Nations or States are political bodies, societies of men who have united together and combined their forces, in order to procure their mutual welfare and security.
Such a society has its own affairs and interests; it deliberates and takes resolutions in common, and it thus becomes a moral person having an understanding and a will peculiar to itself, and susceptible at once of obligations and of rights.
§ 3. Definition of the law of nations.
The object of this work is to establish on a firm basis the obligations and rights of Nations. The Law of Nations is the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights.
It will be seen from this treatise how States, as such, ought to regulate their actions. We shall examine the obligations of a Nation towards itself as well as toward other Nations, and in this way we shall determine the rights resulting from those obligations; for since a rights is nothing else but the power of doing what is morally possible, that is to say, what is good in itself and conformable to duty, it is clear that right is derived from duty, or passive obligation, from the obligation of acting in this manner. A Nation must therefore understand the nature of its obligations, not only to avoid acting contrary to its duty, but also to obtain therefrom a clear knowledge of its rights, of what it can lawfully exact from other Nations.
§ 4. How nations or states are to be regarded.
Since Nations are composed of men who are by nature free and independent, and who before the establishment of civil society lived together in the state of nature, such Nations or sovereign States must be regarded as so many free persons living together in the state of nature.
Proof can be had from works on the natural law the liberty and independence belong to man by his very nature, and that they can not be taken from him without his consent. Citizens of a State, having yielded them in part to the sovereign, do not enjoy them to their full and absolute extent. But the whole body of the Nation, the State, so long as it has not voluntarily submitted to other men or other Nations, remains absolutely free and independent.
§ 5. To what laws nations are subject.
As men are subject to the law of nature, and as their union in civil society can not exempt them from obligation of observing those laws, since in that union they remain none the less men, the Nation, whose common will is but the outcome of the united wills of the citizens, remains subject to the laws of nature and is bound to respect them in all its undertaking. And since right is derived from obligation, as we have just remarked, a Nation has the same rights that nature gives to men for the fulfillment of their duties.
§ 6. The law of nations origin.
We must therefore apply to nations the rules of the natural law to discover what are their obligations and their rights; hence the Law of Nations is in its origin merely the Law of Nature applied to Nations. Now the just and reasonable application of a rule requires that the application be made in a manner suited to the nature of the subject; but we must not conclude that the Law of Nations is everywhere and at all points the same as the natural law, except for a difference of subjects, so that no other change need be made than to substitute Nations for individuals. A civil society, or a State, is a very different subject from an individual person, and therefore, by virtue of the natural law, very different obligations and rights belong to it in most cases. The same general rule, when applied to two different subjects, can not result in similar principles, nor can a particular rule, however just for one subject, be applicable to a second of a totally different nature. Hence there are many cases in which the natural law does not regulate the relations of States as it would individuals. We must know how to apply it conformably to its subjects; and the art of so applying it, whit a precision founded upon right reason, constitutes of the Law of Nations a distinct science.
§ 7. Definition of necessary law of nations.
We use the term necessary Law of Nations for what law which results from applying the natural law to Nations. It is necessary, because Nations are absolutely bound to observe it. It contains those precepts which the natural dictates to States, and it is no less binding upon them than it is upon individuals. For States are composed of men, their policies are determined by men, and these men are subject to the natural law under whatever capacity they act. This same law is called by Grotius and his followers the internal Law of Nations, inasmuch as it is binding upon the conscience of Nations. Several writers call it the natural Law of Nations.
§ 8. It is not subject to change.
Since, therefore, the necessary Law of Nations consists in applying the natural law to States, since the natural is not subject to change, being founded on the nature of things and particularly upon the nature of man, it follows that the necessary Law of Nations is not subject to change.
§ 9. Nations can not change it nor release themselves from its obligations.
Since this law is not subject to change and the obligations which it imposes are necessary and indispensable, Nations can not alter it by agreement, nor individually or mutually release themselves from it.
It is by the application of this principle that a distinction can be made between lawful and unlawful treaties or conventions and between customs which are innocent and reasonable and those which are unjust and deserving condemnation.
