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THE BINDING FORCE OF 
 INTERNATIONAL LAW 
 
CAMBRIDGE UNIVERSITY PRESS 
 
 ILottlron: FETTER LANE, E.G. 
 
 C. F. CLAY, Manager 
 
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THE BINDING FORCE OF 
 INTERNATIONAL LAW 
 
 INAUGURAL LECTURE IN INTERNATIONAL LAW AT 
 
 THE LONDON SCHOOL OF ECONOMICS AND 
 
 POLITICAL SCIENCE. SESSION 1910— ii 
 
 BY 
 
 A. PEARCE HIGGINS, M.A., LL.D. 
 
 Of Lincoln's Inn, Barrister-at-Law 
 
 Lecturer in Clare College, Cambridge 
 
 Lecturer on Public International Law at the London 
 
 School of Economics and the Royal Naval War College 
 
 » > • 
 
 Cambridge : 
 
 at the University Press 
 
 1910 
 
PRINTED BY JOHN CLAY, M.A. 
 AT THE UNIVERSITY PRESS 
 
 
^ 
 > 
 
 SYNOPSIS 
 
 Objections to International Law as law. What is International 
 Law ? Its origins : custom and treaties. Still in process of 
 development, incomplete in several departments. Reasons 
 for its observance, the social and political instincts of men. 
 The force of public opinion, diflSculties in concentration. 
 Public opinion and treaties, difficulties regarding their 
 termination, Russia in 1870, Austria in 1908. The observ- 
 ance of the laws of war. International Law has not 
 abolished w^ar. Cynicism and the growth of the power of 
 law. The moral basis of rules of law. Some weaknesses in 
 the present situation. War and diplomacy. The growth of 
 arbitrations and the increase in armaments. The present 
 a transition stage. The future of International Law; its 
 value as a unifying power; the education of nations; the 
 importance of the study of existing rules as a means to the 
 extension of the reign of law. Forces at work in this 
 direction. Backward position of study in Great Britain. 
 
 256538 
 
THE BINDING FORCE OF 
 INTERNATIONAL LAW 
 
 Rather more than twenty years ago, during 
 the course of a correspondence in the Times, 
 one of the writers remarked that International 
 Law was " all nonsense " and that " when we 
 are at war with an enemy he will do his best 
 to injure us; he will do so in what way he 
 thinks proper, all treaties and so-called Inter- 
 national Law notwithstanding." The same 
 correspondence also brought into prominence 
 the fact that some of the writers had very little 
 respect for " old-fashioned treaties, protocols 
 and other diplomatic documents."^ Some 
 few years previous to this correspondence a 
 French Admiral in an Article in the Revue des 
 deuxMondeshad spoken of "cette monstrueuse 
 association de mots : les droits de la guerre." 
 Clausewitz in his monumental work on war 
 also wrote of" self-imposed restrictions, almost 
 
 H. 1 
 
THE BINDING FORCE OF 
 
 imperceptible and hardly worth mentioning^ 
 termed the usages of international law." This 
 manner of looking at International Law is not 
 confined to any one class of the community. 
 International lawyers are told often enough 
 that the rules they expound have none of the 
 requirements of Positive Law, that apart from 
 rules based on treaties, the rest are merely 
 moral aspirations, and as for the treaties them- 
 selves, there is no permanence in them and no 
 power to enforce their observance. Now it may 
 be as well at once to admit that viewing Inter- 
 national Law from the standpoint of students 
 adopting the principles of Hobbes and Austin 
 it lacks the marks of Positive Law which they 
 predicate. There is no superior lawgiver (but 
 Hague Conferences contain the embryo of a 
 possible International legislature), no Inter- 
 national Court (though that deficiency is 
 gradually being made good), no International 
 policeman, no definite punishment for breaches 
 of the rules, self-help is the only remedy 2. 
 Notwithstanding the absence of these factors 
 I am prepared to contend that the body of 
 
INTERNATIONAL LAW 
 
 principles known as International Law, or the 
 Law of Nations, is fully entitled to the name of 
 Law, and that it is of binding force among the 
 nations of the civilised world. It is not perfect, 
 it is not complete, it is still in the making, but 
 its rudimentary principles are increasingly 
 appearing in more definite form. 
 
 What is International Law and whence are 
 its rules derived ? 
 
 International Law is 7iot a body of rules 
 which lawyers have evolved out of their own 
 inner consciousness : it is not a system care- 
 fully thought out by University Professors, 
 Bookworms, or other theorists in the quiet 
 and seclusion of their studies. It is a living 
 body of practical rules and principles which 
 have gradually come into being by the custom 
 of nations and international agreements. To 
 the formation of these rules, Statesmen, Diplo- 
 matists, Admirals, Generals, Judges and pub- 
 licists have all contributed. It is also of 
 comparatively modern origin, for the existing 
 state system of the world dates in effect from 
 the end of the Middle Ages. So long as the 
 
 1—2 
 
THE BINDING FORCE OF 
 
 states of Europe acknowledged the supremacy 
 of a great world power, whether the spiritual 
 domination of the Papacy or the temporal 
 overlordship of the Emperor, there was no 
 possibility of the existence of a system of 
 International Law, but with the Reformation 
 and the termination of the wars of religion in 
 the middle of the 17th century, and the com- 
 ing into being of a large number of indepen- 
 dent sovereign states freed from the trammels 
 of religious and political obedience to external 
 authority, Pope or Emperor, the principles 
 which Glrotius and other writers had advocated 
 became capable of realisation. The way was 
 opened for the Supremacy of a new power, 
 the Reign of Law. 
 
 Rules for the mutual intercourse of states 
 came into being, principles which they would 
 observe in the acquisition of territory, in the 
 conduct of negotiations, and even rules for the 
 great struggle of war gradually were evolved. 
 
