CHAP.
IV

Conventions

relating to general interests

Unofficial codification

In addition to the conventions regulating mutual rights and duties adopted at the Hague, there is the large body of conventions or treaties concluded during the past half-century dealing with matters of common interest and mutual concern to all states.1 These conventions, although adopted individually and relating each to its particular object, constitute as a whole a code of international law with respect to the specific fields of activity defined by them. Since 1920 they have come to include not merely matters of common convenience about which there could be little conflict of policy, but matters, such as freedom of transit by land and waterways, which have hitherto lain in the disputed areas of international law. Their rapid growth, due partly to the machinery created by the League of Nations, gives promise not merely of more comprehensive regulations for the general welfare, but of the gradual delimitation of the sphere of disputed rules.2

3

Unofficial codification, undertaken by private individuals or associations or by single governments, has in many instances played an important part in influencing the later action of international conferences. The older texts on international law, such as those of Grotius and Vattel, belong by reason of both their content and their influence to this group of codes; but, lacking the formal arrangement of codes, they have not been classified as such. Codification by single governments is illustrated by the draft code of the laws of war on land prepared by Francis Lieber and published by President Lincoln in 1863 under the title, "Instructions for the government of armies of the United States in the field." This code proved its usefulness in actual warfare, and was freely drawn upon by the committee of codification of the Brussels Conference of 1874. Codification by scientific associations can be seen in several draft codes presented by the Institute of International Law, notably the Manual of the Laws of War on Land published in France in 1880. The "Declaration of the Rights and Duties of Nations" drawn up by the American Institute of International Law at its meeting at Washington in 1915-16,5 represents an attempt at codification within a restricted field. Codification by private individuals is to be seen in the Draft Outlines of an

1 See above, p. 65.

'See M. O. Hudson, "Codification of International Law through the League of Nations,'' Proceedings, Am. Branch Int. Law Assoc., 1923.

4

See above, pp. 51-55.

For the text of the instructions, see Wilson, International Law, 8th ed.,

Appendix I.

For the text of the declaration, see Am. Journal, X (1916), 124.

IV

International Code published by David Dudley Field in 1872 in CHAP. the form of an international statute of 1008 articles, supplemented with notes explaining and justifying the rules laid down.1 Of a similar character is the code published by the Italian jurist, Pasquale Fiore, under the title, Il Diritto Internazionale Condificato ed la Sua Sanzione Giuridica. The code embraces 1985 articles covering the whole field of international law.3

1 The code was the contribution of the author to the work of a committee of the British Association for the Promotion of Social Science, which had been appointed to draw up a complete code of international law. In the preface to the first edition the author states that "the scheme embraced not only a codification of existing rules of international law, but the suggestion of such modifications and improvements as the more matured civilization of the present age should seem to require."

* Fifth edition, 1915. Translated into English by E. M. Borchard, 1918. The author describes his purpose as being "to set forth international law, taking into account the existing law and such rules as may be capable of becoming law." Borchard's translation, 78.

A summary of and commentary upon the literature of the codification of international law may be found in E. Nys, "The Codification of International Law," Am. Journal, V (1911), 871.

Different spheres in which

international law and municipal

law operate

Implied

adoption of international law by municipal law

CHAPTER V

THE RELATION OF INTERNATIONAL LAW TO MUNICIPAL LAW

International law is a law between states. It lays down the rights possessed by states and prescribes the mutual obligations or duties corresponding to those rights. As has been pointed out above, the basis of international law is contractual. The rules of which it consists rest upon the free consent of independent states, either as expressed impliedly in customs or explicitly in treaties. On the other hand, each of these states possesses its own municipal law, emanating from the sovereign authority of the state, and prescribing rules for the organization and functions of the government of the state and for the conduct of its citizens in their relations one to another and in their relations to the state as a whole. In respect to the relation between international law and municipal law, the question arises whether the former is to be regarded as a law binding only upon the state as such or as a law imposing duties directly upon the individual citizen. Has international law been incorporated into the law of the individual state? If so, which rule takes precedence in case of a conflict between a rule of international law and a rule prescribed by the constitution or by the legislature of the state? 1

In the absence of any organized power representing the collective will of the members of the international community and capable of executing that will by its own agents, the obligations which international law imposes can be enforced within the boundaries of the individual state only in so far as the individual state itself undertakes to see to their enforcement. It is, however, one of the implied conditions of membership in the community of nations that the individual state not only shall enjoy the rights belonging to it as such, but shall be faithful to the corresponding obligations incumbent upon it.2 International law is, therefore,

1 For a discussion of the general connection between the two branches of law, see Q. Wright, "International Law in Its Relation to Constitutional Law, Am. Journal, XVII (1923), 234.

