Nature of International Law
International law may be defined as the body of principles and rules generally recognized as binding by the community of states in their relations with one another. It defines the rights of states and the means of procedure by which those rights may be protected and violations of them redressed. Like other forms of law, international law is based upon the recognition of the necessity for rules to govern human contacts and relationships. The desirability of peaceful adjustment of conflicting claims and the consciousness of common interests create a sense of unity and common purpose upon which all legal institutions ultimately rest. The existence of international law implies that slates recognize their membership in a family of nations and Wit obligation to observe certain rules of conduct conducive to Older and peace.
In addition to the rules of international law which define the rights and obligations of states in their internationals to one another there are also certain rules of courtesy which are generally ob Served by governments on grounds of mutual convenience and good will. Such, for example, are the extradition of criminal in the absence of define agreement, the observance of certain diplomatic forms and ceremonies, and the faith and credit given in each state to the public acts, records, and judicial proceedings in other states. These Observances in international relations are similar to the conventions of social intercourse among individuals, and to them the name of international comity is given.
A special branch of international law has been developed as a result of the rules made by administrative commissions created by international agreement for the regulation of certain common material and intellectual interests. These include such matters as international communication by means of postal correspondence, cables, and telegraph, international transportation, copyright, sanitation, and the like. To these regulations the name of international administrative law is given.
For the purpose of deciding between two conflicting systems of law in cases affecting private rights, a body of rules known as international private law or conflict of laws has been developed. These rules are invoked when a suit is brought before the courts of a state by an individual on the basis of rights acquired under the law of another state. They involve such matters as the validity of foreign marriages, wills, and contracts, questions of nationality and residence, and the limits of national jurisdiction.
It should be noted that the rules of international private law deal with individuals, not with states, that they affect private, not public rights and that they are applied by national, not international, courts. They are, therefore, not a part of international law proper. Each state is free to apply such rules as it sees fit, but by general international practice a considerable body of uniform principles and procedure has been established.
A further distinction should be made between the rules of international law and the principles upon which individual nations act in furthering their own interest in foreign relation. To these latter principles the name of foreign polity is applied. The foreign policy of a nation is the particular attitude adopted by that nation or the special aims held in view by it in its diplomacy. To a considerable degree it is to concerned with aspects of international relations that lie outside the scope of international law, in which states are free to pursue their interests according to their own conceptions of national needs.
To some extent, however, it is also concerned with the proper protection of national interests under international law. While the aims of national diplomacy should keep within the rules of international morality and correspond to the principles of international law, they have often been somewhat unscrupulously pursued, since they are based on considerations of national interest and expediency.
International law and international morality, while closely connected, are not identical. While international law is a less perfectly developed system of securing justice than the legal systems which control the actions of individuals in civilized states, nevertheless many of its principles are based on ethical standards and conform to ideals of justice and equity.
Many improvements in international law have been made by applying to relations among, states the same moral principles that are applied to individual relations, and the sanction of international law depends to a large degree on an international public opinion which judges the morality of national acts and polices.
At the same time, international law fails to condemn certain practices and principles, especially in connection with war and conquest, which are at variance with ideals of humanity and justice, and it includes many rules which have their origin in convenience and interest rather than in morality. International law, even more than the law within states, tends to lag behind the general standards of ethics.
Evolution of International Law.
Man is not only a fighting animal, carrying on a desperate struggle with his environment and with his fellows, but also a social and political being who realizes the necessity and value of organization and cooperation Recognition of common interests among groups early led to the growth of customs and the formation of rules to guide their action not only in peaceful intercourse but even in war.
While international law as a system of established rules observed by a community of sovereign political units, did not exist before the rise of modern national states at the close of the Middle Ages yet certain rules and customs, usually with a religious sanction, were observed in the intercourse of early peoples. A crude form of diplomacy and international law was recognized in ancient China.
