IV tional law acceptable to the parties to the dispute, but at times as CHAP. sources of a new rule of conduct.1 Such was the effect intended by the states creating the new Permanent Court of International Justice, which they expected not merely to develop judicial traditions governing its own future awards, but to lay down principles which by reason of their intrinsic justice might commend themselves to the international community for adoption as law." 3 national With respect to the judgments of national courts, and in Decisions of particular of national prize-courts, it is important to observe that courts they represent merely the decisions of domestic tribunals upon the points of law involved, and even when not controlled by enactments of the national legislature they tend to reflect the local interpretation of general principles. But in so far as national courts undertake to establish the true rule of international law to be applied to the case before them, their method of reasoning and their display of historical learning will have the same value as evidence of the law, and a corresponding influence upon the development of it, as the works of international jurists above mentioned. In the case of Thirty Hogsheads of Sugar v. Boyle Chief Justice Marshall laid down the rule that "the decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the Law of Nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Sir William Scott, in the leading case of the Maria, laid down as the true rule for the judgments of national prize-courts that it was the duty of the court "not to deliver occasional and shifting opinions to serve present purposes of national interest, but to administer with indifference that justice which the Law of Nations holds out, without distinction, to independent states, some happening to be neutral, and some belligerent: the seat of judicial auhority is indeed locally here, in the belligerent country, according to the known law and practice of nations, but the law itself has no locality." Again, in the case of the Recovery, it was said that "it is to be recollected that this is a Court of the Law of 5 Such was, doubtless, the effect of the award of the Geneva Tribunal in 1872, interpreting the application of the principles prescribed for its decision. See below, p. 410. 39 Cranch, 191, 198 (1815). Scott, Cases, 680; Evans, 450. CHAP. IV Nations, though sitting here under the authority of the king of Great Britain. It belongs to other nations as well as to our own; and what foreigners have a right to demand from it is the administration of the Law of Nations simply." Nevertheless, in spite of these high ideals of the duty of national prize-courts, one has only to compare the British law of prize with the claims of France and Holland at a given period to find that what is laid down by the British courts as international law is frequently the British interpretation of that law.1 A similar bias, dictated by the emergency of the occasion, is to be observed in the decisions of the American courts in cases arising out of captures for carriage of contraband and breach of blockade during the Civil War. On the other hand, the decisions of national courts are facts, positive in character and forming a definite starting-point from which rules of law may develop, and have in the past developed. Their influence has in many cases been decisive in determining the policy of the home government, overruling all but the affirmative commands of the national legislature. Moreover, where founded upon what are believed by the national court to be general principles of justice as well as concrete rules of international law, these decisions have frequently been persuasive with foreign courts as evidence of the rule which it has not been possible to discover from general practice. This reciprocal influence of foreign judgments has undoubtedly tended to strengthen the general sense of a higher law pervading the international community as a whole. To the extent to which international law becomes ultimately a part of the law of each separate state,* on a par with, if not taking precedence of, legislative enactments, it would appear that the decisions of national courts may be expected to exercise an important influence upon the development of international law. Especially is this likely if in time states should agree to permit an appeal from national courts to an international court of justice." "It has been found, however," says Hyde, "that even when not restrained by the tenor of local statutory or other regulations, the natural prejudices of the most enlightened and scrupulous tribunal established under belligerent authority tend to weaken its impartiality and to diminish foreign respect for its conclusions.'' International Law, I, § 3. Hershey calls attention to the fact that this limited application of judicial decisions constitutes "one of the gravest objections to the teaching of International Law by the main or exclusive use of the 'case system.''' Essentials of International Public Law, p. 22. 'See below, pp. 540, 545. See below, p. 507. See below, p. 77. 'See, in general, the address before the American Institute of International Law by James Brown Scott, to whom the writer is indebted for numerous 3 IV of inter Both the sources and the evidences of international law have CHAP. frequently been confused with the various factors that have from time to time influenced the development of international law. Factors influencing the Among these are to be included as of first importance the writings development of scholars and publicists, whose part played as indirect sources national law and as evidences of the law has already been shown. It is, indeed, difficult to distinguish the use made of such writings as authoritative statements of the existing law and their use as persuasive exponents of a better rule than the existing one. In like manner the decisions of international arbitration courts, even when not regarded as precedents, have, as in the case of the award of the Geneva Arbitration Tribunal, had great weight in determining the future direction of the law. Similar, though much wider, influence has been exerted by the decisions of national courts, even after allowance has been made for their bias in their interpretations of the customary law. In a few instances the statutes of national legislatures and the proclamations of national executive heads have, by their enunciation of more progressive rules than those in force at the time, had the effect of