International Law. A Treatise Volume I Part 10

_Amancio Alcorta_: Curso de derecho internacional publico, vol. I.

1886; French translation by Lehr, 1887.

_Marquis de Olivart_: Trattato y notas de derecho internacional publico, 4 vols. 1887; 4th ed. 1903-1904.

_Luis Gesteso y Acosta_: Curso de derecho internacional publico, 1894.

_Miguel Cruchaga_: Nociones de derecho internacional, 1899; 2nd ed. 1902.

_Manuel Torres Campos_: Elementos de derecho internacional publico; 2nd. ed. 1904.

(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES

_Frederick Kristian Bornemann_: Forelaesninger over den positive Folkeret, 1866.

_Friedrich von Martens_: Volkerrecht, 2 vols. 1883; a German translation by Berghohm of the Russian original. A French translation by Leo in 3 vols. appeared in the same year. The Russian original went through its 5th ed. in 1905.

_Jan Helenus Ferguson_: Manual of International Law, etc., 2 vols.

1884. The author is Dutch, but the work is written in English.

_Alphonse Rivier_: Lehrbuch des Volkerrechts, 1894; 2nd ed. 1899, and the larger work in two vols. under the t.i.tle: Principes du Droit des Gens, 1896. The author of these two excellent books was a Swiss who taught International Law at the University of Brussels.

_H. Matzen_: Forelaesninger over den positive Folkeret, 1900.

_Ernest Nys_: Le droit international, 3 vols. 1904-1906. The author of this exhaustive treatise is a Belgian jurist whose researches in the history of the science of the Law of Nations have gained him far-reaching reputation.[83]

[Footnote 83: The first volume of Nys contains in its pp. 251-328 an exhaustive enumeration of all the more important works on International Law, treatises as well as monographs, and I have much pleasure in referring my readers to this learned work.]

_J. De Louter_: Het Stellig Volkenrecht, 2 vols. 1910.

[Sidenote: The Science of the Law of Nations in the Nineteenth and Twentieth Centuries as represented by treatises.]

-- 59. The Science of the Law of Nations, as left by the French Revolution, developed progressively during the nineteenth century under the influence of three factors. The first factor is the endeavour, on the whole sincere, of the Powers since the Congress of Vienna to submit to the rules of the Law of Nations. The second factor is the many law-making treaties which arose during this century. And the last, but not indeed the least factor, is the downfall of the theory of the Law of Nature, which after many hundreds of years has at last been shaken off during the second half of this century.

When the nineteenth century opens, the three schools of the Naturalists, the Positivists, and the Grotians are still in the field, but Positivism[84] gains slowly and gradually the upper hand, until at the end it may be said to be victorious, without, however, being omnipotent.

The most important writer[85] up to 1836 is Kluber, who may be called a Positivist in the same sense as Martens, for he also applies the natural Law of Nations to fill up the gaps of the positive. Wheaton appears in 1836 with his "Elements," and, although an American, at once attracts the attention of the whole of Europe. He may be called a Grotian. And the same may be maintained of Manning, whose treatise appeared in 1839, and is the first that attempts a survey of British practice regarding sea warfare based on the judgments of Sir William Scott (Lord Stowell).

Heffter, whose book appeared in 1844, is certainly a Positivist, although he does not absolutely deny the Law of Nature. In exact application of the juristic method, Heffter's book excels all former ones, and all the following authors are in a sense standing on his shoulders. In Phillimore, Great Britain sends in 1854 a powerful author into the arena, who may, on the whole, be called a Positivist of the same kind as Martens and Kluber. Generations to come will consult Phillimore's volumes on account of the vast amount of material they contain and the sound judgment they exhibit. And the same is valid with regard to Sir Travers Twiss, whose first volume appeared in 1861.

Halleck's work, which appeared in the same year, is of special importance as regards war, because the author, who was a General in the service of the United States, gave to this part his special attention.

The next prominent author, the Italian Fiore, who published his system in 1865 and may be called a Grotian, is certainly the most prominent Italian author, and the new edition of his work will for a long time to come be consulted. Bluntschli, the celebrated Swiss-German author, published his book in 1867; it must, in spite of the world-wide fame of its author, be consulted with caution, because it contains many rules which are not yet recognised rules of the Law of Nations. Calvo's work, which first appeared in 1868, contains an invaluable store of facts and opinions, but its juristic basis is not very exact.

[Footnote 84: Austin and his followers who hold that the rules of International Law are rules of "positive morality" must be considered Positivists, although they do not agree to International Law being real law.]

[Footnote 85: I do not intend to discuss the merits of writers on special subjects, and I mention only the authors of the most important treatises which are written in, or translated into, English, French, or German.]

From the seventies of the nineteenth century the influence of the downfall of the theory of the Law of Nature becomes visible in the treatises on the Law of Nations, and therefore real positivistic treatises make their appearance. For the Positivism of Zouche, Bynkershoek, Martens, Kluber, Heffter, Phillimore, and Twiss was no real Positivism, since these authors recognised a natural Law of Nations, although they did not make much use of it. Real Positivism must entirely avoid a natural Law of Nations. We know nowadays that a Law of Nature does not exist. Just as the so-called Natural Philosophy had to give way to real natural science, so the Law of Nature had to give way to jurisprudence, or the philosophy of the positive law. Only a positive Law of Nations can be a branch of the science of law.