 The earlier writers assumed an ethical 
 basis for the existence of the rules. Natural 
 Law or the Law of God, the jus gentium 
 
INTERNATIONAL LAW 
 
 of the Eoman Law and the principles of 
 morality were appealed to as the basis of 
 the rules of conduct of states. Reason, ex- 
 pediency, custom and convention have all 
 played their part in the erection of the edifice 
 we are considering. The building is not yet 
 complete, its parts are sometimes disconnected, 
 portions of it are only in skeleton, but its 
 foundations have been laid, the plan prepared, 
 and it is for the future to complete the erec- 
 tion and fill the Courts of the Temple of 
 Justice. 
 
 International Law is then the law of the 
 society of states, for independence and inter- 
 dependence were soon found to be correlative. 
 The notion of a family of nations, of a society 
 of states, which has long been accepted, first 
 by the Christian Powers of Europe and sub- 
 sequently by other Powers, carried with it the 
 need for intercommunication and for rules for 
 their mutual transactions, rules — the observ- 
 ance or non-observance of which marked a 
 state as being a good or bad member of the 
 international family. At first they were inde- 
 
6 THE BINDING FORCE OF 
 
 finite; states laid down rules for their own 
 guidance, and these were dictated by policy. 
 They were not internationally binding. Several 
 states adopted the same or similar rules, an 
 international usage was found to be in process 
 of formation ; the smaller states followed the 
 example set by their more powerful neigh- 
 bours and gradually a custom was formed and 
 that custom became a rule of binding force. 
 Custom is the prime source of International 
 Law. We need not seek to go behind it nor 
 ascertain its causes ; when once a practice is 
 shown to be of general acceptance among the 
 nations of the world we have a rule of customary 
 International Law. 
 
 But custom was not sufficient for all cases, 
 and treaties for special practices between some 
 states were entered into. Gradually others 
 would agree in like manner, and later there 
 might come into being a treaty to which many 
 states were parties whereby special rules were 
 stipulated for, and provision made for the 
 accession of non-signatory states. It is only 
 necessary to mention as an example the De- 
 
INTERNATIONAL LAW 
 
 claration of Paris of 1 856. Thus gradually, by 
 means of custom and convention, there has 
 come into being a body of '' rules of conduct 
 which modern civilised states regard as being 
 binding on them in their relations with one 
 another with a force comparable in nature and 
 degree to that binding the conscientious person 
 to obey the laws of his country."^ 
 
 But much remains to be done before all 
 departments of state life are duly provided with 
 rules of general acceptance, and this is especi- 
 ally true in relation to war and its cognate 
 subject of neutrality. Meantime, can it be 
 seriously contended that the rules, the origin 
 of which I have rapidly and slightly sketched, 
 have no binding force, and cannot be dignified 
 by the name of Law? What are the rules 
 which for weeks were being discussed and 
 argued with matchless skill and ability by the 
 ablest lawyers of Great Britain, Canada and 
 the United States before the Hague Tribunal 
 during the course of this summer if they are 
 not recognised as being of legal binding force ? 
 Again, every Foreign Office of the world is 
 
8 THE BINDING FORCE OF 
 
 daily engaged in endeavouring to convince 
 some other that the rules of International 
 Law require that certain courses of action 
 shall be taken, or that certain acts must not 
 be done. And these endeavours are nearly 
 always successful. 
 
 Furthermore, when unfortunately two 
 states find it impossible to continue to dis- 
 cuss some point in dispute between them in 
 a friendly manner, and have recourse to the 
 arbitrament of the sword, even then the old 
 Eoman maxim of silent leges inter arma no 
 longer holds good ; for the great international 
 duel between the combatants is governed by 
 settled rules which, in the main, are well ob- 
 served in modern times ; any alleged infraction 
 of these rules is at once strongly resented, and 
 the party accused of such breach immediately 
 endeavours to justify its action by reference 
 to conventions, publicists and custom. The 
 manifestoes which it has become the practice 
 for states to issue to the world at the outbreak 
 of war or when they are about to undertake 
 some enterprise which is likely to raise hostile 
 
INTERNATIONAL LAW 9 
 
 criticism on the part of the others, are in fact 
 the pleadings of such states before the Tribunal 
 of the world's opinion, from which they hope 
 to win a favourable verdict, and to avoid the 
 consequences of violating it. 
 
 The time has long passed since every 
 state was a law unto itself, and did what 
 seemed right in its own eyes. Licence has 
 given place to international liberty within the 
 law. States have brought themselves within 
 the limits of rules which they have voluntarily 
 adopted. Peace is the normal, war the ab- 
 normal, condition of the world, but both come 
 under the dominion of the law of nations. 
 
 There are however still many divergent 
 practices, and not every alleged breach of 
 International Law attributed to a state is 
 really so. This is especially true of practices 
 in maritime war, both those which have regard 
 to belligerents and neutrals, though even here 
 order is gradually appearing, and should the 
 results of the Hague and London Conferences 
 meet with general acceptance the weaknesses 
 of these departments of International Law will 
 
10 THE BINDING FORCE OF 
 
 to a great degree be removed. It is especially 
 necessary that Englishmen should remember 
 that the rules of neutrality which we have 
 observed, and the practices of maritime war 
 which have been sanctioned by our Prize 
 Courts, are not all of universal acceptance. 
 We should hesitate before we stigmatise as a 
 law breaker every state whose practice is not 
 in accordance with our own, though we may 
 wish that it were. 
 
 In endeavouring to ascertain the reasons 
 why International Law is on the whole well 
 observed, and I am going to assume that it is, 
 the different parts might be separated, but 
 there are certain general observations which 
 are applicable to the whole body of rules. 
 
