A TREATISEON

INTERNATIONAL LAWBY

WILLIAM EDWAED HALL,

M.A.

FOURTH EDITION

AT THE CLARENDON PRESSLONDON:

HENRY FEOWDEAND

OXFORD UNIVERSITY PRESS WAREHOUSE, AMEN CORNER

STEVENS119

& SONS,120

LIMITED

&

CHANCERY LANE

1895[All rights reserved'}

PRINTED AT THE CLARENDON PRESSBY HORACE HART. PRINTER TO THE UNIVERSITY

PREFACE TO THE FOURTH EDITION,

late

THIS edition was throughout prepared for the press by the Mr. Hall 1 At the time of his lamented death, on.

pages 1-272 were already in type, and as far as page 144 had been finally revised by the author.last,

3Oth November

Thewas

corrected copy,in the

down

hands of the

page 514 of the third edition, printers, and the remainder of it wasto

The improveready to be forwarded to them when required. ments upon the last edition are not inconsiderable. Newmatter will be found, for instance, at pages 131-136, withreferenceto Protectorates

and Spheres of Influence.is;

The

extent of territorial waters

reconsidered in the light of

recent discussions at page 160ships in such watersis

dealt with at pages 169

and the position of foreign and 211.;

Other noteworthy additions relate to Nationality, pp. 236-238 to the Behring Sea controversy, p. 267 ; and to the principlesapplicable to the case of the Kow-shing, although that caseis

not specifically mentioned, pp. 521-523. Two of the sections upon Contraband of War, pp. 677-682., have beencarefully rewritten.

The

result of these additions,

though

partially balanced

by

omissions and condensations, has been to increase the bulk of the body of the work, which

now

compared with 656 in the

first

extends to 767 pages, as edition. It has therefore

For a Memoir of Mr. Hall, and some account of his writings, I perhaps be allowed to refer to the Law Quarterly Review, vol. xi, p. 113.1

may

vi

PREFACE.

been thought desirable to gain space by omitting the three of the Nationality of Appendices, treating respectivelyVessels, of Ships' Papers,

references to

and of Naturalisation ; substituting the Blue-books or other sources whence the

Mr. Hall had information upon those subjects was derived. The first edition cancelled the Preface to the second edition.appeared without any Preface.editionis

The PrefaceMr. Hall's

to the third

reprinted, as containing

latest

views of

the future of International

Law.

Press to write a

Having been requested by the Delegates of the Clarendon few words by way of explanatory Preface to

the fourth edition, I

glad of the opportunity of testifying to the ability, care, and devotion to the memory of his friend the author, shown by Mr. Beresford Atlay, of Lincoln's Inn,

am

work through its various stages. The Delegates were fortunate in obtaining for this purpose the assistance of one to whom Mr. Hall had expressed his debt of gratitude forin seeing thesimilar,

occasion.

though far slighter services, rendered on a previous Mr. Atlay has spared no pains to make the newin-

edition

worthy of those which have preceded it. Apart from mere reader's corrections, his alterations,

dicated

by

the marks J

J,

amountnotes.

to

about half-a-dozenhas inserted some

modifications of the textadditionalreferences,lists

and

He

and has re-arranged, with necessaryof treaties relating to consular jurisin

amplification, thediction,

to

enemy

subjects

a belligerent state at the

outbreak of war, and to the exemption of foreigners from See especially pp. 21 1, 217, 407, 455, 457. military service.

He

has also enlarged the Table of Cases and the Index.T. E.OXFORD,June 20, 1895.

HOLLAND.

PREFACE TO THE THIRD EDITION.

IN issuing the third edition of the following work, it has been found necessary to add still further to its bulk.1

Several

topics

have

assumed;

a

greaterrecent

importanceoccurrencesin others,

than have

they before

possessed

in

others,

brought to light insufficiency of treatment;

new

I have circumstances are tending to establish new rules. endeavoured to take notice of such of these topics as seem to me to be ripe for discussion. There are also a certain

number

of additions in matters of detail.it

inopportune to seize the present occasion to say a word or two as to the degree in which it is reasonable to expect that International Law shall be a

Perhaps

may

not be

restraining force on public conduct.

Men who

have the good

fortune to deal actively with affairs are somewhat apt to think and speak lightly of its strength. It would be very

unwise of an international lawyer to indulge in the delusion, is often credited, that formulas are stronger But in than passions. I doubt much if he ever does so.with which heorder to get clean legal results, he must eliminate the vary-

ing elements of tendency to crime,of infringement of law.

or, to

put

it

more mildly,to be

He

only says what ought

given the acquired moral habits of the past, and the rules of conduct which have been founded upon them.done,

On

the other hand,

it

would

also be unwise,

on the part oflaw.

men whose mindsrate the

are fixed wholly on the present, to underinfluenceit

abiding

of

'

international

Since

it

has come into existence,or brutally disregarded.

Nevertheless

has often been quietly ignored far has force it so

PREFACE.that noofit.

state

could

venture to declare

itself

independent

it

So things stand at present; but looking to the future must be granted that some doubt as to the strength ofis

international lawsets

not wholly unreasonable.pointin

Two

different

of

indications

opposite

directions.

In

no

previous period have endeavours been made, such as those which have been made during the present generation by

the greater European States, to conclude agreements which should not merely express the momentary convenience, or theselfish

aims,

of

the

contracting

powers,

but

should

embody

principles capable of wider

and of impartial applica-

tion, or to lay

down

rules of conduct which, it

might

fairly

be hoped, would be adopted by the body of civilised nations. Great pacificatory settlements, such as those of the Congressesof Utrecht

and Vienna, used occasionallysuggesting rules of

to be

made; but

agreements

action, such as that withcoast,

respect to occupation

on the African

and agreementslast

prescribing general rules of conduct, such as the Conventionof Geneva, are almost wholly new.

Again, within the

fewit,

years, professors of international law,efforts to arrive,

and writers upon

have used their best

of disputed topics, at

common

upon a vast range conclusions, which might be

such authority as may be possessed by professors and writers as a body ; and they have done a good deal towards rendering doctrine harmonious

offered for general acceptance with

andit

consistent.

If

such indications as these stood alone,definite rules of inter-

might be taken not only that thebut that their holdis

national law are extending in range, and gaining incision,

pre-

also

becoming stronger day

by day.thereis

On the other hand, it is not to be denied that a wide-spread distrust of the reality of this progress.andsailors,

Manyhave

soldierslittle

ma'nyof

men concerned withwill bear

affairs,

belief

that

muchlaw

what has been addedany

of

late years to international

serious strain.

PREFACE.

IX

And, however convenient a standard of reference that law may be for the settlement of minor disputes; however willing

may be to defer to it when they are anxious not to quarrel , grave doubt is felt whether even old and established dictates will be obeyed when the highest interestsstatesmenof

nations

are

in

play.

This feeling, for reasonsis

which

cannot be dismissed as unfounded,

England than elsewhereBothback over the

;

but

it is

probably stronger in not confined to England.truly.

sets of indications

seem to me to point

Looking

last couple of centuries

we

see

international

law at the

close of each fifty years in

a more solid position

than that whichProgressivelyit

it occupied at the beginning of the period. has taken firmer hold, it has extended its

sphere of operation,trivial

it

has ceased to trouble

itself

about

formalities, it has

more and more dared

to grapple

in

detail

with the fundamental facts in the relations ofit

states.

The area within which

reigns

beyond dispute

has in that time been infinitely enlarged, and it has been But greatly enlarged within the memory of living men.it

would be

idle

to

on without check.long andoccasions

pretend that this progress has gone In times when wars have been both

on the

bitter, in moments of revolutionary passion, on when temptation and opportunity of selfishness part of neutrals have been great, men have fallen

back into disregard of law and even into true lawlessness. And it would be idle also to pretend that Europe is not now in great likelihood moving towards a time at whichthe strength of international law will be too hardly tried. Probably in the next great war the questions which have

accumulated during the last half century and more, will all be given their answers at once. Some hates moreoverwillall,

will

crave

for

satisfaction;all,

much envy andofnecessity.

greed

be at work;therewill

but above

and at the bottom of

be the hard

sense

Whole

nations will be in the field;

the

commerce of the world

Xmay

PREFACE.be on the sea to win or lose;;

national existences will

be at stake

men

will be

shorten hostilities and tend to a decisivein the next greatif it

tempted to do anything which will issue. Conducthard;

very be scrupulous, whether on the part of belligerents or neutrals ; and most likely the next war will But there can be very little doubt that if the be great.doubtfulwill

war

will certainly be

it

is

next war

is

unscrupulously waged,

it also

will

a reaction towards increased stringency of law.

be followed by In a comis

munity, as in an individual, passionate excess

followed

by

a reaction of lassitude and to some extent of conscience.