Treaties of alliance, cemented by marriages and providing for mutual exchange and humane treatment of political refugees and immigrants, were negotiated by the Egyptians with their neighbors earlier than 1200 B.C. In India the Code of Mann, compiled about 500 B.C, placed certain restrictions on the usual barbarous methods of waging warfare, and the Brahmans formulated rules of diplomacy by which a ruler might increase his power. The Persians recognized the value of arbitration as a means of preventing war. The Hebraic code placed restrictions on warfare and the Hebrew prophets put forward the ideal of world peace.
Conditions in the Hellenic world, with its numerous independent city states, were more favorable to the growth of inter political relations, although love of city autonomy was stronger than national feeling among the Greeks, and no definite concept of international law was developed. The Greek cities were, however, bound together by ties of race, language, religion, common customs and interests and their organized relations included religious leagues, confederacies, attempts to maintain the balance of power and acknowledgment of the headship of a single city. While the Greeks adopted the doctrine, common to all early peoples, that they owed no obligations to foreigners, the various Greek cities were united by bonds that did not exist between them and other peoples.
Within the Greek world crude forms of international comity could develop. Certain customs, such as the inviolability of heralds, the right of asylum, and the sacred obligation of peace during the national religious festivals, were recognized. Agreements to submit disputes to arbitration were included in treaties, and arrangements were made for the settlement of commercial differences.
In the third century B.C., when Rhodes became the chief commercial state of the A Egean, a maritime code arose, which was generally observed in the Hellenic world. From this Rhodian sea law many of the commercial regulations of the Roman Empire was derived, and its influence affected the maritime codes of the Middle Ages when commerce was revived. The Greeks even recognized a vague law of all mankind, which included at least protection to envoys, sanctity of treaties which were made under oath, and certain obligations of alliance and hospitality.
The diplomatic relations of Rome began with her membership in the Latin League, a group of cities of which she finally became the head. Later, the unification of Italy was accomplished by statecraft as well as by force, the Roman policy, divide and conquer, isolating the various peoples and uniting them in alliances of dependence with Rome. After the wars with Carthage, Rome embarked on her career of world conquest and created the Empire, making international relations impossible in a world under one sovereignty.
Rome therefore, contributed to international law chiefly in extending her own law to wider spheres and in breaking down the ancient idea that no obligations bound the relations of different people,By reducing all states to a common subjection, Rome paved the way for later legal relations among states. The idea that the world was a unit, dominated by a common superior, survived throughout the Middle Ages and was typified in the theory of the Holy Roman Empire and of the Papacy.
In several ways, Roman ideas and institutions contributed to the later rise of international law. The Stoic philosophy, widely accepted in Rome, was based on the idea that there existed a law of nature, consisting of fundamental principles of justice and reason. These rules were universal, binding on all peoples.
This concept of natural law, identified later with divine law, was useful in serving as the basis and justification or a body of law superior to that of any state and common to all states. The justifiable of Rome consisted of a set of rules, ceremonial and formal in character, that determined the actions of a special body of priests known as the College of Fetiales.
Their principal functions were to give advice on questions concerning war and peace, to act as heralds and ambassadors to receive and entertain envoys from foreign states and to give effect to formal declarations of war sanctioned by the Roman assemblies. Their powers were merged later in the general authority of the Emperor, but they contributed certain ideas to the development of international law and practice.
The jus gentium of Rome consisted of the body of usages and principles common to all peoples among whom the Roman magistrates administered justice. It originated in the jurisdiction of Roman officials over foreigners and in the adjustment of the relations of Romans and foreigners. In order to give aliens protection for person and property rules of law common to Rome and to her subject peoples were applied. By the later Roman jurists the principles oi this law found existing among all nations were practically identified with the law of nature.
In addition to the civil law of Rome and to the canon law of the church the jus gentium influenced the legal conceptions of the medieval period and helped to subordinate the barbaric violence of the Teutons to the reign of peace and order, first within the state, later among states. Besides the insurgent was erroneously considered by many of the early modern interpreters of Roman law to have been a system of rules intended for the adjustment of international relations, and some of its principles were appropriated by the founders of international law and were applied in international practice.
