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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
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.1
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).
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 AND OFFICERS
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.
Holland calls attention to the fact that in England an "express recognition of international law in an act of parliament is extremely rare," and he notes only five cases in which the term is used expressly. In the United States statutes, the use of the term appears to have been more frequent. "The law of nations," which is generally used in preference to the more recent term "international law," is of frequent occurrence." The most important statutes bearing on our subject
T. E. Holland, Studies in International Law, Oxford, 1898, p. 193. "The term "law of nations" is used in the act relating to the privileges of ambassadors, 1709, (7 Anne c. 12), the prize jurisdiction of the court of admiralty, 1815 (55 Geo. III. c. 160, sec. 58), The Naval Prize Act, 1864 (27-28 Vict. c. 25), and "International Law" in the Territorial Waters Jurisdiction Act, 1878, (41-42 Vict. c. 73, sec. 7) and the Sea Fisheries act, 1883, (46-47 Vict. c. 22, sec. 7). Holland also notes the use of certain terms peculiar to international law as "neutral ship," "proclamation of neutrality," "belligerent" in a few statutes. Holland, op. cit., p. 194.
"The term "law of nations" has been used in the following cases, possibly others: A Resolution of Congress, May 22, 1779, states that the United States will cause the "law of nations to be most strictly observed," (Journ. Cong. 5;161, Ford, ed. 14;635); Aug. 2, 1779, the United States will pay expenses for all prosecutions in states for such "transactions as may be against the law of nations", (Journ. Cong. 5;232, Ford, ed., 14;914); Nov. 23, 1781, recommends that state legislatures provide for the punishment of offenses relating to violation of safe conducts, breaches of neutrality, assaults upon public ministers, infractions of treaties, and "the preceding being only those offenses against the law of nations which are most obvious, and public faith and safety requiring that punishment should be coextensive with all crimes, Resolved, that it be further recommended to the several states to erect tribunals in each state, or to vest ones already existing with power to decide on offenses against the law of nations not contained in the foregoing enumeration," (Journ. Cong. 7;181, Ford, ed., 21;1137); Dec. 4, 1781, Courts to determine prize cases by "the law of nations, according to the general usages of Europe," (Journ. Cong. 7;189, Ford, ed., 21;1158); Constitution, 1789, Congress given power "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations," (Art. 1, sec. 8, cl. 10); Act, Sept. 24, 1789, District courts given jurisdiction of suits brought by aliens for torts in violation of "the law of nations or of treaty," and the supreme court given exclusive jurisdiction of suits against public ministers "as a court of law can have consistently with the law of nations," (1 stat. 76, sec. 9,13; rev. stat. sec. 563, cl. 16, 687; Judicial code of 1911, act March 3, 1911, 36 stat. 1087, sec. 24, cl. 17, 233); Act, Apr. 30, 1790, prescribes criminal pen
may be roughly divided into (1) those defining the jurisdiction. of courts, (2) those creating and defining the functions of public officers, (3) those designed to prevent infractions of duty by public officers, and (4) those of like effect in reference to private persons.
(1) The jurisdiction of courts in relation to ambassadors, consuls, and aliens; over offenses against foreign states; and over prizes of war have been prescribed both by the constitution and statutes, often in terms making specific reference to international law.
(2) Statutes prescribing the functions of such officers as ambassadors, ministers and consuls, are of distinct importance in the observance of international law, as also are those giving executive, naval and military officers authority to perform duties required by international law, such as expelling foreign vessels of war which have violated neutral rights, and extraditing criminals when required by treaty.
In these two cases, statutes frequently contain rules of international law itself. When a statute requires a court to refuse jurisdiction of suits against foreign ministers, the rule is one both of municipal and international law.
(3) Statutes frequently provide for enforcing the duties of officers. Naval and military officers and enlisted men are made subject to military law and to civil liability for damages in certain cases. Requirements of bond and amenability to criminal penalties for specified breaches of duty are specified in the case of diplomatic officers and consuls.
alties for assaulting or serving out process against public ministers, in "violation of the law of nations,” (1 stat. 117, sec. 25, 28; rev. stat. sec. 4062, 4064); Act, June 5, 1794, authorizes the president to expel foreign vessels in cases in which "by the law of nations" they ought not to remain, (1 stat. 384, sec. 8, Act, Apr. 20, 1818, 3 stat. 447, sec. 9; rev. stat. sec. 5288; Penal Code of 1910, Act, March 4, 1909, 35 stat. 1088, sec. 15); Act March 3, 1819, prescribes punishment for committing piracy “as defined by the law of nations,” (3 stat. 513, sec. 5; rev. stat., sec. 5368; Penal Code of 1910, sec. 290); Act, Aug. 29, 1842, permits federal courts to release on habeas corpus, from state courts, persons claiming any right "the validity and effect of which depends upon the law of nations," (5 stat. 539; rev. stat. 703); Joint Resolution, March 4, 1915, authorizes the president to prevent the territory of the United States being used as a base of military operations "contrary to the obligations imposed by the law of nations," (38 stat. 1226).