Niebuhr spoke truly, when he said
that war can establish no right which did not
?
that war can establish no right which did not
?
Treitschke - 1914 - His Doctrine of German Destiny
ark:/13960/t5j962q2q Public Domain in the United States / http://www.
hathitrust.
org/access_use#pd-us
? INTERNATIONAL LAW
IS there really such a thing as international law?
Certainly there are two common theories of
international relations, each contradictory to the
other, each quite untenable. One, the so-called
naturalistic theory, dates from Machiavelli. It
is based on the notion that the State is merely
might personified, that it has the right to do any-
thing that is profitable to it. On this view the
State cannot fetter itself by international law; its
relations with other States depend simply on the
respective strength which it and they possess.
This theory leads to an absurdity. It is of course
true that the State implies physical might. But if
a State be that and nothing else, if it pay no heed
to reason or to conscience, it will never maintain
itself in a proper condition of safety. Even na-
turalistic thinkers allow that it is a function of
the State to preserve internal order; that it cannot
do if it refuses to obey any law in its relations with
other States. Its deliberate contempt for good
faith, loyalty, and treaty agreements in external
relations would raise a crowd of enemies, and pre-
vent it from fulfilling its purpose the embodi-
ment of physical force. Even Machiavelli's ideal,
Caesar Borgia, ultimately fell into the pit which he
158
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? International Law 159
had digged for others. For the end and object
of the State's existence is not physical might; it
embodies might only in order that it may protect
and develop the nobler aspects of mankind. Thus
the doctrine of pure might is a vain doctrine; it
is immoral because it cannot justify its own
existence.
Directly contrary to this view of the State, is
another an equally false view. This is the
"moral" conception due to German liberalism.
The State is here regarded as a good little boy,
to be washed, brushed, and sent to school ; he must
have his ears pulled, to keep him good, and in
return he is to be thankful, just-minded, and
Heaven knows what else. This German doctri-
naire theory has done as much harm to our political
thinking as to other forms of German life. All
our political sins can be traced back to the notion
natural enough in a learned nation that the
pronouncement of some scientific truth is ade-
quate to turn the world's course into a new channel.
That notion underlies the German spirit of sci-
entific research; it also underlies our tendency to
all manner of practical blunders. The doctri-
naire exponent of international law fondly imagines
that he need only emit a few aphorisms and that
the nations of the world will forthwith, as reason-
able men, accept them. We forget that stupidity
and passion matter, and have always mattered
in history. Who, after all, can fail to see the
growth of national passions during the nineteenth
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? 160 Treitschke
century? And whence do individuals Rotteck,
Bluntschli, Heffter, and others say to States per-
emptorily, "Thou shalt"? No single man stands
high enough to impose his doctrines on all States ;
he must be ready to see his theories crossed or
crushed by actual life. The delusion that there
can be such a thing as hypothetical law is at the
root of these errors. Positive law is the only law
that has real existence. Until the general public
has grown convinced of the truth and righteous-
ness of various legal principles, the function of
learned men is really limited to preparing the way.
Were we to pursue the abstract conception of the
State to its logical conclusion, we should find
ourselves demanding a supreme authority with
world-wide power. The authority would be such
as that claimed by the Papal See, an authority
not of this world, represented by the Vicegerent
of Christ and ruling in the name of God. That is
the sort of authority which we do not want on
earth; our beautiful world should be a world of
liberty. Nevertheless it is only ultramontane
thinkers who have consistently worked out to its
logical issue the weak and sentimental view of
international law which we at this moment are
considering. That logical issue has been rightly
stated in the great "Codex" of the Jesuits; accord-
ing to it, the world is, as it were, an ethnarchy in
which the nations form an ideal community, while
the Pope, as ethnarch, wields over them a coercive
power, keeping each State within bounds by spiri-
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? International Law 161
tual warnings and ghostly power. That is the one
practical conclusion deducible from the premise
that the State is a body liable to external coercion.
No system of international law can, merely be-
cause it has a scientific basis, restrain a sovereign
State.
So then these two extreme views are both un-
workable in practice. Let us see if we can, in their
place, set up a theory of international law based
on historical foundations. First and before all,
we must recognize clearly that we must not over-
weight our human nature with demands which
our weakness cannot meet. That mistake is
responsible for the perversion of many an idealist
into a disillusioned fanatic. The man who de-
claims that might and the mailed fist alone decide
the rivalry of nations is often a soured fanatic
who in his youth smoked away at the pipe of
peace, discovered that that was too good, for this
poor world, rushed off to the other extreme, and
now declares that the basis of all things is brutality
and cynicism. No doubt, all great political think-
ers show a touch of cynical contempt for mankind,
and when this contempt is not too deep, it has
its justification. But it is only the man who does
not ask the impossible from human nature who
can really awaken the finer energies which, despite
all frailties and brutish instincts, lie dormant in
man.