Onway

the whole the collective seems to exert itself in this

more surely than the individual conscience; and in things within the scope of international law, conscience, if it worksless impulsively,affairs.

can at least work more freely than in home Continuing temptation ceases with the war. Atexperience that times, in which

any

rate it is a matter of

international law has been seriously disregarded, have been

followed

by periods in which the European conscience has done penance by putting itself under straiter obligations than those which it before acknowledged. There is no reasonsupposethat thingswill

to

be otherwise in

the

future.

I therefore look forward with

much misgivingwill be

to the

manner

in

which the next great warall

misgiving atbe

waged, but with no as to the character of the rules which will

acknowledged ten years after its termination, by comparison with the rules now considered to exist.I

to the kindness of

owe a debt of gratitude, which I must not leave unpaid, my friend Mr. Beresford Atlay, who hasoff

taken a very irksome labour

my

hands by reading the

proofs of this edition, inserting references to recent treaties,

and revising and adding to the index.Aug.I,

1889.

CONTENTS.INTRODUCTION.

.....PARTCHAPTERI.

PAGEi

GENERAL PRINCIPLES.I.

PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES POSSESSING AN ANALOGOUS CHARACTER.SECTION1.

The marks characterising persons in International Law and postulates concerning those persons.

.

.18.21

2.

Acquisition, preservation, and loss of personal identityas a state.. . .

.

.

.

3.

Communities imperfectly possessing the marks of aperson in International

Law

.

.

.

.

4.5.

Imperfectly independent statesBelligerent communities.

.

.

.

.24 .2431.

.

.

.

6.

What

states are subject to International

Law

.

42

CHAPTER

II.

GENERAL PRINCIPLES OF THE LAW GOVERNING STATESTHEIR NORMAL RELATIONS.7.

IN

The fundamental

rights and duties of states

.

.

.45.

8.

Eight of continuing and developing existence

45

XllSECTION9.

CONTENTS.PAGE

Rights of property

.

.

.

.

.

.

47

10. 11.12.

Eights arising out of independenceResponsibility of a state..

.

.

50

.

.

.5657

Right of states to repress or punish violations of law

13.14.

Moral duties of

states.

The

sea

.

.

........62.. .

58

.

.

CHAPTERIN15. Iii1

III.

GENERAL PRINCIPLES OF THE LAW GOVERNING STATES

THE RELATION OF WAR.warconsists

what the

relation of

..... ..

63

6.

17.1

The place of war in International Law In what International Law as applied to warDoctrinein

-63.

consists

65

8.

that

war does not

so far as

except they contribute to the prosecution of. .

affect individuals

hostilities

.

.

.

.

.

67

CHAPTERAND NEUTRALS19.

IV.

GENERAL PRINCIPLES OF THE LAW GOVERNING BELLIGERENTSIN THEIR RELATIONS

WITH EACH OTHER..

How

the special law of neutrality has been formed

75

20.

The duty incumbent upon neutrals of conducting themselves with impartiality. .. .

.

-7^re-

21. Territorial

sovereignty..

as.

a

source. .

of

neutral..

sponsibility22. Territorial

'77

sovereignty as the measure of neutral re.. . . . ..

sponsibility

-78-79.

23. Rights of belligerents in restraint of commercial acts of

individuals

.

.

.

.

.

.

.

24. Division of the law of neutrality into two branches 25. Occasional confusion of the

81

two branches with each82

other

CONTENTS.

Xlll

PART.

II.

THE LAW GOVERNING- STATES IN THEIR

NORMAL RELATIONS.CHAPTERI.

COMMENCEMENT OF THE EXISTENCE OF ASECTION 26. Recognition of a state. . .

STATE,

CHANGES INPAGE

THE STATE PERSON, AND EXTINCTION OF A STATE... .

26*.

Forms

of recognition

.

.

26**.

Formation of the Congo State

.....

.

-87 -9394.

27. Relation of ations,

new

state to the contract rights

and obliga96

and

to the property &c. of the parent state

28. Effects of cession

upon the contract rights and obligaand upon the property &c. of the state ceding, tions, and the state acquiring, territory ..

.

.104.

29. Effects of the absorption of a state in another state

105

CHAPTER

II.

TERRITORIAL PROPERTY OF A STATE.30. 31. 32.33.

In what the territorial properly of a

state consists.

.

106

Modes

of acquiring

it

.

33*.

Occupation Cases illustrative of the law of occupation Recent tendency to change in the law of occu.

........

.

.

.

.106106

113

pation34.

.

.

.

.

.

.

.118

Abandonmenttion.

of territory acquired by occupa....

,

.

35.

Cession

.

36.

Prescription

.

.

.

.

.

.

37.

Accretion by the operation of nature..

.

.

38. Boundaries of state territory

.

.

.120 .123 -123 .125 .127130 134

38*. Protectorates over uncivilised and semi-civilised peoples

38**. Spheres of Influence

......

XIVSECTION

CONTENTS.PAGEare possessed by states over rivers not within their territory, or by co-riparianrights of navigationstates over the portions of rivers not

39.

Whether

within their.

territory

.

.

.

.

.

.

.136 .146 .158 .164

To what extent the40. 41.

sea can be appropriated.

:.

History of usage and opinionPresent state of the question

.

.

.

.

42. Right of foreign states to the innocent use of the territorial seas of a state...

.

.

CHAPTER

III.

NON-TEKRITOKIAL PROPERTY OF A STATE.43. In

what non-territorial property of the.

state consists. . .

.

167

44. Public vessels of the state

.

.167171

45. Private vessels covered46.

by the nationalstate,.

flag

.

.

Goods owned by subjects of theforeign ships.

but embarked in.

.

.

.

.

1 7

1

CHAPTER

IV.

SOVEREIGNTY IN RELATION TO THE TERRITORY OF THE STATE.47.

Enumeration of the points requiring notice.. .

.

.

.172173 175

48. Doctrine of exterritoriality

.

.

49.

Immunities of a foreign sovereign Immunities of a diplomatic agentPersonal immunities.

.

.

.

:

50.

.

.

.

.

51. 52.53.

Immunities of his family and suite Immunities of his house. .

.

.

.

.

Miscellaneous privileges

.

.

.

.

.178 .184 .186 .190193 202

54.

Immunities of armed forces of a foreign state History of usage and opinion.

:

55.56.

Immunities of public vessels Immunities of military forces

.... ...... .

206207

57. Reasons for discarding the

fiction of exterritoriality

CONTENTS.SECTION

XVPAGE

57*. Immunities of foreign public property other than public vessels of the state58. Doctrine that foreign

.......merchant vessels possess partial..

208

59.

immunity from the territorial jurisdiction .209 The limits within which the territorial jurisdiction oughtto be exercised over passing vessels..

.212

60.

Freedom of a

vessel entering a state from jurisdiction in

respect of acts done outside the state by or . . subjects of the latter. .

upon the.

.215.

61

.

Extent of the right of a state to require aid from foreignerswithinits territory in

maintaining the public safety

215 218

62.

Whether

the tribunals of a state can take cognizance of.

crimes committed by foreigners in foreign territory63. Eights of giving64.

and refusing hospitality

.

.

.222.

Eight of admitting foreigners to the status of subjects..

224

65. Responsibility of a state

.

.

.

.226

CHAPTER

V.

SOVEREIGNTY IN RELATION TO THE SUBJECTS OF THE STATE.66. Nationality

.

.

.

.

.

.

.

.233234

67. Persons as to whose nationality no difference of opinion can exist

........such difference can exist.

Those as to68.

whom

.

.234234

Children born of the subjects of one power within the territory of anotherIllegitimate children. . . .

....... .

69.70.71.

Married women

.

.

.

.

Naturalised persons

.

.

.

.

.

.238 .238 .239.

71*.

Effects of the naturalisation of parents on children

who72.

are minors at the date of naturalisation

251

Claims of states to treat unnaturalised foreignersas subjects. .

.

.

.

.

.251

73.

The questions arising out of sovereigntysubjects with which International

in relation todeals.

