COMMENTARIES

UPON

INTERNATIONAL LAW.

PART THE NINTH.

CHAPTER I.

INTERNATIONAL RIGHT OF ACTION. (a)

I. WE have hitherto considered States in their normal, that is, their pacific relations to each other. We have inquired into the origin and character of their reciprocal Rights and Obligations. We have now to consider the abnormal state of things which ensues upon a disturbance of these normal relations, when these Rights have been invaded and these Obligations not fulfilled.

In the case of individuals, a redress for this infringement of Right and neglect of Obligation is provided for in every system of National or Municipal Law. In these systems the individual is furnished with a Right of Action, and the regulation of this Right, in all its various shapes, forms the subject of a Code of Procedure; whether there be, as in the case of most Continental States, such a Code made by express enactment part of a general Code of Law, or whether, as in England, such a Code practically exists in *usage and judicial precedent amended and ampli[ *2] fied by positive statute. In the system of International Law, this Civil Right of Action becomes of necessity an appeal to arms, (b) for war is the terrible litigation of States.

By what rules this International Right of Action(c) is governed, both

(b) Vide ante, vol. i. pp. 10-12.

(a) Litis Contestatio. (c) Heffters most correctly entitles the second book of his clever work "Das Völkerrecht im Zustande des Unfriedens, oder die Actionenrechte der Staaten.”

with respect to the principals in the suit and to the bystanders, we shall presently consider at length.

II. But as we approach these awful confines, we must remember that it is the bounden and most sacred duty of every State, to exhaust every legal means of redress, (d) before it has recourse to the dreadful necessity of war. These means are, as we have already seen, (e) classed under two heads, viz:

1. Measures taken viâ amicabili.

2. Measures taken viâ facta, which nevertheless fall short of war. III. Measures taken viâ amicabili, are, 1. Negotiation; 2. Arbitration. With respect to Negotiation-it is, of course, the principal object of Embassies,(ƒ) the nature and privileges of which have been so fully discussed, to adjust international differences before they ripen into war.

With respect to Arbitration,(g) this mode of adjustment must be considered both with reference to the Parties and to the Arbitrator; as much with reference to the latter as to the former.

*First, as to the Parties. It cannot be laid down as a general [*3] and unqualified proposition that it is the duty of States to adopt this mode of trial. There may, under the circumstances, be no third State willing, or qualified in all respects, for so arduous and invidious a task. Moreover, a State may feel that the contested Right is one of vital importance, and one which she is not justified in submitting to the decision of any Arbiter or Arbiters.

We know from history that Congresses of crowned heads have not always proved themselves to be impartial or competent tribunals of International Law, (h) and the circumstances which justify the Intervention of Foreign States, both when invited and when uninvited by the contending parties, have been already under our consideration.(i)

Secondly, with respect to the Arbitrator. It should be observed that if any arbitrator be appointed, the terms of the appointment will of course limit his authority, and if his award exceed or be inconsistent with those limits it will be altogether null.(k)

(d) Wolff, Jus Gentium, c. v., De Modo componendi Controversias Gentium. Zouch, Pars ii. 1. s. 3, p. 54. (e) Vide ante, vol. i. p. 11.

(ƒ) Vol. ii. pp. 124-234.

(g) See an excellent chapter upon the subject, considered as a question of general jurisprudence, in Voet, at Pandect., 1. iv. t. viii., De Receptis qui Arbitrium receperunt, ut Sententiam dicant.

(i) Vol. i. pt. iv. c. i., on Intervention.

(h) Vide ante, vol. i. pp. 456-7. (k) "Uti ex adverso cavendum quoque arbitro est, ne compromissi fines egrediatur, ac alia dirimat, quàm quæ ipsius arbitrio commissa sunt, aut alio modo quàm quo compromissum est. Generaliter enim sciendum, omnem de officio arbitri ac potestate tractatum ex ipso compromisso sumendum esse; nec aliud ei licere, quàm quod ibi, ut efficere possit, cautum est. Non ergo quodlibet statuere poterit, nec in re quâlibet, sed de quâ re compromissum, et quatenus compromissum est, et, compromisso generaliter concepto, de his solis judicare rebus et rationibus et controversiis, quæ ab initio fuerunt inter eos, qui compromiserunt, non quæ postea supervenerunt."-Voet, ib. 1. iii. t. viii.

For the powers and duties of the Recuperatores under the early Roman Law, see vol. i. Append., pp. 492-3.

For the power of the Pope as International Arbitrator, see vol. i. Preface, p. ix. p. 82; vol. ii. pp. 327-8.

As to the authority of General Councils in this matter, see vol. ii. pp. 313-18. Of Universities, ib., p. 318.

Otherwise, the Jus inter gentes is well expressed in the opinion of Ulpian, as it stands incorporated in the Roman Law;-"Si se subjiciant alicui jurisdictioni, et consentiant, *inter consentientes cujusvis

judicis, qui tribunali præest, vel aliam jurisdictionem habet, [ *4] est jurisdictio."() The Arbitrator cannot be compelled, unless, indeed, a clause to this effect has been inserted in the International Covenant, to continue the exercise of his functions.(m) Nor can he alter his decision when it has once been formally delivered; (n) for, where this has been done, he is functus officio. If there be an uneven number of Arbitrators, the opinion of the majority(o) would, according to the Reason of the Thing, and the Jus commune of Nations, be conclusive. If one of the Arbitrators were maliciously to absent himself, it might be competent for the others to proceed; but if one were dead, the Arbitration would be dissolved, unless provision had been made for the contingency in the original covenant.(p) Nor, if there be two Arbiters, and they differ in opinion, can they call in, without the consent of both parties, a third person as umpire (superarbitrum.)(q)

*The sentence, once given, is binding upon the parties whose [*5] own act has created the jurisdiction over them. The extreme case may indeed be supposed, of a sentence bearing upon its face glaring partiality, and attended with circumstances of such evident injustice as to be null. "Nec tamen" (Voet observes) "executioni danda erit, si per sordes, aut per manifestam gratiam vel inimicitiam probetur lata." But for such exceptions no rules can be safely laid down.(r)

IV. It is a duty, according to Hubner,(s) the great champion of Neutrality, incumbent upon Neutrals to use every means in their power

(1) Dig. v. t. i. 1.

