« PreviousContinue »
among these individuals, when viewed as united into communities, and existing as separate states, it is not easy to see. But, upon investigating the collections which have been made of treaties concluded among the different European nations for the last three or four centuries, it will be found very difficult, if not impracticable, to point out any series of similar treaties longcontinued and uniform, uninterrupted by treaties of a different nature, such as to form the basis of any general obligatory rules of law, binding upon any other nations than the contracting parties, to the extent of the terms and the duration of these treaties; besides the absence in all treaties from their very nature, as acts of free will or optional, of the legal requisite of having been entered into from a conviction or belief of the juridical or legal necessity of doing so.
But, it may be argued, although the treaties are dissimilar as wholes, and do not possess the requisites necessary to found a rule of common consuetudinary law, certain stipulations in these treaties are similar, have been often repeated, and recognise certain rules, which may be considered separately, and called principles. And so far as such rules arise from common juridical or legal relations, and exist in the manner before described, independently of all consent, negotiation, or treaty, we admit those principles. But so far as the rules contended for do not arise from the existence or concurrence of such physical, material, and mental relations, and concomitant or consequent juridical or legal relations, but depend upon consent for their existence, there does not appear to have been produced any such long-continued uniform and uninterrupted a series even of stipulations in treaties, as would found such a private consuetudinary law as would be binding on individuals. And as little can such stipulations be held to bind states, beyond the contents, limits, and duration of the treaties, of which they form a part.
Supposing, however, the existence of such a long-continued uniform and uninterrupted series of particular similar, though not identical, stipulations in treaties to have been established, the question we are now considering appears to have been profoundly examined, and in a great measure solved, by the late acute Professor Puch ta in his excellent Treatise on Consuetudinary Law, where he inquires, whether contracts or treaties (Verträge) can be adduced as proof or evidence for or of the existence of customary law or right.* “With regard to the matters or arrangements which occur in or are fixed by the contract or treaty itself,” he acutely observes, "there are two possible alternatives –First, it may have been precisely because some point or rule was found not valid or effectual according to existing law, that it was therefore settled and established through joint consent or agreement. And, in this case, the meaning or import of the contract, instead of affording evidence of the previous existence of the rule of law established by it, rather proves its non-existence. But, secondly, it may bave been thought that what is well enough understood of itself, should, for greater certainty or security, be expressed in the contract, so that thus, conversely, it was so agreed, exactly for the reason, because it is consistent with and conformable to the common legal convic
tion of mankind, &c., &c. When contracts are propounded, in which the particular stipulation or arrangement is expressly made, it is so far certain that they are not absolutely to be considered as the observance of that rule of law, since the arrangement has the form of an agreement, which, in its form, at least, contains not the presupposition or announcement of an existing rule of law or command. But, on the other hand, this is not altogether decisive, since scarcely ever is a contract concluded in which the contracting parties confine themselves to that which needs or requires a special settlement."
" This question, then, will always be possible, whether the arrangement in the contract is the subject-matter of the agreement, or whether it has its foundation in the conviction of a pre-existing juridical or legal precept or command. The last may be urged and adduced, along with concurring circumstances, for evidence ; and under this requisite, contracts may be in so far used as evidence for the existence of the rule of law. In particular, the expressions used by the contracting parties may point or direct to those sources whereby they, in a certain measure, justify their arrangements.”
Such appears to be the doctrine laid down by the latest and ablest Continental lawyers, with regard to the juridical or legal effect of contracts between private individuals living in civil society, as affording or not affording evidence of a rule of the internal common consuetudinary law of states, as administered to the individuals of whom they are composed. And no valid reason appears to have been assigned why the same doctrine should not be held applicable to the same indi
viduals, when viewed in their collective capacity, as constituting a people or state. The result of this application is, that where or when a line or mode of conduct does not appear to have been previously followed and spontaneously observed by nations towards each other, a convention or treaty agreeing to such a line or mode of conduct for the future, affords evidence of the non-existence of such a mode or rule of conduct as part of the common consuetudinary law; but that, as a line or mode of conduct which may have been well enough understood before, and occasionally followed, may be rendered more distinct, certain, and secure by the parties agreeing to it in express terms in a treaty, the latter may in this way afford a degree of proof that such right and correlative obligations were previously intuitively perceived or apprehended, or instinctively felt, and that the treaty merely rendered them more precise, and confirmed them. While, however, the alternative just alluded to remains doubtful, it does not appear how the frequent repetition of such treaties, or of the similar stipulations contained in them, can create any legal obligation on other nations beyond the parties so making or agreeing to such stipulations, or beyond the terms or endurance of the contract. .
Such treaties may, for a time, recognise and confirm a rule of the common law, but they cannot create it beyond their own endurance, so as to be legally binding beyond the contracting parties. In cases where the common consuetudinary law merely establishes the general right and corresponding obligation, which, for their practical enforcement, require specification with regard to locality or time, or external material descrip
tion, conventions or treaties are, as already remarked, of great utility — such as fixing the time for allowing foreigners to depart in the event of a rupture ; fixing the time when peace is to take effect in different quarters of the globe ; describing what articles are to be considered warlike stores, where the general or common law merely determines that the act of carrying warlike stores for the supply of a belligerent nation is a departure from the strict impartiality implied in neutrality, and warrants confiscation. But in such cases, where the specification rests solely on the treaty, such specification cannot be held obligatory on other nations, who have not consented to the contract.
Limits of the Conventional Law of Nations.
Having thus found that the theory proposed, though perhaps not originally suggested or steadily persevered in by Martens, cannot even be supported on the plausible ground of its being a sort of consuetudinary law founded on a series of similar stipulations, in a succession of treaties, we proceed, in the second place, to inquire whether the argument * of still later international jurists, in support of that theory, be not inconsistent with previously recognised legal principle, and a deduction which does not logically follow from the premises in point of fact. And of these still later writers on international law, as
* See“ Précis," tom. ii. $ 344.