Thing which are just in themselves and permitted by the necessary Law of Nations may form the subject of an agreement by Nations or may be giving sacredness and force through practice and custom. Indifferent affairs may be settled either by treaty, if Nations so please, or by the introduction of some suitable custom or usage. But all treaties and customs contrary to the dictates of the necessary Law of Nations are unlawful. We shall see, however, that they are not always conformable to the inner law of conscience, and yet, for reasons to be given in their proper place, such conventions and treaties are often valid by the external law. Owing to the freedom and independence of Nations, the conduct of one Nation may be unlawful and censurable according to the law of conscience, and yet other Nations must put up with it so long as it does not infringe upon perfect rights. The liberty of a Nation would not remain complete if other Nations presumed to inspect and control its conduct; a presumption which would be contrary to the natural law, which declares every Nation free and independent of all other Nations.
§ 10. The society established by nature among all men.
Such is man’s nature that he is not sufficient unto himself and necessarily stands in need of the assistance and intercourse of his fellows, whether to preserve his life or to perfect himself and live as befits a rational animal. Experience shows this clearly enough. We know of men brought up among bears, having neither the use of speech nor of reason, and limited like beasts to the use of the sensitive faculties. We observe, moreover, that nature has denied man the strength and the natural weapons with which it has provided other animals, and has given him instead the use of speech and of reason, or at least the ability to acquire them by intercourse with other men. Language is a means of communication, of mutual assistance, and of perfecting man’s reason and knowledge; and, having thus become intelligent, he finds a thousand means of caring for his life an its wants. Moreover, every man realizes that he could not live happily or improve his condition without the help of intercourse with other men. Therefore, since nature has constituted men thus, it is a clear proof that it means them to live together and mutually to aid and assist one another.
From this source we deduce a natural society existing among all men. The general law of this society is that each member should assist the others in all their needs, as far as he can do so without neglecting his duties to himself-a law which all men must obey if they are to live conformably to their nature and to the designs of their common Creator; a law which our own welfare, our happiness, and our best interests should render sacred to each one of us. Such is the general obligation we are under of performing our duties; let us fulfill them with care if we would work wisely for our greatest good.
It is easy to see how happy the world would be if all men were willing to follow the rule we have just laid down. On the other hand, if each man thinks of himself first and foremost, if he does nothing for others, all will be alike miserable. Let us labor for the good of all men; they in turn will labor for ours, and we shall build our happiness upon the firmest foundations.
Since the universal society of the human race is an institution of nature itself, that is, a necessary result of man’s nature, all men of whatever condition are bound to advance its interests and to fulfill its duties. No convention or special agreement can release them from the obligation. When, therefore, men unite in civil society and form a separate State or Nation they may, indeed, make particular agreements with others of the same State, but their duties towards the rest of the human race remain unchanged; but with this difference, that when men have agreed to act in common, and have given up their rights and submitted their will to the whole body as far as concerns their common good, it devolves thenceforth upon that body, the State, and upon its rulers, to fulfill the duties of humanity towards outsiders in all matters in which individuals are no longer at liberty to act, and it peculiarly rests with the State to fulfill these duties towards other States. We have already seen (§ 5) that men, when united in society, remain subject to the obligations of the Law of Nature. This society may be regarded as a moral person, since it has an understanding, a will, a power peculiar to itself; and it is therefore obliged to live with other societies or States according to the laws of the natural society of the human race, just as individual men before the establishment of civil society lived according to them; with such exceptions, however, as are due to the difference of the subjects.
§ 12. The end of this society of nations.
The end of the natural society established among men in general is that they should mutually assist one another to advance their own perfection and that of their condition; and Nations, too, since they may be regarded as so many free persons living together in a state of nature, are bound mutually to advance this human society. Hence the end of the great society established by nature among all nations is likewise that of mutual assistance in order to perfect themselves and their condition.
§ 13. The general obligation which it imposes.
The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.
§ 14. Explanation of this obligation.