Law

-255255

74. Persons destitute of nationality, or of uncertain nationality

XVI

CONTENTS.

CHAPTERSTATE.SECTION

VI.

JURISDICTION IN PLACES NOT WITHIN THE TERRITORY OF ANY

PAGE

75. General

view of the jurisdiction exercised by states in places not within the territory of any powerterritoriality of vessels

76.

Theory of the

..... .

257

258

77. Limits of the jurisdiction of a state over vessels in non-territorial waters.

its.

merchant.

.263265.

78. Jurisdiction over public vessels in non-territorial waters 79. Jurisdiction of a state over foreigners in its ships.

265 266

80. Pursuit of a vessel into non-territorial waters for infrac-

tions of law

committed in

territorial waters

.

.

81. Piracy 82.Illustrative cases..

268.. .

.276

CHAPTER

VII.

SELF-PRESERVATION.83.

Right of self-preservation in general

.

.

.

.281

84. Permissible action within foreign territory against individuals making it a starting-point for attack .282.

85. Permissible action within the territory of states which are not free agents.

.

.

.

.

.

86. Permissible action in non-territorial waters

.

.

.284 .287.291

87. Protection of subjects abroad

.

.

.

.

CHAPTER

VIII.

INTERVENTION.88.

The

equivocal character of intervention

.

.

.

297

89. General conditions of the legality of intervention

.

.

298

CONTENTS.SECTION

XV11PA.GE

90. Classification of the grounds

upon which intervention299299

has taken place, or which are alleged to be sufficient91.

Self-preservation

92.93.94.

Restraint of wrong-doing

Treaty of guarantee

...... ..... ......war.

302

305306307

Invitation by a party to a civil

.

.

95. Intervention under the authority of the body of states.

CHAPTERTHE AGENTS OF A STATE INITS

IX.

INTERNATIONAL RELATIONS.

96.

Enumeration of the various kinds of agents of a

state

.

310

97. Persons to

whom

the

management.

of foreign affairs is.

committed by the constitution of the state98. Diplomatic agents..

.

.

.

Refusal to receive them

.

.

.

.

.310 .312 .312.

Commencement98*.

of their mission

Rights of diplomatic agents

..... ..

315

316

98**.99.

Termination of a mission

.

.

.

.

.317

Diplomatic agents in friendly states to which they are not accredited .322..

.

.

.

100.

Diplomaticdiction.

agents.

found..

within.

enemy.

juris.

.324terri-

101.

Diplomaticstate to

agents found by the enemy of the

which they are accredited in theof

tory of the latter1

......forces of the state.

325

02. Officers in

command

armed

.327329

103. Diplomatic agents not of publicly acknowledged character 104. Commissioners

104*. Bearers of despatches105. Consuls

......... ........ ....... .........byits

330

330 330338

106. Responsibility of a state for acts done

agents

.

XVlll

CONTENTS.

CHAPTERTEEATIES.SECTION

X.

PAGE. .. .

107. Division of the subject1

339.

08. Antecedent conditions of the validity of a treaty

109.

Formsits

of contract

........ . ..

.340343

no.

Ratification

by the supreme power of treaties.

made by

agents

-345.

in.112.113.

Interpretation of treaties

-35-356358

Interpretation of conflicting agreementsTreaties of guarantee.

......

114. Effects of treaties

.

-362..

115.11

Modes of assuring the executionExtinction of treaties.

of treaties..

362

6.

.

117.

Renewal

of treaties

.

.

.

.

.

.

-3^3 -375

CHAPTER

XI.

AMICABLE SETTLEMENT OP DISPUTES; AND MEASURES OP CONSTKAINT PALLING SHORT OP WAR.1 1 8.

Modes of

settling disputes amicably

119.1

Arbitration

20. Retorsion

and Reprisal

121. Pacific blockade122.

....... ........ .. .

378378381

.

.

.

.

.

.

386

Embargo

in contemplation of

war

.

.

.

.390

CONTENTS.

XIX

PART

III.

THE LAW GOVERNING STATES IN THE RELATION OP WAR.CHAPTERSECTIONI.

COMMENCEMENT OF WAR.PAGE

Whether the issue of a declaration or manifesto before the commencement of hostilities is necessary -391 124. Negative effects of the commencement of war 399 125. Abrogation and suspension of treaties 399123...

.

.

.

126.

Termination of non-hostile relations between subjects of the

enemy

states,

and between the

government of the one and the subjects of theother

........CHAPTERII... . . ...

405

EIGHTS WITH RESPECT TO THE PERSON OF ENEMIES.127. Limits to the rights of violence against the person of

enemies128. Non-combatants129. Combatants

.

.

.

.

.

.

.

.

.

.

.

.

.

130. Treatment of sick131.

and wounded

.

.

.

.

.411 .412 .413 .416.

What

persons

may

be made prisoners of war

132. Treatment of prisoners of war 133. Dismissal of prisoners on parole 134.

Ransom and exchange

135. Rights of punishment

and security

..... ...... .......

420423

.

.

.425426

430

CHAPTER136. Division of the subject

III.

RIGHTS WITH RESPECT TO THE PROPERTY OF THE ENEMY.

137.

Rough

division of property susceptible of appropria.

tion from property insusceptible of appropriation

138. State property

...... ........its

434 435

435441

139. Private property within the territory of

owner's state

b

2

XXSECTION

CONTENTS.Contributions and requisitions

140.

..... . .

PAGE

443

140*.

Under what

may141.

conditions contributions and requisitions be levied by a naval force.

.448.

Foraging

453

142.

Booty

.

.

453

143.

Property in territorial waters of its own state Private property within the jurisdiction of an enemy 144.

.

453453

.

145.

Property entering his territorial waters after the

commencementstate

of

war

.

.

.

.

-459460 460466

146. Private property in places not within the jurisdiction of

any14*7.

Theory of the immunity of private property at sea from capture

........ ......andits effect.

148.

Exceptions to the rule that private property at sea may be captured

......

149. 150.151.152.

What

constitutes a valid capture,

Disposal of captured property

Ransom

.... ..........

470474 478479

Loss of property acquired by capture

CHAPTER

IV.

MILITAKY OCCUPATION.153. Nature of military occupation in its

primd facie aspectto its character.

.

481

154.

The

theories

which have been held as

.

481

155. Extent of the rights of a military occupant 156. Practice in matters bearing on the security of an.

.

488

occupant

......... .

490

157. Practice in administrative matters, &c.1

58.

Use of the

resources of the country

.

.

.

-494 .496

159. Legal relation of an enemy to the government and . people of an occupied country.

1

60. Duties of

an occupant

1

6 1.

When

occupation ceases

CHAPTER162. In

POSTLIMINIUM.

what postliminium

consists

163. Limitations on its operation

...... ...... ..... ......

.498499

500

V.

505507

CONTENTS.SECTION

xxiPAGE

164.

The

effect of acts

rights

.........done by an invader in excess of his.

508

165. The

the expulsion of an invader by a power not in alliance with the occupied stateeffect of..

.509512

1

66. Special usages with regard to property recaptured at sea

CHAPTER

VI.

ENEMY CHARACTEE.167. Persons and property affected with an enemy character other than subjects and property of an enemy state1:

515:

68.

How personsi.

become

affected with.

an enemy character.. .

Through domicilThrough

.

.

517

1

68*.

2.

civil or military

employment

.

.521523

169.

How

property becomes affected with an enemy character

170. Questions with regard to

524

171.

Things sold by an enemy during war, or beforeits commencement in anticipation of war 524 Goods consigned by neutrals from neutral ports to an enemy consignee, or vice versa .527.

172.

.

173.

Places belonging to a belligerent, which are in the military occupation of his enemy..

528 530532

174.

Places under double or ambiguous sovereignty

175.

The

effects of a personal

union

.....

.

CHAPTER176. Division of the subjectHostilities on land:

VII.

MEANS OF EXERCISING THE RIGHTS OF OFFENCE AKD DEFENCE.

.......

535

177.178.

Question as to who are legitimate combatants Whether an authorisation from the sovereignnecessary

535

is

-537is:

179.

How farMaritime

possession of the external characteristics

of soldiershostilities

required

......

542

1

80.

Regular forces of the state and privateersVolunteer navy.

.

546

1 8-1.

.

.

.

.

-547

xxiiSECTION

CONTENTS.PAGK

182.

Right

of

non-commissioned vessels

capture183.

