International Law Part 1

International Law.

by George Grafton Wilson and George Fox Tucker.

PREFACE

The authors have aimed to prepare a brief introduction to the subject of International Law. They have freely used the substantive material as found in cases, codes, etc., which involve the principles of International Law. Owing to the increasing importance of international negotiation, relatively more attention than usual has been given to matters connected with diplomacy. The appendices contain material which the authors have found advantageous to have easily accessible to each student. The study of this book should in all cases be supplemented by reference to a considerable number of the books mentioned in the bibliography.

PART I

GENERAL AND HISTORICAL

INTERNATIONAL LAW

CHAPTER I

DEFINITION AND GENERAL SCOPE

1. +Definition.+ (_a_) Philosophical: what ought to be.

(_b_) Scientific: what is.

2. +Divisions.+ (_a_) Public.

(_b_) Private.

3. +Scope.+

-- 1. Definition

International law may be considered from two points of view, viz.:--

(_a_) =From the philosophical point of view=, as setting forth the rules and principles which _ought to be observed_ in interstate relations.

(_b_) =From the scientific point of view=, as setting forth the rules and principles which _are_ generally observed in interstate relations.

Wheaton, D., 23: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent." See also I.

Pradier-Fodere, pp. 8, 41.

Early writers treated especially of those principles which _ought to be_ observed in interstate action, and the wealth of quotation and testimony introduced to establish the validity of principles now considered almost axiomatic, is overwhelming. In the days of Ayala, Brunus, Gentilis, Grotius, and Pufendorf, all the argument possible was needed to bring states to submit to these principles. The conditions and relations of states have so changed that at the present time a body of fairly established rules and principles _are_ observed in interstate action, and form the subject-matter of international law.[1]

-- 2. Divisions

International law is usually divided into:--

(_a_) =Public international law=, which treats of the rules and principles which are generally observed in interstate action, and

(_b_) =Private international law=, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story, "The Conflict of Laws."[2]

International law, in the true sense, deals only with state affairs.

-- 3. Scope

International law is generally observed by civilized states; even some of those states not fully open to western civilization profess to observe its rules.[3] The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent emba.s.sies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, it should not extend its scope so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy.

CHAPTER II

NATURE

4. +Early Terminology.+ (_a_) _Jus naturale._ (_b_) _Jus gentium._ (_c_) Other terms.

5. +Historical Bases.+

6. +Ethical Bases.+

7. +Jural Bases.+

(_a_) Roman law.

(_b_) Canon law.

(_c_) Common law.

(_d_) Equity.

(_e_) Admiralty law.

8. +International Law and Statute Law.+

9. +How far is International Law ent.i.tled to be called Law?+

-- 4. Early Terminology

The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers.

The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows.

(_a_) =Jus naturale= is defined broadly by Ulpian[4] as "the law which nature has taught all living creatures, so as to be common to men and beasts." Grotius also uses this term, defining it as "the dictate of right reason, indicating that any act from its agreement or disagreement with rational nature has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by G.o.d, the author of nature."[5] Lieber says, "The law of nature, or natural law ... is the law, the body of rights, which we deduce from the essential nature of man."[6] The discussion of _jus naturale_ has been carried on from an early period,[7] covering many portions of the field of modern international law, and making possible the broadening and strengthening of its foundation.

(_b_) =Jus gentium=, according to Justinian, is "that which natural reason has established among all men, that which all peoples uniformly regard."[8] "_Jus gentium_ is common to the whole human kind."[9] This idea of a body of law common to all men a.s.sumed a different meaning when states multiplied and writer after writer redefined and qualified its meaning. _Jus gentium_ became the subject of many controversies.[10]