These
treaties
differ in many details from compacts made
under the civil law.
under the civil law.
Treitschke - 1914 - Life and Works
The
jurist Savigny declared that international law is perpe-
tually in the making. He did not mean, of course, that
it has no real validity. For this law which is daily grow-
ing is obviously of practical use at every turn. There can
be no doubt that the development of modern interna-
tional law owes a very special debt to Christianity, which
extends beyond the limits of single States towards
cosmopolitanism in the noblest sense of that term. Our
ancestors, therefore, were both reasonable and logical
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 163
when they for a while omitted the Porte from among the
nations bound by international law. They could not
admit the Porte so long as it was dominated exclusively
by Mohammedan standards of morals. More recently
Christianity has spread in the Balkans, Mohammedanism
has somewhat decreased there, and the Porte has been
brought into the circle of nations subject to international
law.
As States grow from small to large and from weakness
to independence they necessarily wish to preserve peace,
simply to ensure their safety and to guard the treasures
of civilisation entrusted to them. Hence grows up a
general agreement to obey international law, yielding an
orderly association of States, a political system. But
this at once presupposes a more or less approximately
level balance of power among the nations concerned. The
notion of a balance of power in Europe was at the first
accepted in a purely mechanical sense. But it contains
the germ of a perfectly true political conception. We
must not picture it under the image of a trutina gentium,
a weighing machine of nations, with both sides of the
balance equipoised. It is enough to premise that in any
ordered political system no State should be sufficiently
strong to be able to act as it pleases with impunity. In
this connexion we may note the superiority of present-day
Europe over the immature system of States in America.
There, the United States can do as they please, and it is
only because the relations of the United States with the
republics of South America are still rather slight that
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 164 TREITSCHKE: HIS LIFE AND WORKS
the latter have as yet suffered little direct interference
from their northern neighbour.
The Russian diplomat Gortshakof once said, and said
with truth, that neither the nations who fear attack nor
those who deem themselves strong enough to be able to
attack whom they will, will ever hasten the completion of
international law. Actual examples will convince us of
the correctness of this acute remark. In countries like
Belgium and Holland, which have--most unfortunately
for the proper growth of international law--long been
the chief centres of its study, there has sprung up a
sentimental conception of it, begotten no doubt by
unceasing fear of attack from outside. These countries
have fallen into the custom of addressing to the
conqueror demands in the name of humanity which
contradict the power of the State, and are unnatural
and unreasonable. The treaties of peace signed at
Nymwegen and Ryswick in 1678-9 and 1697 show
that then Holland was looked on as the diplomatic
cockpit of Europe, where all questions of high politics
might be fought out. Later on, this doubtful honour
passed to Switzerland. Nowadays few people reflect
how ridiculous it is that Belgium should pose as
the home of international law. Just as it is true that
that law rests on a basis of practical fact, so true is it that
a State which is in an abnormal position will inevitably
form an abnormal and perverted conception of it. Bel-
gium is neutral. And yet men think that it can give birth
to a healthy system of international law. I will ask you
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 165
to remember this when you are confronted with the volu-
minous literature which Belgian scholars have produced
on this subject.
Again, there is one country which believes itself in a
position to attack when it will, and which is therefore
a home of barbarism in all matters of international law.
Thanks to England, marine international law is still,
in time of war, nothing better than a system of privileged
piracy. We see, therefore, that as international law rests
wholly on reciprocity, it is vain to ask nations to listen
to empty commonplaces about humanity. Theory must
here be nailed down to practice; real reciprocity and a
real balance of power are inseparable.
If we would further define the sphere of international
law we must bear well in mind that it must never trespass
on the existence of the State. Demands which drive a
State towards suicide are necessarily unreasonable; each
State must retain its internal sovereignty amid the
general community of States; the preservation of
that sovereignty is its highest duty, even in its dealings
with its neighbours. The only principles of international
conduct which are seldom broken and may claim to be
fixed are those which do not touch this sovereignty, those,
namely, which concern the formal and ceremonial rules
mentioned above. To lay a finger on the honour of a
State is to contest its existence. Even to reproach a
State with a too touchy sense of honour is to misread the
true moral laws of politics. That State which will not be
untrue to itself must possess an acute sense of honour.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 166 TREITSCHKE: HIS LIFE AND WORKS
It is no violet to flower unseen. Its strength should be
shown signally in the light of open day, and it dare not
allow that strength to be questioned even indirectly.
If its flag be insulted, it must ask satisfaction; if that
satisfaction be not forthcoming, it must declare war,
however trifling the occasion may seem.
It follows that all the limitations which States lay on
themselves in treaties are merely voluntary; all treaties
are concluded with a mental reservation--rebus sic
stantibus--so long as circumstances remain unchanged.
No State exists, no State ever will exist, which is willing
to observe the terms of any peace for ever; no State can
pledge itself to the unlimited observance of treaties, for
that would limit its sovereign power. No treaty can hold
good when the conditions under which it was signed have
wholly changed. This doctrine has been declared in-
human; in reality it will be found the height of humanity.
Until the State has realised that its engagements have but
limited duration, it will never exercise due skill in treaty-
making. We cannot treat history as if we were judges
in a civil court of law. If we did that we should have to
say that Prussia, having signed the treaty of Tilsit in 1807,
ought not to have attacked Napoleon in 1813. But that
treaty, like all others, was concluded rebus sic stanti-
bus, and, thank God, things had completely changed in
the six years. A whole nation found itself in a state to
escape from intolerable thraldom.
Never disregard the free moral life of the nation as a
whole. No State in the wide world can venture to relin-
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 167
quish the "ego " of its sovereignty. If conditions have
been imposed on it which cripple it or which it cannot
observe, the nation honours itself in breaking them. It
is one of the most admirable facts in history that a nation
can recover from material loss far sooner than from the
slightest insult to its honour. The loss of a province may
be accepted as inevitable; the endurance of what we
deem to be servitude is an unending insult to a noble-
hearted nation. Napoleon, by stationing his troops on
Prussian soil, stirred up fierce hatred in the veins even of
the most patient. When a State has been wounded in its
honour the breach of a treaty is but a matter of time.
England and France had to admit this in 1870. In their
arrogant pride at the end of the Crimean War they had
compelled their exhausted enemy to agree to remove all
her warships from the Black Sea. Russia seized the
opportunity offered by the Franco-Prussian War to break
the agreement, and she was fully within her rights.
