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POSSIBILITY OF ENFORCING INTERNATIONAL BY MUNICIPAL LAW
It is the purpose of this thesis to discover how and to what extent international law is enforced by municipal law in the United States. For an adequate treatment of the subject a more or less definite meaning must be attached to the terms municipal law and international law. This is all the more necessary because, with a common view of these two branches of jurisprudence, our inquiry would be not only fruitless but impossible. Thus there is a common opinion which limits the connotation of international law to relationships between states regarded as independent political communities, exclusively. With this view the state is regarded as a unit, an organism whose control is concentrated in a single will designated by the term sovereignty. It is with sovereigns alone that international law has to do.
Municipal law on the other hand is held to be law within the state. The sovereign enforces it but can not be bound by it. As well say that a dynamo can drive the engine which moves it, as to say the sovereign power can be controlled by the municipal law
1 See Bentham, “With regard to the political equality of the persons whose conduct is the object of the law. They may, on any given occasion, be considered either as members of the same state, or members of different states. In the first case the law may be referred to the head of internai; in the second case to that of international jurisprudence. Now as to any transactions which may take place between individuals who are subjects of different states : those are regulated by the internal laws and decided upon by the internal tribunals of the one or the other of these states, the case is the same where the sovereign of the one has any immediate transaction with a private member of the other. * There remains, then the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international law.” Introduction to Principles of Morals and Legislation, Works, Bowring, Ed., 3;149. See also Travers Twiss, Law of Nations considered as Independent Political Communities, Oxford, 1884, p. 2; T. E. Holland, The Elements of Jurisprudence, i1th ed., N. Y., 1910, pp. 385389, 402.
it makes and enforces.? How then can municipal law enforce international law? Clearly with this conception of international law it can not.
Although this theory of international law is often enunciated, it is never adhered to in discussions of the subject with the meaning just outlined. All writers on international law discuss rights and duties of ambassadors and consuls, of armed forces, of aliens, of neutral vessels in time of naval war, etc. International law as well as municipal law contains rules relating to the conduct of persons. Were such rules omitted from the subject, international law would be reduced to a few precepts telling when a state may make war, how far it may exercise jurisdiction,
a and how and when it may acquire territory, some of which on investigation would be found to be rules of policy rather than of law.
International law is not to be distinguished from municipal law by the assertion that the former relates to the conduct of states, the latter to the conduct of individuals within the state. Not state conduct, but state responsibility is the criterion of international law. International law prescribes rules of conduct which the individual must observe, but if he fails to observe them it pays no attention to the individual but declares that the state of which he is a member is responsible and liable. All rules, for the breach of which states will be held liable, are rules of international law.
Thus international law and municipal law are not mutually exclusive. The same rules may be prescribed by both. Both international law and the municipal law of the United States say
2Cf. Justice Holmes, a “A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends," Kawananako vs. Polyblank, 205 U. S. 349, 353, (1907), citing Hobbes, Leviathan, ch.226, 2; Bodin, Republique, 1, ch.8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestrate, c3; Baldwin, De Leg. et Const., Digna Vox, 2nd ed., 1496, fol, 51 b, ed. 1539, fol. 61. See also American Banana Co. vs. United Fruit Co., 213 U. S. 347; John Austin, Lectures on Jurisprudence, 5th ed., London, 1911, 2 vols., 1;263, 278; J. C. Gray, The Nature and Sources of the Law, N. Y., 1909, pp. 77-81; T. E. Holland, The Elements of Jurisprudence, ith ed., N. Y., 1910, pp. 53, 365; J. W. Salmond, Jurisprudence, 2nd Ed., London, 1907, p. 110, 475-481; J. C. Calhoun, Disquisition on government, Works, vol. 6, Columbus, 1851, 1;146; J. W. Burgess, Political Science and Comparative Constitutional Law, Boston, 1902, 2 vol., 1;53.
that inhabitants of the United States shall not "set on foot military expeditions" when the country is neutral, and that naval forces shall not interfere with neutral commerce in time of war except for breach of blockade, carriage of contraband or similar cause. Municipal law, however, holds the individual criminally liable for setting on foot a military expeditionand the naval officer liable in damages for making a seizure without probable cause, while international law in both cases requires the United States to make reparation to the injured states if these acts occur. We believe therefore that it is possible for municipal law to enforce at least a part of international law so far as the obligations of that state are concerned.
International law consists of rules prescribing the conduct of persons, agencies of government and states, for breaches of which states are held liable. This definition is undoubtedly
3Act Apr. 20, 1818, Rev. Stat., sec. 5286.
*Little vs. Barreme, 2 Cranch 176, (1804); The Thompson, 3 Wall., 155; The Dashing Wave, 5 Wall. 170. See Moore's Digest, 7; 593-598.
5Hague Conventions, 1907, v;art. 4; Declaration of London, 1909, art. 64.