 Man is a gregarious animal, his instincts 
 are social, and with the development of the 
 race they become political. As in the case 
 with separate collections of men which we 
 call states or nations, so in the case of the 
 aggregation of these collective masses, man 
 has found his fullest development to lie in 
 subordination to rules of law. Men often 
 
INTERNATIONAL LAW 11 
 
 voluntarily band themselves together for social, 
 political and religious purposes, and both the 
 philosopher and the religious teacher have 
 seen the need for rules to regulate these 
 associations. The punishment for breach of 
 the rules may be social ostracism, or religious 
 excommunication. Force is unnecessary to 
 procure the observance of the rules of such 
 associations. Men and states which are 
 collections of men actuated by the passions 
 and motives of the individuals composing 
 them desire to have the approbation and good 
 will of their fellows. Isolation is feared, not 
 only because it means weakness and renders 
 the individual or state open to attack but 
 also because of an inherent desire to take 
 part in movements affecting the general 
 evolution of the race. The consensus of the 
 opinion of the world moves in a certain 
 direction : there is a mysterious action and 
 reaction at work among states as amongst 
 individuals. Both alike recognise that the 
 sum of the opinions of a mass has a force 
 which is mighty in volume and cannot event- 
 
12 THE BINDING FORCE OF 
 
 ually be ignored. The social forces of the 
 world are more and more becoming organised, 
 directed and regulated, and the pressure of 
 the public opinion of the world cannot if it 
 be steadily persevered in and directed be 
 resisted in the long run. This public opinion 
 may be slow to assert itself in a given case, 
 the question at issue between two states may 
 be one which it is difficult for the world at 
 large to appreciate, but unless it be one which 
 the world-opinion recognises as containing 
 vital issues for the states involved, that opinion 
 is more persistently demanding that recourse 
 be had to the peaceful settlements of disputes 
 by arbitration which the Hague Conferences 
 or Treaties have provided. Even in the most 
 vital cases, attempts are made by mediation 
 and good offices to avoid a breach of the 
 world's peace ^. 
 
 The factors which produce a world-opinion 
 are difficult to analyse, all moral forces are. 
 There are popular and unpopular litigants in 
 the world's forum as there are in our own law- 
 courts. The ethical basis of International 
 
INTERNATIONAL LAW 13 
 
 Law on which the older publicists founded 
 their system has been discarded by modern 
 writers ; it cannot be taken as a legal basis, 
 but as a material or historical source of the 
 rules which have been accepted in practice 
 it is of considerable importance. It took a 
 long time for the world-opinion to condemn 
 slavery and the slave trade, and to this day 
 the tenderness of some states, in regard to any 
 interference with their flags, hinders the work 
 of those who, under international convention, 
 are engaged in suppressing it on the coasts 
 of Africa. The conscience of the world is 
 slow in responding to the demands of those 
 who call for the full and complete observance 
 of the rights given by treaty to the natives of 
 the Congo ; there are still suspicions in the 
 minds of many that disinterested action is 
 impossible in the domain of international 
 politics. The irresistible force of public 
 opinion often takes a long time to concentrate 
 on any given international question, whether 
 it be one of politics or law, the two are 
 seldom separate, and it is just this difficulty 
 
14 THE BINDING FORCE OF 
 
 on which astute politicians seize. They 
 endeavour to divert it into various little 
 channels and so prevent it flowing in one 
 mighty stream which would be able to over- 
 throw and sweep away all obstacles to the 
 fulfilment of its purposes. It is however 
 just this force which in the end secures in the 
 vast majority of cases the observance of the 
 regularly accepted and settled rules of Inter- 
 national Law ; it is the fear of the consequences 
 of violating the world's opinion which nearly 
 always causes a state ultimately either to 
 abate its demands, or to agree to submit them 
 to arbitration. 
 
 All law must recognise that its own 
 permanence in a given form is an impossibility. 
 Treaties and conventions are made to be 
 observed, but there comes a moment when 
 even they no longer answer to the existing 
 facts. State organisms accommodate them- 
 selves to changes in the economic condi- 
 tions of the people for whom they exist, and 
 International Law was made for nations, not 
 nations for International Law. Changes must 
 
INTERNATIONAL LAW 15 
 
 occur from time to time in the contractual 
 relations of states, and it is in regard to the 
 abrogation and denunciation of treaties that 
 difficult questions arise. It is extremely hard 
 to lay down comprehensive rules for the 
 continuance of treaties or for the circum- 
 stances of their denunciation, and political 
 movements sometimes produce occurrences 
 in international relations which call for repro- 
 bation on the part of all who are desirous of 
 maintaining the obligatory force of the rules 
 of International Law. States with whom 
 treaties have been made are justified in 
 strongly protesting when other states break 
 their plighted word without first attempting 
 to obtain the release by consent from their 
 contractual obligations. Two striking cases 
 have occurred within the past 40 years. In 
 1870 when France and Germany were engaged 
 in a conflict which left them both helpless to 
 take any part in the political movements in 
 Europe, Eussia took the opportunity to 
 denounce a portion of the Treaty of Paris to 
 which she, in common with the Great Powers 
 
16 THE BINDING FORCE OF 
 
 of Europe, was a party. In 1908 the world 
 was startled by the announcements made 
 almost simultaneously by the Emperor-King 
 of Austria-Hungary and the Prince of Bulgaria, 
 whereby important portions of the Treaty of 
 Berlin were denounced. In neither case was 
 there any preliminary attempt to obtain 
 release from the provisions of treaties to 
 which many other states were parties. In 
 the first case, in consequence of the strong 
 protest of the Powers, Russia receded from 
 the position she had taken up, a conference 
 was held and the concession she sought was 
 granted : the law was vindicated. In the 
 second case protests were also made by most 
 of the Foreign Offices of Europe, the Austrian 
 action was undoubtedly condemned by the 
 public opinion of the greater part of the 
 world, there had been a breach of law, but 
 the moral forces at work were sufficiently 
 strong and concentrated to compel amends 
 to be made for the injured amour propre of 
 Turkey as well as the payment of pecuniary 
 compensation. In both of these cases the 
 
INTERNATIONAL LAW If 
 
 countries in question issued the usual explana- 
 tory statements as to their proceedings and that 
 distinguished Austrian jurist, Dr Lammasch, 
 who has recently presided with so much 
 dignity and ability over the Anglo-American 
 Fishery Arbitration Tribunal, addressed a 
 striking letter to the Times appealing on 
 legal grounds to the public opinion of this 
 country on behalf of the Austrian annexation 
 of Bosnia-Herzegovina. But the public law 
 of Europe had been violated and the verdict 
 of the world was given against the state 
 guilty of the breach of law. Such occurrences 
 as I have just cited are evidences of the fact 
 that International Law is not always observed, 
 and as Hall says " render it more necessary 
 than ever that jurists should use with greater 
 than ordinary care such small influence as 
 they may have to check wrong and to point 
 out what is right." But if public opinion 
 cannot always ensure the observance of the 
 law, it can generally produce an amelioration 
 in the situation which its breach has caused^. 
 Of course it may happen that the world's 
 
18 THE BINDING FORCE OF 
 
 opinion is indifferent, it may deem the change 
 to be inevitable, and one long foreseen, and 
 recognise that a new situation and nomen- 
 clature only register pre-existing facts, and 
 that mere state-paper rights must yield in the 
 end to the inexorable law of facts. No one 
 has accused Japan of breaking the law in the 
 gradual steps by which the Empire of Korea 
 has finally become the Province of Cho Sen in 
 the Japanese Empire. 
 
