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CHAPTER II.

NATURE AND SOURCES OF INTERNATIONAL LAW.

1. Definition of International Law-2. Division into natural law and positive law-3. What is meant by natural law-4. Its application to independent States-5. The positive law of nations-6. Relation between the natural and positive law of nations-7. The_conventional law of nations-8. The customary law of nations-9. Customs, how far binding-10. Division of the positive law of nations by Wolfius and Vattel-11. Objections to those divisions—12. Distinction between absolute rights, rights of comity, and private rights13. There is no universal law of nations-14. How far its rules are obligatory-15. Violations of its rules, how punished-16. Can sovereign States be punished?-17. General sources of international law-18. Justice as a source and test-19. Authorities on this point -20. History as a source-21. The Roman civil law-22. Decision of courts of prize—23. Adjudications of mixed tribunals—24. Ordinances and commercial laws of particular States-25. Decisions of local courts-26. Text-writers of approved authority-27. Reason of the authority of text-writers-28. Treaties and international compacts-29. Effect of treaties on the interpretation of terms-30. State papers and diplomatic correspondence.

§ I. INTERNATIONAL law, or The law of nations, may be defined to be, The rules of conduct regulating the intercourse of States.

Most writers have endeavoured to frame their definition so as to embrace the sources of this law, rather than to describe the nature and character of the law itself. Thus, Grotius considers the law of nations as a positive institution, deriving its authority from the positive consent of all, or the greater part of civilised nations, united in a social compact for this purpose. While Rutherforth denies the existence of any such social union among nations, and concludes that what is called the law of nations, when applied to States, is nothing more than what is called natural law when applied to individuals as parts of these collective bodies. Hobbes and Puffendorf also consider the general principles of natural law, and the law of nations, as one and the same thing, and the distinction between them as merely verbal, while others define

this law to consist only of the usages, customs, and conventions adopted and observed among nations. The definition here given avoids any reference to those questions which have been so much discussed by publicists, and upon which there is very little prospect of a general agreement.'

§ 2. The rules which ought to regulate the conduct of nations in their mutual intercourse are undoubtedly deduced, in part, from reason and justice, and from the nature of society existing between independent States or bodies politic; and, in part, from usage, and the agreements or compacts entered into between different nations. This difference in the nature and origin of these rules has led text-writers to divide international law into different branches. The most common of these general divisions is, into the natural law of nations, and the positive law of nations. The first of these branches has been subdivided into the Divine law, and the application of the law of God to States. The second branch has also been subdivided into the conventional law. of nations and the customary law of nations. These divisions are somewhat arbitrary, and we shall follow them only so far as may be necessary or convenient, in pointing out the sources of international jurisprudence, and in discussing the nature and character of the rules which constitute that code.2

§ 3. By the Divine law, we understand the rules of conduct prescribed by God to his rational creatures, and revealed by the light of reason, or the sacred scriptures. Natural law,' says Grotius, 'is the dictate of right reason, pronouncing that there is in some actions a moral obligation, and in other actions a moral deformity, arising from their respective suitableness or repugnance to the rational and social nature, and

1 Vattel, Droit des Gens, prélim., § 3; Wheaton, Elem. Int. Law, pt. i. ch. i. § 11; Bentham, Morals and Leg., vol. ii. p. 256; Foelix, Droit Int., tit. pré., ch. i. § 1; Polson, Law of Nations, p. 1; Manning, Law of Nations, pp. 2, 57–58; Hautefeuille, Des Nations Neutres, tom. i. p. 3; D'Aguesseau, Euvres, tom. i. p. 337; Savigny, Röm. Rechts, b. i. k. ii. § 11; Wildman, Int. Law, vol. i. p. 1; Bowyer, Un. Pub. Law, ch. ii.; Massé, Droit Int., § 1; Bello, Derecho Int., No. prel. § 1; Riquelme, Derecho Pub. Int., lib. i. tit. i. § 1; Phillimore, On Int. Law, vol. i. §9; Ompteda, Literatur des Völkerrechts, § 64; Rayneval, Droit de la Nat., etc., liv. i. ch i. § 10; Ortolan, Dip. de la Mer, liv. i. ch iv. ; Garden, De la Diplomatie, tom. i. p. 36; Martens' Précis du Droit des Gens, §2; Real, Science du Gouvernement, tom. i. p. 22.

