borrowed from a more exact science, and to which it upon, International law may be said to consist in a few axiomatic principles intimately connected with morals; in a few admitted rules founded upon them; and in a In what the body national of inter law con siste. Its founda tion upon usage. In what the authority of usage is grounded. Value of conformity to vast number of rules, admitted or disputed, which are either more or less obscurely derived from these principles, or which are perhaps more often purely arbitrary in their nature, and destitute of any ascertainable relation to morals at all. In order to fix the legal value of a rule belonging to either of these latter classes, it is necessary to determine the weight of the usage upon which it depends. What, then, constitutes an authoritative international usage, and where can the evidence of its existence be found? It would generally be said that usage consists either in the aggregate of the national acts done with reference to a particular matter by all civilised nations where they happen to be unanimous, or, where there is divergence of opinions, in such acts done by some nations only, not necessarily by a majority, the relative value of the acts being determined by their accordance with acknowledged principles of international law, by their connection with an assumed natural law, and by their solemnity; so that unilateral acts are looked upon as being less important than treaties, which indeed are considered to be in some sense a source of law to others than the contracting parties. It is not meant that the precise opinion above indicated is held in the same degree by all writers, or by the larger number of them, but that the whole of its elements are usually present, though there may be considerable difference in the relative importance of the places which are allotted to them. One of these views it is not necessary to discuss at any length. I have already said that indetermimoral law. nate usage appears to me to be insusceptible of acquiring a binding force in one direction or another by reference to ethical doctrine which is not embodied in a legal axiom. It is of course open to a publicist to argue that one principle is more moral than another, and that it therefore ought to be the law; but to say that because it is more moral it is the law, notwithstanding an inferior, or even a merely equal amount and quality of practice in its favour, is to assume the function of a legislator. mity to of inter law. But the case is different when an isolated practice of conforis in contradiction to the inevitable consequences of admitted a universally admitted proposition of international principles law. Where a principle is undoubted, and the con- national clusions springing from it are certain, the latter may be called in to decide the question of superior weight between two practices equally supported by usage, or to turn the more generally accepted of two customs into authoritative rule. A sufficient usage may no doubt firmly establish an exception, but the presumption must always be against its validity. It would, however, be easy to push too far the use of conclusions from general doctrine as solvents of difficulties in international right. Many principles absolutely equal in authority lead logically to incompatible results. In such cases-and the law of belligerents and neutrals is full of them-it is evident that, as neither principle can control the other, there is nothing but bare usage which can determine at what point the inevitable compromise is to be fixed. It is not very obvious for what reason treaties (of treaties. are supposed to be a source of general law. It is conceded that 'in the full rigour of the law they are only obligatory on the contracting parties;' but it seems nevertheless to be held that when a certain number, freely entered into by divers nations, have embodied the same principle of natural law, imparting to it the same interpretation, and adopting the same methods for giving effect to it, although no one Classification of treaties. of them need be compulsorily applicable to states which have not been parties to it, a sort of jurispru dence-a species of law-is formed, which the majority of nations recognise as being obligatory, even upon those who have not signed any of its constituent parts.' The doctrine is seldom stated with this openness and breadth, but it seems more or less consciously to underlie much of the use which is generally made of what is called the conventional law of nations. It appears to me to be essentially unsound. As a pact between two parties is confessedly incapable of affecting a third who has in no way assented to its terms, the only ground on which it is possible that treaties can be invested with more authority than other national acts is that, when they enshrine a principle, they are supposed to express national opinion in a peculiarly deliberate and solemn manner, and therefore to be of more value than other precedents. The manner in which they are frequently used suggests the assumption of a more direct authority; but it cannot even be admitted, without careful limitation, that the greater number of them do in fact express in a peculiarly solemn manner, or even at all, the views of the contracting parties as to what is or ought to be international law. Treaties which may be supposed to express principles of law appear to be susceptible of division into three classes 1. Those which are declaratory of law as understood by the contracting parties. 1 Hautefeuille, Des Droits et des Devoirs des Nations Neutres: Discours Préliminaire. Calvo, Le Droit International, § 19, puts forward the same view more indefinitely, but with sufficient distinctness ; and Bluntschli, Le Droit International Codifié, § 794, adopts it by implication in looking upon the declaration of the Treaty of Paris with respect to the effect of the flag on enemy's goods as universally binding, notwithstanding that the United States have not yet adhered to it. 2. Those which stipulate for practices which the contracting parties wish to incorporate into the usages of the law, but which they know to be outside the actual law. 3. Those which are in fact mere bargains, in which, without any reference to legal considerations, something is bought by one party at the price of an equivalent given to the others. the differ inter law. The first of these kinds is, for any purpose of Bearing of international precedent, extremely rare. The various ent classes acts and conventions of the two armed neutralities pon undoubtedly professed to be declaratory, and the national convention for the common defence of the liberty of trade made between Denmark and Sweden in 17941 may also be taken by implication to assert the principles of the first armed neutrality, and to be declaratory of them as general law. It may be doubted if treaties professing to be declaratory of international law have ever been made except on these occasions, when it is certain that the weight of authority was not in accordance with their provisions, and when their object was to enforce new rules upon a third state in the common interest of the contracting parties. Certain introductory clauses, however, are usually found in treaties of commerce, which do in fact involve principles of existing international usage, as in the case of stipulations that there shall be friendship and free access for trade between the contracting nations. These and like covenants are now mere words of surplusage; they add nothing to the authority of the principle which they embody; and probably owe to their convenience as common forms of opening, the position which they occupy as the sole De Martens, Recueil des Traités, v. 607. |