 There is on the other hand the third 
 alternative ; the pressure of public opinion 
 may not be felt to be a sufficiently strong 
 deterrent and nothing short of war or the 
 threat of war may compel a state to submit 
 to a revision of arrangements it has made 
 irrespective of other states which claim to be 
 interested parties. It was thus that Russia 
 in 1877 was prevented from reaping the 
 complete fruits of her victory over Turkey, 
 when the Great Powers compelled the cancel- 
 lation of the Treaty of San Stefano and the 
 substitution therefor of the Treaty of Berlin. 
 
 Turning to another department of Inter- 
 
INTERNA TIONAL LA W 19 
 
 national Law it may well be asked what it is 
 which, even when the blood is up and war 
 grim, hideous and sombre holds the field, 
 causes admirals and generals to refrain from 
 certain practices, and to carry out conventions 
 made with their adversaries it may be years 
 previous to the outbreak of war ? The Geneva 
 Convention, the Declaration of Paris, even the 
 Declaration of Brussels though never ratified 
 by the Powders have in fact been observed by 
 belligerents, and I have little doubt that the 
 newer conventions of the Hague, and the 
 Declaration of London, if ratified, — and even 
 if unratified, as to its main principles — will 
 be observed in any future war. Why? Be- 
 cause in a large number of the cases to which 
 they apply their provisions were actually rules 
 of warfare evolved by Commanders themselves 
 before they were embodied in conventions, 
 while in those parts which are new, the 
 combatants themselves recognise that their 
 state's credit is at stake and that these 
 conventions were made in their interests and 
 the interests of humanity. Their representa- 
 
 2—2 
 
20 THE BINDING FORCE OF 
 
 tives assisted in the Conferences wherein 
 these conventions were prepared, and they 
 took care to leave them sufficiently elastic on 
 those points where no doctrinaire can dog- 
 matise. The qualification added to certain 
 rules such as ''so far as circumstances 
 permit," "if possible," and so forth, "are in 
 reality a safety-valve, intended," says Blunt- 
 schli, "to preserve the inflexible rule of law 
 from giving way when men's minds are over- 
 heated in a struggle against all sorts of 
 dangers." 
 
 The world viewed with horror the lot of 
 sick, w^ounded and prisoners, its conscience 
 was aroused and a few humanitarians who 
 combined zeal with discretion were enabled 
 to obtain the formulation of definite proposals 
 which appealed to the Governments and 
 armies of the world. "Men of nations readily 
 
 disunited and opposed are as a rule, all 
 
 of one mind as to the principles of Interna- 
 tional Law" (to quote again the great German 
 jurist). "That is what makes it possible 
 to proclaim an International Law of war, 
 
INTERNATIONAL LAW 21 
 
 approved by the legal conscience of all 
 civilised peoples: and when a principle is 
 thus generally accepted, it exerts an authority 
 over minds and manners which curbs sensual 
 appetites and triumphs over barbarism."® 
 
 Neither the laws of war or neutrality are, 
 however, perfect. The latter especially are 
 based on compromise and still leave room for 
 divergent practice in many directions. This 
 large body of rules is probably destined to 
 play a considerable part in any future war, 
 especially should it be of a naval character ; 
 but, if the International Prize Court becomes 
 an actual fact, the last word on their observ- 
 ance in naval warfare will be spoken by a 
 court, free from national bias and prejudices, 
 and administering the law in the same way as 
 judges in national courts. 
 
 International Law is made to be observed; 
 good faith is postulated in all international 
 dealings, it is a duty flowing from the pos- 
 session by states of a moral nature. It is not 
 conceivable that states would have sent 
 delegates to sit for weeks at the Hague 
 
22 THE BINDING FORCE OF 
 
 Conferences if they had secretly determined 
 that the rules which their plenipotentiaries 
 adopted were to be blown to pieces by the 
 first shot fired in war. 
 
 The fact that war has not been abolished 
 and rendered impossible is sometimes ad- 
 duced to the discredit both of Hague 
 Conferences and International Law. But in 
 my opinion this is not a legitimate deduction. 
 Hague Conferences, International Parliamen- 
 tary Unions, Federations, Unions of Workers, 
 and such-like gatherings all conduce to a 
 growing feeling of solidarity among the 
 nations of the w^orld, and tend to create an 
 atmosphere in which the observance of the 
 rules of International Law will be increas- 
 ingly easy to be realised. But as yet I see no 
 prospect of perpetual peace. International 
 Law is developing, but has not yet reached 
 the fulness of development of national laws. 
 " We have not yet eliminated the elements of 
 disorder from our own national life," even the 
 presence of the policemen and the existence 
 of the gallows have not made murder im- 
 
INTERNATIONAL LAW 23 
 
 possible or unknown among us, neither is 
 punishment always the certain consequence 
 of crime. " The preponderance of order over 
 anarchy is all that has been attained in one 
 case, and all that I hope for in another," says 
 the late Professor Lorimer, who was no 
 pessimist, "beyond this, human will as yet 
 appears to be as impotent as when brought 
 into conflict with the destructive forces of 
 physical nature."'^ Federations, leagues, asso- 
 ciations, societies, unions can all contribute 
 something towards the binding force of 
 International Law. Their leaders can be the 
 apostles of law, and of morality which makes 
 law, they may assist in preserving the peace 
 of the world, but it must be borne in mind 
 that war and international law are not incon- 
 sistent^. Peace and war are alike governed 
 by law. 
 