(m) "Prætereà cogendus non fuit arbiter, si pœna compromisso non fuisset inserta."-Voet, ib., 1. iv. t. viii.

(n) "Sententiæ secundùm requisita superiùs commemorata latæ effectus est, quod nec ab arbitris mutari possit, etsi errorem allegantibus; quippe quorum officium absolutione vel condemnatione finitum est."-Ibid.

(0) “Quod si plures arbitri electi dissentiant in ferendâ sententiâ id quod majori parti placuerit, ratum erit."—Ibid.

(p) "Quia tamen illa absoluta arbitrorum omnium præsentiæ necessitas non rarò malitiis atque calumniis posset ansam præbere, dùm aliquando unus aut gratiâ aut odio aut sordibus corruptus sui copiam non faceret; atque ità quæstiones malitiosâ absentiâ diutiùs protelarentur ac manerent indecisæ; commodè cautum fuit jure Canonico, ut si legitimè omnes citati fuerint, nec justum allegaverint impedimentum quò minùs adessent, liceat duobus præsentibus, absente tertio, perindè ad negotii commissi examen accedere, illudque suâ dirimere sententiâ, ac si tertius legitimè vocatus ipsis præsens fuisset. Aliter quàm statuendum foret, si unus ex arbitris fato functus sit: morte enim tali compromissum dissolvi verius est; nisi superstitibus reliquis in casum mortalitatis tributum sit alterius in mortui locum cooptandi jus.”—Ibid.

(9) "Sed vix est, ut hæc aliter admiseris, quàm si compromittentes, non ignaros tertium assumi, patientiam præbuisse atque ità tacitè consensum accommodâsse constet: nam si ob dissensum arbitrorum malint à compromisso resilire, utì id leges ipsis permittunt, ideòque testationibus denunciaverint ambo, vel alteruter, ne tertius assumeretur, aut assumptus sententiam diceret, non animadverto, cur efficax foret quod ab eo, quem superarbitrum vulgò appellant, fuisset definitum, cùm nunquam in eum consensisse dici queant: nullus verò satis idoneus arbiter sine partium voluntate possit censeri."-Voet, ib.

(~) Ib. s. 24.

(s) De la Saisie des Bâtimens Neutres, t. i. pt. i. c. ii. s. 11.

to procure the re-establishment of peace; and, of course, as much their duty to prevent, if possible, the breaking out of war. Galiani(t) is of a different opinion. The part of mediator, he thinks, may be accepted; but its acceptance is not obligatory by National or International Law. Future neutrality might be, he says, compromised, and the spite of one of the belligerents attracted by it. In short, that justice does not require, and prudence forbids an accepting, much more a seeking, of the office of mediator.

[*6]

It is impossible to lay down any certain rule upon a subject which must be greatly affected by the circumstances of each case as it arises. But it may be allowed to express a preference for the manlier and more Christian principle of Hubner, to the low, and probably after all unsafe, expediency of Galiani. Much, however, must depend upon the subject of dispute, upon the character of the disputants, and upon the *position and authority of the State which tenders its good offices. V. Lastly, it must be remembered that, as in the litigation of individuals, if one of the parties refuse to submit to the award of the Arbitrator, a compulsory process is put in motion against him; so, in the litigation of States, if the decision of the umpire State be resisted by the plaintiff or defendant State, war must be resorted to, in order to compel the obedience of the recusant to the decree; though the umpire cannot be compelled, even under these circumstances, to become a belligerent. VI. There remains a question of much importance:-May a State be compelled to make peace by THIRD Powers? The question applies to two hypotheses, not immaterially different. For the State may have accepted an Arbitration, and the award, which must, of course, be presumed to have been fairly conducted, may have been given against her; or the State may not be under this self-imposed obligation, and may have altogether refused Arbitration.

In both cases the general principles of International Law answer the question in the negative, though with less confidence in the former than in the latter hypothesis.

Bynkershoek(u) says, that it is as unjust to compel a State to make peace, as to compel it to make war. Such compulsion, he observes, was used by England, Sweden, and Holland, who bound themselves by Treaty, on the 23rd January, 1668, to force the Spaniards and the French, who were at war with each other, to make peace upon certain conditions; and thus these two nations were compelled to make peace. Before this event, on the 21st May, 1659, the French, English, and Dutch compelled Sweden to make peace with Denmark, and thereby prevented the total ruin of the latter country.

[*7]

The pretext, as Bynkershoek calls it, for these interferences *on the part of third Powers, was the general welfare of Europe. In the former case the undue aggrandizement of France, in the latter, the undue aggrandizement of Sweden, was prevented.

(t) Galiani, De' Doveri de' Principi Neutrali, verso i Guerregianti, e di questi verso i Neutrali, c. ix. 162.

(u) Quæstiones J. P., c. xxv.-xxx.