2

The rule was forcibly expressed by Secretary Webster in a letter to the United States minister to Mexico, April 15, 1842: "Every nation, on being

binding per se upon all the agencies of government within the CHAP. state, and no act of the national legislature or decree of the executive or judicial agencies can change the force of its provisions in so far as the legal relations of the state toward other states are concerned. In the absence of a supernational authority the obligations of international law may be flouted by a particular state, and the agents of government may be justified in their conduct by the national law, but the international obligation persists none the less. Since, however, the constitution and laws of the individual state constitute the primary legal obligation of the agents of government and of the citizen body, it follows that the state is under obligation at international law to adjust its municipal law so as to give effect to such rules of international law as call for positive action, and to prevent conflicts between the provisions of its own law and those of international law.1

enforcing law

In fulfilment of this obligation the several states have each Methods of followed its own method without reference to any uniform plan of international giving effect to international law. In general, the nature of the rule of international law has determined the method taken by the individual state to put it into operation. Where the rule of international law exists in the form of a general principle, to be applied as the circumstances of the case seem to warrant, as in the instance of the recognition of new states, the executive officers of the state are allowed to act at discretion both in asserting the rights of the state and in upholding its obligations. Where the rule of international law lays a definite duty upon the state, municipal law generally steps in either to prescribe the appropriate action to be taken by its officers, as in the case of the immunities shown to diplomatic agents, or to prohibit its individual citizens from act

received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency among civilized states, and which have for their object the mitigation of the miseries of war. See also Alexander Hamilton's Letters of Camillus, No. 20, in which the binding force of international law upon the United States is demonstrated from principle and from fact. Moore, Digest, I, 10.

It should be observed that in the number of cases in which the courts of the United States have applied the provisions of acts of Congress in derogation of either general international law or specific treaty obligations, they have not been unmindful of the wrongful conduct of the legislative branch of the government; they have merely recognized that it is not their function to afford redress for the breach of international law. That must be effected through diplomatic channels. See Whitney v. Robertson, 124 U. S. 190 (1888), citing Taylor v. Morton, 2 Curtis 454 (1855). Scott, Cases, 458.

CHAP.
V

Practice of

Great
Britain

1

ing in such a way as to compromise the international obligations of the state as in the case of the offenses enumerated under neutrality laws. In the absence of municipal law prescribing or prohibiting certain acts, practice varies in respect to the authority of the courts of the state to apply the principles and rules of international law in the adjudication of cases presented to them ivolving those principles and rules.

In Great Britain, owing doubtless to the authority of the comon law as a rule of precedent, international law was early incorporated into the body of municipal law. Blackstone asserted in 1765 that the law of nations "is here adopted in its full extent by the common law, and is held to be a part of the law of the land."2 In the case of Triquet v. Bath, decided in 1764, in which the privileges of foreign ministers and their domestic servants were at issue, Lord Mansfield quoted from an earlier case (Buvot v. Barbuit) the opinion of Lord Talbot to the effect "that the law of nations, in its full extent, was part of the law of England," and that an act of Parliament (7 Ann., c. 12) merely provided summary jurisdiction where ordinary jurisdiction would otherwise have been exercised. This attitude of the courts, confirmed in later decisions, was apparently reversed in the case of Queen v. Keyn,* in which the court held, by a bare majority, that, in the absence of an act of Parliament extending the jurisdiction of the court over crimes committed in the maritime belt, the court could not sustain the conviction for manslaughter of a captain whose ship had come into collision with a British ship. The issue in this case, however, was municipal rather than international."

6

The authority of international law before the courts was reëstablished in 1905 in the case of West Rand Central Gold Mining Company v. Rex, in which the court, while refusing to inquire into the "act of state" by which the property of the Transvaal Government, including property confiscated from the West Rand Company, had been annexed by the British Government, neverthe

'See, in general, Wright, The Enforcement of International Law through Municipal Law in the United States.

'Commentaries on the Laws of England, Book IV, Chap. 5.

3 Burr, 1478 (1764). Scott, Cases, 2.

L. R. 2 Ex. Div., 63 (1876). Scott, Cases, 243.

For comment, see Picciotto, The Relation of Int. Law to the Law of England, 86 ff. The decision was followed by the passage in 1878 of the Territorial Waters Jurisdiction Act, conferring jurisdiction upon the courts for the future. See below, p. 252.

L. R. 2 K. B., 391 (1905). Scott, Cases, 5; Evans, 28, 98.