a. Definition of inter

national law

Relation

of inter

national law to ethics

CHAPTER II

THE NATURE AND SCOPE OF INTERNATIONAL LAW

International law of the present day may be defined as the body of rules accepted by the general community of nations as defining their rights and the means of procedure by which those rights may be protected or violations of them redressed.1 This definition is drawn from the facts of international relations as they are found recorded in the recent practice of nations. It does not include a reference to the moral standards by which the rules of international law should be tested., This is not because these moral standards are not of the highest importance to the development of a more perfect international law, but because scientific precision requires that it be made clear at every step what rules of conduct are actually recognized by nations as distinct from abstract theories or ideals of future conduct. The definition expresses, therefore, the positive conception of the law as a body of rules, including both general principles of conduct and concrete regulations, to which the nations can be said to have given their adherence as judged by their public declarations and their daily practice.

But if moral standards, as belonging to the science of ethics rather than that of law, must be kept distinct from rules actually observed, it must not be inferred that the rules of international law, when definitely ascertained, are not to be tested as to their conformity with the generally accepted principles of justice. International law is confessedly a defective system of securing justice among the nations when compared with the legal systems in force within the more civilized states. It can be improved and developed only through a more effective organization of the nations and a more equitable adjustment of their respective claims than has as yet been attained. In determining the form of this better organization and the methods of this adjustment statesmen must necessarily be guided by comparisons between the rules of international law and the principles of justice prevailing within the 'Duties, being correlative to rights, are included in the definition. In practice, however, the emphasis is upon rights, our rights and their duties.

II

individual states. It is the task, therefore, of international juris- CHAP. prudence to examine the underlying conceptions of international law, to draw analogies with respect to them from the principles of justice which form the jurisprudence of national codes, and to criticize the existing system on the basis of its adequacy to meet the needs of international life. On the other hand, the study of international law as a system of present conduct has for its primary object to discover the concrete facts of international relations. Nevertheless, the intrinsic justice of these facts may profitably be kept in view on the horizon.

between

and general

national law

By strict definition, international law should embrace only Distinction such rules of conduct as are recognized by all the members of the universal international community. It is, however, very difficult at times interto determine how many of the nations have given their express or implied consent to a given rule. In consequence, the term "universal international law" has been used by some authors to indicate ́rules binding upon all the members of the family of nations without exception; while the term "general international law" has been applied to rules in force between a large number of states, including necessarily the Great Powers. Further, there are rules in force between two states, or between a small group of states, to which the name "particular international law" has been given. These, however, belong rather to the category of special contractual relations than to that of law. Since the line between universal and general international law cannot always be drawn with accuracy, and since the rules of general international law are often the beginning of a subsequent universal law, it is as necessary to discuss the one as the other; but when no reference is made to a restriction in the number of powers that have accepted a given rule the term "international law" will here be used to mean the law universally accepted.

national

In addition to the rules which nations regard as legally binding Interupon themselves, there are others which it has become a matter of comity courtesy and mutual convenience to observe. This body of rules has been given the name of "international comity," and it plays a part in international relations similar to that played within the local community by the conventions of social life. Owing to the method by which international law has been formed, from the growth of usage into fixed custom, a rule of international comity has frequently been the first step toward a later rule of interna'Oppenheim, International Law, I, § 1.

CHAP.

II

International administrative

law

International private law

tional law. Examples of rules included in international comity are the recognition of the legislative, executive, and judicial acts of one country by the government of another, the execution of the revenue and sanitary laws of a state beyond the strict limits of the maritime belt, and the occasional extradition of fugitive criminals in the absence of treaty provisions.2

A distinct branch of international law which needs to be distinguished from the general body of the law is the series of administrative regulations proceeding from the action of international administrative commissions. It has been found convenient by the nations on many occasions to establish such commissions to administer the provisions of international agreements, such as the convention establishing the Universal Postal Union, or the Union for the Suppression of the White Slave Trade. These commissions issue regulations which have the force of law with respect to the persons and property affected by them. While the authority of the regulations issued is limited by the terms of the convention creating the commission, it operates within that field upon state administrative officers as well as upon individual citizens. The regulations bear an analogy to those issued by municipal boards of health, railway commissions, and similar administrative bodies. Much confusion has arisen from the failure to distinguish the rules governing the relations of states as such from the body of law which is applied by national courts in deciding cases involving a conflict of two different systems of law. Suits brought in one country by one individual against another on the basis of rights acquired under the law of another country are decided by principles which have now acquired the character of a distinct and unique legal system, which has been given the name of the "conflict of laws. This name, however, is used side by side with the more ambiguous term, "private international law." A third term, "international private law," commends itself to some writers. It must be observed that the rules of international private law deal with individuals and not with states, that they affect private and not public rights, and that they are applied by national and not by

'See Hilton v. Guyot, 159 U. S. 113 (1894), where a somewhat restricted definition of "comity" is given by a national court. The term appears in its usual sense in the Paquete Habana, 175 U. S. 677, 693, 694 (1899). Scott, Cases, 17.

