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cedure is no less municipal law. The rules of international law, so far as they lay down rights and duties of persons and officers, may be enforced by municipal law either directly through the application of international law by the court and executive officials or indirectly through the coercion of persons and officers in a manner not immediately prescribed by international law but calculated to cause an observance of the international duty.
It is true that they may not be. A state has entire control of its own municipal law and whether or not it chooses to enforce rules of international law, depends upon the force of the international sanctions pressing upon it. But if it does enforce them, it thereby enforces its own duties under international law, and in so far as this enforcement is effective and complete it escapes liability under international law. It also gives legal definition and sanction to these rules.
It is thus an obligation, imposed by international law itself upon states, to enforce that part of international law relating to the conduct of persons within their jurisdiction, through their municipal jurisprudence.10 It is for states to supply the lack of a world administration for the execution of international law.
9See W. W. Willoughby, The Legal Nature of Int. Law, Am. Jour. Int. Law, 8;357, in answer to an article of the same title by J. B. Scott, Am. Jour. Int. Law, 1,831. Also Westlake, Is Int. Law part of the Law of England?, Law Quar. Rev., 22; 14-26; Holland, Studies in Int. Law, p. 195.
10 See judicial decisions on this subject, Res Publica vs. DeLongchamps, i Dall. III; Talbot vs. Seamens, i Cranch 1, 37 (1801); Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch 191; The Scotia, 14 Wall. 170, Scott 17; Hilton vs. Guyot, 159 U. S. 113; The Paquete Habana, 175 U. S. 677, Scott, 19. In Murray vs. the Charming Betsy, 2 Cranch 64, the court said that municipal law ought to be interpreted in harmony with international law if possible. English cases—Triquet vs. Bath, 3 Burr, 1478, Scott, 6; Heathfield vs. Chilton, 4 Burr. 2015, Scott 189; Le Louis, 2 Dods. 239, Scott 352; Emperor of Austria vs. Day, 2 Giff. 628; In the Recovery, 6 Rob. 348, the court even went so far as to assert that prize courts must apply international law in opposition to municipal statutes. This view was not maintained in West Rand Central Gold Mining Co. vs. Rex, L. R. 1905, 2 K. B. 391, Bentwich I, which held that an act of state prevented the application of conflicting rules of international law. Regina vs. Keyn, L. R. 2 Ex. 63, Bentwich, 6, held that international law could not operate to increase jurisdiction; and Mortensen vs. Peters, 14 Scot. L. T. R. 227 (1906), Bentwich 12, applied a statute extending jurisdiction beyond the limits permitted by international law. See discussion of prize cases on this point, Holland Studies, pp. 193-199.
As state courts of the United States enforce the federal constition, laws and treaties, so it is the duty of independent governments to see that their courts enforce international law and that their executive authorities execute it.
It must not be overlooked that there are rules of international law which are incapable of enforcement as municipal law. Those which prescribe rules of conduct which the state considered as a unit must do or refrain from are directed solely to the soverign power in the government. The commencement of war, the recognition of foreign states and governments, the submission of questions to arbitration, the acquisition of territory, the extension of jurisdiction are of this character. They are political questions and beyond the power of municipal law to control. The observance of such rules is in the hands of discretionary officers. In the United States congress and the president are responsible for the observance of such rules by the United States and they can not be coerced by municipal regulations. It is true that in these matters the political organs of the government act according to legal precedents as well as dictates of pure policy. But their action in either case is beyond the scope of municipal law and of our subject.
We are concerned with the rules of international law enforced directly as law in the United States and those enforced indirectly by the enforcement of laws supplementary to international law. The precedents and procedure followed by political organs of government in settling these political questions will not, therefore, be considered.
The doctrine of responsibility of states, which is the essence of international law, presents two possible methods of viewing the matter. We may consider the rule itself of primary importance; and thus private persons, ambassadors, consuls, military forces, naval forces, etc., as well as states would be subjects of international law for whom different rights and obligations are prescribed. On the other hand we may consider the liability or enforcement of the rule as of primary importance; and states, which are alone responsible, as the only subjects of international law. We should then describe the rights and duties of states, with reference to these various classes of officers and persons, considering them as objects of international law.
The latter is the course commonly pursued. States are said to be the only subjects of international law. Persons and public officers as well as territory and other kinds of property are its objects.11
In our own opinion there is much to be said for the first view. There is a tendency for international law to impose a direct responsibility upon persons and officers12 and if it is ever to be law in the Austinian sense of the term, this view will have to be recognized. The possibility of an effective law binding states as such was exhaustively discussed in the federal convention of 1787,13 and the impossibility of enforcing such a law by ordinary lagal processes was demonstrated prior to the civil war. Even corporations when of considerable magnitude have proved surprisingly difficult things to control by law. A corporation or a state can neither be brought to court, nor put in jail. Law can never act upon it more than imperfectly.
As it is, however, the responsibility of states is the predominant feature of international law, and we will adhere to the usual custom of classifying the branches of that subject according to the rights and duties of states.
