International Law. A Treatise
Chapter 4 : -- 34. I am decidedly not a blind and enthusiastic admirer of codification in general. I

-- 34. I am decidedly not a blind and enthusiastic admirer of codification in general. It cannot be maintained that codification is everywhere, at all times, and under all circ.u.mstances opportune.

Codification certainly interferes with the so-called organic growth of the law through usage into custom. It is true that a law, once codified, cannot so easily adapt itself to the individual merits of particular cases which come under it. It is further a fact, which cannot be denied, that together with codification there frequently enters into courts of justice and into the area of juridical literature a hair-splitting tendency and an interpretation of the law which often clings more to the letter and the word of the law than to its spirit and its principles.

And it is not at all a fact that codification does away with controversies altogether. Codification certainly clears up many questions of law which have been hitherto debatable, but it creates at the same time new controversies. And, lastly, all jurists know very well that the art of legislation is still in its infancy and not at all highly developed. The hands of legislators are very often clumsy, and legislation often does more harm than good. Yet, on the other hand, the fact must be recognised that history has given its verdict in favour of codification. There is no civilised State in existence whose Munic.i.p.al Law is not to a greater or lesser extent codified. The growth of the law through custom goes on very slowly and gradually, very often too slowly to be able to meet the demands of the interests at stake. New interests and new inventions very often spring up with which customary law cannot deal. Circ.u.mstances and conditions frequently change so suddenly that the ends of justice are not met by the existing customary law of a State. Thus, legislation, which is, of course, always partial codification, becomes often a necessity in the face of which all hesitation and scruple must vanish. Whatever may be the disadvantages of codification, there comes a time in the development of every civilised State when it can no longer be avoided. And great are the advantages of codification, especially of a codification that embraces a large part of the law. Many controversies are done away with. The science of Law receives a fresh stimulus. A more uniform spirit enters into the law of the country. New conditions and circ.u.mstances of life become legally recognised. Mortifying principles and branches are cut off with one stroke. A great deal of fresh and healthy blood is brought into the arteries of the body of the law in its totality. If codification is carefully planned and prepared, if it is imbued with true and healthy conservatism, many disadvantages can be avoided. And interpretation on the part of good judges can deal with many a fault that codification has made. If the worst comes to the worst, there is always a Parliament or another law-giving authority of the land to mend through further legislation the faults of previous codification.

[Sidenote: Merits of Codification of International Law.]

-- 35. But do these arguments in favour of codification in general also apply to codification of the Law of Nations? I have no doubt that they do more or less. If some of these arguments have no force in view of the special circ.u.mstances of the existence of International Law and of the peculiarities of the Family of Nations, there are other arguments which take their place.

When opponents maintain that codification would never be practicable on account of differences of language and of technical juridical terms, I answer that this difficulty is only as great an obstacle in the way of codification as it is in the way of contracting international treaties.

The fact that such treaties are concluded every day shows that difficulties which arise out of differences of language and of technical juridical terms are not at all insuperable.

Of more weight than this is the next argument of opponents, that codification of the Law of Nations would cut off its organic growth and future development. It cannot be denied that codification always interferes with the growth of customary law, although the a.s.sertion is not justified that codification does _cut off_ such growth. But this disadvantage can be met by periodical revisions of the code and by its gradual increase and improvement through enactment of additional and amending rules according to the wants and needs of the days to come.

When opponents postulate an international court with power of executing its verdicts as an indispensable condition of codification, I answer that the non-existence of such a court is quite as much or as little an argument against codification as against the very existence of International Law. If there is a Law of Nations in existence in spite of the non-existence of an international court to guarantee its realisation, I cannot see why the non-existence of such a court should be an obstacle to codifying the very same Law of Nations. It may indeed be maintained that codification is all the more necessary as such an international court does not exist. For codification of the Law of Nations and the solemn recognition of a code by a universal law-making international treaty would give more precision, certainty, and weight to the rules of the Law of Nations than they have now in their unwritten condition. And a uniform interpretation of a code is now, since the first Hague Peace Conference has inst.i.tuted a Permanent Court of Arbitration, and since the second Peace Conference has resolved upon the establishment of an International Prize Court, much more realisable than in former times, although these courts will never have the power of executing their verdicts.

