The Law of Nations

According to some, the law of nations is referred to positive law, which is a determination of the law of nature, and thus can be defined: positive law determining the law of nature, introduced by the human race, and indeed through custom. To this belong, for example, the immunity of legates, the commerce of letters and markets with other nations, the prohibition of slavery strictly so called, the prohibition of injuring private goods in war, with the things to be excepted being excepted, etc. It differs from civil law insofar as the latter has been established by individual states and therefore can also be abrogated by individual states, whereas the law of nations has been introduced by the human race and can be abrogated by it alone.

According to others, the law of nations pertains to natural law, from which its precepts are derived as necessary conclusions. Hence, just as natural law, it is immutable. Thus, for example, "the law of nature... neither prescribes nor prohibits the division of stable properties; for it does not absolutely and per se prescribe that this field should belong to Peter rather than Paul, or be common to all. But it is of the law of nature that human beings live peacefully with one another. But human beings cannot live peacefully among themselves unless stable properties have been divided. Therefore stable properties are to be divided."¹

According to some, the distinction from natural law is in this: that natural right belongs to man as an animal, or regards actions which are common to man with brute animals, such as living and procreating; the law of nations belongs to man as such. According to others, the distinction comes from this: that natural law holds absolutely, while the law of nations holds conditionally, that is, once some fact has been posited, for example occupation.

St. Thomas, concerning whose opinion there is dispute, has these words in I-II, q. 95, a. 4: "To the law of nations belong those things which are derived from the law of nature as conclusions from principles, such as just purchases, sales, and other things of this sort, without which human beings cannot live together with one another; this is of the law of nature, because man is naturally a social animal, as is proved in book 1 of the Politics (c. 2, at the beginning). But those things which are derived from the law of nature by way of particular determination belong to civil law, according as each state determines something adapted to itself." And in the same place, ad 1: "It must be said that the law of nations is indeed in some way natural to man, according as he is rational, insofar as it is derived from natural law by way of a conclusion which is not very remote from the principles. Hence human beings easily consented in matters of this sort. Nevertheless it is distinguished from natural law, especially from that which is common to all animals."

Corollary. The law of nations differs from law between nations, or international law, which is constituted by express pacts entered into among the rulers of nations (n. 94).

¹ Zigliara, Ethica, n. 26, III.

Usefulness. - In today's social and political controversies, accurate notions concerning the ius gentium come very much into use.

— Various uses of the terms. The appellation Ius Gentium is sufficiently equivocal. For at Rome it designated that right, constituted more by natural equity, which foreigners used, while civil laws had been made for the Quirites alone. Sometimes, in a signification not pertinent here, the inclinations proper to man insofar as he is a rational being were formerly said to be ruled by ius gentium, but the instincts common to men and brute animals, for instance the instinct of preservation and of propagation, by natural right ¹.

By the most frequent usage today, ius Gentium is called the right which must be observed among nations in time both of peace and of war, and which, at least in part, has been defined by positive agreements.

The present question. - But there are many institutions which are seen to be in force almost everywhere, not to say everywhere, and seem to arise neither from positive law nor from properly natural right. Institutions of this kind: some regulate relations among inhabitants of the same commonwealth, so that they could materially be described as the civil law of very many nations; thus the right of prescriptions, the division of goods, and formerly servitude itself. Others regard either the condition which foreign citizens obtain in another commonwealth, or those things which must be observed among commonwealths: the various privileges of ambassadors; the forbidden occupation of the high sea; the concession to individual peoples of the adjacent sea to a certain distance; the observance of a white flag.

Now, concerning the formal reason by which institutions of this sort are in force, there is inquiry and dispute, since some call it natural right, others positive right; others a certain middle right, which some contend approaches more to natural right, others more to positive right.

Its solution. - Omitting controversies here, we establish that this right is truly middle. For, the human race being considered as it now is, after men had been sufficiently multiplied that they ought to come together into perfect society, they of their own accord, without the authority of anyone or formal agreement, agreed concerning the division of goods and of nations, concerning admitting ambassadors, etc. For the necessity of institutions of this kind was manifest to them. Nature indeed, by itself alone, seems to leave the option of divided or conjoined possession, of a singular or plural commonwealth, and so forth. But after those institutions have been introduced, nature itself, which wills to sanction social cooperation efficaciously, confirms them and makes them obligatory. Therefore they pertain to a truly middle right, insofar as a positive institution was the necessary condition for the right itself to exist. Nor is it more general or firm than the originating condition itself. Wherefore that right is less universal and less immutable than the right of nature properly so called. Less universal: for it is not repugnant to nature that in certain special circumstances goods be possessed in common. Less immutable: for the circumstances which make the institution manifestly necessary can themselves be the present and common condition of the human race after sin; and such circumstances promise perpetual firmness here on earth to the aforesaid right. And they can also cohere with a more deteriorated stage of human cultivation. Thus the city or commonwealth itself was long not the thing of all, and servitude was said to be necessary, while now the prohibition of servitude pertains to the ius Gentium. Whether the division of the human race into several nations of wholly independent right will always be such: this also can be doubted.

