International Law. A Treatise Volume I Part 1

International Law. A Treatise.

Volume I.

by La.s.sa Francis Oppenheim.

PREFACE

TO THE SECOND EDITION

The course of events since 1905, when this work first made its appearance, and the results of further research have necessitated not only the thorough revision of the former text and the rewriting of some of its parts, but also the discussion of a number of new topics. But while the new matter which has been incorporated has added considerably to the length of the work--the additions to the bibliography, text, and notes amounting to nearly a quarter of the former work--this second edition is not less convenient in size than its predecessor. By rearranging the matter on the page, using a line extra on each, and a greater number of words on a line, by setting the bibliography and notes in smaller type, and by omitting the Appendix, it has been found possible to print the text of this new edition on 626 pages, as compared with 594 pages of the first edition.

The system being elastic it was possible to place most of the additional matter within the same sections and under the same headings as before.

Some of the points treated are, however, so entirely new that it was necessary to deal with them under separate headings, and within separate sections. The reader will easily distinguish them, since, to avoid disturbing the arrangement of topics, these new sections have been inserted between the old ones, and numbered as the sections preceding them, but with the addition of the letters _a_, _b_, &c. The more important of these new sections are the following: -- 178_a_ (concerning the Utilisation of the Flow of Rivers); ---- 287_a_ and 287_b_ (concerning Wireless Telegraphy on the Open Sea); ---- 287_c_ and 287_d_ (concerning Mines and Tunnels in the Subsoil of the Sea bed); -- 446_a_ (concerning the Casa Blanca incident); ---- 476_a_ and 476_b_ (concerning the International Prize Court and the suggested International Court of Justice); ---- 568_a_ and 568_b_ (concerning the Conventions of the Second Hague Peace Conference, and the Declaration of London); -- 576_a_ (concerning Pseudo-Guarantees). Only towards the end of the volume has this mode of dealing with the new topics been departed from. As the chapter treating of Unions, the last of the volume, had to be entirely rearranged and rewritten, and a new chapter on Commercial Treaties inserted, the old arrangement comes to an end with -- 577; and ---- 578 to 596 of this new edition present an arrangement of topics which differs from that of the former edition.

I venture to hope that this edition will be received as favourably as was its predecessor. My aim, as always, has been to put the matter as clearly as possible before the reader, and nowhere have I forgotten that I am writing as a teacher for students. It is a matter of great satisfaction to me that the prophetic warnings of some otherwise very sympathetic reviewers that a comprehensive treatise on International Law in two volumes would never be read by young students have proved mistaken. The numerous letters which I have received from students, not only in this country but also in America, j.a.pan, France, and Italy, show that I was not wrong when, in the preface to the former edition, I described the work as an elementary book for those beginning to study the subject. Many years of teaching have confirmed me in the conviction that those who approach the study of International Law should at the outset be brought face to face with its complicated problems, and should at once acquire a thorough understanding of the wide scope of the subject. If writers and lecturers who aim at this goal will but make efforts to use the clearest language and an elementary method of explanation, they will attain success in spite of the difficulty of the problems and the wide range of topics to be considered.

I owe thanks to many reviewers and readers who have drawn my attention to mistakes and misprints in the first edition, and I am especially indebted to Mr. C. J. B. Hurst, C.B., a.s.sistant Legal Adviser to the Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign Office who gave me valuable information on certain points while I was preparing the ma.n.u.script for this edition. And I must likewise most gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have a.s.sisted me in reading the proofs and have prepared the table of cases and the exhaustive alphabetical index.

L. OPPENHEIM.

WHEWELL HOUSE, CAMBRIDGE, _November 1, 1911_.

CHAPTER I

FOUNDATION OF THE LAW OF NATIONS

I

THE LAW OF NATIONS AS LAW

Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, ---- 1-3, and Essays, pp. 1-36--Phillimore, I. ---- 1-12--Twiss, I. ---- 104-5--Taylor, -- 2--Moore, I. ---- 1-2--Westlake, I. pp. 1-13--Walker, History, I. ---- 1-8--Halleck, I. pp. 46-55--Ullmann, ---- 2-4--Heffter, ---- 1-5--Holtzendorff in Holtzendorff, I. pp. 19-26--Nys, I. pp.

133-43--Rivier, I. -- 1--Bonfils, Nos. 26-31--Pradier-Fodere, I.

Nos. 1-24--Merignhac, I. pp. 5-28--Martens, I. ---- 1-5--Fiore, I.

Nos. 186-208, and Code, Nos. 1-26--Higgins, "The Binding Force of International Law" (1910)--Pollock in _The Law Quarterly Review_, XVIII. (1902), pp. 418-428--Scott in A.J. I. (1907), pp.