 It is easy enough to point out the failures 
 of International Law and to speak of Hague 
 Conferences as " Fiascos." No sensible person 
 expects that the Millennium will come in his 
 own time, and no good, nay, considerable 
 
J 
 
 24 THE BINDING FORCE OF 
 
 harm, may be done by belittling the attempts 
 which are being made to extend the empire 
 of law, and to remove causes of strife among 
 the peoples of the world. Cynicism is not a 
 helpful attitude to assume in regard to either 
 national or International Law, it is fatal to all 
 progress. Imagination and idealism which 
 will enable the present generation to dream 
 dreams so that their children and their 
 children's children shall see visions are the 
 needful equipment for those who labour for 
 the extension of the reign of law among the 
 nations of the world. The value of law it is 
 true diminishes in proportion as the need for 
 its existence ceases. We have not yet got 
 the end in sight. Much remains to be done. 
 Economic causes both produce the observance 
 and breaches of the law of nations. Material 
 ends are still the determining factors in state 
 life. Breaches of International Law can be 
 rendered increasingly difficult only by the 
 steady maintenance of the international 
 ideal. 
 
 The nations of the international society 
 
INTERNA TIONAL LA W 25 
 
 are widely different in race, language, religion, 
 civilisation, but all alike acknowledge their 
 allegiance to the body of laws which has 
 gradually grown up to regulate their mutual 
 dealings. In support of this statement it is 
 only necessary to mention the great net-work 
 of treaties on such subjects as arbitration, 
 copyright, patents, money, railways, posts and 
 telegraphs, which increased facility of com- 
 munication and the growth of international 
 trade have called into being. The acknow- 
 ledgment of the obligation to conform to the 
 requirements of International Law provides a 
 true connecting link, a real bond, a unifying 
 power, stronger than any other for which we 
 can hope. It is an obligation which has not 
 been imposed by external authority, but has 
 arisen among the nations themselves who re- 
 cognise and revere the universal virtues of 
 good faith and justice. It was owing to the 
 appeal which Grotius and the early writers on 
 this subject made to what was called " natural " 
 law that their doctrines found acceptance. 
 They provided a common platform on which 
 
26 THE BINDING FORCE OF 
 
 the Christian Powers of Europe could meet, 
 they spoke a language all understood, and 
 appealed to moral principles which all acknow- 
 ledged. There is a splendid passage in Sir 
 James Fitzjames Stephen's Liberty , Equality 
 and Fraternity, which Sir Henry Maine quotes 
 in this connection. " The sources of religion 
 lie hid from us. All that we know is, that now 
 and again in the course of ages some one sets 
 to music the tune which is haunting millions 
 of ears. It is caught up here and there, and 
 repeated till the chorus is thundered out by a 
 body of singers able to drown all discords and 
 to force the vast unmusical mass to listen to 
 them. Such results as these come not by 
 observation, but when they do come they 
 carry away as with a flood and hurry in their 
 own direction, all the laws and customs of 
 those whom they affect." Maine then goes on 
 to say that what is here said of religion is in a 
 sense true of morality. That moral ideas tend 
 sooner or later to produce a set of legal rules. 
 International Law was founded on morality 
 under the form of a supposed law of Nature 
 
INTERNATIONAL LAW 27 
 
 and was received with enthusiasm^. It has 
 extended from the Christian nations among 
 whom it originated to others whose systems 
 of morals and religions had a different basis, 
 and to-day the causes for its original accept- 
 ance are not infrequently lost sight of 
 
 Politics and law however are not always 
 found to be compatible even in ordinary civil 
 life, and there are certain political aspirations 
 of states which cannot or will not submit to 
 the curbing and restraining power of law and 
 public opinion for its sanction. States en- 
 deavour to make their demands conform to 
 legal principles, for all have learnt that to draw 
 the sword hastily on behalf of claims, however 
 strongly they may be supported by the na- 
 tional will, involves losses which no war- 
 indemnity can make good. There are times 
 when ambitions or irresistible laws of expan- 
 sion cause a state to conduct its negotiations 
 with the pen in one hand and the sword in the 
 other. There are times also when a nation 
 will be compelled to have recourse to force 
 against the unjust oppression of a powerful 
 
28 THE BINDING FORCE OF 
 
 state. There are also wars without the rattle 
 of the cannon, and decisive victories without 
 the firing of a gun. We have not yet got 
 away from the region of force as the ultimate 
 power behind the demands of a nation bent 
 on carrying through a given policy, or warding 
 off an anticipated injury, real or fancied. 
 Diplomatic negotiations have been likened to 
 paper-money, valuable as long as there is a 
 sufficient gold-reserve, but useless without a 
 supply of bullion. This fact cannot be over- 
 looked by all who take account of the forces 
 working within the family of nations ; I do not 
 desire to lay too great stress on this point, but 
 it cannot be neglected in any discussion of this 
 subject. War still remains as an instrument 
 of policy, it " is only a continuation of state 
 policy by other means," writes Clausewitz'°, and 
 there have been in the past and will be in the 
 future occasions when force and not reason 
 will be the deciding fact in international dis- 
 putes. Arbitration as a means of settling 
 disputes is, happily, largely on the increase, 
 and although the public opinion of the world 
 
INTERNATIONAL LAW 29 
 
 may not be able to appreciate in all its bear- 
 ings a dispute between two Powers, it can 
 appreciate the position of, and will with in- 
 creasing severity condemn, that Power which 
 refuses to allow the peaceful application of 
 the law of nations by an international tri- 
 bunal. 
 
