II to the formation of numerous "unions" with their separate admin- CHAP. istrative bureaus and commissions.1 By Article 24 of the Covenant provision is made that all future bureaus and commissions constituted for the regulation of matters of international interest are to be placed under the direction of the League, while existing bureaus may be placed under its direction if the parties to the several conventions consent. In addition, certain administrative duties are assigned to the Council specifically and to the Permanent Secretariat (Articles 8, 18, 22, 24). functions The judicial functions of the League consist in the competence Judicial of the Council to act as a commission of inquiry in all disputes which are not submitted by the parties to arbitration. A report upon the case, agreed to unanimously by the members of the Council other than the representatives of the parties to the dispute, is to have the force of an obligatory award to the extent that the members of the League will not go to war with a state complying with the recommendations of the report. The Council itself, or either of the parties, may refer the dispute to the Assembly, in which case the report of the Assembly, when concurred in by the representatives of states which are members of the Council and by a majority of the other members of the League, exclusive of the parties to the dispute, shall have the same obligatory character as a report of the Council.2 1 See below, p. 65. 'See below, p. 417 a. Predecessors of Grotius CHAPTER III THE DEVELOPMENT OF THE SCIENCE OF INTERNATIONAL LAW 1 The great treaty-statute of 1648, which was the corner-stone of modern international law, was accompanied by an equally important, though more gradual, change in the conception of the nature and sanction of international law. During the anarchy of the century preceding the Treaty of Westphalia the traditions of a common law of the nations had never wholly been forgotten. Scholars and publicists lifted up their voices from time to time declaring that the principles of natural justice were binding upon states as well as upon individuals. Victoria, a Spanish theologian, in lectures published in 1557 after his death, laid down the principle that the nations formed a community based upon natural reason and social intercourse." The Spanish Jesuit, Suarez, in a classic passage of his treatise De Legibus ac Deo Legislatore, published in 1612, insisted clearly that the states of the world, although independent in their national life, were nevertheless members of the human race and as such subject to a law of conduct; a law based, he held, chiefly upon natural reason, but also in part upon human custom. The Italian jurist, Gentilis, professor of civil law at Oxford, published in 1598 a treatise, De Jure Belli, in which, without discarding natural reason and natural law, he sought to find historical and legal precedents to regulate the conduct of nations. The honor was reserved, however, to Hugo van Groot, better known as Grotius, to publish in 1625 a more formal treatise, De Jure Belli et Pacis, which was the first to obtain a hearing outside the schools and which won for its author the title of the Father of International Law. 1 See above, p. 19. 'De Indis et de Jure Belli Relectiones, passim. Text of 1696, and translation by J. P. Bate. Carnegie Institution of Washington, 1917. The passage is quoted, in Latin, by Walker, History of the Law of Nations, 155-156; and in English by Westlake, Collected Papers, 26. Walker, History, 252-274. The edition of 1646, photographically reproduced, was published by the Carnegie Institution of Washington, 1913. The standard, though abridged, translation is that of Whewell, Cambridge, 1853. A new translation by Kelsey, Sanders, Boak, and Reeves, The Law of War and Peace, to be published by the Carnegie Endowment for International Peace, is in press. III Grotian Grotius followed the traditions of his time in making the natu- CHAP. ral law the basis of his system. The "natural law," as he defined it, was "the dictate of right reason which points out that a given b. The act, because of its opposition to or conformity with man's rational system nature, is either morally wrong or morally necessary, and accordingly forbidden or commanded by God, the author of nature."1 Since nations formed a society similar in its nature to. the community of citizens, they too were bound by the dictates of the natural law. What these dictates were might be discovered in either of two ways: by arguing a priori that a given act was or was not in accordance with the fundamental moral principles without which human society could not exist, or by examining the common practices of the nations and inferring, with a lesser degree of certainty, that principles of conduct accepted by all or by the more civilized peoples must have their origin in the natural law. In addition to the natural law Grotius recognized a voluntary law of nations based upon their free consent, whether explicit, as expressed in treaties and conventions, or implicit, as expressed in usages and customs. To this law he gave, somewhat incorrectly, the name jus gentium. In so far as it conformed to the dictates of right reason, the voluntary law might be said to blend with the natural law and be indeed the expression of it. Should there be a conflict between the two, the law of nature was to prevail, as being the fundamental law, the authority of which could not be contravened by the practice of nations.3 of the appeal to the natu ral law The basis upon which Grotius built up his system is of impor- Justification tance in the development of international law because of the farreaching influence which the theory of the natural law exerted upon the writers of the following centuries. The criticism, now become obvious, of a system built upon the natural law is that men have at all times differed as to the detailed rules which are deducible from that law. To Grotius, however, the principles of the natural law were "of themselves patent and evident, almost in the same way as things which are perceived with the external senses. But the pains he took to quote from the philosophers, poets, and 1Bk. I, Chap. I, § X. Ibid., § XII. Victoria appears to have used the term in the same sense a century earlier. 