If a State finds that any of its existing treaties have
ceased to express the relative strength of itself and the
other treaty-State, and if it cannot induce the latter to a
friendly cancelment of the treaty, then has come the
moment for the " legal proceedings " customary between
nations, that is, for war. And in such circumstances
war is declared in the full consciousness that the nation
is doing its duty. Personal greed plays no part in such
an act. Those who declare war then say to themselves,
"Our treaty-obligation has failed to correspond with our
relative strength at this moment; we cannot come to
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 168 TREITSCHKE: HIS LIFE AND WORKS
friendly terms; we turn to the great assize of the
nations. " The justice of a war depends wholly on the
consciousness of its moral necessity. And since there
neither can be nor ought to be any external
coercive power controlling the great personages of a
State, and since history must ever remain in a state of
change, war is in itself justifiable; it is an ordinance of
God. No doubt a State may err as to the necessity of
applying this means of coercion. Niebuhr spoke truly
when he said that war can establish no right which did not
previously exist. Just for this reason we may look upon
certain deeds of violence as expiated in the very act of
being committed--for example, the completion of German
or of Italian unity. On the other hand, since not every
war produces the results which it ought to produce, the
historian must now and again withhold his judgment and
remember that the life of a State lasts for centuries. The
proud saying of the conquered Piedmontese, "We will
begin again," will always have its place in the history
of noble nations.
War will never be swept from the earth by courts of
arbitration. In questions that touch the very life of a
State, the other members of the community of States
cannot possibly be impartial. They must take sides
just because they belong to the community of States and
are drawn together or forced apart by the most diverse
interests. If Germany were foolish enough to try to
settle the question of Alsace-Lorraine by arbitration,
what European power could be impartial? You could
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 169
not find impartiality even in dreamland. Hence the
fact--well known to us all--that though international
congresses may formulate the results of a war and set
them out in juristic language, they can never avert a
threatened outbreak of hostilities. Other States can be
impartial only in questions of third-rate importance. # .
We have nowagreed thafwar is just and moral, and that
the ideal of eternal peace is both unjust and immoral,
and impossible. A purely intellectual life, with its
enervating effect on the thinker, may make men think
otherwise; let us get rid of the undignified attitude of
those who call possible what never can happen. So long
as human nature, with its passions and its sins, remains
what it is, the sword shall not depart from the earth.
It is curious to see how, in the writings of the pacificists,
unconsciously the sense of national honour cuts into the
talk of cosmopolitanism. In the Old Testament the
prophet Joel demanded that Israel should win a bloody
battle over the heathen in the valley of Jehosaphat;
Victor Hugo clamours in like manner that the Germans
shall first get a flogging before universal peace sets in.
Again and again it must be repeated that war, the violent
form of the quarrels of the nations, is the direct outcome
of the very nature of the State. The mere fact that there
are many States proves, of itself, that war is necessary.
Frederick the Great said that the dream of universal peace
is a phantom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of power,
he adds, is inconceivable.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 17(C) TREITSCHKE: HIS LIFE AND WORKS
Curiously enough, however, it is just in the domain of
war that the triumph of the human intellect most clearly
asserts itself. All noble nations have felt that the physical
power unchained in war must be regulated by laws.
The result has been the gradual establishment, by common
consent, of rules and customs to be observed in time of war.
The greatest successes of the science of international law
have been won in a field which those who are fools look
upon as barbarous--I mean the domain of the laws of war.
Really gross instances of the violation of military usages
are rare in modern times. One of the finest things about
international law is that it is perpetually progressing in
this respect, and that the universalis consensus alone
has so firmly planted a whole series of principles that they
are now well established. No doubt international law
will always lag a little behind the civil law, for various
principles of justice and culture must first reach maturity
within the State before anyone will feel anxious to find
them a corner in international conduct. Thus it was that
no crusade against slavery could claim the support of
international law till the general belief in the dignity of
man had become common in the nineteenth century.
Another factor which contributed to strengthen inter-
national law is the growing publicity of public life.
The days of the English Blue Book are now past; these
Blue, Yellow, and Green Books were only intended to
blind the Philistine with fumes of a flattery through which
he cannot see. A clever diplomat can easily hoodwink
a Parliament by these means. But the whole life of the
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 171
'
State is lived to-day so entirely in the glare of the footlights
that a gross violation of international law at once arouses
real anger among all civilised peoples.
International Law in Time of Peace.
We may now study some of the principles affecting the
intercourse of nations in time of peace which have deve-
loped into law. All nations should be allowed to enjoy,'
in security and without distinction, the unifying influences
of commercial intercourse, science, and art. Ancient
peoples sometimes forbade other nations to practise
certain industries which were looked on as secret arts.
In the later Roman Empire it was forbidden to initiate
barbarians in ship-building, and similar monopolist
principles obtained even as late as the days of the Hansa
League. All that would be impossible to-day. The State
must take the risk of free competition with other States,
and that has been laid down in a whole series of treaties.
In classical times it was, further, the custom of
almost all nations to claim exclusive access to some parti-
cular sea. Later still, it has been held that certain seas
which were not properly called oceans belonged to
particular States. The Adriatic was the property of
Venice, the Ligurian Sea of Genoa, the Gulf of Bothnia
of Sweden. To-day the sea is said to belong to the States
which border on it only so far as it can be militarily con-
trolled from the coast, that is, within gunshot. But
in such questions, as in so many others, everything
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 172 TREITSCHKE: HIS LIFE AND WORKS
ultimately depends on the actual power of the States
concerned. If a particular State can dominate a particular
sea, no well-meaning theorist can ever make that sea
public. The Caspian Sea belongs in name to two States,
Persia and Russia. But Russia is so strong that the Sea
is a Russian lake. So, again, if a power were to arise at
Constantinople strong enough to close the Bosphorus
to all comers, protestations against such an act would
be merely laughed at. Apart from this, the sea must be
regarded as open to all ships flying a recognised flag. The
high seas are policed by the navies of all nations, and every
man-of-war has the right to stop a merchantman and
examine its papers. This is the result of a long and
intricate development. All nations are now agreed that
occasional inconveniences suffered by their merchant
ships is a far lesser evil than piracy.
All international rights are safeguarded by treaties.