 The past decade has witnessed two striking 
 features in the international situation which 
 are not without influence in regard to the 
 future of International Law. On the one hand 
 there has been a great growth in the number 
 of arbitration treaties between the Powers of 
 the world, and a great increase in resort to 
 arbitration. The Permanent Court established 
 at the Hague by the first Peace Conference of 
 1899 has been appealed to by nearly all the 
 great Powers of the world, and long standing 
 disputes have been referred to it for a peace- 
 ful solution. It is true that with one or two 
 notable exceptions all the arbitration treaties 
 exclude from their operation questions affect- 
 ing the honour and vital interests of the 
 parties, and it is left to each state to say what 
 
30 THE BINDING FORCE OF 
 
 disputes come under this designation. Pre- 
 sident Taft has recently stated that personally 
 he did not see any more reason why matters 
 of national honour should not be referred to a 
 Court of Arbitration than matters of property 
 or of national proprietorship. But this, he 
 admits, is going further than most men are 
 prepared to go ; still the idea of a Court of 
 Honour, not unknown in countries where the 
 duel still holds sway, represents an aspiration 
 for which men may well work.^^ The other 
 feature is, however, of a very different cha- 
 racter. There has been a large and continuous 
 growth in the expenditure of nations on arma- 
 ments and military budgets. Between the 
 years 1898 and 1906 the military expenditure 
 of Europe, the United States and Japan in- 
 creased from £251,000,000 to £320,000,000, 
 and it has been growing since. 
 
 These two facts are of striking importance 
 and not easy to reconcile. Arbitration treaties 
 and resort to arbitration are increasing. Peace 
 and Conciliation Societies are flourishing, and 
 at the same time every nation is having its 
 
INTERNA TIONAL LAW 31 
 
 resources continuously drawn upon for the 
 maintenance of armies and navies and pre- 
 paration for war. All Europe is living in 
 armed camps. 
 
 In considering the binding force of Inter- 
 national Law, its sanction and future develop- 
 ment, neither of these two factors in the 
 situation must be dwelt upon exclusively, but 
 to neglect either is to take a partial, biassed 
 and unsound view of the situation. They 
 represent a definite stage in the development 
 of the progress of opinion. States now 
 recognise that in the vast majority of cases, 
 it is to their advantage and that of the world 
 at large that disputes should be settled by 
 the peaceful application of the rules of law, 
 but as yet they are not prepared to bring all 
 possible causes of difference within its sphere. 
 The peaceful settlement of disputed questions, 
 and the forcible but regulated self-redress 
 by war exist side by side, both are governed 
 by the rules of International Law. How long 
 will the situation continue ? Will a peaceful 
 solution of disputes ultimately be the only 
 
32 THE BINDING FORCE OF 
 
 solution? I do not presume to offer any 
 prophetic reply to the first of these questions, 
 but as regards the second, if the analogy 
 between the growth of municipal law and 
 International Law may be relied on, the 
 peaceful settlement of disputes will tend 
 to increase, and reason be substituted for 
 force. But even this advance in civilisation 
 will not necessarily mean the advent of an 
 era of perpetual peace ; war will remain as 
 long as evil and injustice continue. " We 
 should believe in the abolition of war only if 
 we believed that some day no criminals will 
 be left and that all the prisons will be closed, 
 and that some day sincere differences of 
 opinion in matters of principle will be impos- 
 sible," says a writer in a recent number of the 
 Spectator in an Article on the late Professor 
 James' paper on ''The Moral equivalent of 
 War." 
 
 Meantime everyone interested in the 
 maintenance of peace, towards which Inter- 
 national Law certainly tends, will welcome the 
 evidence afforded by the growth of agencies 
 
INTERNA TIONAL LA W 33 
 
 assisting to this end. Every reference to 
 arbitration, and every acceptance of an 
 arbitral award, every convention clearing up 
 difficulties and laying down definite rules for 
 future cases, is a step in the progress of legal 
 methods and aflfbrds further proof of the 
 binding force of International Law. Perhaps 
 the most noteworthy triumph of the spirit of 
 conciliation and respect for law was seen 
 when the dispute between this country and 
 Kussia over the Dogger Bank incident was 
 settled by the peaceful method of a Commission 
 of Enquiry under the Hague Convention. 
 The recent decision of the Hague Tribunal 
 putting an end in a peaceful and juridical 
 manner to a dispute of over a century's 
 standing between Great Britain and the 
 United States of America is another striking 
 testimony to the growth of the law-abiding 
 spirit. Until, however, the conscience, not or 
 a few states, but of all states, is elevated to 
 that of the highest thinkers among them, and 
 so long as civilisation is in varying degrees 
 of development in the countries forming the 
 
 H. 3 
 
34 THE BINDING FORCE OF 
 
 family of nations, we shall have to take into 
 account the existence of armaments as forces 
 both assisting in the maintenance of inter- 
 national peace, enforcing the rules of Inter- 
 national Law, righting wrongs and procuring 
 the acceptance of the decrees of international 
 tribunals. It was in this line of thought that 
 Mr Roosevelt, whose devotion to the cause of 
 peace has been so signally recognised by the 
 award of the Nobel Peace Prize, was led to 
 make the following observation at Christiania 
 on the occasion of the presentation to him of 
 that Prize. After advocating the formation 
 of a League of Peace among the Great Powers 
 to prevent the breach of the world's peace, 
 and adverting to the difficulty in the way of 
 the enforcement of the decrees of the Hague 
 Tribunal, should necessity arise, he went on 
 to say : "In new and wild communities 
 where there is violence, an honest man must 
 protect himself; and till other means of 
 securing his safety are devised it is both 
 foolish and wicked to persuade him to 
 surrender his arms while the men who are 
 
INTERNATIONAL LAW 35 
 
 dangerous to the community retain theirs. 
 He should not renounce the right to protect 
 himself by his own efforts until the community 
 is so organised that it can effectively relieve 
 the individual of the duty of putting down 
 violence. So it is with nations. Each nation 
 must keep well prepared to defend itself 
 until the establishment of some form of 
 international police power, competent and 
 willing to prevent violence as between nations." 
 ** I think the desire is growing in Europe to 
 see the pace of the increase of expenditure 
 on armaments diminish/' said Sir Edward 
 Grey during the crisis of October 1908, "but 
 you cannot expect to see the expenditure on 
 armaments diminish, if people live in appre- 
 hension that treaties can be constantly altered 
 without the consent of all the Powers who are 
 parties to them." 
 