With this in mind, we must set to work histori-
cally and consider the State as it actually is. It
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? 1 62 Treitschke
is physical force ; but it is also an institution aiming
at the betterment of mankind. In so far as it is
physical force, it has a natural tendency to grab
as many possessions as may seem to it desirable.
But every State will nevertheless show of its own
accord a real regard for neighbouring States.
Prudent calculation and a mutual recognition of
advantages will gradually foster an ever-growing
sense of justice; there will arise the consciousness
that each State is bound up with the common life
of the States around it and that, willingly or un-
willingly, it must come to terms with them as a
body of States. This consideration is prompted
not by any sort of philanthropy but by a literal
sense of the benefits of reciprocal action. What
I may call the formal part of international law,
such as the rules which assure the inviolability
of ambassadors and which regulate the ceremonial
of embassies, was developed and fixed at an early
date in history. In modern Europe, the laws
about embassies are definite and well determined.
It may even be asserted that the formal side of
international law is more firmly established and
more seldom broken than the laws which govern
the internal life of each single State. Still, the
existence of international law is precarious; it is
a lex imperfecta, because there is no higher power
to control States as a whole. All depends on the
sense of reciprocity between nations, and here,
in default (as already said) of a supreme authority,
learning and public opinion may play a great part.
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? International Law 163
The jurist Savigny declared that international
law is perpetually in the making. He did not
mean, of course, that it has no real validity. For
this law which is daily growing 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 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
Mahometan standards of morals. More recently,
Christianity has spread in the Balkans, Mahom-
etanism 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 civilization entrusted
to them. Hence grows up a general agreement to
obey international law, yielding an orderly associa-
tion 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
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? 1 64 Treitschke
conception. We must not picture it under the
image of a trutina gentium, a weighing machine
of nations, with both sides of the balance equi-
poised. It is enough to premise that in any
ordered political system no State should be suffi-
ciently 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 im-
mature 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 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
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? International Law 165
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. Belgium is neutral. And yet
men think that it can give birth to a healthy
system of international law. I will ask you to
remember this when you are confronted with the
voluminous 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 reci-
procity and a real balance of power are inseparable.
If we would further define the sphere of inter-
national law, we must bear well in mind that it
must never trespass on the existence of the State.
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? i66 Treitschke
Demands which drive a State towards suicide are
necessarily unreasonable; each State must retain
its internal sovereignty amid the general commu-
nity 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. 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 satis-
faction 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
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? International Law 167
can hold good when the conditions under which it
was signed have wholly changed. This doctrine
has been declared inhuman; in reality it will be
found the height of humanity. Until the State
has realized 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 stantibus, 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 ven-
ture to relinquish 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 slight-
est 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. Eng-
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? 1 68 Treitschke
land 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 agree-
ment, 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 de-
clared 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 friendly terms; we
turn to the great assize of the nations. " The
justice of a war depends wholly on the conscious-
ness of its moral necessity. And since there
neither can be nor ought to be any external coer-
cive 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
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? International Law . 169
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 centu-
ries. The proud saying of the conquered Pied-
montese, " 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 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 hos-
tilities. Other States can be impartial only in
questions of third-rate importance.
We have now agreed J;hatwar is just and moral^
and that the ideal of eternal peace is both unjust
and immoral, and impossible. ^-purely intel-
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? 170 Treitschke
lectual 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 phan-
tom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of
power, he adds, is inconceivable.
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 un-
chained in war must be regulated by laws. The
result has been the gradual establishment, by
common consent, of rules and customs to be ob-
served in time of war. The greatest successes
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? International Law 171
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 any one
will feel anxious to find them a corner in inter-
national conduct. Thus it was that no crusade
against slavery could claim the support of inter-
national law till the general belief in the dignity
of man had become common in the nineteenth
century.
Another factor which contributed to strengthen
international 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 could not see. A
clever diplomat can easily hoodwink a parliament
by these means. But the whole life of the State
is lived today so entirely in the glare of the foot-
lights that a gross violation of international law
at once arouses real anger among all civilized
peoples.