The first real positive treatise known to me is Hartmann's "Inst.i.tutionen des praktischen Volkerrechts in Friedenszeiten," which appeared in 1874, but is hardly known outside Germany. In 1880 Hall's treatise appeared, and at once won the attention of the whole world; it is one of the best books on the Law of Nations that have ever been written. Lorimer, whose two volumes appeared in 1883 and 1884, is a Naturalist pure and simple, but his work is nevertheless of value. The Russian Martens, whose two volumes appeared in German and French translations in 1883 and at once put their author in the forefront of the authorities, certainly intends to be a real Positivist, but traces of Natural Law are nevertheless now and then to be found in his book. A work of a special kind is that of Holtzendorff, the first volume of which appeared in 1885. Holtzendorff himself is the editor and at the same time a contributor to the work, but there are many other contributors, each of them dealing exhaustively with a different part of the Law of Nations. The copious work of Pradier-Fodere, which also began to appear in 1885, is far from being positive, although it has its merits. Wharton's three volumes, which appeared in 1886, are not a treatise, but contain the international practice of the United States.

Bulmerincq's book, which appeared in 1887, gives a good survey of International Law from the positive point of view. In 1894 three French jurists, Bonfils, Despagnet, and Piedelievre, step into the arena; their treatises are comprehensive and valuable, but not absolutely positive.

On the other hand, the English authors Lawrence and Walker, whose excellent manuals appeared in 1895, are real Positivists. Of the greatest value are the two volumes of Rivier which appeared in 1896; they are full of sound judgment, and will influence the theory and practice of International Law for a long time to come. Liszt's short manual, which in its first edition made its appearance in 1898, is positive throughout, well written, and suggestive. Ullmann's work, which likewise appeared in its first edition in 1898, is an excellent and comprehensive treatise which thoroughly discusses all the more important problems and points from the positive standpoint. Hannis Taylor's comprehensive treatise, which appeared in 1901, is likewise thoroughly positive, and so are the serviceable manuals of Wilson and Maxey. Of great value are the two volumes of Westlake which appeared in 1904 and 1907; they represent rather a collection of thorough monographs than a treatise, and will have great and lasting influence. A work of particular importance is the "Digest" of John Ba.s.set Moore, which appeared in 1906, comprises eight volumes, and contains the international practice of the United States in a much more exhaustive form than the work of Wharton; it is an invaluable work which must be consulted on every subject. The same is valid with regard to the three volumes of Nys, who may be characterised as a Grotian, and whose work is full of information on the historical and literary side of the problems.[86]

[Footnote 86: On the task and method of the science of International Law from the positive standpoint, see Oppenheim in A.J. II. (1908), pp.

313-356.]

-- 60. COLLECTIONS OF TREATIES

(1) GENERAL COLLECTIONS

_Leibnitz_: Codex iuris gentium diplomaticus (1693); Mantissa codicis iuris gentium diplomatici (1700).

_Bernard_: Recueil des traites, etc. 4 vols. (1700).

_Rymer_: Foedera etc. inter reges angliae et alios quosvis imperatores ... ab anno 1101 ad nostra usque tempora habita et tradata, 20 vols. 1704-1718 (Contains doc.u.ments from 1101-1654).

_Dumont_: Corps universel diplomatique, etc., 8 vols. (1726-1731).

_Rousset_: Supplement au corps universel diplomatique de Dumont, 5 vols. (1739).

_Schmauss_: Corpus iuris gentium academic.u.m (1730).

_Wenck_: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, 1795).

_Martens_: Recueil de Traites d'Alliance, etc., 8 vols.

(1791-1808); Nouveau Recueil de Traites d'Alliance, etc., 16 vols.

(1817-1842); Nouveaux Supplements au Recueil de Traites et d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau Recueil General de Traites, Conventions et autres Actes remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil General de Traites et autres Actes relatifs aux Rapports de droit international, Deuxieme Serie, 35 vols. (1876-1908); Nouveau Recueil General de Traites et autres Actes relatifs aux Rapports de droit international, Troisieme Serie, vol. I. 1908, continued up to date. Present editor, Heinrich Triepel, professor in the University of Kiel in Germany.

_Ghillany_: Diplomatisches Handbuch, 3 vols. (1855-1868).

_Martens et Cussy_: Recueil manuel, etc., 7 vols. (1846-1857); continuation by Geffcken, 3 vols. (1857-1885).

_British and Foreign State Papers_: Vol. I. 1814, continued up to date, one volume yearly.

_Das Staatsarchiv_: Sammlung der officiellen Actenstucke zur Geschichte der Gegenwart, vol. I. 1861, continued up to date, one volume yearly.

_Archives diplomatiques_: Recueil mensuel de diplomatie, d'histoire, et de droit international, first and second series, 1861-1900, third series from 1901 continued up to date (4 vols.

yearly).

_Recueil International des Traites du XXe Siecle_: Edited by Descamps and Renault since 1901.

_Strupp_: Urkunden zur Geschichte des Volkerrechts, 2 vols.

(1911).

(2) COLLECTIONS OF ENGLISH TREATIES ONLY

_Jenkinson_: Collection of all the Treaties, etc., between Great Britain and other Powers from 1648 to 1783, 3 vols. (1785).

_Chalmers_: A Collection of Maritime Treaties of Great Britain and other Powers, 2 vols. (1790).

_Hertslet_: Collection of Treaties and Conventions between Great Britain and other Powers (vol. I. 1820, continued to date).

_Treaty Series_: Vol. I. 1892, and a volume every year.