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courts held state confiscation acts invalid, as conflicting with the British treaty of peace. The fact that a citizen had paid his debt to the state treasury was held to be no bar to the British creditor's right of action. Confiscation acts by congress would undoubtedly be regarded as valid even when opposed by treaties, as acts of congress are ordinarily held to supersede earlier treaties. Whether the passage of such an act at all is within the constitutional competence of congress is a question not considered here. If the guarantee of enemies against confiscation of debts were included in the constitution, undoubtedly the privilege could be enforced even against congress by the power of the courts to declare laws unconstitutional. In the absence of a treaty, constitutional provision or federal statute, it is questionable whether state statutes confiscating enemy debts could be prevented by the courts.
The confiscation of enemy private property on land when in the zone of hostilities or in territory under military government is justified on principles of necessity under the restrictions required in levying requisitions and contributions by the army. Where the property is in the belligerent state's own territory, not under martial law, the plea of necessity can not be offered. In such cases the courts have held that the property may not be confiscated unless an act of the sovereign specifically requires. The outbreak of war does not itself confiscate enemy property, although the court held that confiscation by the sovereign was compatible with international law, a view no longer held.31
Enemy merchant vessels in the belligerent's jurisdiction on the outbreak of war are subject to the same rule. By the Hague convention they may not be confiscated unless by their build they show that they “are intended for conversion into war ships.” The same convention, however, permits such vessels to be detained or requisitioned with compensation where they can not leave in a short time because of “force majeure,'' but permission to leave in a specified time is declared “desirable'' 35 The United States followed this rule in its naval instructions
33 Ware vs. Hylton, 3 Dall. 199, (1796).
34 Brown vs. U. S. 8 Cranch 110, (1814); Cargo of Ship Emulous, I Gall. 562; U. S. vs. 1756 shares of Capital Stock, 5 Blatch. 231.
35 Hague Conventions, 1907, vi. This convention has not been signed or ratified by the United States.
of the Spanish war.36 The subject has been discussed at greater length in considering duties of abstention. Suffice it to say here that the law of the United States attempts to prevent the confiscation of such vessels as well as other enemy private property in its jurisdiction on the outbreak of war.
36 Instructions, June 20, 1898, art. 7, For. Rel. 1898, p. 780; Proclamation, Apr. 26, 1898, 30 stat, 1770.
CHAPTER XVI. CONCLUSION.
The views enunciated in the foregoing pages are based on the theory that all rules of conduct, for a breach of which states as such are held liable, are rules of international law. Viewed from this standpoint, the rules of international law can be divided into two general classes : (1) those prescribing conduct for the sovereign power in states, (2) those prescribing conduct for persons and governmental agencies subject to the control of the sovereign power. RULES OF INTERNATIONAL LAW PRESCRIBING CONDUCT FOR
SOVEREIGN POWERS In a sense all rules of international law fall in the first class. The responsibility for the observance of international law and consequently the duty of enforcing it, rests with sovereigns. Yet if we consider the rules themselves, and regard the conduct prescribed rather than the responsibility imposed, a large part of them belong in the second class and are capable of enforcement by municipal law.
It is hoped that the foregoing pages have indicated what these rules are and the manner in which they are enforced by the municipal law of the United States.