These treaties differ in many details from compacts made
under the civil law. In the first place they depend on good
faith on both sides, since there is no tribunal to compel
either side to observe them. The ancient Athenians were
therefore obeying a right instinct when they decided to
l limit the time during which their treaties with other nations
held good. Christian nations have tended rather to re-
j gard treaties as eternally binding, but their real attitude
is that they are willing to observe the treaty so long as the
relative strength of the States involved does not seriously
change. The more clearly this truth is proclaimed, and the
more dispassionately it is regarded, the safer will be the
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 173
treaties made; States will not conclude agreements which
the other party is likely to break.
There are other treaties which are made under compul-
sion. Such compacts are not made in time of peace;
if Switzerland be unwilling in peace time to enter into a
treaty with Germany, she is free to refuse. But after
wars the victor imposes a compulsory peace on the con-
quered. Here again we seek in vain for the external judge
who can say with authority, " This treaty is compulsory. "
It does not appear that there can be any limit of time
implied in agreements under international law. Limits
are imposed on the duration of certain legal liabilities
under the ordinary law; for example, thefts might cease
to be actionable after twenty years. But this is really a
juristic makeshift. The framer of the law has authorised
a legal fiction on practical grounds. It is not thought
worth while to pursue a trifling offence after the lapse of a
long period. But that cannot be done in international
law. The lives of States last for centuries. One would
have to wait for years for the expiry of the time-limits
of nations. Frederick the Great had a perfect right to
claim Silesia as part of his kingdom, though the treaties
which secured it to his family were over two hundred
years old.
Much progress has been effected of late years in the
way of better drafting, and also of more distinct ratifica-
tion, of international treaties, as well as in lucidity of
wording. As a rule, such treaties ought not to contain
secret clauses. They merely obscure the true state of
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 174 TREITSCHKE: HIS LIFE AND WORKS
affairs; they bring it about that States which are unaware
of them form false ideas of their mutual obligations, and
thus they may easily prove dangerous to the very State
which made them. Governments used to imagine that
secret clauses would trip up other governments; obviously
they are actually a double-edged weapon. There are,
of course, exceptions even to this. In 1866, when Prussia
made peace with the conquered States of Southern Ger-
many, an offensive and defensive alliance between them
was concluded in a series of secret treaties. There was
good reason for this. When France, a year later, revealed
her leanings towards war, it was then publicly announced
that North and South Germany would act together.
The sphere in which the principles of international
relations can be most definitely laid down is that of
private international law--the law which governs the
behaviour of any State towards individual foreigners.
It is a great step forward that, in any cultured State to-
day, a foreign private person is sure of the protection of
the law. It is a crime against the human race to urge the
view that force alone governs international law to-day.
That view is wholly untrue. Only--we must not expect
the impossible. The difficulty of the question becomes
apparent as soon as one looks into its details. One then
realises that all obligations of private as of other inter-
national law are entered into and kept with a certain
reservation, that, namely, they cannot be fulfilled when
they entail grave hurt to the State which promised to
carry them out. However many treaties we may con-
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 175
elude in the domain of private international law, it is
always implied that we shall not keep them if a foreigner
becomes obnoxious to us. A State must be able to expel
inconvenient foreigners without declaring its reasons,
even though it has signed a treaty permitting foreigners
to reside within its borders. Thus, modern States
habitually expel persons suspected of being spies or
secret agents; if explanations had to be published
before active steps were taken in such cases, those
explanations would be mostly of an exceedingly un-
pleasant kind, and would merely imperil the friendly
relations of the States concerned. It is therefore more
sensible to take the line that any alien can be expelled
at any moment, with the simple comment: You are
undesirable. And the right to act thus must be firmly
maintained, if only in the interest of honest men, who
might otherwise be molested; this proceeding, which
appears cruel on the surface, proves in reality to be the
truest humanity. On the other hand, States must not
claim the right to expel their own subjects. That is to
claim something which is essentially illegitimate. When
Germany expelled the Jesuits we were at least sure that
they would find a roof elsewhere. But if Germany were
to expel its own common criminals it would be simply
blowing them into the air, for no other State would be
willing to receive them.
Wherever international law relating to private indivi-
duals has begun to grow up, mutual undertakings are
soon given between the various States, to assist one
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 176 TREITSCHKE: HIS LIFE AND WORKS
another in the apprehension of criminals. Here we reach
some of the hardest problems of international law. It
is easy enough to assert generally that mankind as a whole
is bound to pursue criminals. That is recognised by all
noble nations and is easily embodied in their laws. But
how are we to draw the line between what is criminal and
what is not? To begin with, it is eminently necessary
to distinguish political and common offenders. Every
State must consider its own interests before it takes action
against traitors against some other State. There may
exist between two countries, nominally at peace, a latent
state of war, as is now the case between France and
Germany. In such a case it may well happen that the
man who is a political offender against the laws of his own
country is also very welcome to the other country; it
would be silly if the latter were to be forced to hand him
over to his own government. Treaties regulating the
extradition of common malefactors are easily made;
but no State will pledge itself to deliver up all political
offenders without the option of using its own judgment in
particular cases. Understandings, again, might be effected
as to anarchists pure and simple, who work with dynamite;
but about political offenders, as a class, no general treaty
can be drawn.
With respect to common criminals, the limits of extra-
dition must, of course, be settled by special agreements.
Such agreements must, of course, apply only to really
grievous offences. The judicial codes of various lands
vary so much that it is emphatically desirable that as
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 177
many crimes as possible should be judged at home.
Experience has here shown that the further the jurisdic-
tion of a nation is extended the better the result.
All this general movement towards securing justice
naturally tends to an ordered union between the States
concerned, that is, to a political system in which the use
of fixed forms of action is accepted even in international
matters. The quarrels of seventeenth century Europe
on matters of ceremonial, which now strike us as so absurd,
had a sound basis, despite the ridiculous forms which
they assumed. They showed that the States of Europe
had begun to regard themselves as members of one family.