.......to.

resist

550

Attack by non-commissioned vessels illegitimate

550551

184. General limitations

upon the rights of violence

.

.

Specific usages with respect to

185.1

The meansDeceit

of destruction which

86.

Devastation

.......may be employedVIII..

552

553

187.1

-557559

88. Spies

CHAPTER

NON -HOSTILE RELATIONS OF BELLIGERENTS.189. General character of non-hostile relations.

.562.

190. Flags of trucei

J i. Passports

192. Suspensions of

193. Cartels

......... .... ..........

.

.

.

.

.

.

562

564565

arms and armistices

570572

194. Capitulations195. Safeguards

.....

575. .

196. Licences to trade

.

.

.

.

575

CHAPTER197.

IX.

TERMINATION OF WAR.

Modes

in

which war may be terminated

.

.

.

579

198. Effects of a treaty of peace in settingobligations.

up.

rights and.

.

.

.

.

-579-581.

199. Dates from which hostilities cease on conclusion of

a treaty

.

.

.

.

.

.

.

Effects of a treaty of peace with reference to

200.

Acts done before the commencement of the warActs done during the warof peace.

583

20 1.202.

.

.

.

.584585.

Acts of war done subsequently to the conclusion586

203. Termination of war by simple cessation of hostilities204. Conquest. .

.

.

.

.

.

.587.

205. Effects of conquest

.

.

.

.

.

.

592 593

206. Difference between the effect of cession and conquest

.

CONTENTS.

XXlll

PART

IV.

THE LAW GOVERNING STATES IN THE RELATION OP NEUTRALITY.CHAPTERTHE COMMENCEMENT OFSECTIONI.

WAR

IN ITS RELATION TO NEUTRALITY.PAGE

207. Notification

.....,.CHAPTERII.

596

(iKOWTH OF THE

LAW AFFECTING BELLIGERENT AND NEUTRAL

STATES TO THE END OF THE EIGHTEENTH CENTURY.208. Duties of neutral states to the end of the seventeenth

century209. Their rights

.........

.

.

.

.

.

.

598603 606

210.

Growth

of opinion in the eighteenth century.

.

.

211. Practice during the eighteenth century

.

.

608

212. Neutral duty in the latter part of the century, accordingto

De Martens

.

.

.

.

.

.

213. Neutrality policy of the United States

.

.

.613 .614

CHAPTER

III.

THE EXISTING LAW AFFECTING BELLIGERENT AND NEUTRAL STATES.214. General principles of law as ascertained at the end of the eighteenth century in their relation to modern

doctrine

.

.

.

.

.

.

.

.617

XXIVSECTION

CONTENTS.PAUK

215. "Whether troops can be furnished to a belligerent under .618 a treaty made before the outbreak of war.

216. Whether 217.

loans

by neutral individuals are permissible

.

619

Whether

the sale of articles of warlike use..

by.

a neutral.

state is permissible

.

.621.

218. Limits of the duty to prohibit the levy of219.

men.

.

622

Whether a neutral

state

may

permit a belligerent force.

to pass through its territory

.

.

220. Hostilities committed within neutral territory 221.

.

.623 .626.627

Use of neutral territory by a belligerentoperations.

as the base of.

.

.

.

.

.

an expedition .630 223. Expeditions combined outside neutral territory from elements issuing separately from it 631222.constitutes.

What

.

.

.

.

.

.

224.225*.

Equipment Usage and existing law.

of vessels of

war,

in neutral territory.

.

.

.

.

.634 '635

226. Effect of neutral sovereignty upon captured persons and. .641 property 227. Duty of a neutral state to procure redress for injuries done to a belligerent within its territory 643.. . .

.

.

.

228. Effect of resistance

b}'.

a belligerent attacked within. .

neutral territory

.

.

.

.648649

229. Reparation by a neutral state for permitted violation ofits

neutrality

230. Hospitality 231.

and asylum to land.

forces of a belligerent. ..

.

649

To

his naval forces

.

.

.650

CHAPTER

IV.

GENERAL VIEW OF THE RELATIONS OF BELLIGERENT STATES AND NEUTRAL INDIVIDUALS.232. General principles of the law233. Exceptional practicesi.: .. ..

-655657 660

Commercial blockade

234.235.

2.

Theof

rule of the

Heads

law

.... ........warof

1756

663

CONTENTS.

XXV

CHAPTERSECTION

V.

CONTRABAND.PAGE236. Uncertainty of usage as to

what.

objects are included in.

contraband237.

.

.

Practice in the seventeenth century

238. Practice in the eighteenth century239. Practice in the nineteenth century

.... ..... .

.

.665666 668

.

.

.

.

675

240. Opinions of

modern

publicists

.

.

.

.

.677.

241. Contraband not restricted to munitions of 242.

war

.

680

Whether contraband includesHorses, saltpetre, sulphur, and the raw materials of modern explosives .

243. 244.2

Materials of naval construction

CoalProvisions.

45.

.

.

.

246.

Clothing, money, metals, &c.

247. Penalties affecting contraband

.... .... ......

.

.

.682684

685

.

.

.

.687690

690

CHAPTERWherein

VI.

ANALOGUES OF CONTRABAND.248.their carriage differs from that of contraband

249. Carriage of despatches

.......

697

699701

250.251.

of persons in the service of the belligerent

Penalty incurred by the transport contraband. . ..

of analogues.. .

of

.702.

252. Carriage of despatches in the ordinary 253.of persons in the ordinary

way way of trade

of trade

703 705

.

CHAPTER

VII.

CARRIAGE OF BELLIGERENT GOODS IN NEUTRAL VESSELS.254. Conflicting theories on the subject 255. History of usage 256. Effect of the Declaration of Paris..

.

.

.

.709710

.

.716

XXVI

CONTENTS.

CHAPTERSECTION

VIII.

BLOCKADE.PAGE.

257. In what blockade consists

.

.

.

.

.718.

258. Institution of a blockade, andaffected with a

how a

neutral becomes.

knowledge of its institution under which a blockade may be established 259. Authority 260. Conditions of the due maintenance of a blockade.

719 725

.

261. Effect of the cessation of a blockade

....when..

-725730

262. Conditions under which vessels lying in a port is placed under blockade can come out

it

731

263.

What

acts constitute a breach of blockade. . ..

.

.

.734736.

264. Penalty of breach

.

.

265. Cases of innocent entrance of blockaded ports

.

737738

266. Blockade of a river partly in neutral territory

.

.

CHAPTER

IX.SHIPS..

NEUTKAL GOODS IN ENEMY'S267. Conflicting theories on the subject.

.

-739.

268. Course of usage, and present state of the question269. Liability of neutral to incidental loss from capture

740743

.

CHAPTERVISIT

X.

AND CAPTUEE.746be visited.

270. Object of visit and capture 271.

Who mayMode

visit

and who

is liable to

.

.

746

272. 273. 274.

Whether convoyed

ships can be visited

-747754

of conducting visit

When

capture takes place.

756. .

275. Capture on ground of resistance to visit276.

756

on ground of fraudulent acts

277. Duties of a captor

........

.

.

.760761

CONTENTS.

XXV11

CHAPTER XLNEUTRAL PERSONS AND PROPERTY WITHIN BELLIGERENTJURISDICTION.SECTION

PAGE

278. General position of neutral persons and property within belligerent jurisdiction, and right of angary.

.764

TABLE OF CASES

.

GENERAL INDEX

.........

.

.

.

.

.

.769772

ADDENDA AND CORRIGENDA.la Mer, pp.i. read See Ortolan, Diplomatic de i, for See Appendix 746-752 (Edition of 1864). P. 171, note 2, for See Appendix ii. read See postea, p. 756, note i. P. 205, note, line 5 from bottom, fee/ore L. K. iv. P. D. insert The Consti-

Page

171, note

tution.

Jacquemyns read Jaequemyns. Appendix iii. read see Reports of Her Majesty's Representatives Abroad upon the Laws of Foreign Countries, Parl. Papers, Miscell. No. 3, 1893, and Cogordan, La Nationality, Annexes.i,

P. 224, note, lineP. 250,

for

note, for see

P. 308, note, line i, for Jacquemyns read Jaequemyns. P. 471, line 4 from bottom, for Consolat del Mar read Consolato del Mare. P. 485, note, line i, for i. Edwards, 182 ; read The Santa Anna,

Edwards, 180.P. 625, at

end of note add

J

But by the opening

of the line

from Ulm

to

Basle via Sigmaringen, Tuttlingen, and Waldshut, which passes altogether clear of Swiss territory, an alternative route has now been provided. J

INTEENATIONAL LAW.

