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law of nations as to the existence of which there is, and can be, no dispute—is pretended to be converted into a sort of general conventional law of nations, namely, by selecting, from a number of contemporaneous or successive individual treaties, those stipulations and engagements which are similar and the most numerous, and, by combining them into a whole, or so many wholes, so as to be binding not only upon the majority, who may have pro tempore consented to such clauses, but upon all civilised nations. The early explanation, however, thus given by Professor Cobald Totze, was perhaps too lucid an exposition of the process of conversion ; and a little more mystery appears to have been deemed advisable by the later jurists who supported the doctrine, till this originalexposition has been again recently resorted to
For, beside the faint analogy that exists between the two different cases, which Professor Totze holds to be nearly identical, and besides the loose and illogical nature of the reasoning, these particular or individual treaties, so much founded on, it is plain, can only prove and produce a limited and temporary change of the common law of nations—namely, to the extent of the reciprocal conduct of the contracting parties towards each other, in the matters fixed by the treaty, so long as the treaty lasts ; they produce no valid change in perpetuity, or even permanently, with certainty ; they do not prove or produce any change even in the conduct of the contracting parties towards other nations ; while, in the greatest number of such cases, there exists positive proof of their previous practice being continued in relation to other nations, by documentary evidence as valid and authentic as the treaties themselves.
But further, and what is of more consequence, the principle here suggested by Professor Totze, and still sanctioned by M. Ortolan, is obviously a departure from, or rather a subversion of, the essential and fundamental rule of the law of nations—their universally admitted and immemorially recognised independence of each other. It manifestly presupposes and proceeds upon a legislative, or judicial, or executive and administrative control in the majority of civilised nations, over the minority-a power in the majority to create legal obligations binding on the minority without their consent, in direct opposition to the maxim, that nations have no superior upon earth, except the Supreme Being, and, in point of right, are subject to no control, except through the physical laws, material and moral or mental, juridical or legal and ethical, which the Omnipotent and all-wise Creator and Preserver of the universe has established.
So much for the two grand constituent parts of international law--common consuetudinary and conventional —and for their respective natures, extent, and limits.
From our cursory observations on this subject, it is plain our view of international coercive law differs considerably from the views of various jurists; and it may not be improper to conclude our remarks by here briefly noticing these differences.
International law, it is manifest, may be contemplated, either as existing independently of the power or acts of men, whether as individuals or as congregated into
EXTENT AND LIMITS OF.
nations or states, or as recognised, and generally and usually observed in practice, though not always by individual states and governments. Under the first view, the general appellation of international coercive, or compulsory law-that is, susceptible of physical enforcementmay be continued without any additional epithet. Under the second view, this law has been denominated, by the later Continental jurists, the positive law of nations, corresponding to what we call established, acted upon, sanctioned by practice.
Under the first view, we find, from observation and experience, the juridical relations of mankind, united in communities or independent states, as to a great extent existing independently of the power of men; as arising from the physical, material, mental, and moral arrangements established by the almighty and all-wise Creator on the surface of this globe ; as arising from the co-existence and relative position and constitution or organisation and reciprocal power of action and influence of states on each other. In the continued co-existence of states, and in their general, and especially their commercial intercourse, we find also, from observation and experience, there arise various physical, material, and mental relations, and consequent juridical or legal relations, or rights and obligations, in the course of physical events, and from separate acts of nations and inhabitants of different countries, with reference to each other, but without any joint agreement or union of wills. And these individual relations, or rights and obligations susceptible of physical enforcement, we find, are to a certain extent perceived or apprehended intuitively, and felt almost instinctively, in the exercise of the faculties with which mankind are
generally endowed; and, beyond such immediate intuition, by logical deduction from obvious primary truths—in the course of their advancement in civilisation. Farther, among these juridical relations intuitively perceived or apprehended, the universal conviction of the obligation to perform engagements, (pacta servare,) long found so necessary and useful among individuals, is in time extended to communities or states, who by mutual consent make arrangements in treaties with each other, varying or modifying, between themselves, the modes or rules of action previously observed in practice.
To proceed to the second mode of contemplating coercive international law : when the juridical relations, or rights and obligations originally existing, or arising or occurring in the course of events, in the manner before described, come to be not only perceived or apprehended and felt, but generally acted upon, or adopted in practice, in the progress of knowledge and civilisation—and when these original, or previously adopted modes or rules of conduct may, in various instances, have been modified by special conventions or treaties—there comes to exist, as already noticed, what the later German jurists, and after them the French, have denominated the positive law of nations, corresponding to what we call the established law of nations. And there may thus be said to have been formed a code of international law, of which the rules, though occasionally and too frequently infringed by individual governments, are at least recognised and appealed to, and usually and generally observed in practice. And this code may be correctly said to consist of two parts, or branches—common consuetudinary, composed of the rules arising from the common physical and
individual relations of states, as co-existent and influencing each other by their separate acts without any joint agreement, or union of wills in contracts or treaties; and conventional-containing such rules as may have been fixed by mutual or joint consent, and expressed, totidem verbis, in language.
From this brief exposition, it appears, our views approach nearer to those of Grotius--so justly styled the great father of the science—than to those of some of his less talented successors. We concur with him in the existence of a jus gentium necessarium, as arising from the primary and essential, and also secundarium, as arising from the subsequently occurring physical material and physical mental relations, and from the concomitant or consequent juridical relations of nations and states, superior to the power of mankind, to a certain extent almost intuitively perceived or apprehended, and almost instinctively felt, generally and usually recognised, appealed to and acted upon, though occasionally infringed, and especially as evidenced by long-continued, uniform, and uninterrupted custom or usage, indicating the conviction of legal rights and obligations. We concur also with Grotius in the existence of a jus gentium inter civitates voluntarium, so far as by these terms is meant the collection of international rules, established by public treaties, or conventions between individual nations. But beyond this division into two constituent parts—the common consuetudinary and the conventional law of nations, we do not see any necessity or ground for the other distinctions, divisions, and descriptions mentioned by Grotius ; and still less do we agree with Wolff or Vattel, in their theories of a jus gentium voluntarium. The