But is the Law of Nations ripe for codification? I readily admit that there are certain parts of that law which would offer the greatest difficulty, and which therefore had better remain untouched for the present. But there are other parts, and I think that they const.i.tute the greater portion of the Law of Nations, which are certainly ripe for codification. There can be no doubt that, whatever can be said against codification of the whole of the Law of Nations, partial codification is possible and comparatively easy. The work done by the Inst.i.tute of International Law, and published in the "Annuaire de l'Inst.i.tut de Droit International," gives evidence of it. And the number and importance of the law-making treaties produced by the Hague Peace Conferences and the Maritime Conference of London, 1908-9, should leave no doubt as to the feasibility of such partial codification.

[Sidenote: How Codification could be realised.]

-- 36. However, although possible, codification could hardly be realised at once. The difficulties, though not insuperable, are so great that it would take the work of perhaps a generation of able jurists to prepare draft codes for those parts of International Law which may be considered ripe for codification. The only way in which such draft codes could be prepared consists in the appointment on the part of the Powers of an international committee composed of a sufficient number of able jurists, whose task would be the preparation of the drafts. Public opinion of the whole civilised world would, I am sure, watch the work of these men with the greatest interest, and the Parliaments of the civilised States would gladly vote the comparatively small sums of money necessary for the costs of the work. But in proposing codification it is necessary to emphasise that it does not necessarily involve a reconstruction of the present international order and a recasting of the whole system of International Law as it at present stands. Naturally, a codification would in many points mean not only an addition to the rules at present recognised, but also the repeal, alteration, and reconstruction of some of these rules. Yet, however this may be, I do not believe that a codification ought to be or could be undertaken which would revolutionise the present international order and put the whole system of International Law on a new basis. The codification which I have in view is one that would embody the existing rules of International Law together with such modifications and additions as are necessitated by the conditions of the age and the very fact of codification being taken in hand. If International Law, as at present recognised, is once codified, nothing prevents reformers from making proposals which could be realised by successive codification.

CHAPTER II

DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS

I

DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS

Lawrence, ---- 20-29--Manning, pp. 8-20--Halleck, I. pp.

1-11--Walker, History, I. pp. 30-137--Taylor, ---- 6-29--Ullmann, ---- 12-14--Holtzendorff in Holtzendorff, I, pp. 159-386--Nys, I. pp.

1-18--Martens, I. ---- 8-20--Fiore, I. Nos. 3-31--Calvo, I. pp.

1-32--Bonfils, Nos. 71-86--Despagnet, Nos. 1-19--Merignhac, I. pp.

38-43--Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd ed. 1861-1868)--Ward, "Enquiry into the Foundation and History of the Law of Nations," 2 vols. (1795)--Osenbruggen, "De Jure Belli ac Pacis Romanorum" (1876)--Muller-Jochmus, "Geschichte des Volkerrechts im Alterthum" (1848)--Hosack, "Rise and Growth of the Law of Nations" (1883), pp. 1-226--Nys, "Le Droit de la Guerre et les Precurseurs de Grotius" (1882) and "Les Origines du Droit International" (1894)--Hill, "History of Diplomacy in the International Development of Europe," vol. I. (1905) and vol. II.

(1906)--Cyb.i.+.c.howski, "Das antike Volkerrecht" (1907)--Phillipson, "The International Law and Custom of Ancient Greece and Rome," 2 vols. (1910)--Strupp, "Urkunden zur Geschichte des Volkerrechts,"

2 vols. (1911).

[Sidenote: No Law of Nations in antiquity.]

-- 37. International Law as a law between Sovereign and equal States based on the common consent of these States is a product of modern Christian civilisation, and may be said to be hardly four hundred years old. However, the roots of this law go very far back into history. Such roots are to be found in the rules and usages which were observed by the different nations of antiquity with regard to their external relations.

But it is well known that the conception of a Family of Nations did not arise in the mental horizon of the ancient world. Each nation had its own religion and G.o.ds, its own language, law, and morality.

International interests of sufficient vigour to wind a band around all the civilised States, bring them nearer to each other, and knit them together into a community of nations, did not spring up in antiquity. On the other hand, however, no nation could avoid coming into contact with other nations. War was waged and peace concluded. Treaties were agreed upon. Occasionally amba.s.sadors were sent and received. International trade sprang up. Political partisans whose cause was lost often fled their country and took refuge in another. And, just as in our days, criminals often fled their country for the purpose of escaping punishment.

Such more or less frequent and constant contact of different nations with one another could not exist without giving rise to certain fairly congruent rules and usages to be observed with regard to external relations. These rules and usages were considered under the protection of the G.o.ds; their violation called for religious expiation. It will be of interest to throw a glance at the respective rules and usages of the Jews, Greeks, and Romans.

[Sidenote: The Jews.]

