of the different States. Of the greatest importance are, however, agriculture, industry, and trade. It is totally impossible even for the largest empire to produce everything its subjects want. Therefore, the productions of agriculture and industry of the different States must be exchanged with each other, and it is for this reason that international trade is an unequalled factor for the welfare of every civilised State. Even in antiquity, when every State tried to be a world in itself, States did not and could not exist without some sort of international trade. It is international trade which has created navigation on the high seas and on the rivers flowing through different States. It is, again, international trade which has called into existence the nets of railways covering the continents, the international postal and telegraphic arrangements, the Transatlantic telegraphic cables. The manifold interests which knit all the civilised States together and create a constant intercourse between one another, have long since brought about the necessity that these States should have one or more official representatives living abroad. Thus we find everywhere foreign ambassadors and consuls. They are the agents who further the current stream of transactions between the Governments of the different States. A number of International Offices, International Bureaux, International Commissions have permanently been appointed for the administration of international business. And from time to time special international conferences and congresses of delegates of the different States are convoked for discussing and settling matters international. Though the individual States are sovereign and independent of each other, though there is no The tions" a Rules of Conduct. international Government above the national ones, though there is no central political authority to which the different States are subjected, yet there is something mightier than all the powerful separating factors: namely, the common interests. And these common interests and the necessary intercourse which serves these interests, unite the separate States into an indivisible community. For many hundreds of years this community has been called "Family of Nations" or "Society of Nations." § 8. Thus the first essential condition for the existence of law is a reality. The single States make altogether a body of States, a community of nity with individual States. But the second condition cannot be denied either. For hundreds of years more and more rules have grown up for the conduct of the States between each other. These rules are to a great extent customary rules. But side by side with these customary and unwritten rules more and more written rules are daily created by international agreements. The so-called Law of Nations is nothing else than a body of customary and conventional rules regulating the conduct of the individual States with each other. External Power for the En § 9. But how do matters stand concerning the third essential condition for the existence of law? forcement Is there a common consent of the community of of Rules of Interna- States that the rules of international conduct shall be Conduct. enforced by external power? There cannot be the tional slightest doubt that this question must be affirmatively answered, although there is no central authority to enforce those rules. The heads of the civilised States, their Governments, their Parliaments, and public opinion of the whole of civilised humanity, agree and consent that the body of rules of inter national conduct which is called the Law of Nations shall be enforced by external power, in contradistinction to rules of international morality and courtesy, which are left to the consideration of the conscience of nations. And in the necessary absence of a central authority for the enforcement of the rule of the Law of Nations, the States have to take the law into their own hands. Self-help and the help of the other States which sympathise with the wronged one are the means by which the rules of the Law of Nations can be and actually are enforced. It is true that these means have many disadvantages, but they are means which have the character of external power. Compared with Municipal Law and the means at disposal for its enforcement, the Law of Nations is certainly the weaker of the two. A law is the stronger, the more guarantees are given that it can and will be enforced. Thus, the law of a State which is governed by an uncorrupt Government and the courts of which are not venal is stronger than the law of a State which has a corrupt Government and venal judges. It is inevitable that the Law of Nations must be a weaker law than Municipal Law, as there is not and cannot be an international Government above the national ones which could enforce the rules of International Law in the same way as a national Government enforces the rules of its Municipal Law. But a weak law is nevertheless still law, and the Law of Nations is by no means so weak a law as it sometimes seems to be. recognises § 10. The fact is that theorists only are divided Practice concerning the character of the Law of Nations as Law of real law. In practice International Law is constantly Nations as recognished as law. The Governments and Parliaments of the different States are of opinion that they Law. are legally, not morally only, bound by the Law of Nations, although they cannot be forced to go before a court in case they are accused of having violated it. Likewise, public opinion of all civilised States considers every State legally bound to comply with the rules of the Law of Nations, not taking notice of the opinion of those theorists who maintain that the Law of Nations does not bear the character of real law. And the different States not only recognise the rules of International Law as legally binding in innumerable treaties and emphasise every day the fact that there is a law between themselves. They moreover recognise this law by their Municipal Laws ordering their officials, their civil and criminal courts, and their subjects to take up such an attitude as is in conformity with the duties imposed upon their Sovereign by the Law of Nations. If a violation of the Law of Nations occurs on the part of an individual State, public opinion of the civilised world, as well as the Governments of other States, stigmatise such violation as a violation of law pure and simple. And countless treaties concerning trade, navigation, post, telegraphy, copyright, extradition, and many other objects exist between civilised States, which treaties altogether rest on the existence of a law between the States, presuppose such a law, and contribute through their very existence to the development and the growth of such a law. Violations of this law are certainly frequent. But the violators always try to prove that their acts do not contain a violation, and that they have a right to act as they do according to the Law of Nations, or at least that no rule of the Law of Nations is against their acts. Has ever a State confessed that it was going to break the Law of Nations or that it ever did so? The fact is that States, in breaking the Law of Nations, never deny its existence, but recognise its existence through the endeavour to interpret the Law of Nations in such a way as is favourable to their act. II BASIS OF THE LAW OF NATIONS Consent of Law. § 11. If law is, as defined above (§ 5), a body of Common rules for human conduct within a community which the Basis by common consent of this community shall be enforced through external power, common consent is the basis of all law. What, now, does the term "common consent" mean? If it meant that all the individuals who are members of a community must at every moment of their existence expressly consent to every point of law, such common consent would never be a fact. The individuals, who are the members of a community, are successively born into it, grow into it together with the growth of their intellect during adolescence, and die away successively to make room for others. The community remains unaltered, although a constant change takes place in its members. "Common consent " can therefore only mean the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance whatever and disappear totally from the view of one who looks for the will of the community as an entity in contradistinction to its single members. The question where such a common consent is to be stated, is not a question of theory, but of fact only. It is a matter of observation and appreciation, and not of logical and mathe |