winning general consent for their isolated position. Notable instances are the United States Neutrality Act of 1793 and the Instructions, known as Lieber's Code, issued by President Lincoln in 1863 for the government of the Federal armies. Further, there is the growing influence exerted by international | congresses of an unofficial character, and by international associations and societies, which in occasional or in annual conferences have devoted themselves to the elucidation of the rules of the past and the formulation of more constructive rules for the future. Among such congresses and associations may be mentioned the Institute of International Law, founded in 1873, the International Law Association, founded in 1873,1 the Interparliamentary Union, organized in 1889; and, in the United States, the American Society of International Law, founded in 1905, and the more recent American Institute of International Law, founded in 1915. suggestions personally made. It may be noted that Article 38 of the Statute of the Permanent Court of International Justice provides that in rendering its decisions the court shall apply in order (1) international conventions, (2) international custom, (3) the general principles of law, (4) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 1 Originally under the title of the Association for the Reform and Codification of the Law of Nations. CHAP. IV c. Codifica tion of international law Codification In view of the uncertain character of customary law and of the lack of precision in its rules, attempts have been made from time to time to reduce the rules of international law to a systematic code. The term "code" has been used historically to cover a wide variety of rearrangements and restatements of the rules of law. In the case of international law codification has taken three more or less distinct forms: (1) an attempt to state in systematic form the rules actually in force between states; (2) the compilation of the rules in force, modified by such amendments as are regarded as necessary to bring the existing law into closer touch with the needs of the times and the standards of just and humane conduct; and (3) the complete reconstruction of the whole system of existing law based upon new principles and conforming to ideal standards of conduct rather than to the practical possibilities of the international situation. A further distinction may be made between codes formulated by the representatives of governments and subsequently adopted as statutory law, and codes formulated by private persons or associations or by individual governments, and possessing no authority apart from the inherent value of their recommendations. The first method of codification is represented in substance by most of the more recent treatises and texts on international law; but, owing to lack of form and arrangement, these texts have not usually been designated as codes. Rule, historical background, and argument are generally combined in such works. As has been shown above, these treatises and texts seek to present international law as a positive system with little criticism of its rules and few or no proposals for the constructive reform of the law. The texts of Oppenheim and Westlake in Great Britain, of Davis, Wilson, and Hershey in the United States, of Bonfils and Despagnet in France, of von Liszt and von Ullmann in Germany and Austria, and of de Louter in Holland are typical presentations of the existing law scientifically arranged. An exceptional treatise on positive law, which follows the traditions of codification both in content and in form, is the code drawn up, in 862 articles, by the Swiss-German scholar, Bluntschli in 1868,2 who announced that it was his intention "to formulate clearly the existing ideas of the civilized world.” 3 1 See above, pp. 56-57. Das Moderne Völkerrecht der Civilisirten Staaten als Rechtsbuch Dargestellt. Introduction, § 2. 3 IV of new rules It is the second and third methods of codification which have CHAP. almost exclusively appropriated the name of "code." Codification of an official character, undertaken by the collective action of Formulation nations, was first attempted at Geneva in 1864, where a conference of the representatives of twelve nations sought to bring together the best existing practice on the subject of measures for the relief of the wounded on the field of battle and the immunities of noncombatants engaged in caring for them.1 Later amendments to the Geneva Convention were adopted in 1868 but failed of ratification. In 1874 the representatives of the leading powers met at Brussels, at the invitation of the czar of Russia, to undertake a draft code of the law of war on land. The code drawn up, consisting of some sixty articles and known as the Declaration of Brussels,2 failed, however, of subsequent ratification. by general More successful codification was accomplished in the conven- Codification tions adopted by the Hague Peace Conference of 1899. The laws conventions: the Hague and customs of war on land were codified on the basis of the unrati- conferences fied Declaration of Brussels of 1874; and the principles of the Geneva Convention of 1906 were adapted to maritime war. The conference also formulated a convention for the pacific settlement of international disputes, but this agreement was more in the nature of new statutory legislation than of codification of existing rules and practices. The same is true of the three declarations prohibiting the discharge of projectiles from balloons and the use of asphyxiating gases and of bullets with a hard envelope. The Hague Conference of 1907 adopted conventions codifying the rights and duties of neutral powers and persons in war on land and in maritime war, as well as six other conventions relative to the conduct of hostilities and the mutual relations of the belligerents.* The codes adopted in 1899 were amended in the light of experience, and a new statutory rule was adopted restricting the use of force for the recovery of contract debts. The London Naval Conference undertook the more difficult task of the codification of the " generally recognized principles of international law" in respect to maritime war.5 For the text of the convention, see Higgins, The Hague Peace Confer ences, 8. 3 For the text of the dec'ration, see ibid., 273. For the text of the conventions, see Scott, Hague Conventions and Declarations, 41, 100, 163, 220 ff. For the texts, see Ibid., 41 ff. For the text, see Higgins, op. cit., 540; Charles, Treaties, 266. |