But as its duties towards itself clearly prevail over its duties towards others, a Nation owes to itself, as a prime as a consideration, whatever it can do for its own happiness and advancement. (I say whatever it can do, not meaning physically only, but morally also, what it can do lawfully, justly, and honestly.) When, therefore, a Nation can not contribute to the welfare of another without doing an essential wrong to itself, its obligation ceases in this particular instance, and the Nation is regarded as lying under a disability to perform the duty.
§ 15. Liberty and independence of nations, and general law.
Since Nations are free and independent of one another as men are by nature, the second general law of their society is that each Nation should be left to the peaceable enjoyment of that liberty which belongs to it by nature. The natural society of nations can not continue unless the rights which belong to each by nature are respected. No Nation is willing to give up its liberty; it will rather choose to break off all intercourse with those who attempt to encroach upon it.
In consequence of that liberty and independence it follows that it is for each Nation to decide what its conscience demands of it, what it can or can not do; what it thinks well or does not think well to do; and therefore it is for each Nation to consider and determine what duties it can fulfill towards others without failing in its duty towards itself. Hence in all cases in which it belongs to a Nation to judge of the extent of its duty, no other Nation may force it to act one way or another. Any attempt to do so would be an encroachment upon the liberty of Nations. We may not use force against a free person, except in cases where this person is under obligation to us in a definite matter and for a definite reason not depending upon his judgment; briefly, in cases in which we have a perfect right against him.
§ 17. Distinction of obligations and rights as internal and external, perfect and imperfect.
To understand this properly we must note that obligations and the corresponding rights produced by them are distinguished into internal and external. Obligations are internal in so far as they bind the conscience and are deduced from the rules of our duty; they are external when considered relatively to other men as producing some right on their part. Internal and imperfect obligations are always the same in nature, though they may vary in degree; external obligations, however, are divided into perfect and imperfect, and the rights they give rise to are likewise perfect and imperfect. Perfect rights are those which carry with them the right of compelling the fulfillment of the corresponding obligations; imperfect rights can not so compel. Perfect obligations are those which give rise to the right of enforcing them; imperfect obligations give but the right to request.
It will now be easily understood why a right is always imperfect when the corresponding obligation depends upon the judgment of him who owes it; for if he could be constrained in such a case he would cease to have the right of deciding what are his obligations according to the law of conscience. Our obligations to others are always imperfect when the decision as to how we are to act rests with us, as it does in all matters where we ought to be free.
Since men are by nature equal, and their individual rights and obligations the same, as coming equally from nature, Nations, which are composed of men and may be regarded as so many free persons living together in a state of nature, are by nature equal and hold from nature the same obligations and the same rights. Strength or weakness, in this case, counts for nothing. A dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom.
§ 19. Effect of this equality.
From this equality it necessarily follows that what is lawful or unlawful for one Nation is equally lawful or unlawful for every other Nation.
§ 20. Each is free to act as it pleases so far as its acts do not affect the perfect rights of others. A Nation is therefore free to act as it pleases, so far as its acts do not affect the perfect rights of another Nation, and so far as the Nation is under pleases so far merely internal obligations without any perfect external obligation. If it a, affect the abuse its liberty it acts wrongfully; but other Nations can not complain, since they have no right to dictate to it.
§ 21. Foundation of the voluntary law of nations.
Since Nations are free, independent, and equal, and since each has the right to decide in its conscience what it must do to fulfill its duties, the effect of this is to produce, before the world at least, a perfect equality of rights among Nations in the conduct of their affairs and in the pursuit of their policies. The intrinsic justice of their conduct is another matter which it is not for others to pass upon finally; so that what one may do another may do, and they must be regarded in the society of mankind as having equal rights.
When differences arise each Nation in fact claims to have justice on its side, and neither of the interested parties nor other Nations may decide the question. The one who is actually in the wrong sins against its conscience; hut as it may possibly be in the right, it can not be accused of violating the laws of the society of Nations. It must happen, then, on many occasions that Nations put up with certain things although in themselves unjust and worthy of condemnation, because they can not oppose them by force without transgressing the liberty of individual Nations and thus destroying the foundations of their natural society. And since they are bound to advance that society, we rightly presume that they have agreed to the principle just established. The rules resulting from it form what Wolf calls the voluntary Law of Nations; and there is no reason why we should not use the same expression, although we have thought it our duty to differ from that learned man as to how the foundation of that law should be established.