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? 172 Treitschke
INTERNATIONAL LAW IN TIME OF PEACE
We may now study some of the principles affect-
ing the intercourse of nations in time of peace
which have developed 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 imitate barbarians in shipbuilding, and similar
monopolist principles obtained even as late as the
days of the Hansa League. All that would be
impossible today. 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 particular sea. Later still, it has been held
that certain seas which were not properly called
oceans belonged to particular States. The Adri-
atic was the property of Venice, the Ligurian Sea
of Genoa, the Gulf of Bothnia of Sweden. Today
the sea is said to belong to the States which border
on it only so far as it can be militarily controlled
from the coast, that is, within gunshot. But in
such questions, as in so many others, everything
ultimately depends on the actual power of the
States concerned. If a particular State can
dominate a particular sea, no well-meaning the-
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? International Law 173
orist 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 recognized 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 are 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 limit the time during which their
treaties with other nations held good. Christian
nations have tended rather to regard 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
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? 174 Treitschke
it is regarded, the safer will be the treaties made ;
States will not conclude agreements which the
other party is likely to break.
There are other treaties which are made under
compulsion. 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 conquered. Here
again we seek in vain for the external judge who
can say with authority, "This treaty is compul-
sory. "
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 author-
ized 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 can-
not 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
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? International Law 175
distinct ratification, 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 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 Germany,
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 Ger-
many would act together.
The sphere in which the principles of interna-
tional relations can be most definitely laid down
is that of private international law, the law which
governs the behaviour of any State towards indi-
vidual foreigners. It is a great step forward
that, in any cultured State today, 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 today.
That view is wholly untrue. Only we must not
expect the impossible. The difficulty of the
question becomes apparent as soon as one looks
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? 176 Treitschke
into its details. One then realizes that all obli-
gations of private as of other international law
are entered into and kept with a certain reserva-
tion, 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 conclude in the domain of private interna-
tional 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 for-
eigners, 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 pub-
lished before active steps were taken in such cases,
those explanations would be mostly of an exceed-
ingly unpleasant 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
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? International Law 177
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
individuals has begun to grow up, mutual un-
dertakings are soon given between the various
States to assist one 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 recognized
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. Un-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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? INTERNATIONAL LAW
IS there really such a thing as international law?
Certainly there are two common theories of
international relations, each contradictory to the
other, each quite untenable. One, the so-called
naturalistic theory, dates from Machiavelli. It
is based on the notion that the State is merely
might personified, that it has the right to do any-
thing that is profitable to it. On this view the
State cannot fetter itself by international law; its
relations with other States depend simply on the
respective strength which it and they possess.
This theory leads to an absurdity. It is of course
true that the State implies physical might. But if
a State be that and nothing else, if it pay no heed
to reason or to conscience, it will never maintain
itself in a proper condition of safety. Even na-
turalistic thinkers allow that it is a function of
the State to preserve internal order; that it cannot
do if it refuses to obey any law in its relations with
other States. Its deliberate contempt for good
faith, loyalty, and treaty agreements in external
relations would raise a crowd of enemies, and pre-
vent it from fulfilling its purpose the embodi-
ment of physical force. Even Machiavelli's ideal,
Caesar Borgia, ultimately fell into the pit which he
158
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? International Law 159
had digged for others. For the end and object
of the State's existence is not physical might; it
embodies might only in order that it may protect
and develop the nobler aspects of mankind. Thus
the doctrine of pure might is a vain doctrine; it
is immoral because it cannot justify its own
existence.
Directly contrary to this view of the State, is
another an equally false view. This is the
"moral" conception due to German liberalism.
The State is here regarded as a good little boy,
to be washed, brushed, and sent to school ; he must
have his ears pulled, to keep him good, and in
return he is to be thankful, just-minded, and
Heaven knows what else. This German doctri-
naire theory has done as much harm to our political
thinking as to other forms of German life. All
our political sins can be traced back to the notion
natural enough in a learned nation that the
pronouncement of some scientific truth is ade-
quate to turn the world's course into a new channel.
That notion underlies the German spirit of sci-
entific research; it also underlies our tendency to
all manner of practical blunders. The doctri-
naire exponent of international law fondly imagines
that he need only emit a few aphorisms and that
the nations of the world will forthwith, as reason-
able men, accept them. We forget that stupidity
and passion matter, and have always mattered
in history. Who, after all, can fail to see the
growth of national passions during the nineteenth
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? 160 Treitschke
century? And whence do individuals Rotteck,
Bluntschli, Heffter, and others say to States per-
emptorily, "Thou shalt"? No single man stands
high enough to impose his doctrines on all States ;
he must be ready to see his theories crossed or
crushed by actual life. The delusion that there
can be such a thing as hypothetical law is at the
root of these errors. Positive law is the only law
that has real existence. Until the general public
has grown convinced of the truth and righteous-
ness of various legal principles, the function of
learned men is really limited to preparing the way.
