« EelmineJätka »
state of things (status quo) has its imperfections ; that some anomalies occur here and there in the conduct of states; that they are yet far from following invariably the dictates of universal justice. But, on the other side, hardly any one but a pessimist can say that Christian communities are governed only by Machiavellian principles in their mutual relations. By those principles they could not have mitigated the cruelty of war, or abolished the slave trade and privateering, as they have done, acting in conformity with the conscience of humanity. This conscience appears to gain ground more and more. Only two centuries have passed since the practical foundation of international law by the Westphalian congress, and important results have been already obtained by it. We may expect yet greater blessings from the enlightenment of future times.
I come now to the second class of sceptics-Rousseau, Bentham, Kant, and others—who do not deny the existence of international law, but think that it is uncertain and wavering (chancelant); because nations have no general code, no common judge, and no other means of deciding their disputes but war. These imperfections of practice, in the opinion of sceptics, deprive order of stability, and make the status quo of every age precarious and liable to be subverted. These doubts and fears seem to me very exaggerated. We have no sufficient grounds for adopting the opinion that the non-existence of a code is a great evil in itself. The Roman law, in its best times, consisted of incoherent rules and customs, but was administered more successfully than in the period of its codification. This free country also has no code; its constitution is established on the basis of the common law; but there is no doubt that the law is more solid, more respected, and better administered, here than elsewhere. The codification of international law is even less necessary for the present age than the codification of its public and private law is for any particular country, because that law is not complicated. It can be ascertained and interpreted in almost every doubtful case. Most treaties are framed with great exactitude; the customs to which international law appeals are known to all
the world. It is true that there are some parts of it the codification of which would be of great value, as the so-called private international law; but all doubtful and uncertain points of its properly public branch can be determined by mutual agreement, as we have seen was done by the Vienna (1815) and Paris (1856) congresses, on the disputed questions of the rank of diplomatic agents, of the navigation of rivers, of the commerce of neutrals, &c.
With respect to the question of a supreme court for states, it is true that nations often feel the want of an impartial judge for the settlement of their disputes ; but it is no less true that they have in their hands sufficient means of preventing unnecessary wars. Those means are-good offices, mediation and arbitration, also congresses and conferences. That all these means are used successfully, nobody can doubt who is acquainted with the history of the last fifty years. The Paris congress of 1856 laid down the general rule, that all disputes in Europe should be submitted to the impartial mediation or arbitration of third powers. For those who think that a supreme court would be more efficacious in settling European disputes than any or all of the means used in present practice, I submit the following observations: Considering the state of Europe, it would be difficult to prove that this court would be more obeyed than mediators or arbiters; in fact, resistance to its opinions is as possible as refusal of submission to the impartial advice of those powers; the authority of the supreme court (if ever instituted) would be no less dependent on the mutual consent of parties. It is hardly possible to give to such a court compulsory powers against independent states without dangerous consequences for all nations.
I come now to another class of sceptics, who, without deny. ing the existence or the practical efficiency of international law, think that it is difficult, almost impossible, to reduce it to general principles, or to give to it a scientific character. The difficulties which, in the opinion of these sceptics, stand in the way, are the following :-International relations are governed, not by general laws, but by particular treaties and
customs very variable and discordant. The customary rules are most vague and uncertain ; as to treaties, they form but mutual compacts between the parties, and have nocharacter of law. To refute this important objection, it is necessary to explain, in a few words, the nature, objects, and sources of international law.
International law can have no other object in view but universal justice. With the idea of this law we combine the ideas of order and of general security for independent communities. Under international law we understand, not this or that treaty, but such rules or principles as are necessary for the mutual benefit of all states, and the observance of which is prescribed by the conscience of the civilized world. This conscience is, then, the principal source or fountain of that law. It may be objected against this, that the conscience of humanity is rather uncertain—that it is easy to misunderstand its dictates. But we speak here of such a conscience, or general will, as is expressed in an obligatory form. In this case it is not difficult to find in it the general principles of law.