The ius Gentium can be quite aptly referred to natural right, just as customary right is referred to written human right. The former obliges from right established by the Author of nature; the latter from right established by the author of written law. Custom is law promulgated by the morals of a people; the ius Gentium is promulgated by the morals of peoples. Finally, both can be confirmed by written right.

¹ St. Th., lect. 12 on book 5 of the Ethics; 1, 2, q. 95 art. 4 ad 1 at the end; 2, 2, q. 57 art. 3 c. and ad 3.

— Explanation of the stable right of private appropriation. Because of today's fervent controversies, it seems worth the labor to insist for a little while on the varied reason by which the right of private appropriation - which, imitating the classical writers, we have alleged as an example of an institution of the ius Gentium - can be vindicated as independent of civil power. For either it is referred to natural law, which has immediately given that right, yet in such a way that it has made the same subject to several limitations of positive right; or that right is traced back to the ius Gentium, such as we have now described it; or it is ascribed to the ius Gentium understood in such a way that the tacit consensus of men concerning the division of goods is not only the condition but the true cause of the right itself of possessing goods dividedly. Then, to use a comparison, just as not only those things are to be held by faith which by solemn judgment are proposed as to be believed either in an ecumenical Council or by the Supreme Pontiff speaking ex cathedra, but also those things which by her ordinary magisterium the Church teaches as to be believed, so, besides the solemn promulgation of law, there would be a certain implicit promulgation of law in the very consensus of the nations. But then to the multitude itself, as such, true jurisdiction and legislative power must be acknowledged.

The first form of reasoning, after C. de Lugo (De Iustitia, d. 6, n. 5-6), is today more received among Catholics; and the Encyclical Letter Rerum Novarum seems to sanction the same by its authority. The second manner of speaking, since it traces the formal force of right back to the law of nature, does not contradict the encyclical letter, and as it were suggests a concord between the scholastic doctors and modern Catholics. The third seems more consonant with the views of the classical doctors, but seems to stand at a greater distance from the doctrine received today among Catholics. To the third explanation this also perhaps can be objected, that every force of custom is ascribed to the consent of the Legislator; which does not seem necessary, if the consenting multitude itself imposes law upon itself.

That controversy coheres closely with the question concerning the first subject of public power: is it the people, as they were teaching with moral unanimity in the age of Bellarmine, or does the designated prince receive the same immediately from God? But concerning these things more will be said in their proper place.

— By the formal ius Gentium there cannot be explained the wholly particular sanctions of international right which are observed without express agreement. For nature bears itself as plainly indifferent toward these. Therefore recourse must be had to tacit agreement; or there must be admitted a certain true society of more cultivated nations, of perfectly democratic form, whose right rests upon the consensus of the whole multitude ¹. Therefore the recent Societas nationum can be considered, not as some new beginning, but rather as the more open and complete ordering of a thing long since existing. How much it would benefit this Society if the center of Catholic unity were restored into the center of the association of peoples! The solution of all difficulties: Christ!

¹ This opinion is expounded by Suarez, Leg., l. 2, c. 19, n. 9; by Taparelli, Saggio, n. 1357-1368; by Van Gestel, De iustitia et lege civili, XLII; but it is rejected as a dangerous fiction by Schiffini, Comp. Ethic., n. 193.

— The ius Gentium, whose name has varied usage, here designates for us institutions which are in force with moral universality, although they seem to proceed neither from proper natural right nor from formal positive law.

We judge that right to be middle, insofar as the consensus of men is a required condition; and once it has been posited, it is sanctioned by natural law itself. Therefore those institutions pertain to hypothetical natural right.

II. Thus it happens that the right of private appropriation is ascribed by some to natural right; by others to the ius Gentium such as we have described it; finally by others to positive right, yet that of the nations, insofar as, by the authority committed to the human race, through the consensus of the human race, appropriation has been established as a right.

III. Wholly determinate sanctions of the ius Gentium must be ascribed either to tacit agreement or to some international society of perfectly democratic form.