831-865--Willoughby and Root in A.J. II. (1908), pp. 357-365 and 451-457.

[Sidenote: Conception of the Law of Nations.]

-- 1. Law of Nations or International Law (_Droit des gens_, _Volkerrecht_) is the name for the body of customary and conventional rules which are considered legally[1] binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception is called _universal_ International Law,[2] in contradistinction to _particular_ International Law, which is binding on two or a few States only. But it is also necessary to distinguish _general_ International Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General International Law, as, for instance, the Declaration of Paris of 1856, has a tendency to become universal International Law.

[Footnote 1: In contradistinction to mere usages and to rules of so-called International Comity, see below ---- 9 and 19.]

[Footnote 2: The best example of universal International Law is the law connected with legation.]

International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work, "De Jure Belli ac Pacis libri III.,"

appeared in 1625 and became the foundation of all later development.

The Law of Nations is a law for the intercourse of States with one another, not a law for individuals. As, however, there cannot be a sovereign authority above the several sovereign States, the Law of Nations is a law _between_, not above, the several States, and is, therefore, since Bentham, also called "International Law."

Since the distinction of Bentham between International Law public and private has been generally accepted, it is necessary to emphasise that only the so-called public International Law, which is identical with the Law of Nations, is International Law, whereas the so-called private International Law is not. The latter concerns such matters as fall at the same time under the jurisdiction of two or more different States.

And as the Munic.i.p.al Laws of different States are frequently in conflict with each other respecting such matters, jurists belonging to different countries endeavour to find a body of principles according to which such conflicts can be avoided.

[Sidenote: Legal Force of the Law of Nations contested.]

-- 2. Almost from the beginning of the science of the Law of Nations the question has been discussed whether the rules of International Law are _legally_ binding. Hobbes[3] already and Pufendorf[4] had answered the question in the negative. And during the nineteenth century Austin[5]

and his followers take up the same att.i.tude. They define law as a body of rules for human conduct set and enforced by a sovereign political authority. If indeed this definition of law be correct, the Law of Nations cannot be called law. For International Law is a body of rules governing the relations of Sovereign States between one another. And there is not and cannot be a sovereign political authority above the Sovereign States which could enforce such rules. However, this definition of law is not correct. It covers only the written or statute law within a State, that part of the Munic.i.p.al Law which is expressly made by statutes of Parliament in a const.i.tutional State or by some other sovereign authority in a non-const.i.tutional State. It does not cover that part of Munic.i.p.al Law which is termed unwritten or customary law. There is, in fact, no community and no State in the world which could exist with written law only. Everywhere there is customary law in existence besides the written law. This customary law was never expressly enacted by any law-giving body, or it would not be merely customary law. Those who define law as rules set and enforced by a sovereign political authority do not deny the existence of customary law. But they maintain that the customary law has the character of law only through the indirect recognition on the part of the State which is to be found in the fact that courts of justice apply the customary in the same way as the written law, and that the State does not prevent them from doing so. This is, however, nothing else than a fiction.

Courts of justice having no law-giving power could not recognise unwritten rules as law if these rules were not law before that recognition, and States recognise unwritten rules as law only because courts of justice do so.

[Footnote 3: De Cive, XIV. 4.]

[Footnote 4: De Jure Naturae et Gentium, II. c. iii. -- 22.]

[Footnote 5: Lectures on Jurisprudence, VI.]

[Sidenote: Characteristics of Rules of Law.]

-- 3. For the purpose of finding a correct definition of law it is indispensable to compare morality and law with each other, for both lay down rules, and to a great extent the same rules, for human conduct. Now the characteristic of rules of morality is that they apply to conscience, and to conscience only. An act loses all value before the tribunal of morality, if it was not done out of free will and conscientiousness, but was enforced by some external power or was done out of some consideration which lies without the boundaries of conscience. Thus, a man who gives money to the hospitals in order that his name shall come before the public does not act morally, and his deed is not a moral one, though it appears to be one outwardly. On the other hand, the characteristic of rules of law is that they shall eventually be enforced by external power.[6] Rules of law apply, of course, to conscience quite as much as rules of morality. But the latter require to be enforced by the internal power of conscience only, whereas the former require to be enforced by some external power. When, to give an ill.u.s.trative example, morality commands you to pay your debts, it hopes that your conscience will make you pay them. On the other hand, if the law gives the same command, it hopes that, if the conscience has not sufficient power to make you pay your debts, the fact that, if you will not pay, the bailiff will come into your house, will do so.

