sense of interdependence or internationalism. This International Community is by no means a World State or civitas maxima based on abstract principles of justice and equity. It is rather a "free society of peoples united by the solidarity of their tendencies and interests." 13. Utility as the Purpose of International Relations.The guiding motive or purpose of international relations should be utility or the satisfaction of collective needs and interests, whether intellectual, moral, or material. These become ever greater, more varied and imperative as the mutual interdependence and solidarity of nations constantly increases. They have, indeed, become so great and complex that it has been found necessary to give certain rules and customs of international intercourse the solemn character of International or World Agreements and thus render them more imperative. There has even been an attempt to create some suitable machinery for their better observance and enforcement. In the further development of International Law, motives of utiltity and a sense of international community interests should be allowed to have at least as much influence as tradition and precedents based upon metaphysical conceptions of natural law or abstract principles of justice. Jurists must learn to look forward as well as backward, and should have regard to the probable or possible social consequences of a given practice rather than to mere conformity with past usages and ideals. Social utility, or adaptability to human needs and social conditions, is thus the ultimate test of international, as of all human law. The better to answer these needs and interests, the Law of Nations tends, like every other branch of jurisprudence, to become more pragmatic and sociological.5 14. The Primary Sources of International Law. - The primary sources of positive International Law are: (1) custom 'Cf. Bonfils (Fauchille), No. 13; and 1 F. de Martens, 268. "To move and live and have its being in the great community of nations is as much the normal condition of a single nation, as to live in a social state is the normal condition of a single man." I Phillimore, § VII. On Utility as a test of International Law, see Creasy, ch. 3, especially the citation from Story (Conflict of Laws, §35) on p. 62. The doctrine is derived from Bentham. See especially Bentham's Works (Bowring's ed.), Pt. VIII, p. 538. For a remarkable series of articles on "Sociological Jurisprudence," see Pound, in 24 and 25 Harvard Law Rev. (1911 and 1912). They will soon appear in book form. based on tacit consent and imitation; and (2) convention or express agreement by means of treaties." Customary International Law has grown by means of tacit agreement and imitation or consent. It is the Common Law of Nations which has developed gradually from usage or precedents set by particular States as the result of acquiescence or imitation on the part of the other members of the international community. It has as its guarantee or sanction the consensus of opinion and usage of the civilized world, and it forms the oldest and intrinsically the most important portion of International Law; for it is deeply rooted in the habits, sentiments, and interests of mankind. In dealing with treaties as a source of International Law, it is necessary to distinguish between treaties which are mere bargains or contracts between States, or those which contain no rules for the regulation of international conduct, and treaties which are declaratory or stipulatory of International Law. Especially important are the great International or World Agreements which preserve the form of treaties (reserving to each State the right of sanction or ratification), but which are really great acts of international legislation and which create or codify existing international practice. Such are, e.g. the Declaration of Paris of 1856, the Geneva Conventions of 1864 and 1906, and the sixteen Conventions of the Hague Conferences of 1899 and 1907.7 15. The Evidences of International Law. - The evidences or witnesses of International Law are the places where the law • Westlake (I, pp. 14-15) makes "custom and reason" the two sources of International Law. But he thus confuses one of its sources with a means of interpretation. As Oppenheim (I, note on p. 22) justly remarks: "Reason is a means of interpreting law, but it cannot call law into existence." Writers frequently confuse the sources of International Law with its basis or foundation on the one hand, and the evidences or witnesses to its existence on the other. Some Continental publicists (e.g. Gareis, § 9, and Leseur, pp. 22 f.) find a source of International Law in the necessitas of the Roman jurists. For a criticism of this view, see Ullmann (2d ed.), p. 40. As pointed out by Jellinek (Öffentliches Recht, pp. 193 ff. Cf. Staatenverbindungen, 107 ff.), such agreements (Vereinbarungen) are the results of the collaboration of many individual wills working for the satisfaction of common interests, whereas ordinary treaties (Verträge) are the product of several wills working for particular and often opposing interests. See also Binding, Das Gründung des norddeutschen Bundes (1889); 1 Nys, Le droit int., p. 157; and Triepel, Völkerrecht, passim. For a list of lawmaking treaties, see 1 Oppenheim, §§ 558-568; and Introduction to Whittuck, International Documents. as applied or agreed upon is found, or the documents which bear evidence or witness to existing principles and customs. Arranged in the order of their extrinsic importance from the standpoint of formal authoritativeness, they are as follows: (1) International or World treaties which virtually