6A number of different points of emphasis are made in definitions of international law. All agree that it consists of "rules of conduct regulating the intercourse of states" (Halleck, Int. Law, 3rd ed., 1;46). Many however enlarge this definition in its most limited sense, by emphasizing the fact that international law may prescribe conduct for persons, (Hershey, Int. Law, p. 1; Westlake, Int. Law 1, p. 1; Principles p. 1; Bonfils, Droit Int, pp. 2, 79). Walker, (Science, p. 44) emphasizing this idea, says, "International laws are rules of conduct observed by men toward each other as members of different states though members of the same international circle." Most writers, however, restrict the connotation of the term by requiring that the rules conform to some standard of objectivity. "Actual observance" is frequently considered enough (Bonfils, p. 1; Walker, Science, p. 44). Lawrence (p. 1) and Bonfils (p. 2) require that the rules "determine conduct", Westlake (Prin. p. 1) that they "govern the relations of states”, Hershey (p. I) that they be "binding upon the members of the international community”. Exactly how any of these standards can distinguish international law from international morality, it is difficult to see. They are so vague as to be almost meaningless. Hall's insistence that nations must "have consented to be bound” (p. 5) is more definite, while Holland (Studies, p. 194) is even more concrete when he says, "the law of nations is the public opinion of the governments of the civilized world with reference to the rights which any state would be
exceedingly vague. It is often difficult to tell whether a state will be held liable for the infraction of a particular rule or not. Often if weak it will, if strong it will not. There is no authoritative tribunal for defining rules of international law and saying for this act of a person or of an officer the state is responsible, for this it is not. The only test is that of actual practice. Where responsibility is habitually acknowledged or, in other words, where the consensus of opinion among nations recognizes that responsibility exists, the rule is one of international law.
Even more vague than the scope of international law is its sanction. The enforcement of the liability of states is not insured by any legal procedure. Such pressure as the inertia of habit, public opinion, commercial or military reprisal, threats of war, etc.,' alone compels states to observe international law, to enforce its observance among their subjects and, within their territory, justified in vindicating for itself by a resort to arms.” Some writers emphasize the idea that international law is not real law. Holland calls it “public opinion”, (Studies, p. 194), Austin, “international public morality" (1; 173, 226), Stephen (History of Crim. Law, 2;25) and Gray (Nature and Sources of the Law p. 125) convey a similar idea. It seems to us that such assertions are inappropriate in a definition of international law. Usage has applied the term so consistently that it would seem more proper to enlarge the definition of law so as to include international law. However, such definition may serve the useful purpose of indicating that the sanction of international law is different from that of municipal law, which is the significance given by these writers to the term “law”. Our definition is doubtless as open to the criticism of vagueness as any. We make no immediate limitation according to the character of the parties obligated. Any rule of conduct is a rule of international law, if states are held liable. This connotative limitation under present conditions implies an exclusion of rules relating to parties of a certain character, for instance those defining relationships between persons of the same state or persons and their own government, because such matters being entirely internal, other states have no interest in exacting a liability. There have, however, been attempts to include res interna in international law, for example the principle of legitimacy by the Quadruple Alliance of 1815. If state liability were actually recognized, in such matters, they would become rules of international law. By the phrase "are held liable" we mean to assume an inductive and objective standard, requiring actual practice for the proof of this condition, and also a subjective standard similar to Holland's that opinion must recognize a resort to force as justifiable in enforcing this liability, a condition which is of course incapable of more than very indefinite verification.
7See Elihu Root, “The sanctions of International Law", Am. Jour. Int. Law, 2;451 (1908).
to acknowledge their liability and to make adequate reparation for infractions of its precepts.
But although it is difficult to tell what rules are within the field of international law and what sanctions enforce the liability of states, it is easy to state definitely many of the rules themselves and to show how they are actually enforced. This statement appears self-contradictory, yet there are many rules relating to diplomatic intercourse, condemnation of prizes, etc., which are capable of being stated in definite terms and are enforced by definite legal methods. They are also rules of international law; at least states have habitually acknowledged responsibility for their infraction.
For the definite statement and legal enforcement of international law we look to the municipal law of states. Municipal law consists of all general rules which the state enforces. The most common agents of enforcement are judicial tribunals, but a rule enforced by an authoritative executive or administrative pro
8Writers on general jurisprudence commonly give a similar definition to the term “law”. Gray (Nature and Sources of the Law, p. 82) says, "the law of the state
is composed of the rules which the courts lay down for the determination of legal rights and duties.” Salmond (Jurisprudence p. 9) says, “The law is the body of principles recognized and applied by the state in the administration of justice”. Both of these definitions recognize state enforceability as the most important feature of municipal law. Austin's conception (Lectures on Jurisprudence, 1;79, 88) was essentially the same although he emphasized the fact that the state "commanded” law rather than that it enforced it, thus being forced to the awkward explanation that “what the sovereign permits he commands” (2;510) to explain judge-made law. Maine's criticism (Early Hist. of Inst., pp. 377-387) that customary law is neither commanded nor enforced by the sovereign and can not be altered by him, seems to confuse the titular with the real sovereign. If customary law is applied in the village tribunals it is being enforced by the “sovereign" in the sense of political science even though Runjeet Singh, the titular sovereign, does not enforce it and can not alter it. Walker (Science of Int. Law, p. 44) attempts to parallel his definition of municipal with that of international law and says “municipal laws are rules of conduct observed by men or by men recognized as binding toward each other as members of the same state”. He does not recognize positive state enforceability as necessary and he also limits the connotation of term to rules between members of the same state. We disagree with him in both of these points. We intend to include as municipal law all rules of conduct binding either citizens or aliens, enforced by the state, either through a central or local authority, so long as this authority is recognized as legitimate.