§ 22. Rights of nations against those who violate the law of nations.
The laws of the natural society of Nations are so important to the welfare of every State that if the habit should prevail of treading them under foot no Nation could hope to protect its existence or its domestic peace, whatever wise and just and temperate measures it might take. Now all men and all States have a perfect right to whatever is essential to their existence, since this right corresponds to an indispensable obligation. Hence all Nations may put down by force the open violation of the laws of the society which nature has established among them, or any direct attacks upon its welfare.
But care must be taken not to extend these rights so as to prejudice the these rights liberty of Nations. They are all free and independent, though they are so far bound to observe the laws of nature that if one violates them the others may restrain it; hence the Nations as a body have no rights over the conduct of a single Nation, further than the natural society finds itself concerned therein. The general and common rights of Nations over the conduct of a sovereign State should be in keeping with the end of the society which exists among them.
§ 24. Conventional law of nations, or law of treaties.
The various agreements which Nations may enter into give rise to new division of the Law of Nations which is called conventional, or the law of treaties. As it is clear that a treaty binds only the contracting parties the conventional Law of Nations is not universal, but restricted in character. All that can be said upon this subject in a treatise on the Law of Nations must be limited to a statement of the general rules which Nations must observe with respect to their treaties. The details of the various agreements between certain Nations, and of the resulting rights and obligations, are questions of fact, to be treated of in historical works.
§ 25. Customary law of nations.
Certain rules and customs, consecrated by long usage and observed by Nations as a sort of law, constitute the customary Law of Nations, or international custom. This law is founded upon a tacit consent, or rather upon a tacit agreement of the Nations which observe it. Hence it evidently binds only those Nations which have adopted it and is no more universal than the conventional law. Hence we must also say of this customary law that its details do not come within a systematic treatise on the Law of Nations, and we must limit ourselves to stating the general theory of it, that is to say, the rules to be observed in it, both as regards its effects and its substance. On this latter point these rules will serve to distinguish lawful and innocent customs from unlawful and unjust ones.
§ 26. General rule of this law.
When a custom or usage has become generally established either between all the civilized countries of the world or only between those of a given continent, Europe for example, or those which have more frequent intercourse with one another, if this custom be indifferent in nature, much more so if it be useful and reasonable, it becomes binding upon all those Nations which are regarded as having given their consent to it. They are bound to observe it towards one another so long as they have not expressly declared their unwillingness to follow it any longer. But if there be anything unjust or unlawful in such a custom it is of no force, and indeed every Nation is hound to abandon it, since there can be neither obligation nor authorization to violate the Law of Nature.
§ 27. Positive law of nations.
These three divisions of the Law of Nations, the voluntary, the conventional, and the customary law, form together the positive Law of Nations, for they all proceed from the agreement of Nations; the voluntary law from their presumed consent; the conventional law from their express consent; and the customary law from their tacit consent. And since there are no other modes of deducing a law from the agreement of Nations, there are but these three divisions of the positive Law of Nations.
We shall be careful to distinguish them from the natural or necessary Law of Nations, without, however, treating them separately. But after having established on each point what the necessary law prescribes, we shall then explain how and why these precepts must be modified by the voluntary law; or, to put it in another way, we shall show how, by reason of the liberty of nations and the rules of their natural society, the external law which they must observe towards one another differs on certain points from the principles of the internal law, which, however, are always binding upon the conscience. As for rights introduced by treaties or by custom, we need not fear that anyone will confuse them with the natural Law of Nations. They form that division of the Law of Nations which writers term the arbitrary law.
§ 28. General rule for the application of the necessary and the voluntary law.
In order from the start to lay down broad lines for the distinction rule between the necessary law and the voluntary law we must note that since the necessary law is at all times obligatory upon the conscience, a Nation must never lose sight of it when deliberating upon the course it must pursue to fulfill its duty; but when there is question of what it can demand from other States, it must consult the voluntary law, whose rules are devoted to the welfare and advancement of the universal society.
