dered might not become a precedent. The principles upon which the court of arbitration bases its decision, more often than the decision itself, furnishes material valuable for international law. The resort to arbitration and international courts for adjudication of disputes is an indication of the general recognition of mutual confidence between states. 17. Treaties and State Papers Treaties and state papers of whatever form1 indicate the state of opinion, at a given time, in regard to the matters of which they treat. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence as to practice and are regarded as proper sources of international law, or principles may be so well established by successive treaties as to need no further treaty specification. Treaties and state papers, however, vary greatly in value as sources of international law. Laying down new rules or (a) Treaties and state papers may lay down new rules or outline the operation of old rules. As instances of those laying down new rules may be taken several of the Hague Conventions of 1907, the International outlining opera- Radiotelegraphic Convention of November 3, 1906, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances; the most numerous of these are in the treaties in regard to maritime affairs and consuls. tion of old rules. (b) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Declaration of the Conference of London, January 17, 1871, to which the major European states were parties, announces 1 Declarations, protocols, conventions, proclamations, notes, etc. that the signatory powers" recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means Enunciation of established rules. of an amicable agreement." 1 Agreement as to rules to be held mutually binding. (c) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856,2 agreed as to certain principles and rules of maritime international law, which should be held as binding the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Declaration, and during the same year Spain acquiesced in its principles. It was not strictly observed in the World War. Interstate (d) Most treaties and state papers, however, deal with matters of interstate politics, and are not in compacts. any sense sources of international law. They are in most cases little more than interstate compacts. 18. Text Writers During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of nations deduced the principles for such cases as might arise. This latter method was especially common among the early writers, such as Victoria and Suarez in the sixteenth century. Appendix p. xxxi. III Hertslet, 1904. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authoritative sources. The prolific Moser, in the middle of the eighteenth century, made the historical method more prominent by giving less attention to the natural law and by founding his system on usage and treaties. Bynkershoek (1673-1743) had anticipated him in this method in treatment of special topics, but Moser extended the system and made it more general. Succeeding writers mingled the two systems, inclining to the one or to the other. In the early days of the modern period the writers upon the law of nations outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and principles which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value. The Supreme Court of the United States in case of the Paquete Habana in 1900 referring to the determination of questions involving international law, said: "For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."1 1 The Paquete Habana and the Lola, 175 U. S., 677. 19. Diplomatic Papers Diplomatic papers, as distinct from state papers to which more than one state becomes a party, are simply papers issued by a state in regard to its international intercourse. The papers are sometimes named state papers or included among the papers to which other states are parties, -in the United States, in the series known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations" since 1870; and in Great Britain in the "British and Foreign State Papers." These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of information upon the attitude of states toward questions still formally unsettled. The simple expression to state agents in the way of instructions or information as to the position of the state on a given matter may, if continued and long accepted, give to the principle involved the force of international sanction. This was almost the case in the so-called Monroe Doctrine.1 In these papers may often be found an indication of the line which the principles of international law will subsequently follow, and a general consensus by several states in diplomatic instructions may be considered strong evidence of what the law is on a given point. In signing the Hague Convention for the Pacific Settlement of International Disputes, the representatives of the United States made the reservation that, "Nothing contained in this convention shall be so construed as to require the United States of America to depart from its traditional policy of not intruding upon, interfering with, or entangling itself in the political questions of policy or internal administration of any foreign state; nor shall anything contained in the said convention be construed to imply a relinquishment by the United States of America of its traditional attitude toward purely American questions." |