INTERNATIONAL RELATIONS. 103 



with nations : they can not be bound but by their own consent ; hence 

 the treaties which form the basis of the positive law of nations. It is 

 also by concurrence of wills that nations oblio^ate themselves to ob- 

 serve certain rules looking to the conflicts likely to arise in the appli- 

 cation of the particular laws of the different states. Agreements are 

 not necessarily expressed ; a tacit consent suffices to form an agree- 

 ment. It is the same in international conventions : the greater part 

 of those which form the basis of the law of nations are tacit agree- 

 ments ; the law of nations is principally a customary law, which is 

 founded on the tacit consent of the peoples. That which is true of 

 the law of nations is also true of the private international law : cer- 

 tain rules common to all nations can not be formed but by a concur- 

 rence of consent, express or implied. On this particular point the 

 treaties are very few ; and these, are particular agreements between 

 the two states, having no relation but to the interests of the con- 

 tracting parties. There remain only the customs which are estab- 

 lished by implied general consent. This is almost the sole source of 

 the private international law. There is, however, a vast difference 

 between the international customs and the customs which form one 

 of the sources of the civil law of each state. The latter have the force 

 of law, until abrogated by some particular statutory enactment ; they 

 are the implied expression of the sovereign will of the nation they 

 might be called tacit laws. Not so with the international customary 

 right. Since it is a question of sovereignties, they can not, correctly 

 speaking, be called laws ; hence the nations could not be bound to 

 recognize a legislative authority higher than their own. The interna- 

 tional customs do not hold the place of laws they hold the place of 

 agreements ; they are implied treaties. How are these implied trea- 

 ties formed ? This is a capital question, and as difficult as it is impor- 

 tant. Ordinarily international customs are considered as being of 

 the same nature as national customs. This is not the case : the for- 

 mer are tacit treaties, while the latter are tacit laws, and there is a 

 great difference between treaties and laws ; the treaties are formed 

 by a concourse of wills, and the laws are promulgated by way of 

 commandment ; the treaties differ in their essence from laws ; the 

 conditions, therefore, under which tacit treaties can be formed should 

 also differ from the conditions under which implied laws are formed. 

 The intimate lien which exists between the private international law 

 and the law of nations brings up a redoubtable problem. Is there a 

 law of nations ? Those who deny it have strong reasons for doubting. 

 Can there be a law without a legislature ; without a tribunal to apply 

 the law, and without any authority to execute the sentence of the 

 court ? And, in this matter of the law of nations, where are the leg- 

 islative, executive, and judicial powers ? It may be said that right is 

 necessarily anterior to the law, that it results from the nature of man 

 and civil societies : if the relations between individuals are necessarily 