255. All the members of mankind naturally constitute one universal society (No. 198), of which God Himself is the founder, ruler, lawgiver, and judge. In this universal society a great variety of rights and duties has place. Thus far we have considered those of individuals (Book II.), those of domestic society (Book III., C. II.), and those which arise in civil society (C. III.). Lastly, we are to examine the rights and duties which issue from the relations of independent civil societies to one another. These rights and duties are regulated by international law.

256. International law is defined by James Madison, fourth President of the United States, as "Consisting of those rules which reason deduces as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent" (Wheaton's Elements of International Law, C. I.). As a distinct code, it is of modern origin; for within recent times intercourse, chiefly commercial, between the nations of the earth has attained such proportions and is become so intricate that regulations governing it have assumed vast importance.

Formerly international law constituted in Philosophy a branch of what was called jus gentium, the law of nations, defined by Suarez as "That which is laid down by reason among all mankind and is observed by nearly all nations:" it treated of both civil and international right.

257. As now understood, international law comprises two parts, indicated in Madison's definition, namely:

1. What reason requires, i. e., the natural rights, and

2. Such definitions and modifications of this as may be established by general consent, i. e., acquired or conventional rights. The latter may be determined explicitly, by contracts among the nations, or implicitly, by custom so well established as to be considered binding on all civilized countries.

258. By a nation we here mean an independent civil government; the several States of the Union, though sovereign States — possessed of the right of the sword and other attributes of sovereignty — are, nevertheless, not so many nations, because not independent in many respects; but all together constitute one nation, represented by our central national government. Evidently a nation here does not mean a race, as it does when we speak of the Celtic nation. Nor does it mean a geographical division; for this may contain various nations, e. g., Spain and Portugal. Again, one nation may be made up of diverse races, as is the case in Austria or Great Britain; and one race may be divided among various nations or governments, as is exemplified in the Teutonic race.

259. The principles underlying all international law are the following:

1. That every man must love all other men (Nos. 149, 198).

2. That every independent civil society is a moral person, and, as such, possessed of definite rights, which must be respected by all other persons, physical and moral. For a person is properly a complete substance endowed with intellect (Mental Philosophy, No. 55), a being, therefore, capable of having rights and duties. Civil society, inasmuch as it is complete and independent in its own line, and is a collection of intellectual units, is called a moral person; as such it is the embodiment of all the private rights pertaining to its members. Besides, since civil society is natural to man, it has a natural right to exist and to use whatever just means are necessary for attaining its end.

260. Since the rights of a nation flow from its essence as a complete civil society, all nations stand on an equal footing with regard to natural rights. Hence, the greater powers have no more natural right to lord it over less potent nations than strong men have a right to neglect and abuse the rights of infants. In particular:

1. No nation may enter the territory of another nation without the consent of the latter.

2. One nation has no right to interfere with the internal workings of another government. Hence, foreign powers have no right to encourage or assist subjects rebelling against legitimate authority.

3. Yet one nation has a right to assist another nation if the latter asks such assistance. The principle of non-intervention, in the sense that one nation is not allowed to render the aid requested by another nation in distress, is unjust. In effect, this principle allows a robber nation to despoil its victim, and helps rebel subjects to oppose lawfully established authority.

261. The natural rights of a nation, which all are obliged to respect, are chiefly as follows:

1. The right of preserving its existence as a nation. Such existence implies four conditions: union among the citizens, legitimate authority, independence, the dignity of a moral person invested with sovereignty.

2. The right to maintain civil order among its members. This implies: the dependence of the subjects on their rulers, a just administration of the commonwealth, concord among the citizens.

3. The right to acquire new territory, whether by treaty or by first occupancy, etc., provided no prior rights be violated.

4. The right of dominion over its water-courses, which include such an extent of the adjacent seas as is necessary for the security and prosperity of its citizens. Conflicting claims must be settled by treaties, customs, etc.

5. The right to honorable recognition by other nations and by men generally. This implies the sacredness of embassies, etc., a right which has always been acknowledged by all civilized nations.

6. The right to develop its resources, material and intellectual, and generally the right to promote all that tends to public and private prosperity without prejudice to private rights.

7. Lastly, the right to manage its own affairs; hence, to determine changes in its manner of administration, and to settle difficulties with its own subjects without interference or contradiction on the part of other States.

262. Nature has established no human authority superior to that of national governments; hence, there is no higher human power to enforce the observance of the moral law by nations and to decide conflicting international claims. A universal arbiter to decide contests between nations were indeed desirable. Such the Supreme Pontiff was among Christian nations in the ages of Faith. In special cases, he has lately been called upon to act in a similar capacity, to the great advantage of justice, peace, and civilization.