International Law. A Treatise Volume I Part 2

[Sidenote: Factors influencing the Growth of International Law.]

-- 19. Thus custom and treaties are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term "source"

with that of "cause" by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical facts from which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers[17] on International Law, decisions of prize courts, arbitral awards,[18] instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Munic.i.p.al Laws, decisions of Munic.i.p.al Courts.[19] All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct.

[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.]

[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.]

[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.]

A factor of a special kind which also influences the growth of International Law is the so-called _Comity_ (_Comitas Gentium_, _Convenance et Courtoisie Internationale_, _Staatengunst_). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are not rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly the contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a rule of present International Comity will in future become one of International Law.[20]

[Footnote 20: The matter is ably discussed in Stoerk, "Volkerrecht und Volkercourtoisie" (1908).]

Not to be confounded with the rules of Comity are the rules of morality which ought to apply to the intercourse of States as much as to the intercourse of individuals.

IV

RELATIONS BETWEEN INTERNATIONAL AND MUNIc.i.p.aL LAW

Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp.

185-189--Taylor, -- 103--Holland, Studies, pp. 176-200--Kaufmann, "Die Rechtskraft des internationalen Rechts" (1899)--Triepel, "Volkerrecht und Landesrecht" (1899)--Anzilotti, "Il diritto intern.a.z.ionale nei giudizi interni" (1905)--Kohler in Z.V. II.

(1908), pp. 209-230.

[Sidenote: Essential Difference between International and Munic.i.p.al Law.]

-- 20. The Law of Nations and the Munic.i.p.al Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Munic.i.p.al Law are custom grown up within the boundaries of the respective State and statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties concluded by the members of that family.

The Law of Nations and Munic.i.p.al Law differ, secondly, regarding the relations they regulate. Munic.i.p.al Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations.

The Law of Nations and Munic.i.p.al Law differ, thirdly, with regard to the substance of their law: whereas Munic.i.p.al Law is a law of a Sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between Sovereign States, and therefore a weaker law.[21]

[Footnote 21: See above, -- 9.]

[Sidenote: Law of Nations never _per se_ Munic.i.p.al Law.]

-- 21. If the Law of Nations and Munic.i.p.al Law differ as demonstrated, the Law of Nations can neither as a body nor in parts be _per se_ a part of Munic.i.p.al Law. Just as Munic.i.p.al Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Munic.i.p.al Law. If, according to the Munic.i.p.al Law of an individual State, the Law of Nations as a body or in parts is considered the law of the land, this can only be so either by munic.i.p.al custom or by statute, and then the respective rules of the Law of Nations have by adoption[22] become at the same time rules of Munic.i.p.al Law. Wherever and whenever such total or partial adoption has not taken place, munic.i.p.al courts cannot be considered to be bound by International Law, because it has, _per se_, no power over munic.i.p.al courts.[23] And if it happens that a rule of Munic.i.p.al Law is in indubitable conflict with a rule of the Law of Nations, munic.i.p.al courts must apply the former. If, on the other hand, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly having been adopted by Munic.i.p.al Law, munic.i.p.al courts cannot apply such rule of the Law of Nations.

[Footnote 22: This has been done by the United States. See The Nereide, 9 Cranch, 388; United States _v._ Smith, 5 Wheaton, 153; The Scotia, 14 Wallace, 170; The Paquette Habana, 175 United States, 677. See also Taylor, -- 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great Britain, see Blackstone, IV. ch. 5, and Westlake in _The Law Quarterly Review_, XXII. (1906), pp. 14-26; see also the case of the West Rand Central Mining Co. _v._ The King (1905), 2 K. B. 391.]

[Footnote 23: This ought to be generally recognised, but, in fact, is not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--"_... das Volkerrecht ist ein uberstaatliches Recht, das der Gesetzgebung des einzelnen Staates nicht unterworfen ist und von den Richtern ohne weiteres respectirt werden muss: das Volkerrecht steht uber dem staatlichen Recht_."]

[Sidenote: Certain Rules of Munic.i.p.al Law necessitated or interdicted.]

-- 22. If Munic.i.p.al Courts cannot apply unadopted rules of the Law of Nations, and must apply even such rules of Munic.i.p.al Law as conflict with the Law of Nations, it is evident that the several States, in order to fulfil their international obligations, are compelled to possess certain rules, and are prevented from having certain other rules as part of their Munic.i.p.al Law. It is not necessary to enumerate all the rules of Munic.i.p.al Law which a State must possess, and all those rules it is prevented from having. It suffices to give some ill.u.s.trative examples.

Thus, on the one hand, the Munic.i.p.al Law of every State, for instance, is compelled to possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Munic.i.p.al Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent pa.s.sage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Munic.i.p.al Law as it is prevented from having by the Law of Nations, or if it does not possess such Munic.i.p.al rules as it is compelled to have by the Law of Nations, it violates an international legal duty, but its courts[24] cannot by themselves alter the Munic.i.p.al Law to meet the requirements of the Law of Nations.

