Preambles and Recitals of a Declaratory Character. Powers of Europe who were not parties to the original $95. There may be exceptional cases in which articles of a Declaratory character are inserted in the Text of Public Acts of an International character, by the side of articles which are strictly the foundation of a Contract, and those Declaratory articles may apply to all Nations. Thus in the Final Act of the Congress of Vienna (9 June, 1815) several Declaratory Acts of one or more of the Powers assembled in Congress were in substance incorporated in the form of Articles, or formally recognised as if annexed in extenso. Amongst these the 109th Article may be specially referred to as expressly applicable to all Nations, which declares the navigation of all rivers, which traverse or separate the territories of the Powers which have signed the Treaty, to be free to all the world. "La navigation dans tout le cours des rivières indiquées dans l'article précédent, du point où chacun d'elles devient navigable jusqu'à son embouchure, sera entièrement libre, et ne pourra, sous le rapport de commerce, être interdite à personne, bien entendu que l'on se conformera aux réglemens relatifs à la police de cette navigation, lesquels seront conçus d'une manière uniforme pour tous, et aussi favorable que possible au commerce de toutes les Nations." 39 The Regulation, on the other hand, respecting the 38 It is most satisfactory to in contain the reference to Mr. Rutherforth's work, as well as Wheaton's three positions, are discarded, and their place is supplied by some general remarks which are more in accordance with the doctrine of Bynkershoeck. II. 39 Martens, Nouveau Recueil, p. 427. 40 rank of Diplomatic Agents which was incorporated in the General Act, is an instance of a provision virtually applicable to all Nations, but the Powers which agreed to the Regulation were extremely careful to disclaim any right to impose it upon other Powers. Again, in the Treaty of Paris, (30 March, 1856), Article XV is to this effect: "The Act of the Congress of Vienna having established the principles intended to regulate the navigation of rivers which separate or traverse different States, the Contracting Parties stipulate amongst themselves that those principles shall in future be equally applied to the Danube and its mouths. They declare that this arrangement henceforth forms part of the Public Law of Europe, and take it under their guaranty." of any such, be tions. § 96. Certain writers, both in England and in Objections France, have expressed a doubt how far the Rules of to the iden conduct which prevail amongst Nations can properly Law, as be regarded or spoken of as Laws, on the ground tween Nathat they are not prescribed by any superior Power. Thus Mr. Austin says," "that the Law of Nations obtaining between Nations is not Positive Law, for every Positive Law is set by a given Sovereign to a person or persons in a state of subjection to its author." He observes further, that, "the law obtaining between Nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions; by fear on the part of Nations, or by fear on the part of Sovereigns of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected." Mr. Austin accordingly considers that the science which is conversant with the positive rights and obligations 40 Art. CXVIII. 41 Austin on Jurisprudence, p. 208. Interna tional Morality dis of Nations should be styled the science of Positive International Morality. To a similar effect M. de Rayneval writes, "there can be no right (droit) where there can be no law (loi), and there is no law where there is no Superior; without law, obligations, properly so called, cannot exist; there is only a moral obligation resulting from natural reason; such is the case between Nation and Nation." He further says, that "law is a rule of conduct, deriving its obligation from sovereign authority, and binding only on those persons who are subject to its authority. Nations being independent of one another acknowledge no Sovereign from whom they can receive the Law (loi), and all their relative duties result from right or wrong, from convention or usage, to none of which can the term Law be properly applied." § 97. It is however not a valid objection to the existence of juridical relations between Nations, that tinct from they are not, like the domestic law of a State, defined Nations. by the Sovereign Power, or that they are not enforced the Law of by the executive authority of a political Superior. If those relations can be accurately defined howsoever, and can be enforced at all, they are not merely relations of Morality, but relations of Law. The History of the European Law of Nations shews that the more powerful Nations have, as occasion required, used their individual strength to enforce its rules, and that the less powerful Nations have combined their forces from time to time, and by their united strength compelled the more Powerful States to respect them. Such leagues for the enforcement of the reciprocal rights and obligations of Nations have been the means of maintaining a Balance of Power amongst the European 4 De Reyneval, Institutions du droit de la Nature et des Gens, L. I. p. 8. n. 10. Nations, whereby the independence of the weaker states is protected from aggression, and the observance of settled rules of intercourse amongst Nations is secured. Wherever a Rule of Conduct is thus capable of being enforced it ceases to be a mere Rule of Morality, binding on the conscience of men, and may in contradistinction be termed without risk of confusion a Rule of Law. 43 There are, however, many ques 44 tions between Nations which involve matters of International Morality, and the Rules of International Morality are supplemental to the Rules of International Law. Law may prevent wrong, but it cannot always secure right, and Morality here steps in to the aid of Law between Nations, precisely as it comes to the aid of Law between individual human beings. Mr. Chancellor Kent has well observed, "that the Law of Nations is a complex system, composed of various ingredients; it consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relation and conduct of Nations; of a collection of usages and customs, the growth of civilisation and commerce; and a code of Conventional and Positive Law. In the absence of these latter regulations, the intercourse and conduct of Nations are to be governed by principles fairly to be deduced 43 It appears to be a well founded distinction between Law and Morality, that wherever the sanctions of a rule of conduct are Physical, namely, wherever the sanction is fear of injury to person or property, the rule may be properly ranked under the head of Law; where the sanctions of a rule of conduct are only to be discovered in the human conscience, it is a rule of Mo rality as distinguished from Law. 44 Mr. Senior proposes to distinguish the Natural Law of Nations by the term International Morality, and to confine the term International Law to the rules of conduct, whether consistent or not with International Morality, which are sanctioned by the public opinion of Nations. Edinburg Review, LXXVII. p. 306. from the rights and duties of Nations and the nature of moral obligations; and we have the authority of lawyers of antiquity, and some of the first masters in the modern school of Public Law, for placing the moral obligations of Nations and of individuals on similar grounds, and for considering individual and national Morality as parts of one and the same Science."45 45 Kent's Commentaries of American Law. Part I. Lecture 1. |