After the fall of the Roman Empire the theory of a common superior over states still survived. The spell of world-wide dominion and the tradition of the benefits of the Roman peace remained after the barbarian invasions and men believed that the Empire was to be eternal as well as universal. For a time after Rome ceased to be the actual seat of government the world was ruled, in name at least, from Constantinople; the coronation of Charlemagne in 800 shifted imperial power to the new line of Frankish sovereigns; later, the Papacy, which had been the chief agent in creating the new Holy Roman Empire, became its rival for temporal power and for a time exercised authority over Christendom.
In actual fact, the medieval period was an age of organized anarchy, of regulated violence ; and, in spite of legal forms and customary law, inter feudal relations were of the loosest kind. The church Finally awoke to its humanitarian and international mission and tried to establish peace by means of the Truce of God and the Peace of God. Similar efforts to suppress private warfare were made by the kings of the rising national states, but the rule of brute force was not seriously checked until the beginning of the modern period.
During the Middle Ages there was but little consciousness of a direct legal relation among sovereign princes outside of the graded obligations of the feudal system. Separate principalities existed, but the sense of unity was so deep that the idea of distinct and reciprocal relations among them was lacking. The bond of relationship was felt not so much among the principalities themselves as with the higher authority to which they all were subjected. Disputes not settled by warfare were sometimes submitted to the arbitration of the Pope.
Kings, bishops, eminent jurists, and even cities were sometimes chosen as arbiters during the Middle Ages; but the practice did not materially mitigate warfare, and few general principles for the guidance of inter community relations were developed. For a time, indeed, there was even a tendency toward the View that states, in their mutual dealings, need recognize no law but the right of the strongest or most cunning. Machiavelli, in The Prince (1513), set forth the doctrine that in matters of state Ordinary rules of morality did not apply. Fortunately, other tendencies, in a different direction, were preparing the way for a more rational and humane conception of interstate relations.
Throughout Christendom there were common religious, common customs, and a language common to the educated classes. The ideal of world unity was fostered by tradition of the Roman Empire and by the cosmopolitanism of the Christian church. The revived study of Roman law in the twelfth century furnished a foundation for the growth of royal power and for an enlightened system of international jurisprudence. Churchmen, interested in the canon law, discussed certain international questions, especially those relating to war, from the point of view of general morality and Christian traditions. The Crusades aroused a sense of common interests and a consciousness of the unity of Christendom.
The ideals of chivalry emphasized honor and equitable dealing and tended somewhat to humanize warfare. Especially important was the revival of commerce which, centering in the Italian cities, was greatly stimulated by the Crusades. In spite of feudal disorder, piracy, and heavy port exactions, trade was gradually extended to northern Europe by overland routes and by the sea; and leagues of cities, foremost among which was the Hanseatic League, were formed for its protection and extension. Later, the opening of new routes to the Orient and the discovery of America transferred the center of commercial activity to the Atlantic and extended the range of external relations.
As the result of international dealings caused by commerce, codes of maritime law were formed. Chief among these was the consolato del Mare, a collection of principles that regulated the trade of the Mediterranean. Some of its rules concerning the rights of belligerents and neutrals on the sea in time of war survive to the present day. Similar maritime codes were prepared by the nations of western Europe and by the Baltic nations.
Closely connected with the growth of commerce and of maritime law was the establishment of consuls. As early as the eleventh and twelfth centuries, consular officials chosen by the seamen or merchants of the Italian cities, settled disputes affecting their countrymen in foreign lands, and assisted by ads ice and information the merchants of their home states, tinnitus were at that sent only to the Eastern countries, but luring the thirteenth and fourteenth centuries the institution Plead to the West. The right of choosing consuls, at first in the hands of mercantile associations, soon passed to the government of the state to which the merchant belonged of great importance in the development of international law was the influence of feudalism in associating political rights with the possession of land, thus leading to the idea oi territorial sovereignty.
