, and to believe that only the defensive wars are just, and
all offensive ones unjust. This distinction has nothing to do with the
causes of the war, but concerns the manner of engaging in it; sometimes
one's interest lies in allowing one's self to be attacked, sometimes in
attacking. He who has done us injustice may very well wait for us to come
to him, instead of carrying arms to us; this does not prove him to be in
the right. He who, on the contrary, takes up arms to obtain reparation for
an injustice or an insult, does not prove thereby that he is in the wrong.
=116. Precautions and preparations.=--Even in the case of just causes,
there are certain precautions and preparations necessary in order that the
war be called a just one.
1. The subject must be of great consequence. It is criminal, for a
frivolous cause, to expose men to all the evils that accompany a war, even
the most fortunate.
2. There must be some probability of success: for it would be criminally
rash to expose one's self foolhardily to certain destruction and, to avoid
a lesser evil, throw one's self into a greater.
3. If we had no gentler means at our disposal.
There are two ways of settling a dispute between nations, without recourse
to arms: 1, an _amicable conference_ between the parties; 2, the
intervention of a disinterested third party, or _arbitrament_. A third
means, much rarer and now abandoned, is that of _casting lots_. When all
the means of settling the difficulty amicably have been exhausted, there
remains, before taking up arms, a final obligation, namely, to declare to
the enemy the resolution of employing the last means: this is what is
called a _declaration of war_.
=117. Duties in times of war.=--War having become a sad and unavoidable
necessity between nations, and the use of force determined on, it behooves
as much as possible to restrict it in its effects, and to reconcile the
rights of humanity with those of justice. Hence, certain rules established
by jurisconsults who have treated these matters, and notably Grotius, the
founder of international law.
The fundamental principle of the right of war is the following: All that
has a morally necessary connection with the purpose of the war is allowed,
but nothing more. In fact, it would be wholly useless to have the right to
do a thing, if, to accomplish it, one could not employ the necessary means
thereto; but, on the other hand, it would not be just if, under the
pretext of only defending one's rights, one should believe that everything
is permitted, and should resort to the last extremities.
From this general principle are deduced the following consequences, which
are only its applications:
1. It is certain that it is lawful to kill the enemy's soldiers, and, in
fact, the purpose of the war being to constrain the enemy to recognize the
justice of our cause, it would be vain to take up arms if one could not
use them. It is then one of the cases where manslaughter may be considered
innocent, and justified by the right of personal self-defense. (See above,
Ch. iii., p. 50.)
2. However, the right of death upon the enemy has its limits. As a
principle, it only extends to those who carry arms, and not to private
individuals who do not defend themselves, arms in hand. Such can only
accidentally become the victims of the war: for instance, it is
impossible in a battle to protect the inhabitants of a disputed village
against the balls of either party; but we should not knowingly strike dead
those who do not defend themselves.
3. Strangers should be allowed to quit a country exposed to war; and if
obliged to stay, they should be no further exposed than to share its
inevitable perils with the other citizens.
4. Prisoners of war should be neither killed nor reduced to slavery, but
simply prevented from doing mischief.
As to the means employed to deprive an enemy of his life, humanity, with
just reason, interdicts the use of certain cowardly and perfidious means;
as, for instance, poisoned bullets, or too cruel means of destruction, or
lastly, assassination.
Thus, it would be odious to send traitors secretly charged to kill the
hostile general. There is, besides, no example of such attempts in modern
wars, and the human conscience would unanimously reprove them.
Thus much concerning the rights war gives over the lives of enemies. Let
us consider now the duties regarding property.
1. War gives the right to destroy the property of the enemy; it is what is
called the _right of ravage_. But ravage should not be pursued for its own
sake, but only to weaken the enemy. Thus we should as much as possible
spare public monuments, works of art, etc.
2. It is a right of war to acquire and appropriate things belonging to the
enemy until agreement as to the moneys due, including the expenses of the
war.
3. It is by virtue of these principles that, in case of naval encounters,
it is justifiable to take possession of the enemy's vessels, and not only
of men-of-war, but of merchant-men and the goods they carry.
4. This right upon the enemy's property is only the sovereign's; he alone
has a right to appropriate, in the name of the State, the property of the
invaded territory, by way of restitution or guaranty; but war does not
confer upon single individuals the right of taking possession of people's
property and appropriating it: this is simply pillage.