The rules of international law which prescribe conduct for the sovereign alone are known as “political questions”, and embrace such matters as the recognition of new states, and newly acquired territory, intervention, termination of treaties and declarations of war. In respect to these matters, international law has laid down rules of varying definiteness. It attempts to determine when new states, new governments, and belligerent and insurgent communities must be recognized, when intervention is proper, under what conditions treaties may be terminated, etc. According to the older writers, it detailed the circumstances under which a just war might be waged. Observance of these rules, if indeed they are rules of international
1“This usage thus becomes not merely a rule for the guidance of the state, but for the guidance, enjoyment and observance of the individual member of the body politic, and the very claim of the rule in question makes it of necessity a measure of municipal right and duty." J. B. Scott, The Legal Nature of International Law, Am. Jour. Int. Law, 1,857, (1907). The ques
law at all, is, however, left to the discretion of the political departments of the government. In the United States the president and congress act in such circumstances according to their views of national policy. They may ordinarily follow the practice of nations in making these decisions, but it is certain that municipal law can not compel them to do so. tions are political in character. Municipal law adjusts itself in accordance with such political acts, but does not control them. The judicial and administrative organs of government in these matters will look to the political organs for guidance, exclusively. They will not look beyond them, to international law. However, even in rules of this character, where international law itself does not look down to the officer or individual upon whose activity the effectiveness of the rule must ultimately depend, municipal law may perform this step. It may specify and enforce obligations upon the public officers and subjects of the state by permanent rule, the performance of which will insure the observance by the state of those prescriptions of international law directed to it. Municipal law of such character, filling in the necessary details of international law in reference to the duties of officers and private persons, is of the greatest importance in considering the legal sanctions for the enforcement of international law, and has here been referred to as municipal law, supplementary to international law.
RULES OF INTERNATIONAL LAW PRESCRIBING CONDUCT FOR PERSONS
The second group of rules of international law prescribes conduct for private persons and public officers. Such rules may be effectively enforced, may be rules of law in the Austinian sense, through concurrent enforcement by the municipal law of all civilized countries. Yet they continue to deserve the name international because it is on account of the pressure of international public opinion that they are thus concurrently enforced by states.2 - States are held internationally responsible
2Fitzjames Stephen remarks that international law is not law so far as it is international and is not international so far as it is law. (History of the Criminal Law of England, 2;35). With the Austinian conception of the law this dilemma is inevitable if we accept the literal meaning of the term international law, as a law between states. However, by admitting as rules of international law those in which a vicarious liability is imposed upon states for acts of individuals, we believe it is possible to vindicate the term. With such rules the incidence of the liability and of
for their observance. Many rules of this character as well as rules supplementary to international law are enforced through the law of the United States. The obligation to enforce them has been recognized in treaties, statutes, executive orders and judicial decisions.
Much of international law has been included in treaties to which the United States is a party. Especially is this true in reference to the laws of war and neutrality which have been to a considerable extent codified in the Hague and other international conventions. It must, however, be emphasized that although declared law by the constitution, treaties may embrace political questions incapable of enforcement through municipal law. The constitutional provision and the practice of courts and executive officers in giving direct effect to treaties, so far as they apply to individuals, impart a municipal sanction to the rules of international law thus defined.
the sanction are distinct. The rules are international because by general international practice, states are held liable. Yet the rules may relate to the conduct of individuals and be capable of sanction by state authority. In so far as they are thus sanctioned by concurrent adoption into the municipal law of states they would conform to Austin's definition of law. It seems to the author that different writers on the legal nature of international law have written to cross purposes from failure to reach an agreement as to whether the character of the rule, especially the responsibility it implies, or the character of the sanction is the criterion of international law. It is too clear to demand refutation that if no rules are international law except those enforceable against states, international law can not be a part of municipal law. We agree that "while the principles which international law embodies are the product of international usage and agreement, their legal force as rules controlling the administration of justice between litigants is derived from the sanction of the state whose justice the courts administer and by whose laws the courts themselves are created.” (
(Willoughby, Am. Jour. Int. Law, 2;357). This, however, simply states that effective sanction can be given to rules only through state authorities, and if this sanction is given the rules are municipal law. If we take the character of the rule rather than of its sanction as our criterion of international law, Willoughby's statement does not prevent the rule being at the same time a rule of international law. See J. B. Scott and W. W. Willoughby, The Legal Nature of International Law, Am. Jour. Int. Law, 1;831, 2;357, and an effort to reconcile these two articles. Note, Harvard Law Review, 22;66. See also John Westlake, Is International Law a part of the law of England ? Law Quar. Rev. 22;14.