as the rising from the ground of a stream of water. When we see a stream of water and want to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. On that spot, we say, is the source of the stream of water. We know very well that this source is not the cause of the existence of the stream of water. Source signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising. If we apply the conception of source in this meaning to the term "source of law," the confusion of source with cause cannot arise. Just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. And if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. Where we find that such rules rise into existence, there is the source of them. Of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. Thus in this country a good many rules of law rise every year from the Acts of Parliament. "Source of Law" is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force. Sources of national Law. § 16. As the basis of the Law of Nations is the The two common consent of the member States of the Family Inter of Nations, it is evident that there must exist, and can only exist, as many sources of International Law as there are facts through which such a common consent can possibly come into existence. Of such facts there are only two. A State may, just as an individual, give its consent either directly by an express Contradis Usage. declaration or tacitly by conduct which it would not follow in case it did not consent. The sources of International Law are therefore twofold-namely: (1) express consent, which is given when States conclude a treaty stipulating certain rules for the future international conduct of the parties; (2) tacit consent, which is given through States having adopted the custom of submitting to certain rules of international conduct. Treaties and custom are, therefore, exclusively the sources of the Law of Nations. 1 Custom in § 17. Custom is the older and the original source tinction to of International Law in particular as well as of law in general. Custom must not be confounded with usage. In every-day life and language both terms are used synonymously, but in the language of the jurist they have two distinctly different meanings. Jurists speak of a custom, when a clear and continuous habit of doing certain actions has grown up under the ægis of the conviction that these actions are legally necessary or legally right. On the other hand, jurists speak of a usage, when a habit of doing certain actions has grown up without there being the conviction of their legal character. Thus the term "custom" is in juristic language a narrower conception than the term "usage," as a certain conduct may be usual without being customary. A certain conduct of States concerning their international relations may therefore be usual without being the outcome of customary International Law. As usages have a tendency to become custom, the question presents itself, at what time a usage turns 1 Westlake, I. p. 15, states cus- there are too many agree to reason being a source. Reason is a means of interpreting law, but it cannot call law into existence. into a custom. This question is one of fact, not of theory. All that theory can point out is this: Wherever and as soon as a certain frequently adopted international conduct of States is considered legally necessary or legally right, the rule, which may be abstracted from such conduct, is a rule of customary International Law. as Source Law. § 18. Treaties are the second source of Inter- Treaties national Law, and a source which has of late become of Interof the greatest importance. As treaties may be national concluded for innumerable purposes,1 it is necessary to emphasise that such treaties only are a source of International Law as either stipulate new rules for future international conduct or confirm, define, or abolish existing customary rules. Such treaties must be called law-making treaties. Since the Family of Nations is no organised body, there is no central authority which could make law for that body as Parliaments make law by statutes within the States. The only way in which International Law can be made by a deliberate act, in contradistinction to custom, is that the members of the Family of Nations conclude treaties in which certain rules for their future conduct are stipulated. Of course, such lawmaking treaties create law for the contracting parties solely. Their law is universal International Law only then, when all the members of the Family of Nations are parties to them. Many law-making treaties are concluded by a few States only, so that the law which they create is particular International Law. On the other hand, there have been many law-making treaties concluded which contain general International Law, because the majority of States, including leading Powers, are parties to them. General 1 See below, § 492. Factors influencing the Inter national Law. International Law has a tendency to become universal because such States as hitherto did not consent to it will in future either expressly give their consent or recognise the respective rules tacitly through custom.1 But it must be emphasised that, whereas custom is the original source of International Law, treaties are a source the power of which derives from custom. For the fact that treaties can stipulate rules of international conduct at all is based on the customary rule of the Law of Nations, that treaties are binding upon the contracting parties.2 §19. Thus custom and treaties are the two exclusive sources of the Law of Nations. When Growth of writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term "source" with that of "cause" by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical facts out of which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers on International Law, decisions of prize courts, arbitral awards, instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Municipal Laws, decisions of Municipal Courts. All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct. A factor of a special kind which also influences the Law-making treaties of world. wide importance are enumerated below, $$ 556-568. Nations. growth of International Law is the so-called Comity Comity of (Comitas Gentium, Convenance et Courtoisie Internationale, Staatengunst). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are no rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly the contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a rule of present International Comity will in future become one of International Law. IV RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW. Holtzendorff in Holtzendorff, pp. 49-53, 117-120-Nys, I. pp. 185-189 -Taylor, 103-Holland, Studies, pp. 176-200-Kaufmann, "Die Rechtskraft des internationalen Rechts" (1899)-Triepel, "Völkerrecht und Landesrecht " (1899). Difference national 20. The Law of Nations and the Municipal Law Essential of the single States are essentially different from each between other. They differ, first, as regards their sources. InterSources of Municipal Law are custom grown up and Muniwithin the boundaries of the respective State and cipal Law. statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties concluded by the members of that family. |