=118. Conquest.=--We call _right of conquest_ the right which belongs to a
State to bring under its sovereignty the whole or part of another State,
by virtue of the right of war. Conquest, it will be seen, is but the right
of the strongest. It is contrary to the principle of modern political
societies, which requires that the State rest on the free contract of
citizens, and that a people should only be subject to laws consented to.
It is not easy to have an official authentication of this consent; but it
is certain that there are annexations that are voluntary, and others that
are not. The latter, it must be hoped, will become less and less frequent
as the idea of justice among nations develops.
=119. Neutrality.=--We call _neutrality_ the situation of States which, in
a case of war, side with neither the one nor the other of the
belligerents, but remain at peace with the two parties. They are,
therefore, obliged to practice toward them the laws of natural right
impartially: if, for example, they render to one a service of humanity,
they must not refuse the same service to the other. They must not furnish
means of hostility to either the one or the other, or they must furnish
them to both. They must lend their good offices for a settlement if they
have any chance of being listened to.
These rules are very simple; but, practically, the situation of neutrals
is a very delicate one, and gives rise to numerous difficulties, for the
solution of which, resort must be had to the special treatises on the law
of nations.
=120. International treaties: their characters: their forms.=--We have seen
that nations have among each other, the same as individuals, obligations
and rights which they derive from the natural law. But there are other
obligations and other rights which are no longer based on nature, but on
_special contracts_ or _usages_. The international law which bears on
usages is called _customary right_; that which comes from compacts, is
called _conventional right_. The compacts between States are called
_treaties_.
Treaties are _equal_ or _unequal_, according as they promise equal or
unequal things; _personal_ or _real_, according as they relate only to
certain persons, and during their lives, or as they are independent of
persons and last as long as the State itself; _pure_ and _simple_ or
_conditional_; in the first case the stipulations are absolute; in the
second they depend on certain conditions.
There are different species of treaties according to their different
objects: treaties of _alliance_; treaties of _boundaries_; treaties of
_cession_; treaties of _navigation_ and _commerce_; treaties of
_neutrality_; treaties of _peace_.
=121. Essential conditions of public treaties.=--As a principle, the rules
which govern international compacts are (with the exception of a few
differences) the same as those which govern private compacts. There are
three fundamental conditions: 1, the consent; 2, a licit cause; 3, the
capacity of the contracting parties. (See above, 92.)
The _consent_ should be: 1, declared; 2, free; 3, mutual.
The licit causes are those which are physically possible or morally
legitimate; the illicit causes are those which are contrary to morality,
as, for example, would be the establishment of slavery.
The capacity of making a compact belongs to the sovereign of the State
alone; but it is necessary that this sovereign be really invested with the
power. A sovereign stripped of his sovereignty has no power to make
compacts, although he might have all the most legitimate rights; and, on
the other hand, a usurping power can legitimately make compacts. The
reason of this is, that foreign nations are not capable to decide what
with another people constitutes the legitimacy or non-legitimacy of power:
there is for them, therefore, only the power _de facto_. Yet this is but
the general rule. There may be cases where a foreign government may refuse
to recognize a usurper's power.
=122. Observance of treaties.=--The obligation to observe treaties is based
on the natural law. Whether compacts take place between States or
individuals, it matters little. The States, in respect to each other, are
like private individuals. Certain publicists, particularly Machiavelli,
have maintained that the obligation to observe treaties only lasts as long
as these accord with our interests. As much as to say that one should not
make any compacts. Besides, Machiavelli's opinion is in such disrepute
that it is almost useless to discuss it. We will content ourselves with
setting against it the following beautiful thought of a great politician:
Kings should be very careful in making treaties, but when once made,
they must observe them religiously. I know very well that many
politicians teach the contrary; but without stopping to consider what
Christianity has to say regarding these maxims, I maintain that, since
the loss of honor is greater than that of life, a great prince should
rather risk his person, and even the loss of his State, than break his
word, which he cannot break without losing his reputation,
consequently, his greatest strength as a sovereign. (Cardinal de
Richelieu, _Testament politique_, 2{e} partie, ch. vi.)