Were we to pursue the abstract conception of the
State to its logical conclusion, we should find
ourselves demanding a supreme authority with
world-wide power. The authority would be such
as that claimed by the Papal See, an authority
not of this world, represented by the Vicegerent
of Christ and ruling in the name of God. That is
the sort of authority which we do not want on
earth; our beautiful world should be a world of
liberty. Nevertheless it is only ultramontane
thinkers who have consistently worked out to its
logical issue the weak and sentimental view of
international law which we at this moment are
considering. That logical issue has been rightly
stated in the great "Codex" of the Jesuits; accord-
ing to it, the world is, as it were, an ethnarchy in
which the nations form an ideal community, while
the Pope, as ethnarch, wields over them a coercive
power, keeping each State within bounds by spiri-
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? International Law 161
tual warnings and ghostly power. That is the one
practical conclusion deducible from the premise
that the State is a body liable to external coercion.
No system of international law can, merely be-
cause it has a scientific basis, restrain a sovereign
State.
So then these two extreme views are both un-
workable in practice. Let us see if we can, in their
place, set up a theory of international law based
on historical foundations. First and before all,
we must recognize clearly that we must not over-
weight our human nature with demands which
our weakness cannot meet. That mistake is
responsible for the perversion of many an idealist
into a disillusioned fanatic. The man who de-
claims that might and the mailed fist alone decide
the rivalry of nations is often a soured fanatic
who in his youth smoked away at the pipe of
peace, discovered that that was too good, for this
poor world, rushed off to the other extreme, and
now declares that the basis of all things is brutality
and cynicism. No doubt, all great political think-
ers show a touch of cynical contempt for mankind,
and when this contempt is not too deep, it has
its justification. But it is only the man who does
not ask the impossible from human nature who
can really awaken the finer energies which, despite
all frailties and brutish instincts, lie dormant in
man.
With this in mind, we must set to work histori-
cally and consider the State as it actually is. It
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? 1 62 Treitschke
is physical force ; but it is also an institution aiming
at the betterment of mankind. In so far as it is
physical force, it has a natural tendency to grab
as many possessions as may seem to it desirable.
But every State will nevertheless show of its own
accord a real regard for neighbouring States.
Prudent calculation and a mutual recognition of
advantages will gradually foster an ever-growing
sense of justice; there will arise the consciousness
that each State is bound up with the common life
of the States around it and that, willingly or un-
willingly, it must come to terms with them as a
body of States. This consideration is prompted
not by any sort of philanthropy but by a literal
sense of the benefits of reciprocal action. What
I may call the formal part of international law,
such as the rules which assure the inviolability
of ambassadors and which regulate the ceremonial
of embassies, was developed and fixed at an early
date in history. In modern Europe, the laws
about embassies are definite and well determined.
It may even be asserted that the formal side of
international law is more firmly established and
more seldom broken than the laws which govern
the internal life of each single State. Still, the
existence of international law is precarious; it is
a lex imperfecta, because there is no higher power
to control States as a whole. All depends on the
sense of reciprocity between nations, and here,
in default (as already said) of a supreme authority,
learning and public opinion may play a great part.
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? International Law 163
The jurist Savigny declared that international
law is perpetually in the making. He did not
mean, of course, that it has no real validity. For
this law which is daily growing 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 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
Mahometan standards of morals. More recently,
Christianity has spread in the Balkans, Mahom-
etanism 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 civilization entrusted
to them. Hence grows up a general agreement to
obey international law, yielding an orderly associa-
tion 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
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? 1 64 Treitschke
conception. We must not picture it under the
image of a trutina gentium, a weighing machine
of nations, with both sides of the balance equi-
poised. It is enough to premise that in any
ordered political system no State should be suffi-
ciently 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 im-
mature 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 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
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? International Law 165
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. Belgium is neutral. And yet
men think that it can give birth to a healthy
system of international law. I will ask you to
remember this when you are confronted with the
voluminous 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 reci-
procity and a real balance of power are inseparable.
If we would further define the sphere of inter-
national law, we must bear well in mind that it
must never trespass on the existence of the State.
