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CHAPTER XXIII.: PLAN OF THE INTERNATIONAL CODE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.

Part of: The Works of Jeremy Bentham, 11 vols.

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CHAPTER XXIII.

PLAN OF THE INTERNATIONAL CODE.

The international code would be a collection of the duties and the rights existing between the sovereign and every other sovereign.

It may be divided into the universal code, and particular codes.

The first would embrace all the duties that the sovereign was subject to—all the rights with which he was invested with regard to all other nations without distinction. There would be a particular code for every nation, with which, either in virtue of express treaties, or from reasons of reciprocal utility, he had recognised duties and rights which did not exist with regard to other states.

The universal code would contain concessions on the one part, demands on the other: ordinarily, reprocity would have place.

These rights and these duties between sovereigns, are properly only the rights and duties of morality. For it can scarcely be hoped that all the nations of the world will enter into universal treaties, and establish tribunals of national justice.

Division of the laws which compose a particular code:—

1. Laws executed—Laws to be executed. The first are those which regard the two sovereignties in their character of legislators—when in virtue of their treaties they make conformable engagements in their collections of internal law. A certain sovereign engages to prevent his subjects from navigating a certain part of the sea; he ought then to make a change in his internal laws prohibiting this navigation.

Laws to be executed are—1. Those which are fulfilled simply by abstaining from the establishment of certain internal laws. 2. Those which are fulfilled by exercising or abstaining from the exercise of a certain branch of sovereign power; by sending, or abstaining from sending, assistance by troops or money to another foreign power. 3. Those whose fulfilment only regards the personal conduct of the sovereign; for example, those by which he is obliged to employ or not to employ a certain formula in addressing a foreign sovereign.

Second Division—Laws of peace—laws of war.—Those which regulate the conduct of the sovereign and his subjects in time of peace or war, towards a foreign sovereign and his subjects.

The same distribution which has been followed with regard to internal laws, whether civil or penal, should guide the arrangement of the international laws.

In the civil code, for example, the demarcations of the rights of property with respect to immoveables, may be the same. There are some properties which belong in common to the subjects of a given sovereign. There may be some which belong to a given sovereign, and a certain foreign sovereign, as seas, rivers, &c. Thus, in former times, the republic of Holland had acquired a species of negative service at the expense of Austria in the port of Antwerp. Thus, by the treaty of Utrecht, the English had acquired another with regard to the port of Dunkirk. The right of marching troops across a foreign country is a species of positive servitude.

War may be considered as a species of procedure, whereby it is sought on the one part or the other, to obtain or keep possession of advantages, to which each thinks himself entitled. It is a writ by which execution is made upon a whole people. The attacking sovereign is the plaintiff; the sovereign attacked is the defendant. Those who sustain an offensive and defensive war, resemble an individual who has filed a cross-bill, and sustain two characters at the same time. This parallel is of no assistance as to the form or arrangement of the laws, but use may be made of it by the introduction of the principles of humanity, which would soften the evils of war.

When two sovereigns are at war, the condition of their subjects is respectively changed; from foreign friends they become foreign enemies. This part of international law brings us back to the plan of particular codes, in which sovereigns might stipulate for clauses relative to these changes.