'For a study of the influence of Grotius upon contemporary and later thought, see Vreeland, Hugo Grotius. Also, Transactions of the Grotius Society, I-VII (1922), passim. 'Op. cit., Prolegomena, 39, Whewell's translation. statesmen of all ages in proof of the morality of a given act suggest that even in Grotius's mind there was some doubt as to the obviousness of the moral law, or at least as to its concrete application to the facts of international life.1 On the other hand it was impossible for a writer of the time of Grotius to present a positive system of international law based upon the actual practices of the nations. It was the very fact that the conduct of the times was lawless and unrestrained that led Grotius to appeal to a higher law of natural justice superior to the arbitrary conduct manifested in the existing practices of the nations. The success of this appeal was seen in the general acclaim with which his volume was received. Practical statesmen felt the need of putting some restraint upon the barbarous practices of the times, and were ready to accept the statement of lawful and unlawful conduct laid down by Grotius without giving more than a formal adherence to the basis upon which it was constructed. Two years after the Peace of Westphalia a second, though much smaller, treatise was published which deserves a place among the important influences determining the development of the science of international law. Richard Zouche, who held the chair of civil law at Oxford, published in 1650 a manual of international law in which the term jus inter gentes was substituted for the jus gentium of Grotius, and stress was laid upon custom as a source of international law. By reason of his more concrete point of view Zouche is regarded by some writers as the founder of what is called the "positive" or "historical" school of international law. But Zouche was still a citizen of the seventeenth century and influenced by its need for a higher standard of conduct than could be found in the common practices of the nations. Hence he defines jus inter gentes as "the law which is accepted among most nations The agreement upon general principles of justice presents little difficulty; it is the application of principles to concrete facts, the existence of a right under specific circumstances, that forms the arena of controversy. Grotius tells us that his reason for writing his treatise was that he "saw prevailing throughout the Christian world a licence in making war of which even barbarous nations would have been ashamed; recourse being had to arms for slight reasons or no reason; and when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint." Prolegomena, § 28, Whewell's translation. A photographic reproduction of the text of 1650, Juris et Judicii Fecialis, sive, Juris inter Gentes, et Quæstionum de Eodem Explicatio, edited by T. E. Holland, with translation by J. L. Brierly, was published by the Carnegie Institute of Washington, 1911. by customs in harmony with reason,' " and he does not hesitate CHAP. III of interna the From the time of Zouche down to the close of the nineteenth c. Schools century international law developed gradually from a science that tional law: was largely theoretical into a predominantly practical one. There Naturalists were fluctuations to and fro, but the general progress can be clearly marked. Three distinct tendencies may be observed, which have led historians to group the successive writers into separate schools of thought. On the one hand, there were writers who placed a greater emphasis upon the law of nature than even Grotius himself had placed. Pufendorf, a university professor first at Heidelberg and later at Lund in Sweden, published in 1672 a work, De Jure Naturæ et Gentium, in which he relied solely upon the natural law as determining the standard of international conduct, and denied the legal validity of any rule based upon custom and treaty. But these views did not meet with any wide acceptance, and while Pufendorf has been placed by historians at the head of what has been called the Philosophical or Pure Law of Nature school, there are but few distinguished names among those who have carried on his theories. Thomasius, Barbeyrac, Burlamaqui, and Rutherford are counted among his followers, and within more recent years James Lorimer, whose Institutes of International Law, published in 1883-84, is a conspicuous survival of an approach to the law now generally regarded as largely speculative. school: The system established by Grotius held its own against the The Grotian effort to make of international law a largely theoretical science. Vattel A group of writers, which has been given the name of the Grotian. School, maintained the dual authority of the natural law and of custom and convention, although they ceased to give predominant weight to the former. The chief representative of this school was the Swiss jurist, Emer de Vattel, whose name, owing to the practical use made of his treatise by statesmen, is even better known in the world of international relations than that of Grotius. Vattel undertook to popularize a volume entitled Jus Gentium, published in 1749 by the German philosopher, Wolff. To his work he gave the title Le Droit des Gens, with the sub-title, "Principes 1 Op. cit., 1. 'The volume forms the ninth and last of a larger treatise on Jus Naturæ. |