-- 38. Although they were monotheists and the standard of their ethics was consequently much higher than that of their heathen neighbours, the Jews did not in fact raise the standard of the international relations of their time except so far as they afforded foreigners living on Jewish territory equality before the law. Proud of their monotheism and despising all other nations on account of their polytheism, they found it totally impossible to recognise other nations as equals. If we compare the different parts of the Bible concerning the relations of the Jews with other nations, we are struck by the fact that the Jews were sworn enemies of some foreign nations, as the Amalekites, for example, with whom they declined to have any relations whatever in peace. When they went to war with those nations, their practice was extremely cruel. They killed not only the warriors on the battlefield, but also the aged, the women, and the children in their homes. Read, for example, the short description of the war of the Jews against the Amalekites in 1 Samuel xv., where we are told that Samuel instructed King Saul as follows: (3) "Now go and smite Amalek, and utterly destroy all that they have, and spare them not; but slay both man and woman, infant and suckling, ox and sheep, camel and a.s.s." King Saul obeyed the injunction, save that he spared the life of Agag, the Amalekite king, and some of the finest animals. Then we are told that the prophet Samuel rebuked Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel xii. 31, we find that King David, "the man after G.o.d's own heart," after the conquest of the town of Rabbah, belonging to the Ammonites, "brought forth the people that were therein and put them under saws, and under harrows of iron, and made them pa.s.s through the brick-kiln...."

With those nations, however, of which they were not sworn enemies the Jews used to have international relations. And when they went to war with those nations, their practice was in no way exceptionally cruel, if looked upon from the standpoint of their time and surroundings. Thus we find in Deuteronomy xx. 10-14 the following rules:--

(10) "When thou comest nigh unto a city to fight against it, then proclaim peace unto it.

(11) "And it shall be, if it make thee answer of peace and open unto thee, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.

(12) "And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.

(13) "And when the Lord thy G.o.d hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword.

(14) "But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy G.o.d hath given thee."

Comparatively mild, like these rules for warfare, were the Jewish rules regarding their foreign slaves. Such slaves were not without legal protection. The master who killed a slave was punished (Exodus ii. 20); if the master struck his slave so severely that he lost an eye or a tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews, further, allowed foreigners to live among them under the full protection of their laws. "Love ... the stranger, for ye were strangers in the land of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is the command: "You shall have one manner of law, as well for the stranger as for one of your own country."

Of the greatest importance, however, for the International Law of the future, are the Messianic ideals and hopes of the Jews, as these Messianic ideals and hopes are not national only, but fully _inter_national. The following are the beautiful words in which the prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah shall have appeared:

(2) "And it shall come to pa.s.s in the last days, that the mountain of the Lord's house shall be established in the top of the mountains, and shall be exalted above the hills; and all nations shall flow unto it.

(3) "And many people shall go and say, Come ye, and let us go up to the mountain of the Lord, to the house of the G.o.d of Jacob, and he will teach us of his ways, and we will walk in his paths; for out of Zion shall go forth the law, and the word of the Lord from Jerusalem.

(4) "And he shall judge among the nations, and shall rebuke many people: and they shall beat their swords into plowshares, and their spears into pruning-hooks: nation shall not lift up sword against nation, neither shall they learn war any more."

Thus we see that the Jews, at least at the time of Isaiah, had a foreboding and presentiment of a future when all the nations of the world should be united in peace. And the Jews have given this ideal to the Christian world. It is the same ideal which has in bygone times inspired all those eminent men who have laboured to build up an International Law. And it is again the same ideal which nowadays inspires all lovers of international peace. Although the Jewish State and the Jews as a nation have practically done nothing to realise that ideal, yet it sprang up among them and has never disappeared.

[Sidenote: The Greeks.]

-- 39. Totally different from this Jewish contribution to a future International Law is that of the Greeks. The broad and deep gulf between their civilisation and that of their neighbours necessarily made them look down upon those neighbours as barbarians, and thus prevented them from raising the standard of their relations with neighbouring nations above the average level of antiquity. But the Greeks before the Macedonian conquest were never united into one powerful national State.

They lived in numerous more or less small city States, which were totally independent of one another. It is this very fact which, as time went on, called into existence a kind of International Law between these independent States. They could never forget that their inhabitants were of the same race. The same blood, the same religion, and the same civilisation of their citizens united these independent and--as we should say nowadays--Sovereign States into a community of States which in time of peace and war held themselves bound to observe certain rules as regards the relations between one another. The consequence was that the practice of the Greeks in their wars among themselves was a very mild one. It was a rule that war should never be commenced without a declaration of war. Heralds were inviolable. Warriors who died on the battlefield were ent.i.tled to burial. If a city was captured, the lives of all those who took refuge in a temple had to be spared. War prisoners could be exchanged or ransomed; their lot was, at the utmost, slavery.