INTRODUCTORY CHAPTER.INTERNATIONAL lawwhich moderncivilised

consistsstates

in

certain rules of

conduct In whatconsists

regard as being binding on tionaUaw

them

in their relations with one another with a force

com-

-

parable in nature and degree to that binding the conscientious

person to obey the laws of his country, and which they alsoregard as beingenforceable by appropriate means in case ofinfringement.

Twoorigin

principal views

may

be held as to the nature and Viewsheldto be aninatureandis*

of

these

rules.

They may be considered

imperfect attempt to give effect to

an absolute right which;

assumed to

exist and to be capable of being discovered or be looked upon simply as a reflection of the moral they may development and the external life of the particular nations

which are governed by them.a distinctionis

to be

drawn between;

According to the former view, international right and

international positive law

the one being the logical applica-

tion of the principles of right to international relations,

andthe

furnishing the rule

by which

states

ought

to be guided

;

8

2

INTRODUCTORY CHAPTER.

other consisting- in the concrete rules actually in use, andpossessing- authority so far only as they are not in disagree-

ment with

international right.

According to the

latter view,

the existing rules are the sole standard of conduct or law ofpresent authority;rules

and changes and improvements in those can only be effected through the same means by which

they were originally formed, namely, by growth in harmony with changes in the sentiments and external conditions of the

body of states. As between these two views in their crude form the majority of writers appear to hold to the former, buta considerable number, while thinking that positive international law derives its force from absolute right, practicallyrefer to positive law as the only evidence of what is right ; so that international usage and the facts of modern state life return by a bye road to the position which they occupy in the

Reasonsing the

second view, and from which they appear at been expelled. In the following work the second viewcorrect.

first

sight to have

is

assumed

to be:

The

reasons for this assumption are as followsall

oftheseviews.

question as to whether an absolute right, applicable to human relations, exists, or whether if its exis-

Putting aside

tence be granted

its

dictates can be sufficiently ascertained,fatal,

two

objections, both of which seem to beit

may

be urged

against taking

as the basis of international law.is

The

first

of_these

that

it

is

absolute standard consists.

With some

not agreed in what the__ it is the law of God,

with othersothersit is

it

is

erected metaphysically.

a law of nature inductively reached, by Standards so different in;

origin necessarily differ in themselves

and

it is

scarcely too

much

to

say that

if

the fundamental ideas of the morewriters

prominent

systematic

on

international

law

were

worked out without reference

to that

body of international

usage which always insensibly exerts its wholesome influence whenever particular rules are under consideration, there wouldbe almost as

many

distinct

codes as there are writers of

INTRODUCTORY CHAPTER.1

3is

authority

.

The

difference of opinion thus

shown

no doubt

not greater than that which exists as to the principles by which the internal life of a state ought to be regulated, and as to the origin and sanction of those But the principles.external conditions under which individuals

and

states live

with reference to law, or with reference to law in the onecase ;

and

to rules equivalent to

law

in the other, are

wholly

dissimilar.

Law

in

modern

civilised states presents itself as

being imposed and enforced by a superior, invested withauthority for that purpose;to individuals, therefore,it

is

immaterial whether they agree with their neighbours as to the speculative basis of law they have not to reason out;

The fundamental ideas of the writers who have exercised most influence upon other writers or upon general opinion, may be shortly stated as follows. Grotius based international law in the main upon a natural law! imposed upon man by the requirements of his own nature, of which the' cardinal quality, so far as the relation of one man to another is concerned, he supposed to be the social instinct. This natural law he regarded as existing independently of divine command (De Jure Belli et Pacis, Prolegomena and lib. i. cap. i.). Pufendorf, by looking upon natural law as being imposed by a divine injunction, analogous apparently to the injunctions of religion, and as not being binding apart from such injunction, loosened the intimacy of its connexion with human nature ; and though he agreed with his predecessor in thinking that the social instinct at least is inherent in the human mind, he appears, in supposing it to have been given as a means of self-preservation, to elevate utility to the1

individual rather than right between man and man into its primary bk. ii. c. 2, 3). In one object (Law of Nature and Nations, bk. i. c. 2 important respect Grotius and Pufendorf were at one. Both considered that natural law not only forbids acts detrimental to the social state, but;

enjoins acts tending to its conservation, so that neglect to contribute to the maintenance of that state amounts to an infraction of law. Thomasius, on the other hand, narrows the sphere of law by reducing its injunctionsto the negative to do to you,'

maxim, Do not do to others what you do not wish them and relegates everything beyond this to the domain of morals, with respect to which no external obligation exists. It is unnecessary to point out what different international laws would be obtained by the logical application of the former and the latter of these theories respectively. According to Wolff, man is bound by the law of his nature to attain the highest perfection of which he is capable, and the obligation'

to

perform an act being regarded as giving rise to the rights necessary for performance, he is endowed with innate rights of liberty, equality, and security, which are necessary to his development. These innate rights others are bound in their turn to respect their acknowledgmentits;

B 2

4

INTRODUCTORY CHAPTER.by which they intend to be governed; them by a competent authority, and

for themselves the rules

the law

is

declared to

conscientious

persons

are

movedis

to

obedienceis

so

soon as

to conveyed on the other hand, are independent beings, them. States, no person subject to no control, and owning no superior

the

order in

which law

communicated

;

or

body

of

persons

exists

to

whom

authority has;

been

delegated to declare

only bound by rules science after reasonable examination to submitstates are to be subject to

a state is law for the common good to which it feels itself obliged in con;

if

thereforestrictly

anything which can either

may therefore be compelled, and their infringement punished. Subjectively also a man in the natural state is bound to assist his neighbourin arriving at the perfection which is the end of his being but the obligation implies no correlative right to demand its fulfilment, and compliance with it cannot therefore be enforced (Jus naturae methodo scientifico;

Thus the pertractatum esp. 28, 78, 197, 208, 640, 645, 659, 669, 676). natural law of Wolff distinguishes, like that of Thomasius, between law and morals, but it again enlarges the compass of the former by expressly:

results, the

importing into it the principle of right to liberty of action. In their one seems to lead to such laws as those which exist in actual

human

The societies, and the other provides free scope for a vague ideal. principle of liberty was converted by Kant into the key of his system. Liberty is a conception of the pure reason, which presents itself to thewill as the necessary condition of its action, and the practical principles founded upon it are the determining causes of particular actions, under a law of free obedience on the part of the will to the dictates of reason, and of corresponding external liberty, the presence of which is as necessaryto the action of the will as is internal freedom.

The

dictates of reason

indicate rights and obligations, and law consists in the conditions under which the choice of the individual with regard to their subject matter

can be reconciled with that of other

men on

the assumption of the;

independence ofits

all

upon any constraining

object is to prevent such inconsistent with the rational liberty of cannot exist between states, because they'

will on the part of another aberrant manifestations of will as are

all. Law, however, so defined, have no machinery for effecting this reconciliation by the use of a collective, constraining will through the means of legislation, which can only be employed in an organised social community. They are therefore in a relation of non-law, in which'

force is the only arbiter of disputes but this relation being in itself contrary to the dictates of reason, nations ought to issue from it by agreeing with each other to live in a state of peace. Thus Kant's doctrine on its;

international side, while it offers an ideal standard of conduct, dispenses with the necessity of obeying it, except on the condition of express compact (Metaphysische Anfangsgriinde der Rechtslehre).

INTRODUCTORY CHAPTER.or analogically be calledrules

5of

law, they

must accept a body

of its origin, or else theyprinciples

by general consent as an arbitrary code irrespectively must be agreed as to the general by which theyobjectionare to be governed.is,

The second

that even

if

a theory of absolute

right were jmiversally accepted^jthe measure of the obligations of a statejouldjiot be found in its dictates, but in the,

which are received as positive law by the body of states. Just as the legal obligations of an individual are defined, notrules

by the moral

ideal recognised in the

society to

which he

belongs, but by the laws in force within it, so no state can have the right to demand that another state shall act in

conformity with a rule in advance of the practical morality which nations in general have embodied in the law recognised by them ; and a state cannot itself fall under a legal obligationto

act^fei

different

way from thatshall act in

in

which

it

can demand

that

anther

state

like circumstances.