The kings, standing at the apex of the feudal hierarchy, from being lords of their peoples became lords of their peoples lands. During the medieval period, direct royal authority was limited by the actual strength of the feudal nobility and by the belief in a common European superior, either emperor of Pope. But as feudalism fell into decay and the powers of emperor and Pope diminished, the kings, supported by monarchical doctrines made familiar in the revived study of Roman law finally stood forth as absolute sovereigns over the Territory oi separate and independent national states.
The long consult between Papacy and Empire, the controversies between the Pope and the rising national monarchs, the Great Schism, and finally the Protestant Reformation destroyed the sense of unity and divided Christendom into hostile camps. Since the bond of common religious faith was broken, the fact that a group of states in the modern sense had come into existence could not long escape observation.
Few rules existed, however, to determine the proper relations among these growing and rival political units and the kings of the period, flushed with a sense of unlimited power, were guided by self-interests alone in matters of state policy. In the early modern period, unscrupulous bad faith characterized statecraft, and wars were barbarously cruel and destructive.
These conditions prepared the way for thinkers who asserted, in the latter part of the sixteenth century, that there were ethical rules or natural laws applicable to the intercourse of states mien though no earthly authority had power to enforce obedience. Victoria a Dominican monk and professor at Salamanca, conceived the idea of a community of interdependent nations based on sociability and natural reason. Ayala a Spanish military judge, attacked the doctrine of unregulated war and argued for a natural law of nations established by common consent. Gentili, an ltalian who taught at Oxford, maintained that there was a law of war based on reason and consent.
He separated international law from theology and ethics and made it a branch of jurisprudence. Suarez, a Spanish Jesuit, frankly recognized the separation of states, but insisted on the moral unity of mankind. He argued therefore that there must be a community of states and a law, furnished by reason and general custom, to regulate their dealings. Over against the theory of the sovereignty of the state, standing for the new national monarchies in Europe, and against Machiavelli‘s doctrine that the state was a self-sullying and non-moral entity, was set the theory of a law of nature, binding upon all states and denying their irresponsibility and independence in international dealings.
The growth of these political principles and the actual conditions in international relations made possible the work of Grotius, usually considered the founder of the science of international law. Grotius started with the universally accepted ideas of natural law, based upon reason and the innate sociability of man, and claimed its sanction for the law of nations. He also borrowed many principles from the Roman jus gentium, a body of positive rules sanctioned by general agreement, and thus laid the basis or the modern theory, which arose after the doctrine of natural law was abandoned, that international law derives its sanction from the common consent of nations.
While Grotius borrowed largely from his predecessors to whom he gave scant recognition, and while many of the principles and usages laid down by him became obsolete, nevertheless the fundamental conceptions underlying his system-the legal equality and the territorial sovereignty of states-still form the basic principles of international jurisprudence. Several reasons for the enormous influence exerted by the work of Grotius may be mentioned.
In addition to his attractive style and the marvelous erudition he displayed in gathering instances from all history and piling precedent upon precedent, was the fact that he based his system upon doctrines accepted by the leading thinkers of his period. The law of nature territorial sovereignty, and the principles of Roman law were approved ingredients for his constructive system. The ideas of world church, world empire,and feudal independence that he attacked were already discredited. Finally, the evils arising from the absence of morality in interstate dealings and from the constant and barbarous wars led men to realize the need of a system under which principles of honor and justice might be applied to the relations among states.
Accordingly, in the Treaty of Westphalia (1648) , which brought the terrible Thirty Years War to an end, many of the principles of Grotius were applied. This treaty recognized a society of states and accepted the doctrine that each territoriality sovereign state is independent and is entitled to legal rights which all other states are bound to respect. The successors of Grotius developed these principles, some depending mainly on the idea of a law of nature to support international law, others emphasizing the importance of treaties, customary practices, and general consent. Various attempts were made to codify, in part, the accepted principles of international law. Further impetus to the regulation of interstate relations was given by the establishment of a permanent diplomatic service.