Certain places, as, for example, the temple of the G.o.d Apollo at Delphi, were permanently inviolable. Even certain persons in the armies of the belligerents were considered inviolable, as, for instance, the priests, who carried the holy fire, and the seers.

Thus the Greeks left to history the example that independent and Sovereign States can live, and are in reality compelled to live, in a community which provides a law for the international relations of the member-States, provided that there exist some common interests and aims which bind these States together. It is very often maintained that this kind of International Law of the Greek States could in no way be compared with our modern International Law, as the Greeks did not consider their international rules as legally, but as religiously binding only. We must, however, not forget that the Greeks never made the same distinction between law, religion, and morality which the modern world makes. The fact itself remains unshaken that the Greek States set an example to the future that independent States can live in a community in which their international regulations are governed by certain rules and customs based on the common consent of the members of that community.

[Sidenote: The Romans.]

-- 40. Totally different again from the Greek contribution to a future International Law is that of the Romans. As far back as their history goes, the Romans had a special set of twenty priests, the so-called _fetiales_, for the management of functions regarding their relations with foreign nations. In fulfilling their functions the _fetiales_ did not apply a purely secular but a divine and holy law, a _jus sacrale_, the so-called _jus fetiale_. The _fetiales_ were employed when war was declared or peace was made, when treaties of friends.h.i.+p or of alliance were concluded, when the Romans had an international claim before a foreign State, or _vice versa_.

According to Roman Law the relations of the Romans with a foreign State depended upon the fact whether or not there existed a treaty of friends.h.i.+p between Rome and the respective State. In case no such treaty was in existence, persons or goods coming from the foreign land into the land of the Romans, and likewise persons and goods going from the land of the Romans into the foreign land, enjoyed no legal protection whatever. Such persons could be made slaves, and such goods could be seized, and became the property of the captor. Should such an enslaved person ever come back to his country, he was at once considered a free man again according to the so-called _jus postliminii_. An exception was made as regards amba.s.sadors. They were always considered inviolable, and whoever violated them was handed over to the home State of those amba.s.sadors to be punished according to discretion.

Different were the relations when a treaty of friends.h.i.+p existed.

Persons and goods coming from one country into the other stood then under legal protection. So many foreigners came in the process of time to Rome that a whole system of law sprang up regarding these foreigners and their relations with Roman citizens, the so-called _jus gentium_ in contradistinction to the _jus civile_. And a special magistrate, the _praetor peregrinus_, was nominated for the administration of that law. Of such treaties with foreign nations there were three different kinds, namely, of _friends.h.i.+p_ (_amicitia_), of _hospitality_ (_hospitium_), or of _alliance_ (_foedus_). I do not propose to go into details about them. It suffices to remark that, although the treaties were concluded without any such provision, notice of termination could be given. Very often these treaties used to contain a provision according to which future controversies could be settled by arbitration of the so-called _recuperatores_.

Very precise legal rules existed as regards war and peace. Roman law considered war a legal inst.i.tution. There were four different just reasons for war, namely: (1) Violation of the Roman dominion; (2) violation of amba.s.sadors; (3) violation of treaties; (4) support given during war to an opponent by a hitherto friendly State. But even in such cases war was only justified if satisfaction was not given by the foreign State. Four _fetiales_ used to be sent as amba.s.sadors to the foreign State from which satisfaction was asked. If such satisfaction was refused, war was formally declared by one of the _fetiales_ throwing a lance from the Roman frontier into the foreign land. For warfare itself no legal rules existed, but discretion only, and there are examples enough of great cruelty on the part of the Romans. Legal rules existed, however, for the end of war. War could be ended, first, through a treaty of peace, which was then always a treaty of friends.h.i.+p. War could, secondly, be ended by surrender (_deditio_). Such surrender spared the enemy their lives and property. War could, thirdly and lastly, be ended through conquest of the enemy's country (_occupatio_).

It was in this case that the Romans could act according to discretion with the lives and the property of the enemy.

From this sketch of their rules concerning external relations, it becomes apparent that the Romans gave to the future the example of a State with _legal_ rules for its foreign relations. As the legal people _par excellence_, the Romans could not leave their international relations without legal treatment. And though this legal treatment can in no way be compared to modern International Law, yet it const.i.tutes a contribution to the Law of Nations of the future, in so far as its example furnished many arguments to those to whose efforts we owe the very existence of our modern Law of Nations.