Volume I Part 1 (1/2)

International Law. A Treatise.

Volume I.

by La.s.sa Francis Oppenheim.

PREFACE

TO THE SECOND EDITION

The course of events since 1905, when this work first made its appearance, and the results of further research have necessitated not only the thorough revision of the former text and the rewriting of some of its parts, but also the discussion of a number of new topics. But while the new matter which has been incorporated has added considerably to the length of the work--the additions to the bibliography, text, and notes amounting to nearly a quarter of the former work--this second edition is not less convenient in size than its predecessor. By rearranging the matter on the page, using a line extra on each, and a greater number of words on a line, by setting the bibliography and notes in smaller type, and by omitting the Appendix, it has been found possible to print the text of this new edition on 626 pages, as compared with 594 pages of the first edition.

The system being elastic it was possible to place most of the additional matter within the same sections and under the same headings as before.

Some of the points treated are, however, so entirely new that it was necessary to deal with them under separate headings, and within separate sections. The reader will easily distinguish them, since, to avoid disturbing the arrangement of topics, these new sections have been inserted between the old ones, and numbered as the sections preceding them, but with the addition of the letters _a_, _b_, &c. The more important of these new sections are the following: -- 178_a_ (concerning the Utilisation of the Flow of Rivers); ---- 287_a_ and 287_b_ (concerning Wireless Telegraphy on the Open Sea); ---- 287_c_ and 287_d_ (concerning Mines and Tunnels in the Subsoil of the Sea bed); -- 446_a_ (concerning the Casa Blanca incident); ---- 476_a_ and 476_b_ (concerning the International Prize Court and the suggested International Court of Justice); ---- 568_a_ and 568_b_ (concerning the Conventions of the Second Hague Peace Conference, and the Declaration of London); -- 576_a_ (concerning Pseudo-Guarantees). Only towards the end of the volume has this mode of dealing with the new topics been departed from. As the chapter treating of Unions, the last of the volume, had to be entirely rearranged and rewritten, and a new chapter on Commercial Treaties inserted, the old arrangement comes to an end with -- 577; and ---- 578 to 596 of this new edition present an arrangement of topics which differs from that of the former edition.

I venture to hope that this edition will be received as favourably as was its predecessor. My aim, as always, has been to put the matter as clearly as possible before the reader, and nowhere have I forgotten that I am writing as a teacher for students. It is a matter of great satisfaction to me that the prophetic warnings of some otherwise very sympathetic reviewers that a comprehensive treatise on International Law in two volumes would never be read by young students have proved mistaken. The numerous letters which I have received from students, not only in this country but also in America, j.a.pan, France, and Italy, show that I was not wrong when, in the preface to the former edition, I described the work as an elementary book for those beginning to study the subject. Many years of teaching have confirmed me in the conviction that those who approach the study of International Law should at the outset be brought face to face with its complicated problems, and should at once acquire a thorough understanding of the wide scope of the subject. If writers and lecturers who aim at this goal will but make efforts to use the clearest language and an elementary method of explanation, they will attain success in spite of the difficulty of the problems and the wide range of topics to be considered.

I owe thanks to many reviewers and readers who have drawn my attention to mistakes and misprints in the first edition, and I am especially indebted to Mr. C. J. B. Hurst, C.B., a.s.sistant Legal Adviser to the Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign Office who gave me valuable information on certain points while I was preparing the ma.n.u.script for this edition. And I must likewise most gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have a.s.sisted me in reading the proofs and have prepared the table of cases and the exhaustive alphabetical index.

L. OPPENHEIM.

WHEWELL HOUSE, CAMBRIDGE, _November 1, 1911_.

CHAPTER I

FOUNDATION OF THE LAW OF NATIONS

I

THE LAW OF NATIONS AS LAW

Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, ---- 1-3, and Essays, pp. 1-36--Phillimore, I. ---- 1-12--Twiss, I. ---- 104-5--Taylor, -- 2--Moore, I. ---- 1-2--Westlake, I. pp. 1-13--Walker, History, I. ---- 1-8--Halleck, I. pp. 46-55--Ullmann, ---- 2-4--Heffter, ---- 1-5--Holtzendorff in Holtzendorff, I. pp. 19-26--Nys, I. pp.

133-43--Rivier, I. -- 1--Bonfils, Nos. 26-31--Pradier-Fodere, I.

Nos. 1-24--Merignhac, I. pp. 5-28--Martens, I. ---- 1-5--Fiore, I.

Nos. 186-208, and Code, Nos. 1-26--Higgins, ”The Binding Force of International Law” (1910)--Pollock in _The Law Quarterly Review_, XVIII. (1902), pp. 418-428--Scott in A.J. I. (1907), pp.

831-865--Willoughby and Root in A.J. II. (1908), pp. 357-365 and 451-457.

[Sidenote: Conception of the Law of Nations.]

-- 1. Law of Nations or International Law (_Droit des gens_, _Volkerrecht_) is the name for the body of customary and conventional rules which are considered legally[1] binding by civilised States in their intercourse with each other. Such part of these rules as is binding upon all the civilised States without exception is called _universal_ International Law,[2] in contradistinction to _particular_ International Law, which is binding on two or a few States only. But it is also necessary to distinguish _general_ International Law. This name must be given to the body of such rules as are binding upon a great many States, including leading Powers. General International Law, as, for instance, the Declaration of Paris of 1856, has a tendency to become universal International Law.

[Footnote 1: In contradistinction to mere usages and to rules of so-called International Comity, see below ---- 9 and 19.]

[Footnote 2: The best example of universal International Law is the law connected with legation.]

International Law in the meaning of the term as used in modern times did not exist during antiquity and the first part of the Middle Ages. It is in its origin essentially a product of Christian civilisation, and began gradually to grow from the second half of the Middle Ages. But it owes its existence as a systematised body of rules to the Dutch jurist and statesman Hugo Grotius, whose work, ”De Jure Belli ac Pacis libri III.,”

appeared in 1625 and became the foundation of all later development.