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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 Aut or.'
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 neces. sary, 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
į 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.?
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 establisbing 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. 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
1 Droit des Gens, Préliminaires, SS vi. vii. viii. ix. 2 Droit des Gens, Préliminaires, § ix.
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.?
§ 10. Sys- According to Heffler, one of the most recent and distem of Heffter. tinguished 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 daties, 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 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."
1 Droit des Gens, Preliminaries, $ xxvii.; Wolf, Proleg. xxv. 2 Vattel, Droit des Gens, edit. de Pinheiro Ferreira, tom. iii. p. 22.
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. 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
constantly tends to unite the whole family of mankind in one great harmonious society."
Is there a uniform law of nations ? There certainly There is no universal is not the same one for all the nations and states of law of nations. the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin. This distinction between the European law of nations and that of the other races of mankind has long been remarked by the publicists. Grotius states that the jus gentium acquires its obligatory force from the positive consent of all nations, or at least of several. " I say of several, for except the natural law, which is also called the jus gentium, there is no other law which is common to all nations. It often happens, too, that what is the law of nations in one part of the world is not so in another, as we shall show in the proper place." So also Bynkershoek, in the passage before cited, says that the law of nations is that wbich is observed, in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized." 3
Leibnitz speaks of the voluntary law as established by the tacit consent of nations. “ Not," says he," that it
1 Heffter, Das Euröpäische Völkerrecht, $ 2.
The learned Jesuit Saurez has anticipated this view of the moral obligation of the jus gentium.“ Ratio hujus juris est, quia humanum genus, quamvis in varios populos et regna divisum, semper habeat aliquam unitatem, non solum specificam, sed etiam quasi politicam et moralem, quam indicat naturale præceptum mutui amoris et misericordiæ, quod ad omnes extenditur, etiam extraneos et cujuscunque nationis. Quapropter, licet unaquaque civitas perfecta, res-publica, aut regnum, sit in se communitas perfecta et suis membris constans, nihilominus quælibet illarum etiam membrum aliquo modo hujus universi prout genus humanum spectat. Nunquam enim illæ communitates adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine, et societate, ac communicatione, interdum ad melius esse majoremque utilitatem, interdum vero et ob moralem necessitatem. Hâc ergo ratione indigent aliquo jure, quo dirigantur et recte ordinentur in hoc genere communicationis et societatis. Et quamvis magnâ ex parte hoc fiat per rationem naturalem, non tamen sufficienter et immediatè quoad omnia : ideoque potuerunt usu earundem gentium introduci.” Saurez, de Legibus et Deo Legislatore, lib. ii. cap. xix. n. g.
2 De Jur. Bel. ac Pac. lib. i. cap. 1, $ xiv. 4. 3 Bynkershoek, De Foro Legatorum, Vid. supra.