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manner as individuals are bound to submit to the laws of the particular community of which they are members. But he takes no pains to prove the existence of any such social union or universal republic of nations, or to show when and how all the human race became members of this union or citizens of this republic.
ences of opinion be
Wolf differs from Grotius, as to the origin of the 8. Differvoluntary law of nations, in two particulars : 1. Grotius considers it as a law of positive institu- tween Grotion, and rests its obligation upon the general consent Wolf on the origin of nations, as evidenced in their practice. Wolf, on the of the volother hand, considers it as a law which nature has of Nations. imposed upon all mankind as a necessary consequence of their social union; and to which no one nation is at liberty to refuse its assent.
2. Grotius confounds the voluntary law of nations with the customary law of nations. Wolf maintains that it differs in this respect, that the voluntary law of nations is of universal obligation, whilst the customary law of nations merely prevails between particular nations, among whom it has been established from long usage and tacit consent.
tem of Vat
It is from the work of Wolf that Vattel has drawn 9. Sys the materials of his treatise on the law of nations. He, tel. however, differs from that publicist in the manner of establishing the foundations of the voluntary law of nations. Wolf deduces the obligations of this law, as we have already seen, from the fiction of a great republic instituted by nature herself, and of which all the nations of the world are members. According to him the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy Vattel. "I do not find," says he, "the fiction of such a republic either very just or sufficiently solid, to deduce from it the rules of a universal law of nations, necessarily admitted among sovereign States. I do not recognize any other natural society between nations than that which nature has established between all men. It is the essence of all civil society, (civitatis,) that each member thereof should have given up a part of his rights to the body of the society, and that there should exist a supreme authority capable
of commanding all the members, of giving to them laws, and of punishing those who refuse to obey, Nothing like this can be conceived or supposed to exist between nations. Each sovereign State pretends to be, and in fact is, independent of all others. Even according to Mr. Wolf, they must all be considered as so many free individuals, who live together in a state of nature, and acknowledge no other law than that of nature itself, and its Divine Autor.'
According to Vattel, the Law of Nations, in its origin, is nothing but the law of nature applied to nations.
Having laid down this axiom, he qualifies it in the same manner, and almost in the identical terms of Wolf, by stating that the nature of the subject to which it is applied being different, the law which regulates the conduct of individuals must necessarily be modified in its application to the collective societies of men called nations or states. A state is a very different subject from a human individual, from whence it results that the obligations and rights, in the two cases, are very different. The same general rule, applied to two subjects, cannot produce the same decisions, when the subjects themselves differ. There are, consequently, many cases in which the natural law does not furnish the same rule of decision between state and state as would be applicable between individual and individual. It is the art of accommodating this application to the different nature of the subjects in a just manner, according to right reason, which constitutes the law of nations a particular science.
This application of the natural law, to regulate the conduct of nations in their intercourse with each other, constitutes what both Wolf and Vattel term the necessary law of nations. It is necessary, because nations are absolutely bound to observe it. The precepts of the natural law are equally binding upon states as upon individuals, since states are composed of men, and since the natural law binds all men, in whatever relation they may stand to each other. This is the law which Grotius and his followers call the internal law of nations, as it is obligatory upon nations in point of conscience. Others term it the natural law of nations. This law is immutable, as it consists in the applica
1 Vattel, Droit des Gens, Préface.
tion to States of the natural law, which is itself immutable, because founded on the nature of things, and especially on the nature of man.
This law being immutable, and the law which it imposes necessary and indispensable, nations can neither make any changes. in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.1
Vattel has himself anticipated one objection to his doctrine that States cannot change the necessary law of nations by their conventions with each other. This objection is, that it would be inconsistent with the liberty and independence of a nation to allow to others the right of determining whether its conduct was or was not conformable to the necessary law of nations. He obviates the objection by a distinction which pronounces treaties made in contravention of the necessary law of nations, to be invalid, according to the internal law, or that of conscience, at the same time that they may be valid by the external law; States being often obliged to acquiesce in such deviations from the former law in cases where they do not affect their perfect rights.2
From this distinction of Vattel, flows what Wolf had denominated the voluntary law of nations, (jus gentium voluntarium,) to which term his disciple assents, although he differs from Wolf as to the manner of establishing its obligation. He however agrees with Wolf in considering the voluntary law of nations as a positive law, derived from the presumed or tacit consent of nations to consider each other as perfectly free, independent, and equal, each being the judge of its own actions, and responsible to no superior but the Supreme Ruler of the universe.
