sovereigns, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected." 1

The Conception of International Law under the League of Nations. From these conceptions of international law held from the time of Grotius down to the present time, what satisfying conclusions can be drawn? Can these older views be restated or harmonized in such a way that a student of international law may not be confused by a variety of conceptions of his science? And, finally, what conception best harmonizes with the underlying principles of the League?

It is evident at the outset that the view of Austin and those who hold that international law is not positive law must be discarded. One has only to cite that section of the Versailles Treaty which provides for the trial of certain Germans for the violation of the laws and customs of war to convince those who are inclined to doubt the existence of positive law for the nations. Additional evidence is furnished by the sanction article of the Covenant which provides punishment for those members who disregard the principles agreed to in the document (Article XVI). The inadequacy of the Austin view is well pointed out by the English writer, T. J. Lawrence. He shows that Austin's conception of law utilizes "one element only [that is, force] in the ordinary conception of law, elaborating it to the exclusion of the rest." Instead of making the definition of international law turn on force, Mr. Lawrence suggests that the universal desire for order should be the essential

1 Province of Jurisprudence, pp. 147-148. (London, 1832.)

2 See Article 4 of the new German constitution, footnote to Appendix VI. This article declares that the principles of international law are recognized as an integral part of the law of the German Commonwealth.

• International Law, p. 12 (Boston, 1900).

element in the definition. The underlying philosophy of the League of Nations is just that. The purpose of the League is to make international law the actual rule of conduct to the end that international order may be maintained. To accomplish this purpose it adopts certain sanctions which will be used as a last resort, but the desire for order as expressed by the public opinion of the world is the true and ultimate force which will sustain the League in its effort to maintain order through international law.

Public opinion is based on natural law which is that body of rules of justice and right which God the author of these rules unfolds to nations in their intercourse with one another. But these rules must be expressed. They cannot all be expressed at once; as nations progress, however, more and more of the natural laws are adapted as positive international laws. They are made known to all nations through the five methods of development of international law outlined elsewhere in this study. Until so expressed and made known, they are only potential. They are, to adapt the phrase of Phillimore, binding upon States in matters which, "previous to the introduction of custom and usage, might have been in their nature indifferent. Usage [and this last statement applies to the other methods of developing the law] is the effect and not the cause of the law." 2

1 Pp. 8-13.

2 International Law, I, Preface (1832); italics mine.

CHAPTER II

METHODS BY WHICH INTERNATIONAL LAW IS DEVELOPED

THERE are five methods by which international law comes into being: first, by agreement of eminent authorities upon a principle; second, by custom; third, by treaties; fourth, by judicial decisions; and fifth, by international congresses.

Writers. Concerning this method of developing the law, the observation of Triepel respecting the right of enemy merchantmen to oppose capture, is to the point: "Es ist hier wie so oft in unserer Diziplin gegangen: der Spätere schrieb von den Früheren ab, ohne sich viel Gedanken zu machen."

2

While the influence of learned writers upon the development of international law has been considerable, in the very nature of things their opinions can only aid in the slow process of developing the law. Particularly is this true regarding questions which are of a broad and complex nature or which involve national interest. In no better way can this point be illustrated than by a consideration of the opinions of authorities concerning the great law of angary which was applied by the Allied and Associated Powers, particularly the United States and Great Britain, when they took over 1,000,000 tons of Dutch shipping in

1 H. Triepel, "Widerstand feindlicher Handelsschiffe gegen die Aufbringung," Zeitschrift für Völkerrecht, VIII, p. 392.

2 Upon receiving some copies of Vattel's work on international law, Benjamin Franklin wrote in 1775 that it had come to him “in good season, when the circumstances of a rising State made it necessary frequently to consult the law of nations," and that the work "has been continually in hands of the members of our Congress now sitting." Wharton's Diplomatic Correspondence of the American Revolution, II, p. 64.

1918 during the World War. The range of opinions regarding this law extended from those denying entirely the right to apply the law, to those which held it might be applied even in case of a customary military necessity. Among sixty-eight authorities treating the subject, fifty were of the opinion that the law was applicable, while eighteen believed that it was not. Other examples of questions as to which wide difference of opinion exists among authorities is the obligation to ratify treaties, and the immunity of private property from capture at sea.

Custom. A rule of customary law may be described as a rule which is legally necessary and permissible and which develops from oft-repeated practices and procedure among the nations. The body of rules respecting ambassadors and ministers have largely developed by this method. The diplomatic privileges and immunities which these representatives enjoy are for the most part the outcome of a long historical and cumulative growth.

The international commission and administrative agencies develop customary international law. Speaking of the international commissions which served in connection with the making of the Versailles Treaty of 1919, Professor Charles H. Haskins of Harvard who served on the Saar Basin Commission said: "Considered at first as gatherers and sifters of evidence these commissions tended to acquire more responsibility and to make their reports in the form of draft articles for the treaty. The historian of the future will be able to compare the printed minutes and reports, and see how far they were followed." 2

While the temporary commissions thus actually wrote

1 J. E. Harley, "The Law of Angary," Am. Jour. Int. Law, April, 1919, p. 275. From a lecture delivered in Boston under the auspices of the Lowell Institute,

Jan. 6, 1920. Boston Evening Transcript, Jan. 7, 1920.

into the treaty principles, some of which will become international law by virtue of being agreed to by many nations, the more permanent commissions should, in the nature of the case, be more fruitful in developing principles of the law. After the Lower Danube Commission had been in operation for some time, the European Powers which took part in that commission declared that the arrangement relating to the administration of the river "henceforth forms a part of the public law of Europe and is placed under their guarantee." It is from the numerous commissions set up by the League Covenant and the Versailles Treaty that international law will derive many of its principles.

Treaties. The so-called conventional international law is developed by treaties. When treaties between a considerable number of nations, particularly the great Powers, substantially agree as regards a given subject, the principles so agreed on are soon regarded as international law. As in case of customary law, however, this method of developing the law is slow. Changing conditions develop needs which should be met before waiting for conventional law to be brought into being. Moreover, the conventional method is an inadequate way of attaining universal recognition of a rule. Carried to the extreme case, each Power would by this method have to make a treaty with every other Power, and if 48 Powers are considered, a total of 1128 treaties would have to be made.2

The network of conciliation treaties concluded by Mr. Bryan in 1913 and 1914 while he was Secretary of State went far on the road toward universality, but only

1 Edward Krehbiel, "The European Commission of the Danube," Polit. Sci. Quart. March, 1918, p. 38.

formula

If n is the number of Powers, the number of possible treaties is expressed by the n(n − 1)

2