II

although originating in local customs of immemorial tradition, was CHAP. ultimately adopted by the king's courts, and thus gained the indirect recognition of the authority of the state, the customs of international law have, with few exceptions, yet to receive this qualified degree of legal definition. The conventions adopted within recent years at international conferences are in substance legislative enactments, analogous to the statutes of municipal law. In legal structure, however, they are contracts voluntarily entered into by a number of separate states rather than the binding statutes of a sovereign legislative body.1 Neither in the form of custom nor in that of convention is international law the decree of a supranational legislature imposing its will upon a group of states, coerced or pledged to acquiesce in its decisions. Custom and convention acquire their binding force solely from their express or implied acceptance by the nations as having binding force.

In the method of its interpretation international law lacks the authoritative definition which characterizes the application of municipal law to the facts of a given dispute. There are no judicial tribunals intrusted with the duty of enunciating specific rules or of applying the general principles of the law to a concrete case. When questions arise as to the law applicable to disputed claims, direct negotiations are begun between the foreign offices of the contending parties through the channels of diplomatic representa-\ tion, and if an agreement is reached, whether by compromise or by concession, the issue is disposed of without the concern of the community of nations as a whole. In the event of the failure of direct negotiations between the parties, temporary arbitrary tribunals have frequently been set up for the decision of particular

But the jurisdiction of these tribunals has rested upon no higher authority than the will of the parties to the dispute. Failing reference of a dispute to such voluntary agencies, each party may insist upon the correctness of its own interpretation of the law; and should further negotiations result in a deadlock, the last resort may be a declaration of war on the part of the claimant or the sullen acquiescence of the weaker party in the position taken by the stronger. When the ultimate test is reached, each nation remains the judge in its own case.2

In the method of its enforcement, international law lacks the

'See below, pp. 64-66.

The extent to which this situation has been modified by the adoption of the Covenant of the League of Nations is discussed below, pp. 47-49.

Method of

its inter

pretation

CHAP.

II

Method of its

enforcement

c. Is international law true law? The Austinian view

agencies created by the individual state for the execution of the
decisions of its judicial tribunals. Under municipal law no right,
whether of person or of property, is so sacred as to warrant a
resort to self-help, save only in cases of resistance to sudden attack.
Force is completely ruled out as a means of obtaining redress
between citizen and citizen. Under international law the right of
self-help, which a state denies to its own citizens, it claims as one
of the attributes of its sovereignty. In matters arising out of the
normal intercourse of states, where no grave issues are at stake,
the public opinion of the nations as a body, based upon their col-
lective realization of the necessity of a rule of law, has proved an
adequate sanction both to prevent arbitrary assertions of national
claims and to secure the observance of rights generally recognized.
When, however, issues arise which involve interests believed by a
nation to be vital to its welfare, not only does it assert the right to
be the judge in its own case, but in the absence of an international
executive agency it must undertake on its own account the defense
of the claims it is making. Forcible measures falling short of war >
may prove sufficient; but failing these, war may be resorted to as
the ultimate means of self-help; and, since it is regarded at inter-
national law as a legal remedy, the results secured by it are recog-
nized by the body of nations as a final settlement of the case.1 In
the resort to war the possibility of the intervention of third parties
is to be reckoned with, and this has operated at times to restrain
arbitrary conduct as a matter of expediency, without, however,
qualifying the legal right of self-help.2

In view of these divergences of international law from the municipal law of the separate states, scholars have long debated whether the term "law" can justly be applied to international law. During the second half of the nineteenth century a school of positive jurisprudence developed, based upon the teachings of the British jurist, John Austin. In his Province of Jurisprudence Determined Austin endeavored to place the study of law upon a more scientific basis by classifying the various rules of conduct to which the term "law" was applied, with the object of distinguish

It is a matter of controversy between writers as to whether war is a legal sanction of international law. Taking the facts as they stand, irrespective of their moral quality, it would appear that war is undoubtedly a sanction when pacific measures have been tried and have failed. See below, p. 428. For references to the literature of the controversy, see Hershey, Essentials, p. 8,

note 26.

For the newer sanctions provided for in the Covenant of the League of Nations, see below, p. 48.

II

ing laws which had a definite origin and a definite obligation CHAP. attached to them from others indefinite in origin and obligation. Law in its general and most comprehensive acceptation was declared to be a rule of conduct laid down for the guidance of an intelligent being by an intelligent being having power over him. "Laws proper," as distinguished from "laws improper," Austin defined to be commands emanating from a determinate authority, whether single person or aggregate body, to which were annexed eventual evils to be inflicted upon those disregarding the law, thus forming a sanction to secure its observance. The term "positive law" was reserved for commands set by men in the capacity of political superiors to political inferiors. Since international law lacked this characteristic, it was relegated by Austin to the domain of ethics or "positive morality," differing in importance, but not in nature, from the social conventions sanctioned by public opinion.1

of historical

On the other hand, the school of historical jurisprudence, The school founded by the German jurist, Savigny, and Sir Henry Maine, jurisprudence argued that the definition of law adopted by Austin, while true to the form of enacted law characteristic of modern times, was not true to the earlier forms of customary law. Historical research showed, they contended, that long before enacted laws took their place upon the statute books communities were ruled by customs and usages which enjoyed the full force of law as rules of conduct. Primitive law, it was said, was custom, and custom is a law in itself: its own legislature and its own sanction.2 Instances were to be found, as among the German tribes described by Tacitus and among the East Indian village communities, where the only rule of conduct known was the will of the community evidenced in the tribal or village customs of immemorial origin. The true test of law was, they held, the fact of its recognition as a binding rule and of its observance as such; and by this test the rules of international law might justly be called law.3