Besides this voluntary law of nations, these writers enumerate two other species of international law. These are:
1. The conventional law of nations, resulting from compacts between particular States. As a treaty binds only the contracting parties, it is evident that the conventional law of nations is not a universal, but a particular law.
2. The customary law of nations, resulting from usage between particular nations. This law is not universal, but binding upon those States only which have given their tacit consent to it.
1 Droit des Gens, Préliminaires, §§ vi. vii. viii. ix.
2 Droit des Gens, Préliminaires, § ix.
Vattel concludes that these three species of international law, the voluntary, the conventional, and the customary compose together the positive law of nations. They proceed from the will of nations; or (in the words of Wolf) "the voluntary, from their presumed consent; the conventional, from their express consent; and the customary, from their tacit consent." 1
It is almost superfluous to point out the confusion in this enumeration of the different species of international law, which might easily have been avoided by reserving the expression, "voluntary law of nations," to designate the genus, including all the rules introduced by positive consent, for the regulation of international conduct, and divided into the two species of conventional law and customary law, the former being introduced by treaty, and the latter by usage; the former by express consent, and the latter by tacit consent between nations.2
§ 10. System of Heff
According to Heffter, one of the most recent and distinguished public jurists of Germany, "the law of nations, jus gentium, in its most ancient and most extensive acceptation, as established by the Roman jurisprudence, is a law (Recht) founded upon the general usage and tacit consent of nations. This law is applied, not merely to regulate the mutual relations of States, but also of individuals, so far as concerns their respective rights and duties, having everywhere the same character and the same effect, and the origin and peculiar form of which are not derived from the positive institutions of any particular State." According to this writer, the jus gentium consists of two distinct branches :
1. Human rights in general, and those private relations which Sovereign States recognize in respect to individuals not subject to their authority.
2. The direct relations existing between those States themselves.
"In the modern world, this latter branch has exclusively received the denomination of law of nations, Völkerrecht, Droit des Gens, Jus Gentium. It may more properly be called external public law, to distinguish it from the internal public law of a
1 Droit des Gens, Préliminaries, § xxvii.; Wolf, Proleg. xxv.
particular State. The first part of the ancient jus gentium has become confounded with the municipal law of each particular nation, without at the same time losing its original and essential character. This part of the science concerns, exclusively, certain rights of men in general, and those private relations which are considered as being under the protection of nations. It has been usually treated of under the denomination of private international law."
Heffter does not admit the term international law (droit international) lately introduced and generally adopted by the most recent writers. According to him this term does not sufficiently express the idea of the jus gentium of the Roman jurisconsults. He considers the law of nations as a law common to all mankind, and which no people can refuse to acknowledge, and the protection of which may be claimed by all men and by all States. He places the foundation of this law on the incontestable principle that wherever there is a society, there must be a law obligatory on all its members; and he thence deduces the consequence that there must likewise be for the great society of nations an analogous law.
"Law in general (Recht im Allgemeinen) is the external freedom of the moral person. This law may be sanctioned and guaranteed by a superior authority, or it may derive its force from self-protection. The jus gentium is of the latter description. A nation associating itself with the general society of nations, thereby recognizes a law common to all nations by which its international relations are to be regulated. It cannot violate this law, without exposing itself to the danger of incurring the enmity of other nations, and without exposing to hazard its own existence. The motive which induces each particular nation to observe this law depends upon its persuasion that other nations will observe towards it the same law. The jus gentium is founded upon reciprocity of will. It has neither lawgiver nor supreme judge, since independent States acknowledge no superior human authority. Its organ and regulator is public opinion its supreme tribunal is history, which forms at once the rampart of justice and the Nemesis by whom injustice is avenged. Its sanction, or the obligation of all men to respect it, results from the moral order of the universe, which will not suffer nations and individuals to be isolated from each other, but