How-

ever useful therefore an absolute standard of rightas presenting

might be

an

ideal

towards which law might be made to

approach continuously nearer, either by the gradual modification of usage or by express agreement, it can only be a sourceof confusion

and mischief when

it is

regarded as a test of the

legal value of existing practices.

If international law consists simply in those principles and By whatstates agree to regard as obligatory, the the rules ur rt how such r principles and rules as may P P con* ing to purport to constitute international law can be shown to be stitute indefinite rules

which

question at once arises

sanctioned by the needful international agreement. No formal a l law has been adopted by the body of civilised states, and scarcely code

are

any

principles

consent.pressed.

have even separately been laid down by common ed The rules by which nations are governed are unexof their existence

as

law

-

The evidence

and of

their contents

must therefore be sought

in national acts

in other words, in

such international usage as can be looked upon as authoritative. What then constitutes an authoritative international usage ?

INTRODUCTORY CHAPTER.Usage, ofauthority

Up

to a certain point there

is

no

difficulty in

answering

this question.

A

large part of international usage gives effectfacts of state existence, essentialcivilised state life.

P rmc ipl es which represent

under the conditions of modern

Whetheris

these are essential facts in the existence of all states

im-

material

;

several of

them indeed

are not so.

The assumptionis

that they are essential, so far as that group of states whichsubject to international lawis

concerned,

lies

at the root of the

conduct ; and that they have come to be regarded in this light, and unquestionably continue to be so regarded, is sufficient reason for taking as authorita-

whole of

civilised international

tive the principles

and

rules

which

result

from them.

Anothermoral

it portion of international usage gives effect to certain

obligations,rules

which are recognised as being the source of legal with the same unanimity as marks opinion with respectthird basis of legislation can be found of such solid

to the facts of state existence.

No

value as are the essential facts of existence of a society and

the moral principles to which that society feels itself obliged Of both the foregoing kinds of usage, to give legal effect.therefore, it can be affirmed unhesitatingly that they possess

a

much higherIt

authority than any other part of international

law.

can also be affirmed as unhesitatingly that the principles which underlie them have been accepted not merely as forms of classification of usage, but as distinct sources oflaw.

States

are

consequently bound,

not

only to respect

those principles in the shape of existing usage, but in dealing with fresh circumstances to apply them wherever their applicationis

possible.

manner, whenbe

The international lawyer, in like the validity of practices claiming to testingis

facts or relations,

modes of regulating new within the scope of the prinjustified ciples in question, in going beyond the rules which can be drawn from the bare facts of past practice. He is able, andlegal, or indicating appropriate

ought, to hold that the principle governs until an exceptional

INTRODUCTORY CHAPTER.usageis

7it

shown

to

have been established^ or at least until

can be shown that the authority of the principle has been broken by practice at variance with it, but not treated as an

In other words, all practices or which militate against the principles in question, must be looked upon with disfavour, and the onus of proving that they have a right to exist isinfringement of the law.1

particular acts, claiming to be legal,

thrown upon themselves.Itis

to be observed that the accepted principles of inter-

national law sometimes lead logically to incompatible results.

In such cases

it

is

evident that as neither of two ultimate

principles can control the other, and reconciling legislation at the hands of a superior is from the nature of the case

impossible, there

is

nothing but bare practice which can

fix

at

what point the inevitable compromise is to be made. It is more difficult to determine the value of arbitrary

Usage, of

usages unconnected with principle, or of usages professing either to be the groundwork of rules derogating from accepted P en In some principles, or to form exceptions from admitted rules.

^^

'

is*

may establish their authority ; but in be a question whether the practice which may upholds them, though unanimous so far as it goes, is of value enough to be conclusive ; and in others again it has to becases their universality

others there

decided which, or whether either, of two competing practices, or whether a practice claiming to support an exception, is

strong enough to set up a new, or destroy an old, authority. To solve such questions it is necessary to settle the relative These split themselves into two great value of national acts.divisions,

namely,

unilateral

acts

and

treaties

and other

compacts.It

appears to be usually thought that treaties are more

Treaties.

important indications than unilateral acts of the opinion ofthe contracting parties as to whatis,

or

ought to

be, the

law ;

and

even frequently considered that they are in some sense a fountain of law to others than the signatory states.itis

8

INTRODUCTORY CHAPTER.latter notion rests is

The reasoning upon which theintelligible.

not very'

It

is

conceded that 'in the

full rigour of the

law, treaties are only obligatory on the contracting parties ; but it is nevertheless held that 'when a certain number,freely entered into

by

divers nations, have embodied theit

same

principles of natural law, imparting totion,

the same interpretait,

and adopting the same methods for giving effect to although no one of them need be compulsorily applicablestates

to

which have not been parties to it, a sort of jurisprudence a species of law is formed, which the majority ofnations recognise as being obligatory, even upon those who have not signed any of its constituent parts 1 .' The doctrineis

more

seldom stated with this openness and breadth, but it is or less consciously implied in the use which is generallyof

madethere

whatbe

is

called the conventional

law of nations.it

In

spite of the largeness of the support which

thus receives,at

can

no

hesitation

in

dismissing

it

once asis

essentially unsound.

As a

pact between two parties

con-

1 Hautefeuille, Des Droits et des Devoirs des Nations Neutres Discours Preliminaire. Calvo, Le Droit International, 3 ed. 24, puts forward the same view more indefinitely, but with sufficient distinctness and:

;

e Bluntschli, Le Droit International Codifie, 2 ed. 794, adopts it by implication in looking upon the declaration of the Treaty of Paris with

jrespect

to the effect of the flag on enemy's goods as universally binding, notwithstanding that the United States have not yet adhered to it. Ortolan (Diplomatie de la Mer. Notice Additionnelle) states the reasons for the supposed authority of treaties as follows. The authors, he says, who have asserted it ont envisage successivement et separement les conventions conclues a diverses epoques par chacune des puissances civilisees avec les autres ils ont reconnu que, dans ces instruments publics ayant pour but non seulement de regler des interets de detail et particuliers, mais encore de fixer les grands principes d'inte"ret general, quelques-uns de ces principes etaient toujours ou le plus souvent reconnus d'un commun ac' ;

cord

;

que

si,

dans des temps de guerre ou de mesintelligence, 1'abandon de

ces principes avait eu lieu quelquefois, les peuples, instruits par experience des consequences funestes de cet abandon, avaient proclame de iiouveau ces

memes principes dans leurs traites de paix,et en avaient stipule I'observationconstante pour 1'avenir. Des lors on a ete fonde a deduire de cette conformite presque generale de decisions une theorie de ce qui se pratique ou de ce qui doit se pratiquer entre les nations civilisees en vertu des stipulations ecrites; et c'est la ce que Ton a nomme droit des gens conventionnel ou des traites.'

INTRODUCTORY CHAPTER.fessedly incapable of affecting a third

9in

who has

no way

assented to

terms, the only ground on which it is possible that treaties can be invested with more authority than otheritsis

national acts

that,

when they

enshrine a principle, they are

supposed to express national opinion, in a peculiarly deliberate

and solemn manner, and therefore to be of more value than other precedents. Even if this were the case, treaties wouldbe a long

way frombutit

f

establishing

a sort of jurisprudence'

separable from that produced

by

the aggregate of deliberate

cannot be admitted that the greater number of treaties do in fact express in a peculiarly solemnnational acts;

manner, or indeed atas to

all,

the views of the contracting parties

what

is

or

ought

to be international law.

Treaties included

to express principles of

amongst those which have been supposed law appear to be susceptible of divisionoleclaratory of

into three classes1.

:

Those which are

law as understood by the

contracting parties.

Those which stipulate for practices^ which the contracting parties wish to incorporate into the usages of the2.

law, but which they

know

to be outside the actual law.

3. Those which are in fact mere bargain^Jn which, without any reference to legal considerations, something is bought by one party at the price of an equivalent given to the other.

The

first

of these kindsrare.

is

for

precedent extremely

A

any purpose of international few instances there no doubt

are of international instruments declaratory of true law ; such, for example, as the Protocol signed at the Conference of

London

in

1871, by which the representatives of Russia,

Austria, France,

Germany, Greatit

Britain, Italy,

and Turkey,

stated that they recognised

to be

an

essential principle of

the law of nations that no power can be released from the

engagements of treaties, or modify their stipulations, except with the consent of the contracting parties amicably obtained. But the greater number of the few treaties which profess to

10

INTRODUCTORY CHAPTER.

be declaratory are of the type of the Acts and Conventions of the two Armed Neutralities, and the Convention for the

common

defence of the liberty of trade betweenin

Denmark

and Sweden

1794, which

may

be taken by implication

to assert the principles of the first

Armed

Neutrality, and toit is

be declaratory of

them

as general law.