Among the more recent writers of the historical school a divi1Op. cit., 5, 15, 17, 109, 112, and passim. For a brief statement of the position of the school of positive jurisprudence, see W. W. Willoughby, "The Legal Nature of International Law," Am. Journal, II (1908), 357.

Walker, History of the Law of Nations, I, 9.

* As Hall says, "It may fairly be doubted whether a description of law is adequate which fails to admit a body of rules as being substantially legal, when they have received legal shape, and are regarded as having the force of law by the persons whose conduct they are intended to guide. International Law, 7th ed., 14-15. See further, J. B. Scott, "The Legal Nature of International Law." Am. Journal, I (1907), 831.

CHAP. II

Character of sanction

sion may be observed between those who held that some physical sanction is necessary to the existence of law and those who held that a moral sanction is sufficient. A rule, said Oppenheim, can be said to be a rule of law "if by common consent of the community it shall eventually be enforced by external power." This external power need not necessarily be vested in a central authority, but might take the form of self-help, as in the case of early Anglo-Saxon law. Other writers held that a physical sanction was not an essential element, but rather a mere accident, of law; it was a means to secure observance, but not the only means. The approval or disapproval of certain acts by the community might be, under circumstances, an adequate sanction. Where there was a strong law-abiding sentiment among a people, the threat of physical force and the assignment of determinate penalties to secure the observance of the law might be dispensed with. Provided only that this sanction of public opinion was on the whole effective, the rules which it enforced might, therefore, it was claimed, rightly be called law.2

The controversy turned, thus, upon the definition of "law" accepted by the particular writer. On the whole, scholars, with the exception of a small group of British and American writers, tended to favor a recognition of international law as true law. The result of the debate, however, was that an academic problem took precedence over an urgently practical one. On the one hand. there were certain advantages in limiting the definition of law so as to distinguish between law enacted, interpreted, and enforced by a determinate political authority, and law embodied in custom, interpreted by the parties to the case, and enforced by the sanction of public opinion or by individual appeal to the sword. On the other hand, it was felt that the adoption of a narrow, and what was believed to be arbitrary, definition of law, so as to deny to the rules of international law a legal character, would have an unfortunate effect upon the respect in which the rules of international law might otherwise be held, and would lead the nations 1 International Law, I, § 3.

2 Walker, Science of International Law, 31-32. The past tense is used in describing these opinions, not because they are not held by living writers, but because the controversy practically came to an end in 1914. Since that time the concern has been more with the practical development of international law. The existence of an international law, even in default of an effective sanction, was asserted, obiter, in The Prometheus, Sup. Ct. Hong Kong, 1906. Scott, Cases, 962.

II

to set aside their obligations with an even lighter hand.1 What CHAP. neither group of writers brought out was the fact that while international law operated effectively, whether as "positive law" or as "positive morality," within a limited field of international relations, there were other fields, embracing the most critical issues between the nations, which remained wholly outside the scope of the law. It was the restricted scope of international law, not its essential character within the field in which it actually operated, that constituted its fundamental weakness.

An examination of the substantive rules of international law will show that the subjects upon which the law is clear and definite are those in which the interests involved either are relatively unimportant or relate to matters of obvious common convenience. These interests fill a large place in the daily intercourse of the nations, and the rules governing them have been, on the whole, as faithfully observed as have been the municipal laws of each separate state. Under the protection of international law citizens of one state have moved freely to and fro in other states and have felt secure in their persons and in their property; ships of every nation have sailed to foreign ports and have there enjoyed equal privileges with vessels of the foreign state itself. Great rivers have been internationalized, and interoceanic canals have been opened to the commerce of all nations. The seas have been made free to the remotest corners of the globe. Fugitive criminals have, by the process of extradition, been returned from the state to which they fled to the state in which the crime was committed. Administrative agencies have been created for the transmission of messages by post and telegraph to all parts of the world. Copyrights and patents have been protected, and conventions adopted in the interest of international sanitation; agreements have been entered into for the joint suppression by the nations of the traffic in white slaves and commercialized vice when working across national boundary lines; and in many other ways the common interests of

1 Walker, History, 18-19. International law is as yet unfamiliar with the modern sociological conception of law formulated in such volumes as Pound's Philosophy of Law and Interpretations of Legal History. The conception of law as a means to an end, and the conscious determination of that end and adoption of legislation to attain it, while foreshadowed in the growing body of law-making treaties (see below, pp. 64-66), has not yet entered into the science of international law.

For the meaning of the recent demand for the "freedom of the seas," see below, p. 297.

The scope

of inter

national law