§4. There are, however, considerations on the other side, leading us to assign to international law, in respect of the normal process of changing it, an intermediate position between ordinary law and ordinary morality, as they exist in a, modern State. Changes in ordinary law are, as we have seen, mainly introduced in modern States by the express resolutions of supreme legislative assemblies or councils, acting collectively after deliberative debate. Changes in Positive Morality, on the other hand, can only be brought about gradually by the unconcerted agreement of a number of individuals, judging of others and acting towards them as individuals, in the exercise of their legal freedom of choice in social relations. Now in the case of international law, though there is no regular organ of legislative innovation, the concerted action of States, in the way of treaties and conventions, plays an important part in the introduction of changes, to which there is no counterpart in the development of positive morality. This is due chiefly to the limited number of the States among whom the system of rules and usages that constitute modern international law is actually established: they are so few in all that the agreement of even a small group of them to adopt a new rule may be an important---in many cases even a decisive---step towards the general acceptance of this rule.
The degree of influence which such a treaty or convention will have will no doubt be very different in different cases. It will depend partly on the more or less aggressive character of the agreement: i.e. it will be the most intense if the concerting States agree not merely to adopt a new rule as governing their own mutual relations, but also to treat the non-observance of this rule by any other State as a breach of international duty: since, in this latter case, they attach a sanction to the rule which tends to make it practically obligatory on others than the contracting parties. The concerting States are not indeed likely to go as far as this in enforcing an avowed innovation in usage, unless the combination feels itself to have overwhelming force: but even if the new rule is understood to be only applicable to States who voluntarily accept it, still, the adhesion of a powerful group of States may partly express, partly cause, a consensus of opinion to which even nations who do not share it may find it convenient to yield. In this way the innovation may gradually come to be incorporated in the generally accepted system of rules.
Further, the concerted action of which I have. been speaking is not the only method by which the rules of international law have been modified; it is undeniable that international law, like civil law, has been gradually made more definite and coherent by a series of arguments of the ordinary legal kind, terminated in some cases by judicial or quasi-judicial decisions; and it is conceivable that this process might be continued until international law should reach something like, the systematic precision which parts of our own common law have attained through judicial interpretation alone. It would seem, however, that this process has been applied-and can be expected, to be applied-to international law only to a very limited extent, and in relation to certain classes of questions. It has been most operative in that part of the rules governing the relations of belligerents and neutrals which apply primarily to the conduct and treatment of individual members of neutral States; especially the rules relating to blockade and contraband of war, which are applied by the prize-courts of each belligerent State to determine the legitimacy of captures of the ships or other property of neutrals. The force that causes the decision of such a court to take effect is no doubt primarily the organised physical force of the belligerent State to which the Court belongs: but if we consider the intellectual process by which the decision is arrived at, it is plain that the rules applied are not conceived as laws formed by each nation for itself: they are conceived as rules whose validity depends on their general acceptance by civilised nations, and in the reasoning by which doubtful points in their definition are determined precedents, drawn from the practice of other nations, are allowed due weight. No doubt the prize-courts of each belligerent have a certain tendency to define and interpret the international rules in question in the interest of their own country; but this tendency has been kept in check, partly by the judicial habits of mind of the persons with whom the decision has rested, partly by the unimportance to the belligerent community of the gain to be made by encroaching on a neutral's rights, as compared with the danger of provoking the neutral's hostility in the crisis of war.
So again, when questions arise as to alleged wrongs received by individuals from foreign States, even when they are argued between diplomatists and not before judges, the discussion is still quasi-legal in method, and the decision is usually assumed to be arrived at by reference to international precedents and principles having international acceptance. And the same may be said of other disputes between States on points of minor importance: e.g. as to the national character of particular persons; as to the treatment of aliens by the State in which they are residing---whether this is complained of as too unfavourable, or, in the case of political fugitives, as too favourable;---as to the rights and duties of ships in territorial waters; the privileges of ambassadors: and similar matters. Finally, in the case of all questions submitted to arbitration, the point at issue is practically determined by experts selected for their competence as lawyers, who are supposed to employ---and usually do employ---the same careful and impartial comparison of rules and precedents as is proper in determining a, point of civil law. In these various ways a body of definite rules of international conduct has gradually been formed, which certainly bears, regarded as an intelligible system, a closer resemblance to the positive law than it does to the positive morality of a modern State.
It does not however appear that, on the most important questions that lead to disputes between States, the currently accepted principles for judging of international rights and wrongs have as yet been brought to legal precision and systematic coherence, in the manner above described: and it seems to me too sanguine to hope that they ever will be so brought, so long as States retain their independence, unless the moral and intellectual nature of the average human beings composing these States undergoes a radical change. Consider, for example, either the limits of the right of national self-defence against anticipated danger, noticed in a previous section; or the legitimacy of intervention, whether in the interest of the intervening State, or of the State interfered with; or the extent of the right of conquest, or of the right of renewing war to obliterate the effects of conquest;-it is difficult to conceive how any of the current doubts and disagreements on these fundamental points could be cleared up by any improved definitions of such rules as judges and arbitrators could apply. And I conceive that it will be found very difficult to regulate satisfactorily, in this quasi-legal way, the process of expansion into territory not yet occupied by civilised nations, of which I am to speak in the next chapter. The decision on such points as these must---for a long time to come at any rate---be left to international morality, in the sense in which it is distinguished from law: and this may be given as a final reason for not sharing the hopes of certain optimists who look forward to getting rid of wars between States by increasing the use of arbitration. But though arbitration cannot bring in the reign of universal peace, it may, I conceive, diminish the occasions of war to an extent that should not be despised; and whatever can be done to increase the confidence of civilised States in this method of settling minor disputes, is, in my view, a valuable contribution to the welfare of civilised humanity. And it is chiefly for this practical purpose that I am anxious to retain the distinction between ``international law'' and ``international morality''; using the former term to denote a system of rules, which experts called on to arbitrate between nations should apply impartially to such cases as may be brought before them, employing a method as analogous as possible to that of ordinary law-courts. I conceive that the discussion of jurists, if duly aided by conventions among States, may succeed in rendering this system somewhat more precise and consistent, and that their efforts ought to be directed to this end: although, after all, the rules thus formulated can only have a limited range and efficacy in governing the relations of States: and the difficult task of judging of the deepest issues on which the conflicts of nations have hitherto turned must always be left to the vaguer and more disputed set of principles that we must regard as belonging to international morality.[Back to:]