In these cases

certain that the weight of authority

was not

in accordance

with the provisions of the treaties, and that their object was simply to enforce new rules upon a third state in the commoninterest of the contracting parties1.

Certain_introductory clauses are usually found in treatiesof commerce,

which do in fact involve principles of existingusage,asin

international

the

case

of

stipulations

that

there

be friendship between the contracting nations. This and like covenants, however, are now mere words ofshall;

they add nothing to the authority of the principle Once no doubt they were necessary; but long after they ceased to be so they remained as common forms of opening, and it can only be supposed that theysurplusage

which they embody.

owe

such the position which they occupy as the sole exceptions to the general truth that expressto their use asstipulations are not

made

which both contractingselves to be bound.

law by parties would in any case feel themto ensure obedience to a

Of

the second class of treaties there are not2;

many which

enunciate principles1

but there are a very large number

not so insee2

Treaties are often referred to as declaratory of a principle which are Thus the Treaty of Vienna is sometimes said to be fact.

declaratory of the principles of freedom of navigation.39.

For

its

true effect

to

it

Treaties are sometimes referred to this class also which do not belong in fact. Thus the Treaty of Utrecht, which purported to have for one

of its practical objects the establishment of a justuni potentiae equilibrium, has been spoken of as being designed to affirm the doctrine of the balance of power. As examples of treaties which were really intended to enunciate principles may be instanced the Treaty of 1850 between Great Britain and the United States for the construction and regulation of a Ship Canal across Central America, and the Declaration of Paris in 1856.

INTRODUCTORY CHAPTER.

II

which have for their aim to define the objects which anundisputedprincipleis

to

be permitted to

affect,

or the

manner

in

whicharticles

it is

to be applied.

Such are those which

enumerate

contraband of war, those which prescribe

the formalities of maritime Capture, those directed to therepression of the slave trade,

and many of those regulating

the functions and denning the privileges of Consuls.

The

value both of the more general and the more specific kindsis

great to the international lawyer

;

not because the conof law, but

ventions which belong to

them can be a sourcewithreferenceto

because they

show the flow and ebba given

of opinion,

and

its

strength

at

time

particular

doctrines or practices.

Treaties of the third class are not only useless but misleading.

Unfortunately, they are also the most numerous.to affirm

Sometimes they mingle with conventions intendedor extend a principle in such

manner

as to blur their effect,

or even to

throw an

air of uncertainty

on the wishes of the

contracting parties; sometimes they contradict in a long succession of separate agreements what from other evidence would appear to be the settled policy of a nation sometimes;

they form a mere jumble in which no clue to intention can be traced. Thus in 1801, Great Britain and Russia and GreatBritain and

Sweden signed

treaties

by which enemy's goodswhile

in neutral vesselsin the

were rendered

liable to confiscation,

same year Russia and Sweden reiterated as between themselves the principle of the armed neutrality under whichhostile property

was protected by a friendly

ship.

During

the present century the United States have concluded tenrecited in the former that the contracting parties desired not only accomplish a particular object, but also to establish a general principle,' in the latter that the signatory states proposed Mntroduire dans les rapports international^ des principes fixes with reference to certain points of maritime international law. Apart from such express recitals, or from distinct external evidence, it would be rash to assume that a treaty is intended to enunciate a principle.It'

was

to

'

12treaties

INTRODUCTORY CHAPTER.under which neutral goods are confiscated in enemy's

goods as free in all cases not specially provided for by international agreement. Again, in 1785 the United States agreed with Prussia that contra-

vessels ; but their courts regard such

band of war should not be confiscable

;

by

their treaty of

1794 with England not only were munitions of war subjected to confiscation, but the list was extended to include materialsof naval construction;

and

in the only treaty since concluded

by

which the subject is referred to, except two in 1799 an ^ 1838 reviving that of 1785 with the United States, articles contraband of war are dealt with in the usual manner.Prussia, in

Instances of like kind might be endlessly multiplied, and it may be safely said that it is rarely that the treaty policy of any country is consistent with itself over a long period of time.

On

thus exposing the nature of treaties to analysis, no

ground appears for their claim to exceptional reverence. They differ only from other evidences of national opinion in that their true character can generally be better appreciated they;

are strong, concrete facts, easily seized

the

They movement

easily understood. of the greatest use as marking points in are, therefore,

and

of thought.

If treaties

modifying an existing

practice, or creating a

newif

one, are found tostates

growin

in number,

and to be made betweenof sufficient diversity;

placed

circumstances

they are found to become nearly universal for a while, and then to dwindle away, leaving a practice more or less confirmed, then it is known thata battle has taken place between

new and

old ideas, that the

former called in the aid of special contracts till their victory was established, and that when they no longer needed externalassistance, they no longer cared to express themselves in the

form of

so-called conventional law.

While, therefore, treaties

are usually allied with a change of law, they have no pcrwer to turn controverted into authoritative doctrines, and they

have butat

little

independentis

effect in

hastening the

moment

which the alteration

accomplished.

Treaties are only

INTRODUCTORY CHAPTER.

13

permanently obeyed when they represent the continued wishesof the contracting parties.

If the le^al value of national acts

is

not to be estimated Conclu.

sions as to

with reference to a divine or natural law, and

if treaties

are the legalDifferent s of

not necessarily more important, and occasionally, from being the result of a temporary exigency, less important than some unilateral acts, it remains to be asked whether all indications of national opinion with

mere evidences of national

will,

kll

^

acts,

reference to international law are to be considered of an equal

weight, except in so far as their significance

is determined by and whether, therefore, authority attendant circumstances, will attach to them in proportion to their number and to the

length of time during which they have been repeated. Subject to two important qualifications this may probably be saidto be the case.

Thegrowth

first_^ualification is thatis

unanimous opinion of recent a better foundation of law than long practice jm

But it the part of_some only of the body of civilised states. must be remembered that as no nation is bound by the actsof other countries in matters

which have not become expressly

or tacitly a part of received international usage, the refusal

of a single state to accept a change in the law, prevents

a modification agreed upon

by

all

other states from being

immediately compulsory, except as between themselves.rule, as altered for their purpose,

The

merely becomes an unusually foundation of usage, capable of upholding law in less time than if the number of dissentients had been greater.solid

^

Thus the provisions

of the Declaration of Paris cannot in

strictness be said to be at present part of international law,

because they have not received the adherence of the United States but if the signatories to it continue to act upon those;

provisions, the

United States

will

come under an obligation

to conform its practice to

them which will depend on the number and importance of the opportunities which otherin a time states

may

possess of manifesting their persistent opinions.

INTRODUCTORY CHAPTER.The secondqualificationis

that there are some states, the

usagesoiHsvhich in certain matterspreponderant weight.that the practice,first

must be taken

to have

It

is

impossible to overlook the fact

and England, and afterwards of England and France, exercised more influence on the development of maritime law than that of states weaker onof Holland

the sea ; and it would at the present day be absurd to declare a maritime usage to be legally fixed in a sense opposed to the continued assertion of both Great Britain and the UnitedStates.

The

acts ofit

minor powers

may

often indicate the

direction

would be well that progress should take, but they can never declare actual law with so much authority as those done by the states to whom the moulding of law has which

Whetherinternational la\\ constitutes a branch of true law.

been committed by the force of irresistible circumstance. In what has been said up to this point the rules governingthe conduct of states have been spoken of as legal rules it has therefore been implied either that they constitute a body;

of true law, identical in its essential characteristics with

law

regulating an organised political community, or at least that, if not identical with such law, they are so closely analogoustoit

as to be

other name.

It

more properly described as law than by any is however not uncommonly thought in

England

at any rate that neither of these views is correct The only fundamental distinction, it is said, which separates

legal

from moral

rules, is that the

former

are,

and the

latter

are

not,

commands given and

enforced

by a determinate

authority;

both are general precepts relating to overt acts, but in the one case a machinery exists for securing obedience, in the other no more definite sanction can be appealed to

than disapprobation ona section ofofit.

the

part of thethis test, it

communityis

or of

Judged by

urged, the rulesof

International

Lawby

are

nothing more than counselsthis criticism

morality, sanctioned

the public opinion of states.