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? i66 Treitschke
Demands which drive a State towards suicide are
necessarily unreasonable; each State must retain
its internal sovereignty amid the general commu-
nity 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. 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 satis-
faction 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
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? International Law 167
can hold good when the conditions under which it
was signed have wholly changed. This doctrine
has been declared inhuman; in reality it will be
found the height of humanity. Until the State
has realized 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 stantibus, 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 ven-
ture to relinquish 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 slight-
est 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. Eng-
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? 1 68 Treitschke
land 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 agree-
ment, 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 de-
clared 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 friendly terms; we
turn to the great assize of the nations. " The
justice of a war depends wholly on the conscious-
ness of its moral necessity. And since there
neither can be nor ought to be any external coer-
cive 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
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? International Law . 169
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 centu-
ries. The proud saying of the conquered Pied-
montese, " 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 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 hos-
tilities. Other States can be impartial only in
questions of third-rate importance.
We have now agreed J;hatwar is just and moral^
and that the ideal of eternal peace is both unjust
and immoral, and impossible. ^-purely intel-
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? 170 Treitschke
lectual 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 phan-
tom which everyone ignores so soon as it affects
his own freedom of action. A lasting balance of
power, he adds, is inconceivable.
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 un-
chained in war must be regulated by laws. The
result has been the gradual establishment, by
common consent, of rules and customs to be ob-
served in time of war. The greatest successes
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? International Law 171
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 any one
will feel anxious to find them a corner in inter-
national conduct. Thus it was that no crusade
against slavery could claim the support of inter-
national law till the general belief in the dignity
of man had become common in the nineteenth
century.
Another factor which contributed to strengthen
international 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 could not see. A
clever diplomat can easily hoodwink a parliament
by these means. But the whole life of the State
is lived today so entirely in the glare of the foot-
lights that a gross violation of international law
at once arouses real anger among all civilized
peoples.
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? 172 Treitschke
INTERNATIONAL LAW IN TIME OF PEACE
We may now study some of the principles affect-
ing the intercourse of nations in time of peace
which have developed 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 imitate barbarians in shipbuilding, and similar
monopolist principles obtained even as late as the
days of the Hansa League. All that would be
impossible today. 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 particular sea. Later still, it has been held
that certain seas which were not properly called
oceans belonged to particular States. The Adri-
atic was the property of Venice, the Ligurian Sea
of Genoa, the Gulf of Bothnia of Sweden. Today
the sea is said to belong to the States which border
on it only so far as it can be militarily controlled
from the coast, that is, within gunshot. But in
such questions, as in so many others, everything
ultimately depends on the actual power of the
States concerned. If a particular State can
dominate a particular sea, no well-meaning the-
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? International Law 173
orist 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 recognized 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 are 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 limit the time during which their
treaties with other nations held good. Christian
nations have tended rather to regard 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
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? 174 Treitschke
it is regarded, the safer will be the treaties made ;
States will not conclude agreements which the
other party is likely to break.
There are other treaties which are made under
compulsion. 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 conquered. Here
again we seek in vain for the external judge who
can say with authority, "This treaty is compul-
sory. "
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 author-
ized 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 can-
not 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
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? International Law 175
distinct ratification, 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 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 Germany,
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 Ger-
many would act together.
The sphere in which the principles of interna-
tional relations can be most definitely laid down
is that of private international law, the law which
governs the behaviour of any State towards indi-
vidual foreigners. It is a great step forward
that, in any cultured State today, 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 today.
That view is wholly untrue. Only we must not
expect the impossible. The difficulty of the
question becomes apparent as soon as one looks
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? 176 Treitschke
into its details. One then realizes that all obli-
gations of private as of other international law
are entered into and kept with a certain reserva-
tion, 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 conclude in the domain of private interna-
tional 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 for-
eigners, 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 pub-
lished before active steps were taken in such cases,
those explanations would be mostly of an exceed-
ingly unpleasant 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
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? International Law 177
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
individuals has begun to grow up, mutual un-
dertakings are soon given between the various
States to assist one 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 recognized
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. Un-
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? 178 Treitschke
derstandings, again, might be effected as to anar-
chists, 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 extradition must, of course, be settled by special
agreements. Such agreements must, of course,
apply only to really grievous offences. The ju-
dicial codes of various lands vary so much that
it is emphatically desirable that as many crimes
as possible should be judged at home. Experi-
ence has here shown that the farther the juris-
diction of a nation is extended, the better the
result.
All this general movement towards securing
justice naturally tends to an ordered union be-
tween 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 recognized and
maintained. The difference between empires and
small States, between great Powers and States of
the second or third rank, still exists from a practi-
cal point of view, though no documents specifically
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