Zeit. Int. Zeit. Völk. LIST OF ABBREVIATIONS Zeitschrift für Internationales Privat- und Strafrecht. 1891- (Erlangen) Since 1913 (Munich and Leipzig). Zeitschrift für Völkerrecht und Bundesstaatsrecht. Breslau, 1906- Since 1913, beginning with Vol. VII, entitled Zeitschrift für Völkerrecht. INTERNATIONAL LAW CHIEFLY AS INTERPRETED AND VOLUME ONE PRELIMINARY CERTAIN ASPECTS OF INTERNATIONAL LAW §1. Definition and Nature. The term international law may be fairly employed to designate the principles and rules of conduct declaratory thereof which States feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other. From a sense of legal obligation to respect what is thus prescribed, enlightened States, notwithstanding grave and occasional lapses, have generally molded their practice. That which prevailed when the United States came into being manifested the existence of a body of law which, although long in the making, had undergone a de 1 "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent." Dana's Wheaton, § 14. "We define international law to be the aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects.' Woolsey, 6 ed., § 5. "International law consists in certain rules of conduct which modern civilised states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforceable by appropriate means in case of infringement." Hall, Higgins 7 ed., p. 1. See also Bonfils-Fauchille, 7 ed., § 1; Calvo, 5 ed., § 1; Martens, French translation by Léo (1883-1887), I, § 3; Rivier, I, § 3; Sir Frederick Pollock, "The Sources of International Law", Columbia Law Rev., II, 511. velopment of barely a century and a half from the time when Grotius summoned the nations to follow the path which he blazed.1 § 2. Causes and Processes of Evolution. States would not have been disposed to unite, however loosely, in order to regulate their conduct with respect to each other by principles regarded as unresponsive to what were conceived to be the requirements of international justice; and there could have been no common zeal for that justice unless States were by their nature and composition intolerant of international disorder and incapable of remaining isolated from each other. Inasmuch as they were entities composed of human beings possessed as such with moral sensibilities and social instincts which grew in vigor and fineness as civilization strode forward, there was solid cause for a system of jurisprudence applicable to the requirements of the common life. As soon as general acquiescence concerning those requirements became assured, an international law was capable of being and sprang into life. The discovery and use of new methods of communicating intelligence, the development of means of transportation by sea and land and air, together with the transformation of instrumentalities employed in the military and naval operations of a belligerent, have, since the close of the eighteenth century, and particularly since the beginning of the twentieth, served to weld together the society of nations by fresh and enduring ties. The resulting growth of international social and commercial intercourse has not ceased to influence profoundly the trend of the law. Certain results seem to be already apparent. It has been perceived, for example, that rules of conduct, however definitely established, if applied under conditions differing sharply from those prevailing when they were laid down, fail to reflect, and may even oppose, the underlying principles to which their origin was due. Again, The World War has served to bring home to peoples and statesmen alike, a vivid sense of the oneness of interest binding the States of every continent, and a corresponding realization of the 1 Grotius published his celebrated work De Jure Belli Ac Pacis in 1625. See, in this connection, Hamilton Vreeland, Jr., Hugo Grotius the Father of the Modern Science of International Law, New York, 1917. 2 "The real appeal of Grotius was not to 'man in a state of nature', but to the sense of justice, humanity, righteousness, evolved under the reign of God in the hearts and minds of thinking men. His appeal was not to a contract made in the primeval woods', but to the hearts, minds, and souls of men, developed under Christian civilization." Andrew D. White, "The Warfare of Humanity with Unreason: Hugo Grotius", Atlantic Monthly, XCV, 105, 114. CAUSES AND PROCESSES OF EVOLUTION [§ 2 harm sustained by all through contempt by a single State for definite obligations acknowledged by the international society to govern each of its members. Thus it is now recognized on all sides that the welfare of each member of the family of nations, and, therefore, of the international society itself, demands fresh enunciation, by codification or otherwise, of the principles of law that are hereafter to govern the conduct of States. It is perceived also that differences between them must, within a wide range and far beyond limits heretofore accepted, be adjusted according to strict regard for those principles as impartially interpreted and applied by a permanent international court of justice. The sacrifices entailed by such procedure no longer appear to be heavier than individual States are prepared to make. The basis of general agreement is believed to exist. It may be that enlightened States are prepared, also, generally to unite in the effort to adjust controversies not regarded as arbitrable (whether or not technically to be deemed justiciable) by recourse to some international non-judicial body.2 It is to be doubted, however, whether as yet the several States are prepared to acknowledge generally that the welfare of the international society requires each individual member thereof to undertake to become itself a belligerent in order to penalize a State which, in defiance of the law and of special obligations to adjust its differences by amicable means, resorts to war in order to attain even an unjust end. Nevertheless, it must be constantly borne in mind that what the consensus of opinion of enlightened States deems to be essential to the welfare of the international society is ever subject to change, and that the evolution of thought in this regard remains as constant as at any time since the United States came into being. Above all, it must be apparent that whenever the interests of that society are acknowledged to be at variance with the conduct of the individual State, there is established the ground for a fresh rule of restraint against which old and familiar precedents may 'cease to be availing. 1 See Permanent Court of International Justice Designed by Advisory Committee of Jurists, 1920, infra, §§ 573-575. 2 It should be observed that particular plans or methods of organization proposed for general acceptance are not to be taken as necessarily indicative of the nature or extent of what is at the time the actual existing basis of international accord. Opposition to the theory of certain devices, however scientifically formulated, is not proof that others cannot win approval. Diversity of opinion as to method is not to be taken as establishing the absence of general acquiescence as to principle. |