It is possible to discuss any body of law in terms of either rights or duties ; either privileges or obligations; either liberties or restrictions. Every right implies a duty on the part of others
11 See Lawrence, Int. Law, p. 73, “Probaltly it is best to say with Oppenheim (Int. Law, 1; 344) that persons, like territory, are objects of International law, and reserve the term subjects for those artificial persons who are either sovereign states or communities closely akin to them through the possession of some of the distinguishing marks of statehood.”
12See, for instance, Hague Conventions 1907, in which occur such expressions as “Every prisoner of war is bound to give, etc.” (IV, Art. 9) "a belligerent war ship may not prolong its stay, etc.” (XIII, Arts. 14, 16, 18, 19, 20).
13 See James Madison, The Journal of the Debates in the Convention which framed the Constitution of the United States, Gaillard Hunt, ed., N. Y., 1908, 2 vol., also in Madison, Works, Hunt, ed., vol. 3; Elliot, Debates, vol. 5; Farrand, The records of the Federal Convention of 1787, New Haven, 1911, Remarks by Madison, May 31, Wilson, June 25, King, July 14.
Strong, July 14, says, “The practicability of making laws with coercive sanction for the states as political bodies had been exploded in all hands”. See also Madison letter to Jefferson, Works, 1;344: The Federalist, Nos. 15, 16, 21, P. L. Ford, ed., pp. 87, 90, 91, 97, 123. A. C. McLaughlin, The Confederation and the Constitution, Am. Nation Ser., vol. 10, pp. 242, 245. The constitution of the German Empire does provide for the legal coercion of states through a process known as “Federal Execution", but the law of the empire acts directly on individuals.
to expect its observance. Treatises on international law, as on all other departments of law, commonly treat parts of the subject by describing duties, other parts by describing rights. In fields where liberty of action is the rule and restriction the exception, convenience dictates a treatment from the standpoint of duties, while when the reverse is true, when restriction is the rule and liberty of action the exception, a treatment from the standpoint of rights is most conservative of space.
For our purposes, however, a classification based exclusively on duties is necessary. Our purpose is to discover what obligations of international law are enforced by municipal law. We will therefore attempt to cover the whole field of international law from the viewpoint of duties. We will not consider the rights of the United States as such, but only in so far as they imply a duty to respect equivalent rights of other states.
Looking at international law as imposing obligations upon states, some of these obligations require action or abstention on the part of the government, while others require the state to enforce action or abstention on the part of its citizens or public officers. Duties of the first character are considered under four heads, abstention, acquiescence, vindication and reparation, those of the second under the head prevention.
The international obligations of a state differ somewhat according to differences in status caused by the advent of wars. Four general divisions are thus suggested-obligations in time of peace, obligations as a neutral, obligations as a belligerent toward neutrals and obligations as a belligerent toward enemies.
The questions relating to the transition from war to peace, peace to neutrality, etc., as well as to the advent of new states, involve the subject of recognition. This is a political question. Municipal law does not lay down rules saying when states shall be recognized, when belligerency and insurgency exist, and when they cease. In these matters the municipal law of the United States follows the political departments of the government as has been repeatedly affirmed by the courts.14 It adjusts itself to the new status and recognizes the new condition.
14 Rose vs. Himely, 4 Cranch 241 (1808); Consul of Spain vs. the Conception, Fed. Cas. 3137 (1819); Gelston vs. Hoyt, 3 Wheat. 246, 324 (1818); U. S. vs. Palmer, 3 Wheat. 610 (1818); The Divina Pastora, 4 Wheat. 52; Foster vs. Neilson, 2 Pet. 253, 307; Keene vs. McDonough, 8 Pet. 308; Garcia vs. Lee, 12 Pet. 511; Williams vs. Suffolk Ins. Co., 13 Pet. 415 (1839); Kennet vs. Chambers, 14 How. 38 (1852); The Prize Cases, 2 Black 635; U. S. vs. Yorba, 1 Wall. 412; U. S. vs. Lynde, 11 Wall. 632; These matters are therefore beyond the scope of our subject. We will take the conditions of peace, war and neutrality for granted and discuss the municipal measures for enforcing national duties in each of these conditions, classifying such duties under the five heads, abstention, acquiescence, prevention, vindication and reparation.
The Ambrose Light, 25 Fed. Rep. 408 (1885); Jones vs. U. S. 137 U. S. 202 (1890); The Three Friends, 166 U. S. 1 (1896); Underhill vs. Hernandez, 168 U. S. 250; Ex Parte Toscano, 208 Fed. Rep. 938 (1913). English cases- s—The Pelican, Edw. Adm. Appdx. D., Taylor vs. Barkley, 2 Şim. 213; Emperor of Austria vs. Day, 2 Giff 628; Republic of Peru vs. Peruvian Guano Co., 36 Ch D. 489, 497 ; Republic of Peru vs. Dreyfus, 38 Ch. D. 348, 356, 359.