 I should however have entirely failed in 
 my endeavour to provide an answer to the 
 question why nations observe the rules of 
 International Law if I had only enunciated 
 the idea that it was from fear of punishment 
 
 3—2 
 
38 THE BINDING FORCE OF 
 
 be realised by the perfection of the individual. 
 This is true not only in the case of national 
 well-being, but also in the international 
 society. The higher and more developed the 
 moral sense of any nation, the better equipped 
 it is for the enforcement of its ideals, and the 
 more effective will be its contribution to the 
 public opinion of the society of nations. This 
 implies for any nation a steady continuity of 
 purpose, an unflinching adhesion to an ideal, 
 a disciplining of the manhood of the state and 
 a wide diffusion of the knowledge of the 
 existing rules of International Law. The 
 devotion to a high international ideal is no 
 bar to the sturdiest local patriotism. The 
 greater the love and attachment of a man to 
 his native land, the greater the sacrifices he 
 is prepared to make on her behalf, the more 
 likely is he to appreciate similar qualities in 
 other nations. 
 
 Public opinion is, then, both the great 
 factor in creating, in improving and in en- 
 forcing the law of nations, but it needs 
 educating. International public opinion is 
 
INTERNATIONAL LAW 39 
 
 the aggregate of the opinions of the states 
 of the world, and it behoves each state to 
 endeavour to keep the standard high, and to 
 diffuse a knowledge of the rules observance of 
 which it desires and on which it will insist, f 
 The doctrine that might and right are not | 
 correlative terms is one which needs constant 
 reiteration, for history shows that they have 
 too often been identified in practice. Honesty 
 is not only the best policy for individuals and 
 states, but it is predicated of all international 
 dealings, while deceit and subterfuge, and 
 disregard for the verdict of the world's judg- 
 ment now, will lead to the affirmation of that 
 judgment on appeal to posterity, for as 
 Schiller well says, " the history of the world 
 is the Tribunal of the world." It is for the 
 peoples of each state, guided by ethical 
 principles and grounded in scientific juris- 
 prudence, to work for the realisation of justice 
 in law, till right and law become recognised as 
 synonymous, and it shall no longer be possible 
 for the statement to be made in regard to 
 International Law which is sometimes heard 
 
40 THE BINDING FORCE OF 
 
 in regard to national law : " Such may be the 
 law, but it is not justice." 
 
 The rapidity of the progress of the rule of 
 law among the nations of the world will be 
 accelerated by a more wide diffusion of the 
 knowledge of existing rules of International 
 Law, for law to be observed must be known, 
 and with knowledge will come improvement. 
 It is not out of place in this connection to 
 render homage to the work which is being 
 done both by the Institut de Droit Interna- 
 tional and the International Law Association. 
 The contributions made to International Law 
 by the former body might well form the 
 subject for a separate lecture, for they have 
 been many and valuable. Its labours are less 
 evident to the general public, and are better 
 known to experts than to the world at large. 
 The work of the International Law Association, 
 whose meeting in London during the first 
 week of August last attracted so much atten- 
 tion, is more popular in character and draws 
 upon a larger circle than that of the Institut. 
 Its publicity and the fact that its annual 
 
INTERNATIONAL LAW 41 
 
 meetings are held in the great centres of the 
 world's commerce do much to bring to the 
 notice of the public both existing rules and 
 suggested changes, and to awaken interest in 
 topics of vital importance to the world at 
 large. Each of these bodies is, in its own 
 way, contributing in a striking manner to 
 assist in the formation of a strong public 
 opinion for the enforcement of the rules of 
 International Law, and by meeting in various 
 countries each is materially aiding to stan- 
 dardise that opinion and so bring about a real 
 cohesion of states cemented by increasing 
 mutual knowledge. The apostles of the \ 
 propaganda of International Law must of 
 necessity be statesmen and lawyers, but all 
 classes of the community in every nation, 
 journalists, clergy, merchants and artisans, 
 must co-operate, for there is need for a fuller 
 knowledge of the existing rules of law so that 
 their value may be the better appreciated, t 
 The wider the diffusion of this knowledge, 
 the greater the prospect of its obligatory 
 character receiving full recognition, for it rests 
 
42 THE BINDING FORCE OF 
 
 on the fundamental basis of mutual trust and 
 good faith. Hague Conferences and Inter- 
 national Associations are all making for this 
 end, but it is an undertaking to which every 
 state must increasingly devote itself It is 
 a work of education. Education properly 
 understood is a great character-forming 
 process, and one of its greatest results is the 
 production of a feeling of self-respect which 
 generates acorresponding respect and courtesy 
 to others. Thus it is with individuals, so it 
 is with states. As self-knowledge and self- 
 reverence grow in each state there will also 
 grow with increasing rapidity a power of 
 appreciation of other states, and a consequent 
 diminution of those feelings of suspicion and 
 ; distrust which are the greatest hindrance to 
 ^ the growth of international goodwill and the 
 application of the rule of law to international 
 disputes. 
 
 There is in this country particularly a need 
 for a greater study of International Law. In 
 its teaching, we are, I think, considerably 
 behind many of our neighbours ^2. The 
 
INTERNATIONAL LAW 43 
 
 Chairs and Lectureships on the subject are 
 absolutely incommensurate with its import- 
 ance, and the ignorance of it, both of the 
 general public, and if I dare say so, even of 
 some Members of Parliament, is colossal. This 
 is partly due to the spirit of disbelief in its 
 value to which I referred at the beginning of 
 this lecture, and partly to our insular habits of 
 thought in legal matters. It is time that this 
 was remedied, and that in all our great 
 centres of education and industry there 
 should be professors and lecturers to diffuse 
 a knowledge of the law by which the nation is j '^'^^ 
 bound, and whose observance is entrusted to I ^'^^ 
 the nation's honour : at the same time they \ ^^-J 
 should endeavour to combine with their • 'y^ 
 teaching the aims which the distinguished "^ 
 founder of the professorship of International "^^ 
 Law at Cambridge enjoined on the occupant ^^^^ 
 of that Chair, namely that in all parts of his i^ 
 treatment of the subject he should lay down ^^ 
 such rules and suggest such measures as 4^ 
 
 might tend to diminish the evils of war and '^ 
 finally to extinguish war among nations. 
 