In a well-ordered household everyone must have his
fixed place, and his individual rights must be recognised
and maintained. The difference between Empires and
Small States, between Great Powers and States of the
second or third rank, still exists from a practical point of
view, though no documents specifically record it. A Great
Power may be defined as a State which could not, in the
given circumstances, be destroyed by any one other Power,
but only by a coalition. The preponderance of the Great
Powers in Europe has lately become very marked, and it
is to this that we owe a certain security now observable in
our international relations. The law affecting embassies
has been so firmly established since the Congress of
Aachen in 1818, that the clearest lines have been drawn
in all civilised States between the different classes of
diplomatists. Through the dominance of the leading
European Powers, the practice--indeed the rule--has
M
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 178 TREITSCHKE: HIS LIFE AND WORKS
grown up that representation at a Congress of Great
Powers is granted only to those among the lesser States
which are directly concerned in the subject to be discussed.
But when once a Small State has been invited to the con-
gress, its voice carries as much weight as that of any other
State, large or small. These congresses are governed, not
by a vote of the majority, but by the liber urn veto of
natural law. A meeting which is held, not to conduct a
war but to formulate its results, cannot reasonably
be bound by majority votes; it must obtain unan-
imity.
It appears impossible to set up any general principle
governing international behaviour. The doctrine that
you may always intervene in the affairs of another State
is as false as the doctrine that you may never do so. A
State may find itself driven to regard the party struggles
in a neighbouring country as harmful to its own peace.
Were a cosmopolitan party to seize the reins in a State
which bordered with Germany, the issue might look so
threatening to us that we should have no option but to
interfere. To interfere, however, involves considerable
risk. The modern world has come to believe firmly in
the doctrine of national independence, and intervention
will always arouse resentment, and that not only in the
country which suffers the intervention. Hard experience
has taught this generation to be shy of mixing in the
internal affairs of its neighbours. But when a State's
existence seems to itself to be in peril, it both may and
will intervene.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 179
In Time of War.
The acceptance by States of common rules for mutual
relations, even in an age when physical force tears up
treaties, shows that a law governs their conduct, but a
defective and immature law. A state of war is usually
preceded by a hostile peace. Vain efforts at mutual under-
standing lead, in the first instance, to one of the States
passing laws detrimental to the other. That is legal enough,
if it is not fair, and the other State will straightway re-
taliate by a similar lack of consideration for its neighbour.
If one of the States trespass on an actual treaty-right,
the sufferer replies by equally conscious illegalities. Pre-
ludes of this kind lead finally to real war. As soon as
hostilities have actually begun, all treaties between the
two States come, legally, to an end. A formal declaration
of war is no longer needful in these days of railways and
telegraphs. Mobilizations of troops and discussions in
Cabinets and Parliaments give clear warning that the
State intends to open hostilities; the declaration is an
empty form. In the war of 1870 France did not send us
any declaration of war till a week after diplomatic rela-
tions had been broken off.
After the outbreak of war the primary object seems to
be to bring about new international conditions which
shall correspond to the real strength of the warring States,
and which they must recognise. It is then legitimate
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 180 TREITSCHKE: HIS LIFE AND WORKS
as possible. First, therefore, pierce the enemy to the
heart. The very sharpest weapons may be used, provided
that they do not inflict on the wounded needless torments.
Philanthropists may declaim about burning shells which
fall into the powder magazines of wooden warships;
that is all beside the point. The States themselves must
settle what weapons shall not be used; at the request
of Russia it has been agreed not to use explosive bullets
for rifles. A warring nation is wholly justified in taking
every advantage of every weakness in its opponent. If
its enemy is disturbed by internal revolts and conspiracies,
it may make full use of them; in 1866 it was only the
swift march of events that prevented us Prussians from
entering into agreements with the Hungarians against
their Austrian masters.
A warring nation may call to its fighting line the whole of
its troops--whether barbarian or civilised. On this point
we must keep an open mind and avoid prejudice against
any particular nation. There were howls in Germany
during the Franco-Prussian war because the French set
the Turcos to fight a highly civilised European people.
The passions of war readily breed such protests, but
science must take a dispassionate view and declare that
action, such as that of the French, was not contrary to
international law. A belligerent State both may and
ought to bring into the field all its physical resources,
that is, all its troops of every kind. For where can a line
be drawn? Which of all its charming subject-races
should Russia, for example, rule out of court? The
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 181
entire physical resources of the State can, and must, be
used in war. But they must only be used when they
have been embodied in those chivalrous forms of
organization which have been gradually established
during a long series of wars. The use of the Turcos
by the French put a curious complexion on their claim
to march at the head of civilisation. Indeed, many of
the complaints made in this respect arise from the fact
that people demand from a nation more than it is able to
fulfil. We all know that in modern national warfare
every gallant subject is a spy. The expulsion of the
80,000 Germans from France at the beginning of the
Franco-Prussian war in 1870 was, therefore, in accordance
with international law; the one point to which we can
object in the whole proceeding is, that the French
displayed a certain brutality in dealing with these
Germans.
The degree of humanity to be observed in warfare
is affected by the doctrine that a war can only be waged
between two States, and not between individual members
of those States. This doctrine regulates all warfare in
theory, though in practice only that on land. It should
be possible to recognise, by a distinguishing mark, all
men whom the State authorises to wage war for it, and
who must, therefore, be treated as soldiers. We are
not as yet all agreed on this point, and this failure to
agree constitutes a grievous gap in international law.
Humanity in war is entirely dependent on the question
as to whether the soldier feels that his only opponent
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 182 TREITSCHKE: HIS LIFE AND WORKS
is the enemy's soldier, and that he need not fear an
attack behind a bush from every peasant with whom
he has had peaceful dealings half an hour earlier. If
the soldier journeying through a hostile country does
not know whom to regard as soldier, and whom to look
upon as robber and highwayman, he is driven to show
himself cruel and heartless. No one can be regarded
as a soldier unless he has taken the military oath, unless
he is subject to military law, and unless he wears some
distinctive token, even if it be not (strictly speaking) a
complete uniform. It is a self-evident fact that bands
of unauthorised volunteers must expect to meet with
harsh and ruthless treatment. It is imperative that we
should come to some sort of international agreement as
to the tokens whereby one may know an armed man
to be an actual member of an authorised army. This
point was discussed at Brussels in 1874, and there the
conflicting interests of the different parties were thrown
into high relief. Little States like Switzerland were in
no way anxious to bind themselves on such a question.