1. If we observe the international relations of the present time, we find that there exist some rules recognized by all civilized states as necessary conditions of their coexistence. The authority of those principles cannot be denied. Grotius speaks of them as jus gentium necessarium, ab ipsâ natura profectum. It is true that they are established only by reason, but there is no government which would not give them practical efficiency by all means in its power ; no government can repudiate them without isolating itself from all other communities. I mean here, such principles as the independence of nations, the sanctity of ambassadors, and even many general principles relating to war.
2. The general will of nations is expressed in congresses, as I mentioned before. There is no doubt that the rules prescribed in them for the mutual conduct of governments have all the force and validity of international law.
3. We come now to treaties. It is true that a publicist should be very circumspect in founding general rules upon treaties, because many of them have a special character, and are of value only for the contracting parties. But we cannot adopt this opinion unconditionally, and say the same of all treaties : they often contain general rules : it is necessary to consider and compare them with attention, before we come to any conclusion as to their authority in a particular case. In studying history, we find that some articles of international law were established and adopted in successive treaties by civilized governments, with the evident intention of making those articles obligatory for all the world. Many customary rules of barbarous ages were abolished in this manner—as the droit d'aubaine and the droit de naufrage ; in our time, also, improvements in practice are obtained usually by treaties. The particular treaty, according to its value and importance, extends its authority when third powers accede to it, or when it is put under the guarantee of other states. We can find, even in special treaties, some analogy or resemblance to one another.
4. The rules adopted mutuo consensu are to be found in international customs or usages. Almost all the laws of war, and the privileges of ambassadors, are sanctioned in this manner. But we should be careful in distinguishing national from international customs. The essential quality of the latter is reciprocity; and, we should add, that the rules adopted only in cases of retorsion cannot be called customary rules.
These are the principal forms in which international law is brought to evidence and general knowledge. If all the rules mentioned above are taken as a whole, and considered from the point of view of universal justice, there is no serious difficulty in constructing the science. If treaties do not accord with customs, then we should ascertain whether nations desire to abolish the customary rule, or to retain it with some modifications. The conscience of humanity cannot be misunderstood in this case. Some usages are in arrear of the improvement of the age, and, when found so, are abrogated by treaties; while, on the contrary, treaties are very seldom superseded by customs, because customs of which the validity is once undermined cannot be called customs, since they have lost their obligatory force.
I shall not enter here into all the details of scientific method, and beg to offer but a few general remarks, important for judging of the present state of international jurisprudence. But before I enter upon this subject, I feel the duty of giving a brief historical sketch of the different schools which, from the death of Grotius to the present time, have cultivated in Europe the science of international law.
In the eighteenth, and even at the end of the seventeenth century, we find all the publicists divided into two schools, independent and inimical ; the one called itself the philosophical, the other was named the positive or practical school. The difference between them consisted in this : The philosophical school considered international law as one of the branches of the jus naturæ ; in their opinion, the rules of private law were to be applied to the mutual conduct of states. It is hardly necessary
that that method is erroneous. The relations of states undoubtedly are governed by the principles of justice, as well as the relations of men; but the nature of a state or community is as different from the nature of man, as the juridical person differs from the physical person ; the confusion of their qualities leads to the obscurity and perversion of all the general principles of jurisprudence. We must not wonder, then, that the philosophical school contributed but in a small degree to the improvement of science, and fell into great errors ; it was unable to give an explanation of many international questions, because it could not find for them any guidance in private law. Intervention, neutrality, and all similar phenomena, never occur in the life of individuals, and find no place in private law. This school stood completely apart from practice; its professors cared not about state papers or diplomatic history; they studied the law as a dead letter in their lecture-rooms. We must not be astonished that their study seemed sterile, dull, and unprofitable, in the general opinion; and that they even discredited the science of international law in the eyes of statesmen.
The positive school (established by Moser, in Germany) fell into another extreme. The adepts of that school thought that international law consists of the rules observed by