States are a body politic and societies of people united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.
Such a society has its affairs and interests, it deliberates and takes resolutions in common; which makes it a moral person, who possesses an understanding and a will peculiar to itself, and is susceptible of obligations and rights.
States being composed of men naturally free and independent, who, before the establishment of civil societies, lived together in the state of nature. Sovereign states are to be considered as so many free persons living together in the state of nature.
All men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a State, the individual subjects do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. The body of the State, remains absolutely free and independent with respect to all other men, and all other states, as long as it has not voluntarily submitted to them.
As people are subject to the laws of nature, and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be individual people, the entire state, whose common will is but the result of the united wills of the subjects, remains subject to the laws of nature, and is bound to respect them in all its proceedings. Because right arises from obligation, the state possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties.
One must therefore apply to states the rules of the law of nature, in order to discover what their obligations are and what their rights are. But as the application of a rule cannot be just and reasonable unless it can be made in a manner suitable to the subject; one cannot imagine that international law is precisely in every case the same as the law of nature, with the difference only of the subjects to which it is applied. This is to allow for substituting states for individuals. A state or civil society is a subject very different from an individual of the human race, from which circumstance, pursuant to the law of nature itself, results in many cases, very different obligations and rights. Since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, in which the law of Nature does not decide between state and state in the same manner as it would between man and man.
International law consists in the application of the law of nature to states. It is necessary because states are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states. To whom that law is not less obligatory than on individuals, since states are composed of men. Their resolutions are taken by men; the law of nature is binding on all men, under whatever relation they act.
Since the necessary international law consists in the application of the law of nature to states, which law is immutable, as being founded on the nature of things, and particularly on the nature of man, it follows that the necessary law of states is immutable. When this law is immutable, and the obligations that arise from it are necessary and indispensable, states can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it. This is the principle by which men may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.
There are things just in themselves, and allowed by international law, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others of an indifferent nature, respecting which it rests at the option of states to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. However every treaty, every custom, which contravenes the injunctions or prohibitions of international law is unlawful. It will appear however, in the sequel that it is only by the internal law, by the law of Conscience, such conventions or treaties are always condemned as unlawful, and that for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. States being free and independent, though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that state would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating its actions; an assumption on their part, that would be contrary to the law of nature, which declares every state free and independent of all the others.
Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow man, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. Nature has refused to bestow on men the same strength and natural weapons of defence with which it has furnished other animals, having in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow man. Speech enables people to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge, and having become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since nature has thus formed mankind, it is a convincing proof of its intention that they should communicate with, and mutually aid and assist each other.
The general law of society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself. In what light states are to be considered a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common Creator, a law which their own safety, their happiness, their dearest interests, ought to render sacred to everyone. Such is the general obligation that binds people to the observance of their duties. Let one fulfill them with care, as it would wisely endeavor to promote their own advantage.
It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that was just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. One should therefore endeavor to promote the general happiness of mankind, all mankind in return, will endeavor to promote theirs, and one should establish their felicity on the most solid foundations.
The universal society of the human race being an institution of nature itself, that is to say a necessary consequence of the nature of man, all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties. They cannot liberate themselves from the obligation by any convention or by any private association. When the unit in civil society for the purpose of forming a separate state, they may indeed enter into particular engagements towards those with whom they associate themselves; but they remain still bound to the performance of their duties towards the rest of mankind. All the difference consists of having agreed to act in common, thus having resigned their rights and submitted their will to the body of the society, in every thing that concerns their common welfare. It belongs to that body, that state, and its rulers, to fulfill the duties of humanity towards strangers, in every thing that no longer depends on the liberty of individuals. It is the state that is to perform those duties towards other states. Men united in society remain subject to the obligations imposed upon them by human nature. That society is considered as a moral person, since it is possessed of an understanding, volition, and strength peculiar to itself. It is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men. That is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects.
Since the object of the natural society established between all mankind is, that they should lend each other mutual assistance, in order to attain perfection themselves, and to render their condition as perfect as possible. Since states are considered as so many free persons living together in a state of nature. They are bound to cultivate human society with each other. The object of the great society established by nature between all states is also the interchange of mutual assistance for their own improvement, and that of their condition.
The duties that people owe to themselves being unquestionably paramount to those they owe to others, a state owes itself in the first instance, and in preference to all other states, to do every thing it can to promote its own happiness and perfection. When therefore, it cannot contribute to the welfare of another state without doing an essential injury to itself, its obligation ceases on that particular occasion, and it is considered as lying under a disability to perform the office in question.
