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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 expedition3 and 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.5 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.
RELATIONSHIP OF INTERNATIONAL AND MUNICIPAL LAW
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
Act 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. Hague 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. 1) 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.
See 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 rulè enforced by an authoritative executive or administrative pro
8 Writers 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 the 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.
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.
"See 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 1, 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