Permanent resident embassies were unknown in earlier times. Special envoys were sent when messages were to be delivered or negotiations carried on. The exchange of diplomatic agents was compelled to win its way against a mass of suspicion, caused largely by the unscrupulous nature of early diplomacy. Not until the sixteenth and seventeenth centuries did the nations of western Europe accept in good faith the idea of permanent ambassadors from other countries residing in their territory.
International arbitration, which almost disappeared during the seventeenth and eighteenth centuries, has been revived and has been frequently used during the past century. International conferences, dealing with questions of all sorts, are becoming increasingly frequent, often resulting in general international law. Especially important is the recent growth of international organization of permanent administrative, judicial and to some extent even legislative bodies, to deal with certain questions of international interests.
The rules of international law are always in danger of being ignored when a great war involves a life-or death struggle among the world powers; and the theory of the legal equality and independence of states is violated in practice by the predominant influence exerted in European affairs by the concert of great powers, in America by the United States under the principles of the Monroe Doctrine, and by Russia in the satellite states on her western border. The First and Second World Wars were followed by great enthusiasm for international organization, but hatreds engendered by war and national ambitions made international agreements difficult.
Legal Nature of International Law.
For many years a controversy has been carried on over the question of whether international law is in reality law, a branch of jurisprudence proper, or whether it is merely a body of rules of international morality, without legal force. The analytic school of jurists, founded by Bentham and Austin, views law as a definite command, created by a sovereign political authority and enforced by sanctions and penalties. In their view, law proper, or “positive law,” is limited to commands issued by political superiors to political inferiors, it must have a definite origin and a definite obligation.
Accordingly, they deny that international law is true law arguing that it is not the definite command of a sovereign political superior, with power to enforce its authority, that there is no legal duty of obedience on the part of those to whom it applies and that there are no courts with power to enforce it or impose penalties for disobedience. They hold that international law lacks definiteness, since there is not universal agreement concerning its principles, and that each state is ultimately the judge in its own case, since international law recognizes force, in the form of war, as the ultimate and legal means of final settlement. Because of these differences between international law and the law imposed by states upon their own citizens, the Austinian jurists, emphasizing the sovereignty and independence of states, relegate international law to the domain of international ethics, as differing in importance but not in nature from other principles sanctioned by public Opinion but not by law.
in opposition to this view, the historical school of jurists, founded by Savings and Maine, argues that law is not always g definite command, but that it often consists of customs and usages which were never formulated by a political sovereign. They hold that the true test of law is its general recognition and observance and that a moral sanction is sufficient, the threat of physical force being unnecessary. From this point of view, the important element of law is the existence of a body of rules which have been put into legal form and which are generally supported by public Opinion and observed by those whose conduct they are intended to guide Judged by this test, the rules of international law may properly be considered as law.
This controversy turns, obviously, upon the definition of law. The analytical jurists restrict law to rules that are enacted, interpreted, and enforced by a political sovereign, the historical jurists include as law rules that are embodied in custom, interpreted by the parties to the case, and enforced by public opinion or by appeal to arms. The latter group feels that if the legal nature of international law be denied, the respect in which its rules are held would be diminished, and states would be encouraged to ignore their international obligations. It should be noted, however, that the principles of international law which are most definite and most faithfully observed deal mainly with international interests of obvious convenience or of relative unimportant. Many important questions of vital interests in the national policy of states lie outside the existing rules of international law and result in frequent international difficulties.
This is particularly the case in the field of international economic relations, where rival states compete for raw materials, foreign trade, and concessions in undeveloped countries by methods as lawless as was industrial competition within the state in the period of laissez faire. The forces of national expansion, generally known as imperialism, the controlled by few recognized rules of international law. As long as states refuse to place under international control questions which affect their national honor and their vital national interests, and insist upon their sovereign right to interpret international law as they see fit or to refuse to be bound by obligations to which they have not given their consent, the conflict between state sovereignty and international law results in a weak and limited body of international rules.
