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 states’ rights and the means of the procedure by which those rights may be protected, and violations of them redressed. Like other forms of law, international law is based upon recognizing the necessity for rules to govern human contacts and relationships. The desirability of a 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 states’ rights and obligations in their internationals to one another, there are also certain rules of courtesy that are generally ob Served by governments on the grounds of mutual convenience and goodwill. For example, such are the extradition of criminals in the absence of defined 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 due to the rules made by administrative commissions created by international agreement for the regulation of certain common material and intellectual interests. These include international communication such as postal correspondence, cables, telegraph, international transportation, copyright, sanitation, and the like. To these regulations, the name of international administrative law is given.
To decide 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 based on rights acquired under the law of another state. They involve such matters as the validity of foreign marriages, wills, contracts, questions of nationality and residence, and national jurisdiction limits.
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 national, not international, courts apply them. They are, therefore, not a part of international law proper. Each state is free to apply such rules as it sees fit, but a considerable body of uniform principles and procedure has been established by general international practice.
A further distinction should be made between international law rules and the principles upon which individual nations act in furthering their own interest in foreign relations. To these latter principles, the name of foreign polity is applied. The foreign policy is the particular attitude adopted by that nation or the special aims held in view by it in its diplomacy. It is too concerned with aspects of international relations that lie outside the scope of international law to a considerable degree. 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 national diplomacy aims to 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 that control individuals’ actions in civilized states, nevertheless, many of its principles are based on ethical standards and conform to ideals of justice and equity.
Many international law improvements 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 that judges the morality of national acts and policies.
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 humanity and justice ideals. It includes many rules that have their origin inconvenience and interest rather than in morality. Even more than the law within states, international law tends to lag behind the general standards of ethics.
Evolution of International Law.
Man is a fighting animal, carrying on a desperate struggle with his environment and with his fellows and 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 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 the 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 waging warfare methods. 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 idea of world peace.
With its numerous independent city-states, conditions in the Hellenic world were more favorable to the growth of inter political relations. However, the love of city autonomy was stronger than the Greeks’ national feeling, and no definite concept of international law was developed. However, the Greek cities were 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 heralds’ inviolability, 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 to settle commercial differences.
In the third century B.C., when Rhodes became the A Egean’s chief commercial state, a maritime code arose, which was generally observed in the Hellenic world. From this Rhodian sea law, many of the Roman Empire’s commercial regulations were 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 humanity, which included at least protection to envoys, the sanctity of treaties made under oath, and certain obligations of alliance and hospitality.
Rome’s diplomatic relations 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 and 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 world conquest career 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 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 Holy Roman Empire’s theory 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 justice and reason principles. 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 any state and common to all states. Rome’s justifiable 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 Females.
Their principal functions were to give advice on war and peace, act as heralds and ambassadors to receive and entertain envoys from foreign states, and give effect to formal declarations of war sanctioned by the Roman assemblies. Their powers were merged later in the Emperor’s general authority, but they contributed certain ideas to the development of international law and practice.
Rome’s jus gentium consisted of the body of usages and principles common to all peoples among whom the Roman magistrates administered justice. It originated in Roman officials’ jurisdiction over foreigners and in the adjustment of the relations of Romans and foreigners. To give aliens protection for person and property, rules of law common to Rome and her subject peoples were applied. By the later Roman jurists, the principles of this law found existing among all nations were practically identified with nature’s law.
In addition to Rome’s civil law and the canon law of the church, the jus gentium influenced the medieval period’s legal conceptions 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 to adjust international relations. 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 Roman peace’s benefits remained after the barbarian invasions. Men believed that the Empire was to be eternal and 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. Despite 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 using the Truce of God and God’s Peace. The kings made similar efforts to suppress the rising national states’ private warfare, 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 feudal system’s graded obligations. Separate principalities existed, but the sense of unity was so deep that the idea of distinct and reciprocal relations among them was lacking. The relationship’s bond 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. Still, 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. In The Prince (1513), Machiavelli set forth the doctrine that in matters of state, Ordinary rules of morality did not apply. Fortunately, in a different direction, other tendencies were preparing the way for a more rational and humane conception of interstate relations.
