CHAPTER I FOUNDATION OF THE LAW OF NATIONS I THE LAW OF NATIONS AS LAW Hall, pp. 13-16-Maine, pp. 50-53-Lawrence, §§ 1-3, and Essays, pp. 1-36— 1-8-Halleck, i. pp. 50-59-Hershey, Nos. 1-10-Ullmann, §§ 2-4 -Heffter, §§ 1-5-Holtzendorff in Holtzendorff, i. pp. 19-26-Nys, i. pp. 138-151-Rivier, i. § 1-Bonfils, Nos. 26-31-Pradier-Fodéré, i. Nos. 1-23-Mérignhac, i. pp. 5-28-Martens, i. §§ 1-5-Fiore, i. Nos. 186-208, and Code, Nos. 1-31-Bulmerincq, Praxis, Theorie und Codification des Völkerrechts (1874), pp. 158-164-Higgins, The Binding Force of International Law (1910)-Heilborn, Grundbegriffe des Völkerrechts (1912), §§ 1-5-Grosch, Der Zwang im Völkerrecht (1912), pp. 1-38, 109-137-Redslob, Das Problem des Völkerrechts (1917)—Lammasch, Das Völkerrecht nach dem Kriege (1917), pp. 61-91-Praag, Nos. 1-3Pollock in the Law Quarterly Review, xviii. (1902), pp. 418-429-Scott in A.J., i. (1907), pp. 831-866-Willoughby and Root in A.J., ii. (1908), pp. 357-365 and 451-457-Nys in A.J., vi. (1912), pp. 1-29, 279-315-Munroe Smith, The Nature and Future of International Law in the American Political Science Review, xxii. (1918) Foulke in the Columbia Law Review, xix. (1919), pp. 429-466. tion of the § 1. Law of Nations or International Law (Droit des Concep gens, Völkerrecht) is the name for the body of customary Law of and conventional rules which are considered legally 1 Nations. binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception, as, for instance, the law connected with legation and treaties, is called universal International Law, in contradistinction to particular International Law, which is binding on two 1 In contradistinction to mere International Comity. See below, sages and to rules of so-called §§ 9 and 19. or a few States only. But it is also necessary to distinguish general International Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General International Law, as, for instance, the Declaration of Paris of 1856, has a tendency to become universal International Law. International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work, De Jure Belli ac Pacis, libri iii., appeared in 1625, and became the foundation of all later development. The Law of Nations is a law for the intercourse of States with one another, not a law for individuals. As, however, there cannot be a sovereign authority above the several sovereign States, the Law of Nations is a law between, not above,1 the several States, and is, therefore, since Bentham, also called 'International Law.' Since the distinction of Bentham between International Law public and private has been generally accepted, it is necessary to emphasise that only the so-called public International Law, which is identical with the Law of Nations, is International Law, whereas the so-called private International Law is not, at any rate not yet. The latter concerns such matters as fall at the same time under the jurisdiction of two or more different States. And as the Municipal Laws of different States are frequently in conflict with each other respect 1 The arguments used by Snow (see A.J., vi. (1912), pp. 890-900, and R.G., xix. (1912), pp. 309-318) against the term International Law, and his proposal to substitute for it the term Supernational Law, are based upon the untenable dictum that 'all law comes from above.' ing such matters, jurists belonging to different countries endeavour to find a body of principles according to which such conflicts can be avoided. What is now termed private International Law would, however, become International Law in case the Powers agreed by a lawmaking treaty upon a body of rules the application of which would solve such conflicts. the Law of contested. § 2. Almost from the beginning of the science of the Legal Law of Nations the question has been discussed whether Force of the rules of International Law are legally binding. Nations Hobbes1 and Pufendorf 2 had already answered the question in the negative. And during the nineteenth century Austin and his followers took up the same attitude. They defined law as a body of rules for human conduct set and enforced by a sovereign political authority. If indeed this definition of law be correct, the Law of Nations cannot be called law. For International Law is a body of rules governing the relations of sovereign States between one another. And there is not and cannot be a sovereign political authority above the sovereign States which could enforce such rules. However, this definition of law is not correct. It covers only the written or statute law within a State, that part of the Municipal Law which is expressly made by statutes of Parliament in a constitutional State or by some other sovereign authority in a non-constitutional State. It does not cover that part of Municipal Law which is termed unwritten or customary law. There is, in fact, no community and no State in the world which could exist with written law only. Everywhere there is customary law in existence besides the written law. This customary law was never expressly enacted by any law-giving body, or it would not be 1 De Cive, xiv. 4. 2 De Jure Naturae et Gentium, ii. c. iii. § 22. |