Power, in particular, the United States of America, if the Monroe Doctrine may also be conceived as a declaration of non-intervention in European affairs. In this hypothesis it is not likely that any state, no matter how eager and well prepared it may be for war, would want to run the risk of seeing its adversary reinforced by the support of such a concert, but would rather consent to a stay of hostilities for a few months and to renewed attempts at compromise. At the expiration of that term, should it be impossible to adjust the difference, he would recover full freedom of action and no longer have to fear those handicaps.

One incidental effect of such a procedure on the part of the neutrals, and one not to be underestimated, is that the value of a lead in armaments would be lessened and thus the struggle of the Powers to attain it likewise reduced. The sacrifice which individual states would thereby impose upon themselves would not be so great as might at first sight appear, illusions in this very subject, being, as experience teaches, by

no means rare.

For the neutrals this proposition would have the advantage that the admissibility of deliveries of war material to the one side would be assured to their citizens, while otherwise it is perhaps to be expected that the demand for a general prohibition of such deliveries will grow more and more insistent.24 No doubt, it will be objected that the theoretical admissibility of such deliveries does not always mean a practical possibility, for it may so happen that precisely that state to which deliveries would be permissible, might not need them, or that as a matter of fact they could not reach the state that might need them. The former eventuality is very improbable; for that state which declined to continue negotiations, and to which, therefore, deliveries would not be permissible, will also be the one that does not stand in need of them; while his adversary, to whom they may be sent, will be the party in need. The second eventuality is, of course, again possible in the future. But the stronger the alliance of neutrals, the better will it be in a position to see to it that the rights of those belonging to it are really respected.

24 Cf. my

"Mediationsrecht der Neutralen," Öest. Ztschr. f. öffentliches Recht, II (1915), p. 214. To the literature there quoted should be added Laudon, Drie reglen van het tractaat von Washington, Leiden, 1890, especially p. 77 and p. 103 ff.

To be sure, even this scheme presents no panacea. It too will in many instances fail, either because one of the two parties to the dispute refuses to enter into the proposition, or because an adjustment of the dispute by mediation does not succeed. Neither, however, is likely. At all events, the neutrals, in case their action has been in vain, can with a good conscience say to themselves that they have done everything within human power to avert war.

In order to be able to make the threat, namely, that the neutral Powers will permit their people to give every support to the party willing to negotiate, while, on the other hand, they will forbid any help being given to his adversary, it will be necessary to alter Article 7 of the conventions respecting the rights and duties of neutrals in case of war on land and in naval war, which conventions would otherwise stand in much need of supplementing and emending.

It is perhaps not too optimistic to hope that by the way here indicated the rule of right may penetrate also into the sphere of war to the extent of confining the latter to those extreme cases in which all other remedies for the settlement of differences among states have actually failed. Strangers to the dispute, who exercise with prudence and energy the right of mediation as their most important right of neutrality, will thereby not only serve their own best interests, but also prove themselves in the highest degree benefactors of mankind.

HEINRICH LAMMASCH.

THE LEGAL NATURE OF TREATIES

The celebrated scrap of paper incident is perhaps thought so effective a commentary on the "legal nature" of treaties that it needs no addition. "Treaties won't stand before policy and there's an end on't." The student of history is likely to take a more cautious view. He knows that treaties have been one-sidedly abrogated before. He knows that the ambiguous phrase rebus sic stantibus has generally been an implied accompaniment of treaties, and yet he knows that treaties have continued to be concluded and in general observed.

In spite of the consolation to be found in these reflections, the recent failure of a treaty, just at the time when a Third Hague Conference was due, is of unusual significance. It marked a break in the steady progress which codification had made in international law şince the Declaration of Paris of 1856. If a treaty, ratified and reaffirmed with such solemnity as the Belgian Neutralization Treaty, was worthless, were not the hopes for world organization and codified international law by means of conventions pretty thoroughly shattered? It was a severe blow to the "legal school" of international law, and while it might be regretted, yet it gave cause for grim complacency on the part of those, who, looking askance at the codification movement, have been dubbed the "diplomatic school." 1