Each State is, at present, its own judge in the matter,
and must itself determine which of its enemies it pro-
poses to treat as units of an army, and which as simple
robbers.
jurist Savigny declared that international law is perpe-
tually in the making. He did not mean, of course, that
it has no real validity. For this law which is daily grow-
ing is obviously of practical use at every turn. There can
be no doubt that the development of modern interna-
tional law owes a very special debt to Christianity, which
extends beyond the limits of single States towards
cosmopolitanism in the noblest sense of that term. Our
ancestors, therefore, were both reasonable and logical
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 163
when they for a while omitted the Porte from among the
nations bound by international law. They could not
admit the Porte so long as it was dominated exclusively
by Mohammedan standards of morals. More recently
Christianity has spread in the Balkans, Mohammedanism
has somewhat decreased there, and the Porte has been
brought into the circle of nations subject to international
law.
As States grow from small to large and from weakness
to independence they necessarily wish to preserve peace,
simply to ensure their safety and to guard the treasures
of civilisation entrusted to them. Hence grows up a
general agreement to obey international law, yielding an
orderly association of States, a political system. But
this at once presupposes a more or less approximately
level balance of power among the nations concerned. The
notion of a balance of power in Europe was at the first
accepted in a purely mechanical sense. But it contains
the germ of a perfectly true political conception. We
must not picture it under the image of a trutina gentium,
a weighing machine of nations, with both sides of the
balance equipoised. It is enough to premise that in any
ordered political system no State should be sufficiently
strong to be able to act as it pleases with impunity. In
this connexion we may note the superiority of present-day
Europe over the immature system of States in America.
There, the United States can do as they please, and it is
only because the relations of the United States with the
republics of South America are still rather slight that
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 164 TREITSCHKE: HIS LIFE AND WORKS
the latter have as yet suffered little direct interference
from their northern neighbour.
The Russian diplomat Gortshakof once said, and said
with truth, that neither the nations who fear attack nor
those who deem themselves strong enough to be able to
attack whom they will, will ever hasten the completion of
international law. Actual examples will convince us of
the correctness of this acute remark. In countries like
Belgium and Holland, which have--most unfortunately
for the proper growth of international law--long been
the chief centres of its study, there has sprung up a
sentimental conception of it, begotten no doubt by
unceasing fear of attack from outside. These countries
have fallen into the custom of addressing to the
conqueror demands in the name of humanity which
contradict the power of the State, and are unnatural
and unreasonable. The treaties of peace signed at
Nymwegen and Ryswick in 1678-9 and 1697 show
that then Holland was looked on as the diplomatic
cockpit of Europe, where all questions of high politics
might be fought out. Later on, this doubtful honour
passed to Switzerland. Nowadays few people reflect
how ridiculous it is that Belgium should pose as
the home of international law. Just as it is true that
that law rests on a basis of practical fact, so true is it that
a State which is in an abnormal position will inevitably
form an abnormal and perverted conception of it. Bel-
gium is neutral. And yet men think that it can give birth
to a healthy system of international law. I will ask you
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 165
to remember this when you are confronted with the volu-
minous literature which Belgian scholars have produced
on this subject.
Again, there is one country which believes itself in a
position to attack when it will, and which is therefore
a home of barbarism in all matters of international law.
Thanks to England, marine international law is still,
in time of war, nothing better than a system of privileged
piracy. We see, therefore, that as international law rests
wholly on reciprocity, it is vain to ask nations to listen
to empty commonplaces about humanity. Theory must
here be nailed down to practice; real reciprocity and a
real balance of power are inseparable.
If we would further define the sphere of international
law we must bear well in mind that it must never trespass
on the existence of the State. Demands which drive a
State towards suicide are necessarily unreasonable; each
State must retain its internal sovereignty amid the
general community of States; the preservation of
that sovereignty is its highest duty, even in its dealings
with its neighbours. The only principles of international
conduct which are seldom broken and may claim to be
fixed are those which do not touch this sovereignty, those,
namely, which concern the formal and ceremonial rules
mentioned above. To lay a finger on the honour of a
State is to contest its existence. Even to reproach a
State with a too touchy sense of honour is to misread the
true moral laws of politics. That State which will not be
untrue to itself must possess an acute sense of honour.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 166 TREITSCHKE: HIS LIFE AND WORKS
It is no violet to flower unseen. Its strength should be
shown signally in the light of open day, and it dare not
allow that strength to be questioned even indirectly.
If its flag be insulted, it must ask satisfaction; if that
satisfaction be not forthcoming, it must declare war,
however trifling the occasion may seem.
It follows that all the limitations which States lay on
themselves in treaties are merely voluntary; all treaties
are concluded with a mental reservation--rebus sic
stantibus--so long as circumstances remain unchanged.
No State exists, no State ever will exist, which is willing
to observe the terms of any peace for ever; no State can
pledge itself to the unlimited observance of treaties, for
that would limit its sovereign power. No treaty can hold
good when the conditions under which it was signed have
wholly changed. This doctrine has been declared in-
human; in reality it will be found the height of humanity.
Until the State has realised that its engagements have but
limited duration, it will never exercise due skill in treaty-
making. We cannot treat history as if we were judges
in a civil court of law. If we did that we should have to
say that Prussia, having signed the treaty of Tilsit in 1807,
ought not to have attacked Napoleon in 1813. But that
treaty, like all others, was concluded rebus sic stanti-
bus, and, thank God, things had completely changed in
the six years. A whole nation found itself in a state to
escape from intolerable thraldom.
Never disregard the free moral life of the nation as a
whole. No State in the wide world can venture to relin-
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 167
quish the "ego " of its sovereignty. If conditions have
been imposed on it which cripple it or which it cannot
observe, the nation honours itself in breaking them. It
is one of the most admirable facts in history that a nation
can recover from material loss far sooner than from the
slightest insult to its honour. The loss of a province may
be accepted as inevitable; the endurance of what we
deem to be servitude is an unending insult to a noble-
hearted nation. Napoleon, by stationing his troops on
Prussian soil, stirred up fierce hatred in the veins even of
the most patient. When a State has been wounded in its
honour the breach of a treaty is but a matter of time.
England and France had to admit this in 1870. In their
arrogant pride at the end of the Crimean War they had
compelled their exhausted enemy to agree to remove all
her warships from the Black Sea. Russia seized the
opportunity offered by the Franco-Prussian War to break
the agreement, and she was fully within her rights.
