an Infer States ence from regards the Basis But as national of Inter Law. the member-States of the Family of Nations are equal Equality to each other as subjects of International Law. are by their nature certainly not equal as power, extent, constitution, and the like. members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty, and of the fact that the Law of Nations is a law between, not above, the States.1 III SOURCES OF THE LAW OF NATIONS Hall, pp. 5-13-Maine, pp. 1-25-Lawrence, §§ 50-55-Phillimore, i. §§ 17-33 -Twiss, i. §§ 82-103-Taylor, $$ 30-36-Westlake, i. pp. 14-19Wheaton, § 15 - Halleck, i. pp. 60-68- Hershey, Nos. 11-15Ullmann, §§ 8-9- Heffter, § 3-Holtzendorff in Holtzendorff, i. pp. 79-155-Heilborn, Grundbegriffe des Völkerrechts (1912), §§ 6-9-Rivier, i. § 2-Nys, i. pp. 152-173-Bonfils, Nos. 45-63-Despagnet, Nos. 58-63 -Pradier-Fodéré, i. Nos. 24-35-Mérignhac, i. pp. 79-113-Martens, i. § 43- Fiore, i. Nos. 224-238-Calvo, i. §§ 27-38-Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts (1877)—Jellinek, Die rechtliche Natur der Staatsverträge (1880) — Cavaglieri, La Consuetudine giuridica internazionale (1907) - Oppenheim in Z.I., xxv. (1914), pp. 1-13-Praag, Nos. 7-15. distinc Cause. § 15. The different writers on the Law of Nations Source in disagree widely with regard to kinds and numbers of contra. sources of this law. The fact is that the term 'source tion to of law is made use of in different meanings by the different writers on International Law, as on law in general. It seems to me that most writers confound the conception of 'source' with that of 'cause,' and through this mistake come to a standpoint from which certain factors which influence the growth of International Law appear as sources of rules of the Law of 1 See below, §§ 115-116, where the legal equality of States in contradistinction to their political inequality is discussed, and where it will also be shown that not-full sovereign The two Inter Law. Nations. This mistake can be avoided by going back to the meaning of the term 'source' in general. Source means a spring or well, and has to be defined as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot on the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term 'source of law,' the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in Great Britain a good many rules of law rise every year from Acts of Parliament. 'Source of law' is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force. § 16. As the basis of the Law of Nations is the common Sources of consent of the member-States of the Family of Nations, national it is evident that there must exist, and can only exist, as many sources of International Law as there are facts through which such common consent can possibly come into existence. Of such facts there are only two. A State, just as an individual, may give its consent either directly by an express declaration, or contra tion to Usage. § 17. Custom is the older and the original source of Custom in International Law in particular as well as of law in distinegeneral. Custom must not be confounded with usage. Ung In everyday life and language both terms are used synonymously, but in the language of the international jurist they have two distinctly different meanings. International jurists speak of a custom when a clear and continuous habit of doing certain actions has grown up under the ægis of the conviction that these actions are, according to International Law, obligatory or right. On the other hand, international jurists speak of a usage when a habit of doing certain actions has grown up without there being the conviction that these actions are, according to International Law, right or obligatory. Thus the term 'custom' is in the language of international jurisprudence a narrower conception than the term usage,' as a given course of conduct may be usual without being customary. Certain conduct of States concerning their international relations may therefore be usual without being the outcome of customary 1 International Law. 1 See Klüber, § 3. It is very deplorable that the distinction between custom and usage in International Law is very frequently not drawn by many publicists. It would seem that Hall occasionally recognises the distinction, although he names Treaties Law. As usages have a tendency to become custom, the question presents itself, at what time a usage turns into a custom. This question is one of fact, not of theory. All that theory can point out is this: Whereever and as soon as a line of international conduct frequently adopted by States is considered legally obligatory or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law. § 18. Treaties are the second source of International as Fource Law, and a source which has of late become of the national greatest importance. As treaties may be concluded for innumerable purposes, it is necessary to emphasise that such treaties only are a source of International Law as either stipulate new rules for future international conduct or confirm, define, or abolish existing customary or conventional rules. Such treaties must be called law-making treaties. Since the Family of Nations is not a State-like community, there is no central authority which could make law for it in the way that Parliaments make law by statutes within the States. The only way in which International Law can be made by a deliberate act, in contradistinction to custom, is that the members of the Family of Nations conclude treaties in which certain rules for their future conduct are stipulated. Of course, such law-making treaties create -law for the contracting parties solely. Their law is universal International Law only when all the members of the Family of Nations are parties to them. Many law-making treaties are concluded by a few States only, so that the law which they create is particular International Law. On the other hand, many law-making treaties have been concluded which contain general International Law, because the majority of States, including leading Powers, are parties to 1 See below, § 492. them. General International Law has a tendency to become universal because such States as hitherto did not consent to it will in future either expressly give their consent or recognise the rules concerned tacitly through custom.1 But it must be emphasised that, whereas custom is the original source of International Law, treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations, that treaties are binding upon the contracting parties.2 -- influen Inter Law. § 19. Thus custom and treaties are the two exclusive Factors sources of the Law of Nations. When writers on cing the International Law frequently enumerate other sources Growth of besides custom and treaties, they confound the term national 'source' with that of 'cause' by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical facts from which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers 3 on International Law, decisions of prize courts, arbitral awards,4 instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Municipal Laws, decisions of municipal courts.5 All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct. A factor of a special kind which also influences the 1 Law-making treaties of worldwide importance are enumerated below, $556-568c. * See below, § 493. See Oppenheim in A.J., ii. (1908), pp. 344-348, and Praag, No. 11. See Oppenheim in A.J., ii. (1908), pp. 341-344. See Oppenheim in A.J., ii. (1908), pp. 336-341, and Praag, No. 10. |