The Enforcement of International Law Through Municipal Law in the United States

PHILIP QUINCY WRIGHT, Ph.D.

PREFACE

The theory of international law upon which this study is based may be briefly summarized in a few statements. With the present system of world organization, effective enforcement of law is only possible through action by state administrative and judicial organs. International law, therefore, can not be effectively enforced except over persons subject to the jurisdiction of the state. We may therefore conclude that international law can be effectively enforced only in so far as it prescribes conduct for persons and subordinate agencies of government.

The essential feature of international law is not that it lays down rules of conduct for states, but that it holds states responsible for the conduct of persons. International law, therefore, should be regarded as the law binding the members, both persons and states, of a "supra-national" state or a "community of nations", the enforcement of which is delegated to the organs of the states composing it. The German Constitution, with its system of imperial law, binding on individuals but enforced largely through the administrative officers and courts of the component states, furnishes an illustration of such a system.

The recognition of this fact, that international law reaches down to individuals, is, therefore, important. International law can become effective through state enforcement in proportion as it lays down obligations for persons, rather than for states. Much of it now consists of rules prescribed for persons and officers of government and the greater part of it can be described in terms of such rules because the state can only act through human agencies. When we say that a state is obliged to do or abstain from doing certain acts, we can only mean that its chief executive officer, or its legislature, or its courts are bound to observe certain rules, which, by proper constitutional checks, it is possible for municipal law to enforce.

With this conception, that international law prescribes rules of conduct for persons and public officers and imposes obligations upon states, to enforce them, we shall consider the rules of municipal law enforced in the United States in pursuance of this international obligation.

The distinction between a legal and a political method of

enforcement has been kept in mind. Where action is left to the discretion of military, naval or executive officers or legislative bodies as cases arise, the rule is not considered one of municipal law. The term is only applied to the rules laid down as permanent and enforceable by governmental authority according to an established procedure, either judicial or administrative.

The title to be given this study caused the author much perplexity, and doubtless the one finally decided upon is open to criticism. Mr. A. V. Dicey entitled his book on private international law, "A Digest of the Law of England with reference to the Conflict of Law." Perhaps this thesis could be entitled "A Digest of the Law of the United States with reference to International Law." Such a title, however, would imply a more or less exhaustive treatment of the subject. The present work does not pretend to digest the whole of the law of the United States relating to the enforcement of international obligations. It is intended merely to suggest a field which the writer believes will bear further exploration. The title first considered was "The Extent to which International Law is Incorporated into the Law of the United States." Such a title would have excluded consideration of the rules which we have designated as laws supplementary to international law. These are municipal law enforcing international obligations but are not rules of international law incorporated into municipal law. The title finally settled upon is certainly inclusive enough and indicates that discussion is limited to the rules of international law enforced as law in the United States, excluding those enforced by executive authorities as "political questions."

The general subject of the relationship of international to municipal law has not been extensively considered in any English treatise. Holland's excellent article on "International Law and Acts of Parliament" published in his "Studies on International Law" is a brief but valuable contribution. Professors J. B. Scott and W. W. Willoughby in articles in the American Journal of International Law, Westlake in an article entitled, "Is International Law a part of the Law of England?" published in the Law Quarterly Review, and Lawrence in his "Essays on some disputed Questions of International Law" have discussed the nature of international law and its relation to municipal law, especially to the judiciary. Since this work was completed an excellent discussion of "The Relation of International Law to the Law of England and of the United States of America" by C. M. Picciotto has been published. This writer deals especially

with the relative legal force of statutes, executive orders, treaties and customary international law in the courts of England and the United States. Walker in his "Science of International Law", Westlake in his "Principles" as well as in his more recent work on "International Law", and A. H. Snow in several articles in the American Journal of International Law have emphasized the idea that international law is law governing individuals regarded as members of a society of nations, rather than law simply between nations, as the name suggests. The last writer in fact suggests the term "supra or super national" as a more appropriate term.

Writers on jurisprudence have sometimes considered the subject but usually very briefly. With Austin's example before them, they have excluded international law from the scope of their subject. Gray's "Nature and Sources of the Law" and Stephen's "History of the Criminal Law of England" contain particularly lucid expositions from this standpoint.

The most important contributions to the subject are in German. H. Triepel in his "Völkerrecht und Landesrecht" considers the nature, sources and relationship of international and municipal law. W. Kaufmann, in "Die Rechtskraft des Internationalen Rechtes und das Verhältnisse des Staats Organs zu demselben" covers somewhat the same ground, but emphasizes particularly the legal authority of international law and treaties as immediate sources of municipal law.

In the present work, the writer has attempted to discover the actual situation in the United States, with only incidental reference to the theoretical relationship of the two branches of jurisprudence. Primary reference has therefore been made to the treaties, statutes, executive orders and court decisions of the United States. Had it not been for the orderly arrangement of much of this material in Moore's "Digest of International Law", a monumental contribution to the science, the work would have been practically impossible. Moore's International Arbitrations. have also been used, as have the collections of cases by Freeman Snow, J. B. Scott, Pitt Cobbett, and Norman Bentwich. Much use has also been made of the annual publications of the Naval War College, in which numerous points of prize law have been exhaustively discussed with especial reference to the practice of the United States. Professor C. G. Fenwick's recent work on the Neutrality laws of the United States has been constantly referred to in dealing with that subject. Tucker and Blood's edition of the Penal Code of 1910, Davis's edition of the Military