The defects of international law are those of any system of law in the early stage of its development. These include the uncertainty of its rules, the narrow limits of the questions it covers, the slowness of its development, and the frequency of its violation. Unlike the older system of law within the state, which has built up a definite machinery for its creation and enforcement, international law has thus far created only a limited and imperfect set of institutions for its creation, interpretation, and enforcement. Progress is being made, however, in the direction of definite international legal organization. To a certain extent the rules of international law have been definitely formulated by great international conferences and have been administered and interpreted by judicial tribunals, such as courts of arbitration and the Permanent Court of International Justice. In some cases, even a definite sanction has been applied, in the form of economic pressure or armed intervention. Furthermore, the accepted rules of international law, if they do not conflict with national legislation, are recognized as a part of the law of the land and are indorsed by the highest national courts, at least in England and the United States. Questions of international law are always treated as legal questions by those who conduct international business and in the courts before which they are brought, legal forms and methods are used in diplomatic controversies and in arbitral proceedings. and authorities and precedents are quoted as in courts of law.
If the legalistic theory be adopted that laws are always commands given and enforced by a definite political sovereign, then international law is not properly law, since that would imply world unity and world sovereignty. The term “international law” thereby involves a contradiction. If it is international, it is not law since there is no single sovereign to make or enforce it, if it is law, it is not international, but the law of a world state. International law it not concerned with the relation of political superior to political inferiors, it is not the expression of a supreme will, but the result of the interplay of a number of legally independent powers.
on the Other hand, international law is considerably more than a collection of moral rules. It has its source in political authority and it regulates the actions of political bodies. Its ultimate basis is the same consent and force upon which all political sovereignty rests. its principles have been elaborated by legal reasoning, and its procedure follows legal methods. Necessity and utility underlie its creation and its observance while it is still an undeveloped and imperfect system of law in an imperfectly organized political world, its rules at least lie on the frontier of law and constitute a system of jurisprudence rather than a code of morals. if the definition of law be somewhat widened to include a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power and not by the internal conscience, then the rules of international law ate properly law.
Sources of International low.
In the modern development of international law there have been two main theories as to its nature and the basis of its obligation. One theory presenting the old natural law tradition, holds that the principles of international law can he rationally deduced from the essential nature of states. States are viewed as legal persons, possessing certain fundamental natural right, usually stated at the rights to to independence, equality, sell preservation respect, and intercourse From the nature at the ate and its rights there natural result certain legal principles which are binding upon states. The other theory looks to the practice of states came-ethos to philosophical principles and argues that International law consists only of those rules to which sates have given their actual or tacit consent and that their binding tree is the com tent of states to be bound. This doctrine emphasizes the sovereignty at the state and the fact that a self imposed limitation is not a legal limitation.Both theories are based on certain assumptions concerning the nature of the state, the first assumes that Certain rights are inherent in statehood, the Second, that states cannot be bound except by their own Cont sent. Both theories contain certain elements of truth, and by combining them we discover the sources of international law
- Reason, and
- Definite consent.
The chief source of international law is the body of customs which have gradually developed and which express the implied consent of the states that observe them. Certain usages and practices, set by particular states, have been accepted and imitated by other states until they have grown into a fairly definite body of rules which are recognized as obligatory and at having legal standing. This body of international law resembles the English common law, deriving its authority from generally accepted principles and testing new cases by applying the precedents of the past. Many principles of conduct in the relations among states have been based on analogies with the principles regulating the conduct of individuals, and can trace their origin to a remote antiquity.
Customary law, however, is always somewhat uncertain, and may lead to disagreement concerning its content, Besides, it grows too slowly to keep pace with rapidly changing conditions or to fill the gaps that are disclosed as conceptions of international justice become increasingly clear. It is never sufficiently definite or detailed to provide for every situation that calls for legal decision. Accordingly those who administer it must at times resort to what was formerly called natural law, that is, to principles of equity discovered by reason. This does not mean the reasons of single or private individuals, but i judicial reason, recognized by lawyers as valid. By considering precedents, finding analogies, and expanding principles already accepted, those who administer international law establish rules. This source of international law is accepted as valid, and is constantly resorted to in the practice of states, both in the decisions of international tribunals and in the legal arguments conducted by foreign offices in their diplomatic correspondence.
