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make any changes in it by their conventions, dispense with it themselves, nor reciprocally, with respect to each other.
This is the principle by which we may distinguish lawful conventions or treaties, from those that are not lawful; and innocent and rational customs from those that are unjust and censurable.
There are things just, and permitted by the Necessary Law of Nations, which states may agree to establish between each other, and which they may consecrate and strengthen by manners and customs. There are also those that are indifferent, which different states may agree to establish at pleasure by treaties, or introduce such custom or such practice as they shall think proper. But all the treaties and all the customs contrary to what the Necessary Law of Nations prescribes, or that are such as it forbids, are unlawful. We shall hereafter find that they are not always such as are agreeable to the Internal Law of Nature or of conscience, and that for reasons which shall be given in their proper place, these conventions, or these treaties, are only valid by the external law. Nations being free and independent, though the actions of one of them are illegal and are condemned by the Law of conscience, the others are obliged to bear with them, when those actions do not injure their perfect rights. The liberty of one nation will not remain entire, if the others arrogate to themselves an inspection into the rules of its conduct. For this must be contrary to the Law of Nature, which declares every nation free and independent of others. — (Droit des Gens, Preliminaires.)
THE POSITIVE LAW OF NATIONS
Nations being free, independent, and equal, and having a right to judge according to the dictates of conscience, of what is to be done in order to fulfil its duties; the effect of all this is, the producing, at least externally, and among men, a perfect equality of rights between nations, in the administration of their affairs, and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to inform a definitive judgment; so that what is permitted in one, is also permitted in the other, and they ought to be considered in human society as having an equal right.
Every one in fact pretends to have justice on his side in the differences that may arise, and neither one nor the other ought to interest itself in forming a judgment of the disputes of other nations. The nation that has acted wrong, has offended against its conscience; but as it may do whatever it has a right to perform, it cannot be accused of violating the laws of society.
It is therefore necessary, on many occasions that nations should suffer certain things to be done, that are very unjust and blameable in their own nature, because they cannot oppose it by open force, without violating the liberty of some particular state, and destroying the foundation of natural society. And since they are obliged to cultivate that society, it is rightly presumed, that all nations have consented to the principle we have just established. The rules that flow from this principle, form what Wolfe calls the Voluntary Law of Nations; and nothing prevents our using the same term, though we have imagined that we ought to deviate from that great man in our manner of establishing the foundation of those laws.
The laws of natural society are of such importance to the safety of all states, that if they accustom themselves to trample them under their feet, no people can flatter themselves with the hopes of self-preservation, and of enjoying tranquillity at home, whatever wise, just, and moderate measures they may pursue. Now all men and all states have a perfect right to those things that are necessary for their preservation; since this right is equivalent to an indispensible obligation. All nations have then a right to repel by force what openly violates the laws of the society which nature has established among them, or that directly attacks the welfare and safety of that society.
But care must be taken not to extend this law to the prejudice of the liberty of nations. All are free and independent, but obliged to preserve the laws of society, which nature has established among them; and so far obliged, that others have a right to repress that which violates these laws; all together have not therefore any authority over the conduct of any one, farther than the interest of the natural society is concerned. The general and common Law of Nations, with respect to the conduct of all sovereign states, ought to be measured by the end of the association that subsists between them.
The several engagements into which nations may enter, produce a new kind of the Law of Nations, called conventional, or of treaties. As it is evident that a treaty binds only the contracting parties, the Conventional Law of Nations is not an universal but a particular law. All that can be done on this subject in a treatise on the Law of Nations, is therefore to give the general rules that ought to be observed by nations in relation to their treaties. The particulars of the different agreements relates to what passes between certain nations; but the law and the obligations resulting from it, is matter of fact, and belongs to history.
Certain maxims and customs consecrated by long use, and observed by nations between each other as a kind of law, form the Customary Law of Nations, or the custom of nations. This Law is founded on a tacit consent, or if you will, on a tacit convention of the nations that observe it with respect to each other. Whence it appears, that it is only binding to those nations that have adopted it, and that it is not universal, any more than Conventional Laws. It must be here also observed of this Customary Law, that the particulars relating to it, do not belong to a systematic treatise on the Law of Nations, but that we ought to confine ourselves to the giving a general theory of it; that is, to the rules which here ought to be observed, as well with respect to its effects, as in relation to the matter itself; and in this last respect, these rules will serve to distinguish the lawful and innocent customs from those that are unjust and illegal.
When a custom is generally established, either between all the polite nations in the world, or only between those of a certain continent, as of Europe, for example, or those who have a more frequent correspondence; if that custom is in its own
nature indifferent, and much more if it be a wise and useful one, it ought to be obligatory to all those nations who are considered as having given their consent to it. And they are bound to observe it with respect to each other, while they have not expressly declared that they will not adhere to it. But if that custom contains anything unjust or illegal, it is of no force; and every nation is under an obligation to abandon it, nothing being able to oblige or permit a nation to violate a Natural Law.
These three kinds of the Law of Nations, Voluntary, Conventional, and Customary, together compose the Positive Law of Nations. For they all proceed from the volition of nations; the Voluntary Law, from their presumed consent; the Conventional Law, from an express consent; and the Customary Law, from a tacit consent; and as there can be no other manner of deducing any law from the will of nations, there are only these three kinds of the Positive Law of Nations.
We have carefully distinguished from them the Natural or Necessary Law of Nations; without, however, treating of them separately. But after having established, with respect to each what the Law necessarily prescribes, we shall at length add, how and in what manner the decisions of the Voluntary Law ought to be modified, or, which is the same thing, in other terms, we shall explain, how, in virtue of the liberty of nations, and the rules of natural society, the External Law that ought to be observed among them, differs in certain instances from the maxims of the Internal Law, which is always obligatory with respect to conscience. As to the laws introduced by treaties, or by custom, there is no room to fear that any one will confound them with the Natural Law of Nations. They form that species of the Law of Nations, which authors have distinguished by the name of Arbitrary.
To give at present a general direction, in relation to the distinction between Necessary and Voluntary Laws, we shall reserve, that the Necessary Law being always obligatory with respect to conscience, a nation ought never to lose sight of it, when it deliberates on the part it is to take, in order to fulfil its duty; but when it is requisite to examine what it may require from other states, it ought to consult the Voluntary Law, the maxims of which are consecrated to the safety and advantage of universal society. — (Droit des Gens, Preliminaires.)
5. A Quasi-Legislature for Nations
EXTRACT FROM THE FINAL ACT OF THE SECOND INTERNA
TIONAL PEACE CONFERENCE AT THE HAGUE, 1907 Finally, the Conference recommends to the Powers the assembly of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding Conference, at a date to be fixed by common agreement between the Powers, and it calls their attention to the necessity of preparing the programme of this Third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition.
In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory Committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an International Regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested. This Committee should further be entrusted with the task of proposing a system of organization and procedure for the Conference itself.
NOTE. — This recommendation of the Hague Conference of 1907 is very important. Up to the present time (June, 1914), several states have appointed Committees of their own to study from the domestic point of view the questions which are likely to come before the third Peace Conference, of which the regulation of the laws and customs of naval war is probably the most urgent. This is excellent for a first step; but an international body is required for the comparison and correlation of the separate Reports of these Committees, as was done before the Naval Conference of London in 1908 by a few British officials assisted by M. Fromageot, the distinguished French jurist.