If a State finds that any of its existing treaties have
ceased to express the relative strength of itself and the
other treaty-State, and if it cannot induce the latter to a
friendly cancelment of the treaty, then has come the
moment for the " legal proceedings " customary between
nations, that is, for war. And in such circumstances
war is declared in the full consciousness that the nation
is doing its duty. Personal greed plays no part in such
an act. Those who declare war then say to themselves,
"Our treaty-obligation has failed to correspond with our
relative strength at this moment; we cannot come to
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 168 TREITSCHKE: HIS LIFE AND WORKS
friendly terms; we turn to the great assize of the
nations. " The justice of a war depends wholly on the
consciousness of its moral necessity. And since there
neither can be nor ought to be any external
coercive power controlling the great personages of a
State, and since history must ever remain in a state of
change, war is in itself justifiable; it is an ordinance of
God. No doubt a State may err as to the necessity of
applying this means of coercion. Niebuhr spoke truly
when he said that war can establish no right which did not
previously exist. Just for this reason we may look upon
certain deeds of violence as expiated in the very act of
being committed--for example, the completion of German
or of Italian unity. On the other hand, since not every
war produces the results which it ought to produce, the
historian must now and again withhold his judgment and
remember that the life of a State lasts for centuries. The
proud saying of the conquered Piedmontese, "We will
begin again," will always have its place in the history
of noble nations.
War will never be swept from the earth by courts of
arbitration. In questions that touch the very life of a
State, the other members of the community of States
cannot possibly be impartial. They must take sides
just because they belong to the community of States and
are drawn together or forced apart by the most diverse
interests. If Germany were foolish enough to try to
settle the question of Alsace-Lorraine by arbitration,
what European power could be impartial? You could
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 169
not find impartiality even in dreamland. Hence the
fact--well known to us all--that though international
congresses may formulate the results of a war and set
them out in juristic language, they can never avert a
threatened outbreak of hostilities. Other States can be
impartial only in questions of third-rate importance. # .
We have nowagreed thafwar is just and moral, and that
the ideal of eternal peace is both unjust and immoral,
and impossible. A purely intellectual life, with its
enervating effect on the thinker, may make men think
otherwise; let us get rid of the undignified attitude of
those who call possible what never can happen. So long
as human nature, with its passions and its sins, remains
what it is, the sword shall not depart from the earth.
It is curious to see how, in the writings of the pacificists,
unconsciously the sense of national honour cuts into the
talk of cosmopolitanism. In the Old Testament the
prophet Joel demanded that Israel should win a bloody
battle over the heathen in the valley of Jehosaphat;
Victor Hugo clamours in like manner that the Germans
shall first get a flogging before universal peace sets in.
Again and again it must be repeated that war, the violent
form of the quarrels of the nations, is the direct outcome
of the very nature of the State. The mere fact that there
are many States proves, of itself, that war is necessary.
Frederick the Great said that the dream of universal peace
is a phantom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of power,
he adds, is inconceivable.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 17(C) TREITSCHKE: HIS LIFE AND WORKS
Curiously enough, however, it is just in the domain of
war that the triumph of the human intellect most clearly
asserts itself. All noble nations have felt that the physical
power unchained in war must be regulated by laws.
The result has been the gradual establishment, by common
consent, of rules and customs to be observed in time of war.
The greatest successes of the science of international law
have been won in a field which those who are fools look
upon as barbarous--I mean the domain of the laws of war.
Really gross instances of the violation of military usages
are rare in modern times. One of the finest things about
international law is that it is perpetually progressing in
this respect, and that the universalis consensus alone
has so firmly planted a whole series of principles that they
are now well established. No doubt international law
will always lag a little behind the civil law, for various
principles of justice and culture must first reach maturity
within the State before anyone will feel anxious to find
them a corner in international conduct. Thus it was that
no crusade against slavery could claim the support of
international law till the general belief in the dignity of
man had become common in the nineteenth century.
Another factor which contributed to strengthen inter-
national law is the growing publicity of public life.
The days of the English Blue Book are now past; these
Blue, Yellow, and Green Books were only intended to
blind the Philistine with fumes of a flattery through which
he cannot see. A clever diplomat can easily hoodwink
a Parliament by these means. But the whole life of the
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 171
'
State is lived to-day so entirely in the glare of the footlights
that a gross violation of international law at once arouses
real anger among all civilised peoples.
International Law in Time of Peace.
We may now study some of the principles affecting the
intercourse of nations in time of peace which have deve-
loped into law. All nations should be allowed to enjoy,'
in security and without distinction, the unifying influences
of commercial intercourse, science, and art. Ancient
peoples sometimes forbade other nations to practise
certain industries which were looked on as secret arts.
In the later Roman Empire it was forbidden to initiate
barbarians in ship-building, and similar monopolist
principles obtained even as late as the days of the Hansa
League. All that would be impossible to-day. The State
must take the risk of free competition with other States,
and that has been laid down in a whole series of treaties.
In classical times it was, further, the custom of
almost all nations to claim exclusive access to some parti-
cular sea. Later still, it has been held that certain seas
which were not properly called oceans belonged to
particular States. The Adriatic was the property of
Venice, the Ligurian Sea of Genoa, the Gulf of Bothnia
of Sweden. To-day the sea is said to belong to the States
which border on it only so far as it can be militarily con-
trolled from the coast, that is, within gunshot. But
in such questions, as in so many others, everything
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 172 TREITSCHKE: HIS LIFE AND WORKS
ultimately depends on the actual power of the States
concerned. If a particular State can dominate a particular
sea, no well-meaning theorist can ever make that sea
public. The Caspian Sea belongs in name to two States,
Persia and Russia. But Russia is so strong that the Sea
is a Russian lake. So, again, if a power were to arise at
Constantinople strong enough to close the Bosphorus
to all comers, protestations against such an act would
be merely laughed at. Apart from this, the sea must be
regarded as open to all ships flying a recognised flag. The
high seas are policed by the navies of all nations, and every
man-of-war has the right to stop a merchantman and
examine its papers. This is the result of a long and
intricate development. All nations are now agreed that
occasional inconveniences suffered by their merchant
ships is a far lesser evil than piracy.
All international rights are safeguarded by treaties.