Finally a considerable international law is formulated by express consent among states in the form of treaties. Not all treaties create international law. The ordinary treaty by which two stun-s enter into engagements for some special object create no obligations on other states and can seldom be used safely as evidence to establish general rules of law. The treaties which may be viewed as sources of international law are those so called lawmaking treaties which are entered into by a large number of states for the purpose either of declaring what the law is on some particular question or of creating a new general principle for future conduct of this nature are the numerous conventions which have been adopted by international conferences during the past half-century. The increasing scope and content of this conventional law of nations is making it of relatively more importance than the older customary law. Great international conferences perform in an imperfect way the function performed by the legislature in a state, lacking the principle of majority rule and the machinery for enforcement. They do, however, strengthen the idea of a rule of law among stat-es, and to some extent have created rudimentary systems of international government and administration.
Various attempts have been made to reduce the rules oi international law to systematic codes. Some of these attempts have been directed to arranging and classifying the rules actually in force among states others have included, in addition to a compilation of existing rules, suggested modifications considered desirable to bring existing rules in closer touch with new needs and standards others have been address-ed to complete reconstruction of the existing system on the basis of ideal principles. Some of these codes have been prepared by private persons or associations or by single governments others have been formulated by representatives of a number of states and officially ratified by their governments. Under the auspices of the League of Nations efforts were made to continue this process. Sometimes confused with the sources of international law are What may be called the evidences of international law, that is, the documentary material which bears witness to existing customs and principles. Arranged somewhat in the order of their importance, this material includes the following:
- Great international treaties that create new principles or codify existing practice.
- Agreements of international conferences whose work has not been officially ratified.
- Treaties between two or more states that declare existing law or stipulate new principles.
- Decisions of international judicial tribunals, such as courts of arbitration, commissions of inquiry, the Hague Court of Arbitration, and the Permanent Court of International Justice. To some extent the decisions of prize courts and of other national judicial bodies deal with questions of international law.
- Laws, ordinances, proclamations, decrees, and instructions issued by states to their diplomatic or consular representatives and to their military and naval commanders.
- Opinions of statesmen as expressed in state papers, diplomatic correspondence, and legal opinions.
- Writings of eminent jurists and authorities on international law, and the proceedings of learned societies or institutes.
States in International Law.
In contrast to the natural persons who are subject to the law of the state, the subjects of international law are corporate bodies known as states. For purposes of international law a state may be defined as a permanently organized political society, occupying a definite territory and possessing within that territory a freedom from control by any other state which enables it to act as an independent political agent in relation to other states. For purposes of international relations, the actions of public officials designated by the state to represent it are viewed as the acts of the state, for which the state is held responsible.
1. Equality of states.
The theory of the equality of states has frequently been urged by writers on international law. This doctrine was brought in by the believers in natural law, who argued that as all men were equal in the state of nature, so states still existing in a state of nature, are equal.
Aside from the fallacy in the major premise and in the analogy, this theory is contradicted by obvious facts. States are unequal by almost any test-size, population, wealth, strength, and degree of civilization being among the most obvious. While differences among states in area and population do not create serious intentional difficulties, differences in degree of political development and of civilization are more troublesome. As a consequence the community of nations is composed of states that enjoy lull membership and those that enjoy partial membership, under a degree of warship. Even among those that enjoy full membership there are some states that are subject to restrictions which limit their full rights. States are equal not in the rights that they possess but in the sense that the rights of each state, whatever they may be, are entitled to the same legal protection as the rights of other states. Small and weak states naturally favor the theory of the equality of states, and sometimes put forward unreasonable claims that hamper the development of international law and institutions. This is particularly the case when the theory is used to justify the demand that each state be entitled to an equal voice in the decision of international questions or in the control of international organization.