[Footnote 6: Westlake, Chapters, p. 12, seems to make the same distinction between rules of law and of morality, and Twiss, I. -- 105, adopts it _expressis verbis_.]

[Sidenote: Law-giving Authority not essential for the Existence of Law.]

-- 4. If these are the characteristic signs of morality and of law, we are justified in stating the principle: A rule is a rule of morality, if by common consent of the community it applies to conscience and to conscience only; whereas, on the other hand, a rule is a rule of law, if by common consent of the community it shall eventually be enforced by external power. Without some kind both of morality and law, no community has ever existed or could possibly exist. But there need not be, at least not among primitive communities, a law-giving authority within a community. Just as the rules of morality are growing through the influence of many different factors, so the law can grow without being expressly laid down and set by a law-giving authority. Wherever we have an opportunity of observing a primitive community, we find that some of its rules for human conduct apply to conscience only, whereas others shall by common consent of the community be enforced; the former are rules of morality only, whereas the latter are rules of law. For the existence of law neither a law-giving authority nor courts of justice are essential. Whenever a question of law arises in a primitive community, it is the community itself and not a court which decides it.

Of course, when a community is growing out of the primitive condition of its existence and becomes gradually so enlarged that it turns into a State in the sense proper of the term, the necessities of life and altered circ.u.mstances of existence do not allow the community itself any longer to do anything and everything. And the law can now no longer be left entirely in the hands of the different factors which make it grow gradually from case to case. A law-giving authority is now just as much wanted as a governing authority. It is for this reason that we find in every State a Legislature, which makes laws, and courts of justice, which administer them.

However, if we ask whence does the power of the legislature to make laws come, there is no other answer than this: From the common consent of the community. Thus, in Great Britain, Parliament is the law-making body by common consent. An Act of Parliament is law, because the common consent of Great Britain is behind it. That Parliament has law-making authority is law itself, but unwritten and customary law. _Thus the very important fact comes to light that all statute or written law is based on unwritten law in so far as the power of Parliament to make Statute Law is given to Parliament by unwritten law._ It is the common consent of the British people that Parliament shall have the power of making rules which shall be enforced by external power. But besides the statute laws made by Parliament there exist and are constantly growing other laws, unwritten or customary, which are day by day recognised through courts of justice.

[Sidenote: Definition and three Essential Conditions of Law.]

-- 5. On the basis of the results of these previous investigations we are now able to give a definition of law. We may say that _law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power_.

The essential conditions of the existence of law are, therefore, threefold. There must, first, be a community. There must, secondly, be a body of rules for human conduct within that community. And there must, thirdly, be a common consent of that community that these rules shall be enforced by external power. It is not an essential condition either that such rules of conduct must be written rules, or that there should be a law-making authority or a law-administering court within the community concerned. And it is evident that, if we find this definition of law correct, and accept these three essential conditions of law, the existence of law is not limited to the State community only, but is to be found everywhere where there is a community. The best example of the existence of law outside the State is the law of the Roman Catholic Church, the so-called Canon Law. This Church is an organised community whose members are dispersed over the whole surface of the earth. They consider themselves bound by the rules of the Canon Law, although there is no sovereign political authority that sets and enforces those rules, the Pope and the bishops and priests being a religious authority only.

But there is an external power through which the rules of the Canon Law are enforced--namely, the punishments of the Canon Law, such as excommunication, refusal of sacraments, and the like. And the rules of the Canon Law are in this way enforced by common consent of the whole Roman Catholic community.

[Sidenote: Law not to be identified with Munic.i.p.al Law.]

-- 6. But it must be emphasised that, if there is law to be found in every community, law in this meaning must not be identified with the law of States, the so-called Munic.i.p.al Law,[7] just as the conception of State must not be identified with the conception of community. The conception of community is a wider one than the conception of State. A State is a community, but not every community is a State. Likewise the conception of law pure and simple is a wider one than that of Munic.i.p.al Law. Munic.i.p.al Law is law, but not every law is Munic.i.p.al Law, as, for instance, the Canon Law is not. Munic.i.p.al Law is a narrower conception than law pure and simple. The body of rules which is called the Law of Nations might, therefore, be law in the strict sense of the term, although it might not possess the characteristics of Munic.i.p.al Law. To make sure whether the Law of Nations is or is not law, we have to inquire whether the three essential conditions of the existence of law are to be found in the Law of Nations.

[Footnote 7: Throughout this work the term "Munic.i.p.al Law" is made use of in the sense of national or State law in contradistinction to International Law.]

[Sidenote: The "Family of Nations" a Community.]