These treaties differ in many details from compacts made
under the civil law. In the first place they depend on good
faith on both sides, since there is no tribunal to compel
either side to observe them. The ancient Athenians were
therefore obeying a right instinct when they decided to
l limit the time during which their treaties with other nations
held good. Christian nations have tended rather to re-
j gard treaties as eternally binding, but their real attitude
is that they are willing to observe the treaty so long as the
relative strength of the States involved does not seriously
change. The more clearly this truth is proclaimed, and the
more dispassionately it is regarded, the safer will be the
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 173
treaties made; States will not conclude agreements which
the other party is likely to break.
There are other treaties which are made under compul-
sion. Such compacts are not made in time of peace;
if Switzerland be unwilling in peace time to enter into a
treaty with Germany, she is free to refuse. But after
wars the victor imposes a compulsory peace on the con-
quered. Here again we seek in vain for the external judge
who can say with authority, " This treaty is compulsory. "
It does not appear that there can be any limit of time
implied in agreements under international law. Limits
are imposed on the duration of certain legal liabilities
under the ordinary law; for example, thefts might cease
to be actionable after twenty years. But this is really a
juristic makeshift. The framer of the law has authorised
a legal fiction on practical grounds. It is not thought
worth while to pursue a trifling offence after the lapse of a
long period. But that cannot be done in international
law. The lives of States last for centuries. One would
have to wait for years for the expiry of the time-limits
of nations. Frederick the Great had a perfect right to
claim Silesia as part of his kingdom, though the treaties
which secured it to his family were over two hundred
years old.
Much progress has been effected of late years in the
way of better drafting, and also of more distinct ratifica-
tion, of international treaties, as well as in lucidity of
wording. As a rule, such treaties ought not to contain
secret clauses. They merely obscure the true state of
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 174 TREITSCHKE: HIS LIFE AND WORKS
affairs; they bring it about that States which are unaware
of them form false ideas of their mutual obligations, and
thus they may easily prove dangerous to the very State
which made them. Governments used to imagine that
secret clauses would trip up other governments; obviously
they are actually a double-edged weapon. There are,
of course, exceptions even to this. In 1866, when Prussia
made peace with the conquered States of Southern Ger-
many, an offensive and defensive alliance between them
was concluded in a series of secret treaties. There was
good reason for this. When France, a year later, revealed
her leanings towards war, it was then publicly announced
that North and South Germany would act together.
The sphere in which the principles of international
relations can be most definitely laid down is that of
private international law--the law which governs the
behaviour of any State towards individual foreigners.
It is a great step forward that, in any cultured State to-
day, a foreign private person is sure of the protection of
the law. It is a crime against the human race to urge the
view that force alone governs international law to-day.
That view is wholly untrue. Only--we must not expect
the impossible. The difficulty of the question becomes
apparent as soon as one looks into its details. One then
realises that all obligations of private as of other inter-
national law are entered into and kept with a certain
reservation, that, namely, they cannot be fulfilled when
they entail grave hurt to the State which promised to
carry them out. However many treaties we may con-
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 175
elude in the domain of private international law, it is
always implied that we shall not keep them if a foreigner
becomes obnoxious to us. A State must be able to expel
inconvenient foreigners without declaring its reasons,
even though it has signed a treaty permitting foreigners
to reside within its borders. Thus, modern States
habitually expel persons suspected of being spies or
secret agents; if explanations had to be published
before active steps were taken in such cases, those
explanations would be mostly of an exceedingly un-
pleasant kind, and would merely imperil the friendly
relations of the States concerned. It is therefore more
sensible to take the line that any alien can be expelled
at any moment, with the simple comment: You are
undesirable. And the right to act thus must be firmly
maintained, if only in the interest of honest men, who
might otherwise be molested; this proceeding, which
appears cruel on the surface, proves in reality to be the
truest humanity. On the other hand, States must not
claim the right to expel their own subjects. That is to
claim something which is essentially illegitimate. When
Germany expelled the Jesuits we were at least sure that
they would find a roof elsewhere. But if Germany were
to expel its own common criminals it would be simply
blowing them into the air, for no other State would be
willing to receive them.
Wherever international law relating to private indivi-
duals has begun to grow up, mutual undertakings are
soon given between the various States, to assist one
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 176 TREITSCHKE: HIS LIFE AND WORKS
another in the apprehension of criminals. Here we reach
some of the hardest problems of international law. It
is easy enough to assert generally that mankind as a whole
is bound to pursue criminals. That is recognised by all
noble nations and is easily embodied in their laws. But
how are we to draw the line between what is criminal and
what is not? To begin with, it is eminently necessary
to distinguish political and common offenders. Every
State must consider its own interests before it takes action
against traitors against some other State. There may
exist between two countries, nominally at peace, a latent
state of war, as is now the case between France and
Germany. In such a case it may well happen that the
man who is a political offender against the laws of his own
country is also very welcome to the other country; it
would be silly if the latter were to be forced to hand him
over to his own government. Treaties regulating the
extradition of common malefactors are easily made;
but no State will pledge itself to deliver up all political
offenders without the option of using its own judgment in
particular cases. Understandings, again, might be effected
as to anarchists pure and simple, who work with dynamite;
but about political offenders, as a class, no general treaty
can be drawn.
With respect to common criminals, the limits of extra-
dition must, of course, be settled by special agreements.
Such agreements must, of course, apply only to really
grievous offences. The judicial codes of various lands
vary so much that it is emphatically desirable that as
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 177
many crimes as possible should be judged at home.
Experience has here shown that the further the jurisdic-
tion of a nation is extended the better the result.
All this general movement towards securing justice
naturally tends to an ordered union between the States
concerned, that is, to a political system in which the use
of fixed forms of action is accepted even in international
matters. The quarrels of seventeenth century Europe
on matters of ceremonial, which now strike us as so absurd,
had a sound basis, despite the ridiculous forms which
they assumed. They showed that the States of Europe
had begun to regard themselves as members of one family.
In a well-ordered household everyone must have his
fixed place, and his individual rights must be recognised
and maintained. The difference between Empires and
Small States, between Great Powers and States of the
second or third rank, still exists from a practical point of
view, though no documents specifically record it. A Great
Power may be defined as a State which could not, in the
given circumstances, be destroyed by any one other Power,
but only by a coalition. The preponderance of the Great
Powers in Europe has lately become very marked, and it
is to this that we owe a certain security now observable in
our international relations. The law affecting embassies
has been so firmly established since the Congress of
Aachen in 1818, that the clearest lines have been drawn
in all civilised States between the different classes of
diplomatists. Through the dominance of the leading
European Powers, the practice--indeed the rule--has
M
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 178 TREITSCHKE: HIS LIFE AND WORKS
grown up that representation at a Congress of Great
Powers is granted only to those among the lesser States
which are directly concerned in the subject to be discussed.