That there

is

an element of truth in

must

be frankly admitted.

International law does not conform to

INTRODUCTORY CHAPTER.the most perfect type of law.Itis

15

not wholly identical in character with the greater part of the laws of fully developed societies, and it is even destitute of the marks which strikethe eye most readily in them.

But

it is

now

fully recognised

that the proper scope of the term law transcends the limitsof

the more perfect examples of

law_.

To what extentThe

it

transcends

them

is

not equally certain.societies

various ideas of

law formed in different

and times, and the various

groups of customs which have been obeyed as law, have probably not yet been sufficiently compared and analysed, and

an adequate comparison and analysis have been made, no definition or description of law can be regarded as final.until

During the continuance ofnational law, to ignore thetreated as law,

this state of uncertainty as to the

proper limits of law, it is impossible, in dealing with inter-

two broad

facts, that it is habitually ||a

knowledged

to be

and that a certain part of what is at present ac-il law is indistinguishable in character from it.to be erroneous that the

Even supposing the viewtime at whichit first

international usages constituted a branch of law

body of from the

acquired authority, the fact that states

and writers have acted and argued as if it were law cannot but affect the nature of the rules which now exist. Thedoctrinesof

international

law have been elaborated by acontroversies

y,

course

in international reasoning; are used in a strictly legal manner precedents

of

legal

;

the opinions

of writers are quoted as those for

and relied upon for the same purposes which the opinions of writers are invoked under

a system of municipal law; the conduct of states is attacked, defended, and judged within the range of international law

by reference

to legal considerations alone;is

and

finally, it is*

an international morality distinct from law, violation of which gives no formal ground of l complaint, however odious the action of the ill-doer may berecognised that there.

1 The above points are well put by Sir Frederick Pollock in a paper on the methods of Jurisprudence. Law Magazine, November 1882.

16It

INTRODUCTORY CHAPTER.mayfairly be

doubted whether a description of law is adequate which fails to admit a body of rules as being substantially legal, when they have received legal shape, andare regarded as having the force of law

by the persons whose

conduct they are intended to guide. It is moreover not true to say that municipal law is invariably enforced by a determinate authority. There are stages of social organisation in which public opinion, which is the ulti-

mate sanction ofis is

all

law, whether municipal or international,

often able only to say to the individual that, when the law broken to his hurt, he may himself exact redress if he can.

When whom

the early Teutonic societies allowed a person, upon a certain kind of legal injury had been inflicted, to seize

the cattle of the wrongdoer and keepsatisfaction, or

them

till

he obtained

when they

told

him

to refer a quarrel involving

legal questions to the issue of trial

by combat, they showed

much

the same powerlessness to enforce law directly that is Even at a far usually shown by the community of states.

more advanced point of development there is probably always some law which can only be supposed by a violent fiction to be enforced by a determinate authority. A custom which, onbeing infringed, is brought before the courts for enforcement, and is enforced by them, must have been law for someindefinite time before judicial cognizance can be

taken of

it.

If not, the courts have legislated,

whomsible;

and the person against the custom has been enforced is subjected to an ex post

facto law.

The

supposition of such legislation

is

inadmis-

fiction that the courts, without legislating, have by their decision transformed the custom retrospectively

and the

into

law,

is

as

unsatisfactory as fictions always

must

be.

Evidently the courts give effect to a custom because it is already regarded in the community as having the force of law ; and during the time that it has existed, before appealhas been made to the courts, it must have been imposed upon unwilling persons by the strength of public opinion alone.

INTRODUCTORY CHAPTER.To regard the foregoingIf the rulesfacts as unessentialis

17impossible.

known under

the

name

of international law are

linked

to

the higher examples of typical positive law by

specimens of the laws of organised communities, imperfectly developed as regards their sanction, the weakness and indeter-

minateness of the sanction of international law cannot be anabsolute bar tobar, the factsits

admission as law

;

and

if

there

is

no such

that international rules are cast in a legal

mould, and are invariably treated in practice as being legal in character, necessarily become the considerations of most im-

That they lie on portance in determining their true place. but on the of law is not to be denied the extreme frontier;

whole

it

would seem to be more

correct, as it certainly is

more

convenient, to treatinclude

them

as being a branch of law, than toof morals.

them within the sphere

PART

I.

CHAPTER

I.

PERSONS IN INTERNATIONAL LAW, AND COMMUNITIES POSSESSING AN ANALOGOUS CHARACTER.PARTCHAP.I.I.

I.

PRIMARILY international law governs the

relations of

The communities governedbyinter-

the communities called independent states as volunTo a limited extent, as will be tarily subject themselves to it.seen presently,it

such o

may also

govern the relations of certain com-

national law.

munities of analogous character. The marks of an independent state are, that the community constituting it is permanentlyestablished for a political end, thatit

possesses a defined terri-

It is postory, independent of external control. tulated of those independent states which are dealt with byit is

and tiiat

international law that they have a moral nature identical with

that of individuals, and that with respect to one another they are in the same relation as that in which individuals standto each other

who

are subject to law.

They

are collectiveobli-

persons, and as such they havegations.

rights and are under

states as are

These postulates assume the conformity of the nature of such governed by law to the conditions necessarily;

precedent to the existence of law

because the capacity in a

PERSONS

IN

INTERNATIONAL LAW.

19

corporate person to be subject to law evidently depends upon the existence of a sense of right, and of a sense of obligation to act in obedience to it, either on the part of the communityat large, or at least of thewill

PAET

I.

man

or

body of men in

whom

theI

governing the acts of the community resides. In so far moreover as states are permanently established societies their

( t'

marks represent a necessary condition of subjection to law. A society, for example, of which the duration is wholly uncertaincannot offer solid guarantees for the fulfilment of obligations,

and cannot therefore acquire the rights which are correlative to them. It cannot ask other communities to enter intoexecutory contracts withit,

and at any moment

it

may

cease

to be a body capable of being held responsible for the effects

of its present acts.

On

the other hand, the marks constituted

by independencewhich,

Theirra

and association with

specific territory represent facts

though they determine the form of the particular law, arenot in themselves necessary to law. The absolute independence of states, though inseparable from international law in the shape which it has received,n

I

'

not only unnecessary to the conception of a legal relation between communities independent with respect to each other,is

but, at the very least,

fits

in

less

readily with

that con-

ception

indeed a

than does dependence on a common superior. If law had been formed upon the basis of the ideas

prevalent during the Middle Ages, the notion of the absolute independence of states would have been excluded from it.

The mindsideas,

ofif

and

men were at that time occupied with hierarchical a law had come into existence, it must have in-

volved either a solidification of the superiority of the Empire, or legislation at the hands of the Pope. Law imposed by asuperior

was the natural

ideal of a religious epoch

^ and inof the

spite of the fierce personal

independence of the

men

Middle Ages, the ideal might have been realised if it had not been for the mutual jealousy of the secular and religiousc 2

20

PERSONS IN INTERNATIONAL LAW.As it was, neither the Church nor the Empire became enough to impose law. With their definitive failure

PART1

I.'

powers.

strongto

a regulatory authority international relations tended to drift into chaos ; and in the fifteenth century interestablish

national life

was

fast resolving itself into a struggle for exis-

tence in

In such a condition of things no law could be established which was unable to recognise absoluteits

barest form.

independence as a fact prior to itself; and rules of conduct which should command obedience apart from an externalsanction were the necessary alternative to a state of complete anarchy.

That the possession of a fixed territory is a distinct requirement must be looked upon as the result of more general, butnot strictly necessary, circumstances. Abstractedly there is no why even a wandering tribe or society should not feel itself bound as stringently as a settled community by definitereasonrules of conduct

towards other communities, and though there

might be difficulty in subjecting such societies to restraint,or in

some

cases in being sure of their identity, theredifficulties to

would

be nothing in such

regarding them therefore to render the possession of a fixed seat an absolute condition of admission to its benefits. The explanation of the requirement must be sought in the circumstances of thespecial civilisation

exclude the possibility of as subjects of law, and there would be nothing

Partly, no doubt,

it is

which has given rise to international law. to be found in the fact that all com-

munities

civilised

enough

to

understand

elaborated legalsettled,

rules have, as

a matter of experience, been

but the

degree to

which the doctrine