2 Heffter, Droit International, § 2; Pinheiro-Ferreira, Notes sur Vattel, tom. iii. p. 22; Wolfius, Jus Gentium, Proleg., § 3.

that, consequently, such actions are either forbidden or enjoined by God, the author of nature. Actions which are the subject of this exertion of reason are in themselves lawful or unlawful, and are, therefore, as such, necessarily commanded or prohibited by God.' In other words, there is a law of conscience, enjoining some actions and prohibiting others, according to their respective suitableness or repugnance to the law of reason and the sacred scriptures. Ethical writers distinguish between the principles of eternal justice, implanted by God in all his moral and social creatures, and the revealed will of God enforcing and extending these principles. But the examination and discussion of these distinctions belong to ethical science rather than international jurisprudence.1

§ 4. But as this Divine law, which God has prescribed to his rational creatures, whether revealed by the light of reason or the sacred scriptures, was evidently intended for the rules of conduct of individuals living together in a social state, it necessarily requires explanations and modifications. when applied to the conduct of independent communities. Hence the law of nations has been distinguished from the natural or Divine law, the former including the rules for the application of natural law to independent States, which rules have been established by the great body of these communities for the promotion of their general utility, rather than that of a particular State. This view is opposed by Hobbes and Puffendorf, who consider the precepts to be the same, whether applied to individuals or states, and that the same law, 'which, when speaking of individual men, we call the law of nature, is called the law of nations when applied to whole States, nations, or people.' The distinction drawn by Grotius is, perhaps, not very obvious, and is of little or no practical importance.2

§ 5. Nor, indeed, is the definition of either Grotius or his opponents at all satisfactory; for international law, as understood in the present age, is something more and other than natural or Divine law, applied to the conduct of independent

1 Grotius, De Jur. Bel. ac Pac., lib. i. cap. i. § 10.

2 Puffendorf, De Jur. Nat. et Gent., lib. ii. cap. iii. § 23; Hobbes, De Cive, cap. xiv. § 4; Leibnitz, De Usu Act. Pub., § 13; Cumberland, De Legibus Naturalibus, cap. v. § 1.

States, considered as moral beings; and in order to determine what is the rule to be observed among nations in any particular case, it is not sufficient to inquire what would be the natural law in a similar case, when applied to individual persons. 'The application of a rule,' says Vattel, 'cannot be reasonable and just, unless it is made in a manner suitable to the subject. We are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only in the subjects to which it is applied, so as to allow of our substituting nations for individuals. A State or civil society is a subject very different from an individual of the human race; from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights; since the same general rule, applied to two subjects, cannot produce exactly the same decisions when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of quite a different nature. There are many cases, then, in which the law of nature does not decide between State and State in the same manner as it would between man and man. We must, therefore, know how to accommodate the application of it to different subjects; and it is the art of applying it with a justness founded on right and reason that renders the law of nations a distinct science.'

Again, as individuals adopt positive human institutions for their government, so States are capable of contracting obligations toward others, either by their general acquiescence in certain positive rules for the regulation of their mutual intercourse, by that tacit convention implied from usage and practice, or by direct and positive compact or agreement. These, where not contrary to the law of nature, are binding rules of conduct, and must be inquired into before we can determine what is the rule to be observed by such States in any particular case. Hence arises that important branch called the positive law of nations, which has been subdivided into the conventional law of nations and the customary laws of nations.1

1 Vattel, Droit des Gens, prélim., § 6; the 'Flad Oyen,' 1 Rob., 140; Manning, Law of Nations, p. 67; Massé, Droit Commercial, liv. i. tit. ii. ch. i.; Martens, Précis du Droit des Gens, §§ 5 et seq.; Heffter, Droit International, §§ 1-4; Ortolan, Diplomatie de la Mer, liv. i. ch. iv.

§ 6. The relation between the two great branches of international law-the natural and the positive law of nationsis thus stated by a recent writer on this subject. The necessity,' says Phillimore,' of mutual intercourse is laid in the nature of States, as it is of individuals, by God who willed the State and created the individual. The intercourse of nations, therefore, gives rise to international rights and duties, and these require an international law for their regulation and enforcement. That law is not enacted by the will of any common superior upon earth, but it is enacted by the will of God; and it is expressed in the consent, tacit or declared, of independent nations. The law which governs the external affairs, equally with that which governs the internal affairs of States, receives accessions from custom and usage, binding the subjects of them as to things which, previous to the introduction of such custom and usage, might have been in their nature indifferent. Custom and usage, moreover, outwardly express the consent of nations to things which are naturally, that is, by the law of God, binding upon them. But it is to be remembered that, in this latter case, usage is the effect and not the cause of the law.'1

$7. The conventional law of nations results from the stipulations of treaties, and consists of the rules of conduct agreed upon by the contracting parties. As such agreement binds only the contracting parties, it is evident that the conventional law of nations is not a universal, but a particular law. Nevertheless, as these agreements are not always limited to the intercourse of the contracting parties with each other, but extend to their intercourse with other nations, and are, moreover, frequently intended to express opinions or to establish rules of action, with respect to particular points or questions in the law of nations, they belong to history, and have an important influence in regulating the general intercourse of States, and in modifying and determining the principles of international law. Hence the stipulations of treaties between highly civilised nations form an important branch of the general law of nations.

1 Phillimore, On International Law, vol. i., preface; Bynkershoek, Quæst. Jur. Pub., lib. i. cap. x.; Bynkershoek, De Foro Legatorum, cap. iii. 10, cap. vii. § 8; Rutherforth, Institutes, vol. i. ch. iii. §§ 1-6; Bowyer, Universal Public Law, ch. iv.; Cotelle, Droit des Gens, pt. i. ; et seq.