legislate or codify existing practice. These are the works of International Congresses or Conferences which are composed of delegates vested with full powers to negotiate and conclude treaties of the character indicated above. (2) The Agreements of International Congresses and Conferences whose work has not received official sanction or ratification. Examples are the Brussels Conferences of 1874 and the Geneva Convention of 1868. The work of such Conferences has sometimes been of great importance, inasmuch as they have codified or influenced existing practice. (3) Treaties, whether between several or a considerable number of States, which merely purport to be declaratory of existing law or stipulatory of new principles or usages. Such are, e.g. the Armed Neutralities of 1780 and 1800, the Three Rules of the Treaty of Washington of 1871, and Franklin's famous treaty of 1785 between the United States and Prussia which stipulated for the exemption of private enemy property from capture at sea. (4) The decisions of judicial tribunals, more especially of Courts of Arbitration, International Commissions of Inquiry, and Prize Courts. The decisions of the Geneva Board of Arbitration which settled the Alabama claims in 1872, the North Sea International Commission of Inquiry of 1906 which investigated the North Sea Incident, and the decisions of the Hague Tribunal created in 1899, will undoubtedly be treated as important precedents in similar cases in the future. If the International Prize Court and the Court of Arbitral Justice provided for by the Hague Conference of 1907 ever come into existence, their decisions will, of course, take first rank in this category. Prize Courts, though hitherto national in character, are supposed This is the sense in which the term "sources" is generally used by historians, but jurists use the term in a different sense. The phrase "evidences of International Law" is borrowed from Walker, Science, ch. 2. 'See Hershey, International Law and Diplomacy of the Russo-Japanese War, ch. 8; and infra, § 308, note on pp. 326–327. to administer International Law; and the decisions of judges of international reputation for learning and impartiality, like Sir William Scott (later Lord Stowell) and Justice Story, have always been treated with great respect, especially in England and the United States. Such decisions have more value for the student of positive International Law than the mere opinions of any publicist, however eminent, partly because they bear a certain stamp of judicial authentication, but still more because the cases have presumably been argued by able counsel and carefully considered from every standpoint, more particularly with a view to their practical bearings. On the other hand, excessive deference is sometimes paid in England and the United States to judicial opinions which are mere obiter dicta, and judicial decisions are often given a more extended application than they deserve. In dealing with judicial decisions, the student should always remember that they are necessarily of limited application, both as to subject-matter and in respect to nationality, and that International Law is based upon general usage or international practice. This implies a much wider field of study and research than is afforded by any supply of judicial decisions, however copious. This condition of our science is one of the gravest objections to the teaching of International Law by the main or exclusive use of the "case system." 10 (5) Unilateral Acts or Laws, Ordinances, Proclamations, Decrees, Declarations or Instructions issued by a State to its naval, military, diplomatic, or consular representatives for the capture and disposition of prizes, the conduct of its armies and navies, or the transaction of its business abroad. Famous examples of this sort are the French Marine Ordinance of 1681; the British Admiralty Manuals and the American Naval War Code of 1900 (withdrawn in 1904); the Instructions for the Government of the Armies of the United States in the Field, issued during our Civil War; the United States Neutrality Laws 10 "The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the Law of Nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Chief Justice Marshall, in Thirty Hogsheads of Sugar v. Boyle (1815), 9 Cranch, 191, 198. of 1794 and 1818 and the British Foreign Enlistment Acts of 1819 and 1870; and the various Declarations of Neutrality issued at the outbreak of important wars. (6) Opinions of statesmen as expressed in important state | papers and diplomatic correspondence, and opinions of legal advisors of the various Governments, such as those of the law officers of the Crown in Great Britian and of the AttorneysGeneral of the United States. Such opinions are important in that they bear a certain official stamp and are usually well considered and practical; but they are apt to be biased by advocacy of a particular cause. Moore's monumental International Law Digest (in eight volumes, 1906) illustrates the wealth of material of this sort existing in the foreign archives of a single modern Government. (7) The writings of eminent jurists and authorities on International Law. "In the absence of higher and more authoritative sanctions, the ordinances of foreign States, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on International Law." 11 "Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles." 12 The above passages from Kent and Wheaton were approvingly cited by Justice Gray in his opinion in the case of the Paquete Habana. He added: "Such works [the works of jurists and commentators] are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, |