NOTES 
 
 (1) The correspondence referred to related to naval 
 bombardments of open coast towns. Professor Holland's 
 letters are reprinted with notes on pp. 73 — 85 of Letters 
 on War and Neutrality; see also on the same subject 
 Studies in International Law by the same writer, p. 96. 
 The correspondence and the subsequent history of the 
 controversy are particularly interesting as showing the 
 value of the work that jurists can do *' to check wrong and 
 point out what is right." 
 
 (2) All that can be adduced from the lack of the 
 elements which Austin predicates which are found in 
 national laws is that International Law is ill-defined in 
 consequence of the absence of a legislature ; and that its 
 application may be dubious and not always effective owing 
 to the absence of judicial authority and an ill-assured 
 sanction ; but this was the condition of national law in its 
 early stages and only shows defective development (see 
 F. Despagnet, Droit International Public, §§ 38, 39). 
 
 " The doctrines of international law have been elaborated 
 by a course of legal reasoning ; in international contro- 
 versies precedents are used in a strictly legal manner : 
 the opinions of writers are quoted and relied upon for the 
 same purposes as those for which the opinions of writers 
 
46 NOTES 
 
 are invoked under a system of municipal law ; the conduct 
 of states is attacked, defended, and judged within the 
 range of international law by reference to legal considera- 
 tions alone ; and finally, it is recognised that there is an 
 international morality distinct from law, violation of 
 which gives no formal ground of complaint, however 
 odious the action of the ill-doer may be. It may fairly 
 be doubted whether a description of law is adequate which 
 fails to admit a body of rules as being substantially legal, 
 when they have received legal shape, and are regarded as 
 having the force of law by the persons whose conduct they 
 are intended to guide." W. E. Hall, Interrmtional Law^ 
 p. 14 (5th edition). 
 
 "And the different states not only recognise the 
 rules of international law as legally binding in innumerable 
 treaties and emphasise every day the fact that there is 
 a law between themselves. They moreover recognise this 
 law by their municipal laws ordering their officials, their 
 civil and criminal courts, and their subjects to take up 
 such an attitude as is in conformity with the duties 
 imposed upon their sovereignty by the law of nations." 
 L. Oppenheim, International Law, Vol. i. p. 14. 
 
 (3) W. E. HaU, op. cit p. 1. 
 
 (4) See Article by the Hon. Elihu Root on "The 
 sanction of international law." American Jourmil of 
 International Law^ Vol. ii. pp. 451 — 457. 
 
 (5) The Right Hon. Sir Edward Grey, M.P., Secretary 
 of State for Foreign Affairs, in a speech at Wooler on the 
 7th October 1908, is reported in the Times to have spoken 
 as follows on the attitude of Great Britain on the occasion 
 of the annexation of Bosnia and Herzegovina by Austria : 
 
NOTES 47 
 
 " We cannot recognise the right of any Power or State 
 to alter an international treaty without the consent of the 
 other parties to it. We cannot ourselves recognise the 
 result of any such actions till the other Powers have been 
 consulted, including especially in this case Turkey, who is 
 one of the other Powers most closely concerned, because if 
 it is to become the practice in foreign politics that any 
 single Power or State can at will make abrupt violations 
 of international treaties you will undermine public confi- 
 dence with all of us." 
 
 With this may be compared the language used by Lord 
 Granville, in 1870 : " It has always been held that the 
 right [of releasing a party to a treaty] belongs only to the 
 governments who have been parties to the original instru- 
 ment Yet it is quite evident that the effect of such 
 
 a doctrine [as that advanced by the Russian Government] 
 and of any proceeding which, with or without avowal, is 
 founded upon it, is to bring the entire authority and 
 efficacy of treaties under the discretionary control of each 
 of the powers who may have signed them ; the result of 
 which would be the entire destruction of treaties in their 
 essence." (Quoted by W. E. Hall, op. cit. p. 356.) 
 
 (6) A translation of Professor Bluntschli's letter to 
 Count von Moltke from which these quotations are taken is 
 given in Professor Holland's Letters on War and Neutrality, 
 p. 27. 
 
 (7) J. Lorimer, Imtitutes of the Law of Nations, 
 Vol. II. p. 184. The whole of Book V on " The ultimate 
 problem of international jurisprudence" is worthy of study 
 though the conclusions of the learned writer will probably 
 be rejected by many readers. 
 
48 NOTES 
 
 (8) See on the subject of "War no illegality," L. 
 Oppenheim, Internatimial Law, Vol. ii. § 53, also W. E. 
 Hall, International Law, pp. 60 — 61 ; J. Westlake, Inter- 
 national Law, War, p. 3. 
 
 (9) International Law, p. 46. 
 
 (10) See S. L. Murray, The Reality of War, Chapter 
 viii. " War as policy." 
 
 (11) See Andrew Carnegie, Peace versus War: The 
 President's Solution, 
 
 (12) In Great Britain there are Professorships of 
 International Law in Oxford, Cambridge and Edinburgh. 
 In Trinity College, Dublin, the Professor of Political 
 Economy combines with his duties the Professorship of 
 International Law and Jurisprudence. An Honorary Pro- 
 fessorship of International Law has recently been established 
 in Liverpool. There is a Readership in Roman Law, Jurispru- 
 dence, and Public and Private International Law in the Inns 
 of Court, London, and a Readership in International Law 
 in the University of Bristol. There are also Lectureships in 
 Aberdeen, Glasgow and the London School of Economics. 
 In all, there appear to be ten Professors, Readers and 
 Lecturers in Great Britain. In France there are twenty 
 Professors and several Lecturers and in every German and 
 Swiss University International Law is represented by at 
 least one and sometimes two Professors. It is probable 
 that both in Great Britain and France the subject is also 
 dealt with by Professors or Lecturers whose only designa- 
 tion is that of " Law." 
 
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