2. Sovereignty of states.
The chief difficulty in international law arises from the theory that states are sovereign in their external relations. The theory of sovereignty, which arose at the beginning of the modern period, was applied originally to the internal aspect of the state, for the purpose of emphasizing the unity of the state, the supremacy of its law over all persons and associations within it, and the distinction between rulers and ruled. It was especially applicable to the monarchic states of that period and was valuable in the legalistic sense in pointing But that there could be no legal superior to the supreme law making power within the state. With the advent of democratic Constitutional government, in which the authority of the state is widely distributed and in which the holders of power are legally limited and legally responsible, the theory of sovereignty even in its internal aspects, lost much of its value and has been seriously attacked by many modern writers.
The extension of the idea of sovereignty to the personified state in its external relations with other states added further confusion. The idea of sovereignty was extended to imply independence of external control as well as supremacy within the state. First it was used to oppose the claim of one state to be overlord of another finally it was expanded to suggest the complete freedom of the state in its relation to the community of nations as a whole. To speak of the state as sovereign, in the sense of superior, in its relations to other states is meaningless, since there could be only one such sovereign in the family of nations. To speak of the state as sovereign, in the sense that it is not controlled by law, would make international law impossible and would ignore the fact of the actual interdependence of states in the modern world and the varying degrees of dependence of different state.
The concept of sovereignty, in so far as it is applicable to modern states, should be limited to the internal relations of the state to its subjects. In external relations, the term independence rather than sovereignty, seems preferable. And the degree of independence is not the same for all states. A state which controls its international relations without dictation or control from other states is fully independent. A state which is recognized as a member of the family of nations and as a party to international law, but which controls its international relations only in part such as a protected state or a neutralized state, is a dependent state. But all states, independent and dependent alike, are interdependent. They exist not in a political vacuum but in continuous political relation with one another, and expediency and necessity bring all of them under the obligations of international law. The traditional theory of sovereignty implies the right of each state to act as it chooses. without any restriction, the facts of international life show numerous restrictions upon state conduct in matters concerning which general rules are recognized and the right of arbitrary action has been renounced. Any state which falls back upon its “Sovereignty” to repudiate its international obligations becomes an international outlaw.
Content of International Law.
Writers on international law are not entirely in agreement as to its proper content or as to the logical method of its classification and arrangement. The following outline, however, suggests the most important questions with which it is concerned.
1. Subjects of international law.
Under this head all the determination of the membership in the international community, whether complete or partial, and the methods by which such membership is acquired or lost. It includes also the nature of the rights which these members possess under international law, and of the duties and obligations which it imposes upon them.
2. Objects of international law.
This division is concerned mainly with the territory of the state, the method by which territory may be acquired or lost. and the nature of the state’s jurisdiction over its territory. It includes the distribution of the land, water, and air of the globe among the various states and the degree to which these areas come under national or international control. It is also concerned with individual persons in so far as they are affected by international law. which deals with questions of citizenship, imagination, extradition of criminals, and the like.
5. Intercourse of states.
This includes the rights and duties of diplomatic agents and consuls, the organization and procedure of international conferences, and the nature and methods of treaty agreements.
4. Settlement of international disputes.
Under this head fall the various methods by which international differences may be settled in peaceful ways or by forcible methods that fall short of war.
5. Law of war.
This includes the nature of war as recognized by international law, its legal elects upon the normal relations of the belligerents, the methods of waging it on land, on sea, and in the air which are regarded as legal under international rules, and the methods of bringing it to an end.
6. Law of neutrality.
This law is concerned with the respective rights and duties of belligerent and neutral states in time of war. It aims to protect the citizens and property of neutral states from unnecessary interference on the part of belligerent states, and to prevent neutral states or their citizens from giving unfair aid to any belligerent.
The classification above does not entirely cover the field of international law, and its subdivisions to some extent overlap nevertheless it suggests in outline form the general nature of the questions with which international law, at the present stage of its development, is concerned.