Common Consent of the Family of Nations the Basis of International Law. matical decision, just as the celebrated question, how many grains make a heap? Those legal rules which come down from ancestors to their descendants remain law so long only as they are supported by common consent of these descendants. New rules can only become law if they find common consent on the part of those who constitute the community at the time. It is for that reason that custom is at the background of all law, whether written or unwritten. § 12. What has been stated with regard to law pure and simple applies also to the Law of Nations. However, the community for which this Law of Nations is authoritative consists not of individual human beings, but of individual States. And whereas in communities consisting of individual human beings there is a constant and gradual change of the members through birth, death, emigration, and immigration, the Family of Nations is a community within which no such constant change takes place, although now and then a member disappears and a new member steps in. The members of the Family of Nations are therefore not born into that community and they do not grow into it. New members are simply received into it through express or tacit recognition. It is therefore necessary to scrutinise more closely the common consent of the States, which is the basis of the Law of Nations. The customary rules of this law have grown up by common consent of the States-that is, the different States have acted in such a manner as includes their tacit consent to these rules. As far as the process of the growth of a usage and its turning into a custom can be traced back, customary rules of the Law of Nations came into existence in the following way. The intercourse of States with each other necessitated some rules of international conduct. Single usages, therefore, gradually grew up, the different States acting in the same or in a similar way when an occasion arose. As some rules of international conduct were from the end of the Middle Ages urgently wanted, the theory of the Law of Nations prepared the ground for their growth by constructing certain rules on the basis of religious, moral, rational, and historical reflections. Hugo Grotius's work, "De jure belli ac pacis libri III" (1625), offered a systematised body of rules, which recommended themselves so much to the needs and wants of the time that they became the basis of the following development. Without the conviction of the Governments and of public opinion of the civilised States that there ought to be legally binding rules for international conduct, on the one hand, and, on the other hand, without the pressure exercised upon the States by their interests and the necessity for the growth of such rules, the latter would never have grown up. When afterwards it became apparent that customs and usages alone were not sufficient or not sufficiently clear, new rules were created through treaties being concluded which laid down rules for future international conduct. Thus conventional rules gradually grew up side by side with customary rules. New States which came into existence and were through express or tacit recognition admitted into the Family of Nations thereby consented to the body of rules for international conduct in existence at the time of their admittance. It is therefore not necessary to prove for every single rule of International Law that every single member of the Family VOL. I. с States the of the Law of Nations consented to it. No single State can say on its admittance into the Family of Nations that it desires to be subjected to such and such a rule of International Law, and not to others. The admittance includes the duty to submit to all the existing rules, with the only exception of those which, such as the rules of the Geneva Convention for instance, are specially stipulated for such States only as have concluded or later on acceded to a certain international treaty containing the respective rules. On the other hand, no State which is a member of the Family of Nations can at some time or another declare that it will in future no longer submit to a certain recognised rule of the Law of Nations. The body of the rules of this law can be altered by common consent only, not by a unilateral declaration on the part of one State. This applies not only to customary rules, but also to such conventional rules as have been called into existence through a treaty for the purpose of creating a permanent mode of future international conduct without a right of the signatory powers to give notice of withdrawal. It would, for instance, be a violation of International Law on the part of a signatory Power of the Declaration of Paris of 1856 to declare that it would cease to be a party. But it must be emphasised that this does not apply to such conventional rules as are stipulated by a treaty which expressly reserves the right to the signatory Powers to give notice. § 13. Since the Law of Nations is based on the common consent of individual States, and not of of Nations. individual human beings, States solely and exclusively are the subjects of International Law. This means that the Law of Nations is a law for the international conduct of States, and not of their citizens. Subjects of the rights and duties arising from the Law of Nations are States solely and exclusively. An individual human being, such as a king or an ambassador for example, is never directly a subject of International Law. Therefore, all rights which might necessarily be granted to an individual human being according to the Law of Nations are not international rights, but rights granted by Municipal Law in accordance with a duty imposed upon the respective State by International Law. Likewise, all duties which might necessarily be imposed upon individual human beings according to the Law of Nations are not international duties, but duties imposed by Municipal Law in accordance with a right granted to or a duty imposed upon the respective State by International Law. Thus the privileges of an ambassador are granted to him by the Municipal Law of the State to which he is accredited, but such State has the duty to grant these privileges according to International Law. Thus, further, the duties incumbent upon officials and subjects of neutral States in time of war are imposed upon them by the Municipal Law of their home States, but these States have, according to International Law, the duty of imposing the respective duties upon their officials and citizens.1 an Infer § 14. Since the Law of Nations is based on the Equality common consent of States as sovereign communities, ence from the member States of the Family of Nations are equal the Basis to each other as subjects of International Law. national 1 The importance of the fact that subjects of the Law of Nations are States exclusively is so great that I cons ler it necessary to emphasise it again and again throughout this book. See, for instance, below, §§ 289, 344, 384. It should, however, already be of Inter Law. States are by their nature certainly not equal as regards power, extent, constitution, and the like. But as members of the community of nations they are equals, whatever differences between them may otherwise exist. This is a consequence of their sovereignty and of the fact that the Law of Nations is a law between, not above, the States.1 Source in Cause. III SOURCES OF THE LAW OF NATIONS Hall, pp. 5-14-Maine, pp. 1-25-Lawrence, §§ 61-66-Phillimore, I. §§ 17-33-Twiss, I. §§ 82-103-Taylor, $$ 30-36-Westlake, I. pp. 14-19-Wheaton, § 15-Halleck, I. pp. 55-64-Ullmann, § 7Heffter, § 3-Holtzendorff in Holtzendorff, I. pp. 79-158—Rivier, I. § 2-Nys, I. pp. 144-165-Bonfils, Nos. 45-63-Pradier-Fodéré, I. Nos. 24-35-Martens, I. § 43-Fiore, I. Nos. 224-238-Calvo, I. §§ 27-38-Bergbohm, "Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877)—Jellinek, "Die rechtliche Natur der Staatsverträge" (1880). § 15. The different writers on the Law of Nations tinction to disagree widely with regard to kinds and numbers of sources of this law. The fact is that the term "source of law" is made use of in different meanings by the different writers on International Law. It seems to me that most writers confound the conception of "source" with that of "cause," and through this mistake come to a standpoint from which certain factors which influence the growth of International Law appear as sources of rules of the Law of Nations. This mistake can be avoided by going back to the meaning of the term "source" in general. Source means a spring or well, and has to be defined 1 See below, §§ 115-116, where the legal equality of States in contradistinction to their political inequality is discussed, and where it will also be shown that not-full Sovereign States are not equals to full Sovereign States. |