But when once a Small State has been invited to the con-
gress, its voice carries as much weight as that of any other
State, large or small. These congresses are governed, not
by a vote of the majority, but by the liber urn veto of
natural law. A meeting which is held, not to conduct a
war but to formulate its results, cannot reasonably
be bound by majority votes; it must obtain unan-
imity.
It appears impossible to set up any general principle
governing international behaviour. The doctrine that
you may always intervene in the affairs of another State
is as false as the doctrine that you may never do so. A
State may find itself driven to regard the party struggles
in a neighbouring country as harmful to its own peace.
Were a cosmopolitan party to seize the reins in a State
which bordered with Germany, the issue might look so
threatening to us that we should have no option but to
interfere. To interfere, however, involves considerable
risk. The modern world has come to believe firmly in
the doctrine of national independence, and intervention
will always arouse resentment, and that not only in the
country which suffers the intervention. Hard experience
has taught this generation to be shy of mixing in the
internal affairs of its neighbours. But when a State's
existence seems to itself to be in peril, it both may and
will intervene.
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 179
In Time of War.
The acceptance by States of common rules for mutual
relations, even in an age when physical force tears up
treaties, shows that a law governs their conduct, but a
defective and immature law. A state of war is usually
preceded by a hostile peace. Vain efforts at mutual under-
standing lead, in the first instance, to one of the States
passing laws detrimental to the other. That is legal enough,
if it is not fair, and the other State will straightway re-
taliate by a similar lack of consideration for its neighbour.
If one of the States trespass on an actual treaty-right,
the sufferer replies by equally conscious illegalities. Pre-
ludes of this kind lead finally to real war. As soon as
hostilities have actually begun, all treaties between the
two States come, legally, to an end. A formal declaration
of war is no longer needful in these days of railways and
telegraphs. Mobilizations of troops and discussions in
Cabinets and Parliaments give clear warning that the
State intends to open hostilities; the declaration is an
empty form. In the war of 1870 France did not send us
any declaration of war till a week after diplomatic rela-
tions had been broken off.
After the outbreak of war the primary object seems to
be to bring about new international conditions which
shall correspond to the real strength of the warring States,
and which they must recognise. It is then legitimate
to carry on the war in the most drastic manner; the
ultimate aim--peace--will thus be attained as speedily
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 180 TREITSCHKE: HIS LIFE AND WORKS
as possible. First, therefore, pierce the enemy to the
heart. The very sharpest weapons may be used, provided
that they do not inflict on the wounded needless torments.
Philanthropists may declaim about burning shells which
fall into the powder magazines of wooden warships;
that is all beside the point. The States themselves must
settle what weapons shall not be used; at the request
of Russia it has been agreed not to use explosive bullets
for rifles. A warring nation is wholly justified in taking
every advantage of every weakness in its opponent. If
its enemy is disturbed by internal revolts and conspiracies,
it may make full use of them; in 1866 it was only the
swift march of events that prevented us Prussians from
entering into agreements with the Hungarians against
their Austrian masters.
A warring nation may call to its fighting line the whole of
its troops--whether barbarian or civilised. On this point
we must keep an open mind and avoid prejudice against
any particular nation. There were howls in Germany
during the Franco-Prussian war because the French set
the Turcos to fight a highly civilised European people.
The passions of war readily breed such protests, but
science must take a dispassionate view and declare that
action, such as that of the French, was not contrary to
international law. A belligerent State both may and
ought to bring into the field all its physical resources,
that is, all its troops of every kind. For where can a line
be drawn? Which of all its charming subject-races
should Russia, for example, rule out of court? The
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? INTERNATIONAL LAW 181
entire physical resources of the State can, and must, be
used in war. But they must only be used when they
have been embodied in those chivalrous forms of
organization which have been gradually established
during a long series of wars. The use of the Turcos
by the French put a curious complexion on their claim
to march at the head of civilisation. Indeed, many of
the complaints made in this respect arise from the fact
that people demand from a nation more than it is able to
fulfil. We all know that in modern national warfare
every gallant subject is a spy. The expulsion of the
80,000 Germans from France at the beginning of the
Franco-Prussian war in 1870 was, therefore, in accordance
with international law; the one point to which we can
object in the whole proceeding is, that the French
displayed a certain brutality in dealing with these
Germans.
The degree of humanity to be observed in warfare
is affected by the doctrine that a war can only be waged
between two States, and not between individual members
of those States. This doctrine regulates all warfare in
theory, though in practice only that on land. It should
be possible to recognise, by a distinguishing mark, all
men whom the State authorises to wage war for it, and
who must, therefore, be treated as soldiers. We are
not as yet all agreed on this point, and this failure to
agree constitutes a grievous gap in international law.
Humanity in war is entirely dependent on the question
as to whether the soldier feels that his only opponent
? ? Generated for (University of Chicago) on 2014-08-05 01:02 GMT / http://hdl. handle. net/2027/mdp. 39015030043338 Public Domain in the United States, Google-digitized / http://www. hathitrust. org/access_use#pd-us-google
? 182 TREITSCHKE: HIS LIFE AND WORKS
is the enemy's soldier, and that he need not fear an
attack behind a bush from every peasant with whom
he has had peaceful dealings half an hour earlier. If
the soldier journeying through a hostile country does
not know whom to regard as soldier, and whom to look
upon as robber and highwayman, he is driven to show
himself cruel and heartless. No one can be regarded
as a soldier unless he has taken the military oath, unless
he is subject to military law, and unless he wears some
distinctive token, even if it be not (strictly speaking) a
complete uniform. It is a self-evident fact that bands
of unauthorised volunteers must expect to meet with
harsh and ruthless treatment. It is imperative that we
should come to some sort of international agreement as
to the tokens whereby one may know an armed man
to be an actual member of an authorised army. This
point was discussed at Brussels in 1874, and there the
conflicting interests of the different parties were thrown
into high relief. Little States like Switzerland were in
no way anxious to bind themselves on such a question.
Each State is, at present, its own judge in the matter,
and must itself determine which of its enemies it pro-
poses to treat as units of an army, and which as simple
robbers.
