Elements of Morals: With Special Application of the Moral Law to the Duties of the Individual and of Society and the StateJanet, Paul
Philosophy
Elements of Morals: With Special Application of the Moral Law to the Duties of the Individual and of Society and the State
Janet, Paul
Ethics
These rules are very simple; but, practically, the situation of neutrals
is a very delicate one, and gives rise to numerous difficulties, for the
solution of which, resort must be had to the special treatises on the law
of nations.
=120. International treaties: their characters: their forms.=--We have seen
that nations have among each other, the same as individuals, obligations
and rights which they derive from the natural law. But there are other
obligations and other rights which are no longer based on nature, but on
_special contracts_ or _usages_. The international law which bears on
usages is called _customary right_; that which comes from compacts, is
called _conventional right_. The compacts between States are called
_treaties_.
Treaties are _equal_ or _unequal_, according as they promise equal or
unequal things; _personal_ or _real_, according as they relate only to
certain persons, and during their lives, or as they are independent of
persons and last as long as the State itself; _pure_ and _simple_ or
_conditional_; in the first case the stipulations are absolute; in the
second they depend on certain conditions.
There are different species of treaties according to their different
objects: treaties of _alliance_; treaties of _boundaries_; treaties of
_cession_; treaties of _navigation_ and _commerce_; treaties of
_neutrality_; treaties of _peace_.
=121. Essential conditions of public treaties.=--As a principle, the rules
which govern international compacts are (with the exception of a few
differences) the same as those which govern private compacts. There are
three fundamental conditions: 1, the consent; 2, a licit cause; 3, the
capacity of the contracting parties. (See above, 92.)
The _consent_ should be: 1, declared; 2, free; 3, mutual.
The licit causes are those which are physically possible or morally
legitimate; the illicit causes are those which are contrary to morality,
as, for example, would be the establishment of slavery.
The capacity of making a compact belongs to the sovereign of the State
alone; but it is necessary that this sovereign be really invested with the
power. A sovereign stripped of his sovereignty has no power to make
compacts, although he might have all the most legitimate rights; and, on
the other hand, a usurping power can legitimately make compacts. The
reason of this is, that foreign nations are not capable to decide what
with another people constitutes the legitimacy or non-legitimacy of power:
there is for them, therefore, only the power _de facto_. Yet this is but
the general rule. There may be cases where a foreign government may refuse
to recognize a usurper's power.
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