In the recent case of Cunard Steamship Co. v. Mellon, 262 U. S. 100 (1923), a dissenting opinion refers to the exemption of foreign merchant vessels in port from interference by the local government in their internal affairs as a matter of international comity.

II

international courts. Each state is free to apply such rules as CHAP. commend themselves to it, but by international comity a fairly uniform body of international private law has now been developed.

A further distinction must be made between the rules of inter- Foreign policy national law and the principles by which individual nations are guided in the determination of their foreign policies. Many of the most important relationships of states are not governed by any rule of law, while many other relations are of such a temporary or non-essential character as to make it undesirable to bring them under a rule of law, even if it were possible to do so. In consequence, within these fields nations are legally free to pursue their interests according to their individual conceptions of their own advantage. The "foreign policy" of a nation may, therefore, be defined as the peculiar or individual attitude adopted by the nation in its relations with other nations, or the special objectives held in view by a government in its diplomatic intercourse with foreign states.2 The term "diplomacy" denotes the art or science of conducting negotiations with foreign powers. It deals, in large part, with the phases of international relations which lie outside the scope of the law; and since its activities frequently involve the most vital issues of national welfare, diplomacy has become associated in the public mind with keen and at times unscrupulous bargaining. Its business, however, is also concerned with the. proper defense of national interests under the law, and in so acting its function is as appropriate to international relations as the function of the attorney who presses the case of his client before a domestic court.

of inter

law

International law, like other forms of human law, is based b. Basis ultimately upon the realization by states of the need of a rule national governing their mutual contacts and relationships. The necessity of a peaceful adjustment of conflicting claims, the consciousness of a body of common interests transcending the interests of individual states, has created a sense of unity and common purpose which is the foundation of all legal institutions. The existence of an international law implies, therefore, that nations have reached

Minor, Conflict of Laws, § 2.

For a survey of the foreign policy of the United States see Moore, Principles of American Diplomacy; Foster, A Century of American Diplomacy. A brief analysis may be found in Cyclopedia of American Government, sub tit. "Foreign Policy of the United States.''

Under modern conditions diplomatic agents act at almost every turn under instructions from their home governments upon which the blame for dishonest conduct must largely fall. See below, Chap. XXI.

CHAP.
II

Method

of its enactment

a stage of development in which they recognize their corporate character as a society or a community, and in that capacity undertake to say that a certain rule of conduct, conducive to peace and order in their midst, shall thereafter be observed. In the earlier stages of the development of international law the recognition by the nations of their corporate unity was implicit in the facts of their actual relations; but in more recent times it has been expressly affirmed in formal international documents. In like manner, the undertaking mutually to observe a rule of law was in earlier times to be inferred from the conduct of the nations and the diplomatic exchanges of their foreign offices; but it has now been explicitly declared. The rules of international law thus rest upon the common consent of the states forming the community of nations; they are rules accepted by the members of the community as binding upon themselves individually and obeyed because of such acceptance. The distinguishing characteristic of the rules of international law is that as a legal system they emanate from the voluntary contractual agreement of a body of states recognizing no common superior, and so loosely organized in the beginning as to be scarcely conscious of the authority attaching to their collective undertaking.

While international law bears close resemblance to the municipal law of the individual state in respect to the foundations upon which it rests, it differs markedly from municipal law in the method of its enactment and in the method of its interpretation and enforcement. Owing to the fact that the consciousness of unity among the nations has never been so strong as to lead them to set up an agency having the power of command over the members of the organization and able to enact rules similar to the statutory legislation of national parliaments, by far the larger part of international law has had its origin in common usages which have developed from the more limited practices of a group of nations or from the uniform application of general principles to concrete cases. This growth of international customary law bears a close analogy to the formation of the common law of Great Britain and the 'United States. But whereas the common law,

2

See the preamble to the Convention for the Pacific Settlement of International Disputes, adopted at the Hague Peace Conferences of 1899 and 1907, in which the signatory powers refer to themselves as:

"Recognizing the solidarity uniting the members of the society of civilized

nations;

"Desirous of extending the empire of law and of strengthening the appreciation of international justice." Hague Conventions, 41.

'See below, p. 61.