All branches of jurisprudence may be approached from two stand1 Oppenheim has suggested this division of the schools of international law in his Introduction to Westlake's Collected Papers on Public International Law. It should be noted that this classification is not parallel to the traditional division of international law writers into Grotians, Naturalists, and Positivists. Adherents of both the legal and diplomatic schools may be positivists in the sense in which the term is used in international law. In general jurisprudence, however, the positive school has a different significance, referring to the followers of Austin whose attitude toward international law has been characterized by the term applied to them by Oppenheim, "deniers of international law." Members of this school of jurisprudence may, however, belong to the legal school of international law, in a sense. They assert that international law is not yet law, but will become so when codified and enforced by an organized international authority. The attitudes of the legal and diplomatic schools of international law are thus parallel respectively to those of the positive and historical schools of general jurisprudence.

points. Law may be regarded as primarily a means to an end: its functional or teleologic aspect may be emphasized most prominently. With this view, when a utilitarian theory of morality begets a confidence in man's power to judge of ends, and means for their attainment through law, the conscious shaping of rules of law to existing conditions and the clarifying of their expression, becomes the desideratum. Legislation and codification become the interests of the jurist.

On the other hand, law may be regarded as an organic growth, which legislative interference is more likely to spoil than remedy. Adherents of this point of view are struck by the enormous complexity of human relations. They see that law has grown in the past by a subconscious process of trial and error. They doubt the ability of man to improve on this natural process by reason. Hence interest is centered on the historical growth of law and the tendencies which are discoverable by an inductive study of such development. Law is to be approached reverently as a guide to an understanding of the nature and destiny of man, rather than as a tool to be bent to his present purposes.

The nineteenth century witnessed the predominance of the teleologic school in national jurisprudence. With Benthamite utilitarianism as a criterion of ends and Austinian sovereignty of the state as a means, the growth of law become conscious and rational. Legislative reform and the codification of law were attempted in all civilized states.

It appeared that the twentieth century was to witness a similar development in the field of international law. The draft codes of Dudley Field, Bluntschli and others, the Declaration of Paris, the Geneva Conventions, the Declaration of St. Petersburg, the Hague Conventions and the Declaration of London, seemed to be paving the way for periodic congresses at The Hague to legislate for the world and to codify the law of nations by treaty.

It is true that this movement had had its critics. As Savigny in Germany and Maine in England had doubted the wisdom of an unconditional giving over of law to the legislature, so many of the ablest writers in international law had felt that the law of nations must still be content with the slow progress which would come through unconscious historical development. They felt that conventional law, drafted on the moment, and often on an incomplete induction, would, like too

many statutes, be made but to be broken; and that regularity of observance could only be assured of rules sanctioned by long custom.

It is not the purpose of this article to show either that the hopes of the legal school were premature or that the skepticism of the diplomatic school was without foundation. The object is rather to show how treaty-made international law can and in many cases has gained the sanction ordinarily associated with customary law, that of inertia, resulting from long-continued usage. In so far as treaties are habitually referred to as a rule of action by the administrative and judicial officers of states in deciding cases which come before them, this result is obtained. It remains to inquire to what extent treaties are regularly utilized as a source of law in the leading states of the world.

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1. THE NATURE OF TREATIES

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3

Are international treaties and conventions an immediate source of law to be applied by courts? This question seems easy to answer. By the constitutions of the United States 2 and Mexico treaties are declared to be the supreme law of the land and are applied by courts in appropriate cases involving private rights in the same manner as statutes. Courts in Switzerland, Germany and France have shown a tendency to apply the provisions of promulgated treaties as a rule of decision in recent cases although they have sometimes expressed the opinion, in France especially, that such instruments are to be executed by the political organs, and that their rules become cognizable by courts only when embodied in statutes or ordinances. In England it is firmly established that a treaty is not an immediate source of law for courts, except prize courts, and can not operate to divest legal rights of Englishmen even when its provisions are embodied in executive orders. An enabling act of Parliament is necessary to accomplish that result.

2 Constitution of the United States, Art. VI, sec. 2.

3 Constitution of Mexico, Art. 97, cl. 6.

4 Ware v. Hylton, 3 Dall. 199 (1796); Wharton, A Digest of the International Law of the United States, 2d ed., Washington, 1887, 2; sec. 138.

5 W. Kaufmann, Die Rechtskraft des Internationalen Rechtes und das Verhältnisse des Staatsorgans zu demselben, Stuttgart, 1899, p. 86, et seq.

6 Walker v. Baird, L. R. (1892), A. C. 491; T. E. Holland, Studies in International Law, Oxford, 1898, p. 190, C. M. Picciotto, The Relation of International Law to