There were common religions, common customs, and a language common to the educated classes throughout Christendom. The ideal of world unity was fostered by the Roman Empire’s tradition 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 an enlightened international jurisprudence system. Churchmen, interested in the canon law, discussed certain international questions, especially those relating to war, from 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. The revival of commerce was significant in the Italian cities, which was greatly stimulated by the Crusades. Despite the 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 the Hanseatic League, were formed for its protection and extension. Later, the opening of new routes to the Orient and America’s discovery transferred the center of commercial activity to the Atlantic and extended the range of external relations.
As a result of international dealings caused by commerce, codes of maritime law were formed. Chief among these was the consolation del Mare, a collection of principles that regulated the Mediterranean trade. Some of its rules concerning belligerents’ rights 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. At first, in the hands of mercantile associations, the right of choosing consuls 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 the land, thus leading to territorial sovereignty.
The kings, standing at the apex of the feudal hierarchy, became lords of their people’s lands from being lords of their peoples. During the medieval period, direct royal authority was limited by the feudal nobility’s actual strength and by the belief in a common European superior, either Emperor or Pope. But as feudalism fell into decay and the emperor and Pope’s powers 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.
However, few rules existed 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 that there were ethical rules or natural laws applicable to the intercourse of states mien. However, no earthly authority had the power to enforce obedience in the latter part of the sixteenth century. Victoria, a Dominican monk and professor at Salamanca conceived 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 Italian who taught at Oxford, maintained 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 humanity’s moral unity. Therefore, he argued 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 Grotius’s work 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 nations’ law. 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 Roman law principles were approved ingredients for his constructive system. The ideas of the 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 the constant and barbarous wars led men to realize the need for a system under which honor and justice principles might be applied to states’ relations.
Accordingly, in the Treaty of Westphalia (1648), which brought the terrible Thirty Years War to an end, many of Grotius’s principles were applied. This treaty recognized the society of states and accepted the doctrine that each territorial sovereign state is independent and is entitled to legal rights that all other states are bound to respect. Grotius’s successors 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. The establishment of permanent diplomatic service gave further impetus to the regulation of interstate relations.
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 early diplomacy’s unscrupulous nature. 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. Significant is the recent growth of the international organization of permanent administrative, judicial, and to some extent, even legislative bodies to deal with certain questions of international interests.
The international law rules are always in danger of being ignored when a great war involves a life-or-death struggle among the world powers. 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 Monroe Doctrine’s principles, and by Russia in the satellite states on her western border. The First and Second World Wars were followed by great enthusiasm for an 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 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 political superiors’ commands 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 the power to enforce it or impose penalties for disobedience. They hold that international law lacks definiteness since there is no universal agreement concerning its principles. 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 the 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 often consists of customs and usages that 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 is unnecessary. From this point of view, the important elements of the law are 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 the law to rules enacted, interpreted, and enforced by a political sovereign; the historical jurists include law rules that are embodied in custom, interpreted by the parties to the case, and enforced by a public opinion by appeal to arms. The latter group feels that if international law’s legal nature is denied, the respect in which its rules are held would be diminished. States would be encouraged to ignore their international obligations. However, it should be noted that the principles of international law, which are most definite and most faithfully observed, deal mainly with international interests of obvious convenience or relatively unimportant. Many important questions of vital interests in states’ national policy 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 an industrial competition within the state in the period of laissez-faire. The forces of national expansion, generally known as imperialism, are controlled by few recognized international law rules. 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 law system 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 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 a definite international legal organization. To a certain extent, the rules of international law have been definitely formulated by great international conferences. They have been administered and interpreted by judicial tribunals, such as arbitration courts and the Permanent Court of International Justice. In some cases, even a definite sanction has been applied in economic pressure or armed intervention. Furthermore, if they do not conflict with national legislation, the accepted rules of international law are recognized as a part of the law of the land and are endorsed 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. In the courts before which they are brought, legal forms and methods are used in diplomatic controversies and arbitral proceedings. And authorities and precedents are quoted as in courts of law.