[Footnote 24: This became quite apparent in the Moray Firth case (Mortensen _v._ Peters)--see below, -- 192--in which the Court had to apply British Munic.i.p.al Law.]

[Sidenote: Presumption against conflicts between International and Munic.i.p.al Law.]

-- 23. However, although Munic.i.p.al Courts must apply Munic.i.p.al Law even if conflicting with the Law of Nations, there is a presumption against the existence of such a conflict. As the Law of Nations is based upon the common consent of the different States, it is improbable that a civilised State would intentionally enact a rule conflicting with the Law of Nations. A part of Munic.i.p.al Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict.

[Sidenote: Presumption of Existence of certain necessary Munic.i.p.al Rules.]

-- 24. In case of a gap in the statutes of a civilised State regarding certain rules necessitated by the Law of Nations, such rules ought to be presumed by the Courts to have been tacitly adopted by such Munic.i.p.al Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Munic.i.p.al Law to be deficient in such rules. If, for instance, the Munic.i.p.al Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted.

[Sidenote: Presumption of the Existence of certain Munic.i.p.al Rules in Conformity with Rights granted by the Law of Nations.]

-- 25. There is no doubt that a State need not make use of all the rights it has by the Law of Nations, and that, consequently, every State can by its laws expressly renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. However, when no such renunciation has taken place, Munic.i.p.al Courts ought, in case the interests of justice demand it, to presume that their Sovereign has tacitly consented to make use of such rights. If, for instance, the Munic.i.p.al Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sovereign has tacitly consented to that wider range of its jurisdiction.

A remarkable case ill.u.s.trating this happened in this country in 1876.

The German vessel _Franconia_, while pa.s.sing through the British maritime belt within three miles of Dover, negligently ran into the British vessel _Strathclyde_, and sank her. As a pa.s.senger on board the latter was thereby drowned, the commander of the _Franconia_, the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.[25] To provide for future cases of like kind, Parliament pa.s.sed, in 1878, the "Territorial Waters Jurisdiction Act."[26]

[Footnote 25: L.R. 2 Ex. Div. 63. See Phillimore, I. -- 198 B; Maine, pp.

39-45. See also below, -- 189, where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pa.s.s through its maritime belt.]

[Footnote 26: 41 and 42 Vict. c. 73.]

V

DOMINION OF THE LAW OF NATIONS

Lawrence, -- 44--Phillimore, I. ---- 27-33--Twiss, I. -- 62--Taylor, ---- 61-64--Westlake, I. p. 40--Bluntschli, ---- 1-16--Heffter, -- 7--Holtzendorff in Holtzendorff, I. pp. 13-18--Nys, I. pp.

116-132--Rivier, I. -- 1--Bonfils, Nos. 40-45--Despagnet, Nos.

51-53--Martens, I. -- 41--Fiore, Code, Nos. 38-43--Ullmann, -- 10--Nippold in Z.V. II. (1908), pp. 441-443--Cavaglieri in R.G.

XVIII. (1911), pp. 259-292.

[Sidenote: Range of Dominion of International Law controversial.]

-- 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable--that is, those States between which International Law finds validity. The range of the dominion of the Law of Nations is controversial, two extreme opinions concerning this dominion being opposed. Some publicists[27] maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or non-Christian, civilised or uncivilised, is a subject of International Law. On the other hand, several jurists[28] teach that the dominion of the Law of Nations extends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no constant intercourse existed in former times between Christian and Buddhistic States. But from about the beginning of the nineteenth century matters gradually changed. A condition of perpetual enmity between whole groups of nations exists no longer either in theory or in practice. And although there is still a broad and deep gulf between Christian civilisation and others, many interests, which knit Christian States together, knit likewise some non-Christian and Christian States.

[Footnote 27: See, for instance, Bluntschli, -- 8, and Fiore, Code, No.

38.]

[Footnote 28: See, for instance, Martens, -- 41.]

[Sidenote: Three Conditions of Members.h.i.+p of the Family of Nations.]

-- 27. Thus the members.h.i.+p of the Family of Nations has of late necessarily been increased, and the range of the dominion of the Law of Nations has extended beyond its original limits. This extension has taken place in conformity with the basis of the Law of Nations. As this basis is the common consent of the civilised States, there are three conditions for the admission of new members into the circle of the Family of Nations. A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations. Such State must, secondly, expressly or tacitly consent to be bound for its future international conduct by the rules of International Law. And, thirdly, those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member.

The last two conditions are so obvious that they need no comment.

Regarding the first condition, however, it must be emphasised that not particularly Christian civilisation, but civilisation of such kind only is conditioned as to enable the State concerned and its subjects to understand and to act in conformity with the principles of the Law of Nations. These principles cannot be applied to a State which is not able to apply them on its own part to other States. On the other hand, they can well be applied to a State which is able and willing to apply them to other States, provided a constant intercourse has grown up between it and other States. The fact is that the Christian States have been of late compelled by pressing circ.u.mstances to receive several non-Christian States into the community of States which are subjects of International Law.

[Sidenote: Present range of Dominion of the Law of Nations.]