ever-growing tendency to bring disputed questions of International Law as well as international differences in general before international courts and councils. According to the Covenant of the League of Nations, the members of the League are bound, if there should arise between them a dispute likely to lead to a rupture, to submit the matter to arbitration, or to an inquiry by the Council of the League, and in no case are they allowed to go to war, until three months after the award of the arbitrators or the report by the Council.

Common

Consent the Basis of Law.

II

BASIS OF THE LAW OF NATIONS

§ 11. If law is, as defined above (§ 5), a body of rules for human conduct within a community which by common consent of this community shall be enforced through external power, common consent is the basis of all law. What, now, does the term common consent' mean? If it meant that all the individuals who are members of a community must at every moment of their existence expressly consent to every point of law, such common consent would never be a fact. The individuals, who are the members of a community, are successively born into it, grow into it together with the growth of their intellect during adolescence, and die away successively to make room for others. The community remains unaltered, although a constant change takes place in its members. Common consent' can therefore only mean the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever, and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction

to the wills of its single members. The question as to whether there be such a common consent in a special case, is not a question of theory, but of fact only. It is a matter of observation and appreciation, and not of logical and mathematical decision, just as is the wellknown question, How many grains make a heap? Those legal rules which come down from ancestors to their descendants remain law so long as they are supported by the common consent of these descendants. New rules can only become law if they find common consent on the part of those who constitute the community at the time. It is for that reason that custom is at the background of all law, whether written or unwritten.

Consent

Nations

of Inter

§ 12. What has been stated with regard to law pure Common and simple applies also to the Law of Nations. However, the community for which this Law of Nations is Family of authoritative consists not of individual human beings, the Basis but of individual States. And whereas in communities national consisting of individual human beings there is a constant Law. and gradual change of the members through birth, death, emigration, and immigration, the Family of Nations is a community within which no such constant change takes place, although now and then a member disappears and a new member steps in. The members of the Family of Nations are therefore not born into that community and they do not grow into it. New members are simply received into it through express or tacit recognition. It is therefore necessary to scrutinise more closely the common consent of the States which is the basis of the Law of Nations.

The customary rules of this law have grown up by common consent of the States-that is, the different States have acted in such a manner as includes their tacit consent to these rules. As far as the process of the growth of a usage and its turning into a custom

can be traced back, customary rules of the Law of Nations came into existence in the following way. The intercourse of States with each other necessitated some rules of international conduct. Single usages, therefore, gradually grew up, the different States acting in the same or in a similar way when an occasion arose. As some rules of international conduct were from the end of the Middle Ages urgently wanted, the writers on the Law of Nature prepared the ground for their growth by constructing certain rules on the basis of religious, moral, rational, and historical reflections. Hugo Grotius' work, De Jure Belli ac Pacis, libri iii. (1625), offered a systematised body of rules, which recommended themselves so much to the needs and wants of the time that they became the basis of the development following. Without the conviction of the Governments and of public opinion of the civilised States that there ought to be legally binding rules for international conduct, on the one hand, and, on the other hand, without the pressure exercised upon the States by their interests and the necessity for the growth of such rules, the latter would never have grown up. When afterwards, especially in the nineteenth century, it became apparent that customs and usages alone were not sufficient, or not sufficiently clear, new rules were created through law-making treaties being conIcluded which laid down rules for future international conduct. Thus conventional rules gradually grew up side by side with customary rules.1

New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct in force at the time of

1 See the judgment in the case of The Scotia, (1871) 81 U.S. 170, where the fact is clearly stated that Inter

national Law rests on the common consent-express or implied-of the several States.

their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the Family of Nations consented to it. No single State can say on its admittance into the Family of Nations that it desires to be subjected to such and such a rule of International Law, and not to others. The admittance includes the duty to submit to all the rules in force, with the sole exception of those which, as, for instance, the rules of the Geneva Convention, are specially stipulated for such States only as have concluded, or later on acceded to, a certain international treaty creating the rules concerned.

On the other hand, no State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations. The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one State. This applies not only to customary rules, but also to such conventional rules as have been called into existence through a law-making treaty for the purpose of creating a permanent mode of future international conduct without a right of the signatory Powers to give notice of withdrawal. It would, for instance, be a violation of International Law on the part of a signatory Power of the Declaration of Paris of 1856 to declare that it would cease to be a party. But it must be emphasised that this does not apply to such conventional rules as are stipulated by a law-making treaty which expressly reserves the right to the signatory Powers to give notice of withdrawal.

States the

Subjects

§ 13. Since the Law of Nations is based on the common consent of individual States, and not of indi- of the vidual human beings, States solely and exclusively (apart Nations.

Law of

from the League of Nations 1) are the subjects of International Law. This means that the Law of Nations is a aw for the international conduct of States, and not of their citizens. Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively. An individual human being, such as a king or an ambassador for example, is never directly a subject of International Law. Therefore, all rights which might necessarily have to be granted to an individual human being according to the Law of Nations are not international rights, but rights granted by Municipal Law in accordance with a duty imposed upon the State concerned by International Law. Likewise, all duties which might necessarily have to be imposed upon individual human beings according to the Law of Nations are not international duties, but duties imposed by Municipal Law in accordance with a right granted to, or a duty imposed upon, the State concerned by International Law. Thus the privileges of an ambassador are granted to him by the Municipal Law of the State to which he is accredited, but that State has the duty to grant these privileges according to International Law. Thus, further, the duties incumbent upon officials and subjects of neutral States in time of war are imposed upon them by the Municipal Law of their home States, but these States have, according to International Law, the duty of imposing such duties upon their officials and citizens.2

§ 14. Since the Law of Nations is based on the common consent of States as sovereign communities,

1 The Family of Nations being now organised as the League of Nations, the latter is, of course, the subject of rights as well as duties; and these rights and duties are international and not supernational.

The importance of the fact that subjects of the Law of Nations are States exclusively is so great that I consider it necessary to emphasise it again and again throughout this

work. See, for instance, below, S$ 289, 344, 384. It should, however, at once be mentioned that this assertion is even nowadays still sometimes contradicted; see, for instance, Kaufmann, Die Rechtskraft des internationalen Rechts (1899), passim; Rehm in Z. V., i. (1907), p. 53; and Diena in R. G., xvi. pp. 57-76.