If the legalistic theory is 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 the law, it is not international, but the law of a world state. International law is not concerned with the relation of political superiors to political inferiors. It is not the expression of a supreme will but the result of the interplay of several 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. At the same time, 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 is 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 an external power and not by the internal conscience, then the rules of international law ate law properly.
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 international law principles can be rationally deduced from the essential nature of states. States are viewed as legal persons, possessing certain fundamental natural rights, usually stated as the rights to independence, equality, sell preservation respect, and intercourse Fr.om, 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 states have given their actual or tacit consent and that their binding tree is the com tent of states be bound. This doctrine emphasizes the state’s sovereignty 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, 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 that have gradually developed and 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 recognized as obligatory and at having legal standing. This international law body 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 individuals’ conduct and can trace their origin to remote antiquity.
Customary law, however, is always somewhat uncertain and may lead to a disagreement concerning its content. Besides, it grows too slowly to keep pace with rapidly changing conditions or fill the gaps disclosed as conceptions of international justice become increasingly clear. It is never sufficiently definite or detailed to provide for every situation that calls for a legal decision. Accordingly, those who administer it must at times resort to what was formerly called natural law, that is, to equity principles discovered by reason. This does not mean the reasons for single or private individuals, but 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. It is constantly resorted to in states’ practice, 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 creates 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 the 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 make it relatively more important than the older customary law. Great international conferences perform the legislature’s function imperfectly in a state, lacking the principle of majority rule and the enforcement machinery. They do, however, strengthen the idea of the rule of law among states, and to some extent, have created rudimentary systems of international government and administration.
Various attempts have been made to reduce the rules of 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 addressed to complete reconstruction of the existing system based on 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 several 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 evidence of international law: the documentary material that 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 arbitration courts, commissions of inquiry, the Hague Court of Arbitration, and the Permanent Court of International Justice. To some extent, the decisions of prize courts and other national judicial bodies deal with international law questions.
- Laws, ordinances, proclamations, decrees, and states’ instructions to their diplomatic or consular representatives and their military and naval commanders.
- Opinions of politicians 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 state’s law, the subjects of international law are corporate bodies known as states. For international law purposes, a state may be defined as a permanently organized political society, occupying a definite territory and possessing within that territory freedom from control by any other state, which enables it to act as an independent political agent about other states. For purposes of international relations, 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.
Writers have frequently urged the theory of the equality of states 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 the analogy, this theory is contradicted by obvious facts. States are unequal by almost any test-size; population, wealth, strength, and degree of civilization are among the most obvious. While differences among states in area and population do not create serious intentional difficulties, differences in political development and civilization are more troublesome. Consequently, 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 who enjoy full membership, some states are subject to restrictions that limit their full rights. States are equal not in the rights that they possess but in the sense that each state’s rights, 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 international law and institutions’ development. This is particularly the case when the theory is used to justify the demand that each state is entitled to an equal voice in the decision of international questions or the control of the 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 state’s internal aspect to emphasize 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. It was valuable in the legalistic sense in pointing 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 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 and supremacy within the state. First, it was used to oppose one state’s claim to be the 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 the dependence of different states.
In so far as it applies to modern states, sovereignty 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-recognized member of the family of nations and as a party to international law, but which controls its international relations only in parts such as a protected state or a neutralized state, is dependent. But all states, independent and dependent alike, are interdependent. They exist not in a political vacuum, but continuous political relations and expediency and necessity bring all of them under international law obligations. The traditional theory of sovereignty implies the right of each state to act as it chooses. Without any restriction, international life facts 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 with its proper content or 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 membership’s determination in the international community, whether complete or partial and the methods by which such membership is acquired or lost. It also includes the nature of the rights that these members possess under international law and the duties and obligations it imposes upon them.
2. Objects of international law.
This division is concerned mainly with the state’s territory, 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 how these areas come under national or international control. It is also concerned with individual persons 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 the sea, and in the air, which is regarded as legal under international rules, and the methods of bringing it to an end.
6. Law of neutrality.
This law is concerned with belligerent and neutral states’ respective rights and duties in time of war. It aims to protect the citizens and property of neutral states from unnecessary interference on belligerent states and 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. Its subdivisions overlap;p 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.