The States being free and independent of each other, in the same manner as men are naturally free and independent; the second general law of society is, that each state should be left in the peaceable enjoyment of that liberty which it inherits from nature. The natural society of states cannot subsist, unless the natural rights of each be duly respected. No state is willing to renounce its liberty, it will rather break off all commerce with those states that should attempt to infringe upon it. As a consequence of that liberty and independence, it exclusively belongs to each state to form its own judgment of what its conscience prescribes to it, of what it can or cannot do, of what it is proper or improper for it to do. It rests solely with the state to examine and determine whether it can perform any office for another state without neglecting the duty which it owes to itself. In all cases in which a state has the right of judging what its duty requires, no other state can compel it to act in such a particular manner. Any attempt at such compulsion would be an infringement on the liberty of states.
In order to perfectly understand this, it is necessary to observe, that the obligation and the right which corresponds to or is derived from it, are distinguished into external and internal. The obligation is internal, as it binds the conscience, and is deduced from the rules of their duty. It is external, as it is considered relatively to other men, and produces some rights between them. The internal obligation is always the same in its nature, though it varies in degree; but the external obligation is divided into perfect and imperfect. The right that results from it is also perfect or imperfect. The perfect right is that which is accompanied by the right of compelling those who refuse to fulfill the correspondent obligation. The imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion. The imperfect right gives him only a right to ask.
It is now easy to conceive why the right is always imperfect, when the correspondent obligation depends on the judgment of the party in whose breast it exists, for if in such a case, one had a right to compel him, he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. The obligation is always imperfect with respect to other people, while one possess the liberty of judging how they are to act. They retain that liberty on all occasions where they ought to be free.
Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature. States composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small state is no less a sovereign state than the most powerful kingdom. By a necessary consequence of that equality, whatever is lawful for one state is equally lawful for any other, and whatever is unjustifiable in the one is equally so in the other. A state then is mistress of its own actions so long as they do not affect the proper and perfect rights of any other state. As long as it is only internally bound, and does not lie under any external or perfect obligation. If it makes an ill use of its liberty, the state is guilty of a breach of duty, but other states are bound to acquiesce in its conduct, since they have no right to dictate to that state.
Since states are free, independent, and equal, and since each possesses the right of judging, according to the dictates of its conscience, what conduct it is to pursue in order to fulfill its duties. The effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between states in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one state may be done by any other, and they shall, in human society, to be considered as possessing equal rights.
Each state in fact maintains that it has justice on its side in every dispute that happens to arise, and it does not belong to either of the parties interested, or to other states, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against its own conscience; but as there exists a possibility that it may perhaps have justice on its side, one cannot accuse the state of violating the laws of society. It is therefor necessary on many occasions, that states should suffer certain things to be done, though in their own nature unjust and condemnable, because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. Since they are bound to cultivate that society, it is of course presumed that all states have consented to the principle that was just established.
The laws of natural society are of such importance to the safety of all states, that if the custom once prevailed of trampling them under foot, no state could flatter itself with the hope of preserving its existence, and enjoying domestic tranquility, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation. Not all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All states have therefore a right to resort to forcible means for the purpose of repressing any one particular state who openly violates the laws of the society which Nature has established between them, or who directly attacks the welfare and safety of that society.
Care must be taken not to extend that right to the prejudice of the liberty of states. They are all free and independent, but bound to observe the laws of that society which Nature has established between them, and so far bound, that when any of them violates those laws, the others have a right to repress it. The conduct of each state, is no further subject to the control of the others, than as the interests of natural society are concerned. The general and common right of states over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.
The several engagements into which states may enter produce a new kind of international law; called Conventional law, or law of Treaties. It is evident that a treaty binds none but the contracting parties, the conventional law of states is not a universal, but a particular law. All that can be done on this subject, in a treatise on international law, is to lay down those general rules which states are bound to observe with respect to their treaties.
Certain maxims and customs, consecrated by long use, and observed by states in their mutual intercourse with each other as a kind of law, form the Customary Law of States, or the Custom of States. This law is founded on a tacit consent, or on a tacit convention of the states, that observe it towards each other. Whence it appears that it is not obligatory except on those states who have adopted it, and that it is not universal, any more than the conventional law. The same remark, is equally applicable to this customary law, that a minute detail of its particulars does not belong to a systematic treatise on international law.
When a custom or usage is generally established, either between all the civilized states in the world, or only between those of a certain continent, or between those who have a more frequent intercourse with each other; if that custom is in its own nature indifferent, and much more. If it is useful and reasonable, it becomes obligatory on all the states in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. If that custom contains any thing unjust or unlawful, it is not obligatory, on the contrary, every state is bound to relinquish it, since nothing can oblige or authorize it to violate the law of nature.
These three kinds of international law, the Voluntary, the Conventional, and the Customary, together constitute the Positive Law of States. For they all proceed from the will of states; the Voluntary from their presumed consent, the Conventional from an express consent, and the Customary from tacit consent; and as there can be no other mode of deducing any law from the will of states.
As the necessary law is always obligatory on the conscience, a state ought never to lose sight of it in deliberating on the line of conduct it is to pursue in order to fulfill its duty, but when there is question of examining what the state may demand of other states, it must consult the Voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind.