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The Nature and Sources of International Law

Published online by Cambridge University Press:  04 May 2017

Gordon E. Sherman
Gordon E. Sherman*
Affiliation:
Yale University
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Extract

Not the least among the many problems of reconstruction facing civilization at the present moment is the establishment upon a secure basis of the principles of international law as a system of world conduct and protection. Of actually restraining principles, indeed, the late war has exhibited few; nor have these, so far as successfully asserted, prevented violations of neutral rights upon a vast scale, together with a similar disregard of privileges heretofore universally conceded to occupied territory; while still more appalling has been the exploitation of diplomatic immunity in the interest of treacherous propaganda, and the wholesale assassination of noncombatants on the high seas. To such action, the words in which Germanicus is represented by Tacitus as addressing his licentious soldiery may well be applied: “Ye have violated even rights accorded to enemies, as also the sanctity of embassy and the consecrated obligations of usage between peoples.”

Type
Research Article
Information
American Journal of International Law , Volume 15 , Issue 3 , July 1921 , pp. 349 - 360
Copyright
Copyright © American Society of International Law 1921

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References

1 Hostium quoque jus et sacra legationis et faa gentium rupisti. Annals, I, 42, 4.

2 De Jure Belli ac Pacts, I, IX, 2, and Prolegomena, 3, 4, 5, 28, 29.

3 Rhetoric, 1, 13, 2.

4 Ethics, 5, 7, 1, 1134b, 19, and 1135a.

5 Works and Days, 276.

6 Orphic Hymn, No. 63, 1.

7 Xenophon, Memorabilia, 4, 4, 19.

8 Cicero, De Inventions, 2, 22.

9 “The treaty of friendship concluded between two city-states (pax, from pango) provides, in the first place, for a durable peace (pia et ceterna pax—Cicero, Pro Balbo, 15, 35), and reciprocal recognition of the liberty and property of their citizens . . . and a declaration of the legal equality of the contracting cities. Such a treaty would provide for exchange of ambassadorslodged and paid by the city to whom they were sent. More important, however, in the Roman view, than the city's external relations was the regulation of inter-state rights of citizenship, for the non-citizen had no claim upon Roman law save under treaty.The term hostis, later peregrinus, signifies one protected by treaty: Turn eo verbo diceoant peregrinum qui suis /legibus uteretur.” (Mommsen, Droit Public Romain, French translation, VI,2 214, 215; Romisches Staatsrecht, 3i, p. 598.) The Romans never knew international law (VI. 216. Mommsen).

10 De Oratore, I, 45.

11 Cicero, Pro Q. Roscio, 8.

12 Epistolse, I, 20.

13 It is important to bear in mind that the broadening of Roman legal thought along practical equitable lines proceeded in the firstinstance from within outward; there is no evidence whatever that the praetor first found equitable conceptions through comparison of alien usages brought before him by peregrini, and thus evolved a jus gentium on world-law as stated in practically all of our standard works on international jurisprudence. Such a course is in conflict with the genius of Roman legal development.

14 Institutes, III, 9, 2.

15 Atque hoc multo magis efficit ipsa naturesratio, quae est lew divina et humana: cut parere qui velit (omnes autem parebunt qui secundum naturam volent vivere) nunquam committet ut alienum appetat, et id, quod alteri detraaserit, sibi adsumat (Cicero, , De Officiis, ITT, V, 7).Google Scholar

16 Origimim sive Etymologiarum Libri XX.

17 De Vera Religione, circa A.D. 400.

18 Natosque esse ad congregationem hominum etad socictatem comnvunitatemque generis humani, etc. (Cicero, , De Finibus, IV, 2, 4).Google Scholar

Bed omnium, quae in hominum doctorum disputatione versantur, nihil est profecto prcsstabilius quam plane intellegi nos ad justitiam esse natos neqtie opinione sed natura constitutum esse jus.

Id jam patebit, si hominum inter ipsos societatem conjunctionemque perspexerit (Cicero, , De Legibus, I, X, 28).Google Scholar

19 It is important clearly to distinguish thesources from the evidences of international law. Dr.Woolsey,, in his International Law, 4th Ed., pp. 21 and 22 Google Scholar, note, says: “Self-protection and intercourse are the two sources of international law. They make it necessary, and the conception in man of justice, of rights and obligations, must follow because he has a moral nature.”

In the leading case of Hilton v. Guyot, decided by the United States Supreme Court at October term, 1894 (159 U. S. 112, 163), the court said:

“International law, in its widest and most comprehensive sense—including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning, rights of persons within the property and dominion of one nation, by reason of acts private or public, done within the dominions of another nation—is part of our law, and must be ascertainedandadministered by the courts of justice as often as such questions are presented in litigation between man and man duly submitted to their determination.

“The most certain guide no doubt for the decision of such questions is a treaty or statute of this country. But when, as is the case here, there is no written law upon thesubject, the duty still rests upon the judicial tribunals of ascertaining and declaringwhat the law is whenever it becomes necessary to do so in order to determine therights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decision, from the works of jurists and commentators, and from the acts and usages of civilized nations.”

At the Conference of Teachers of International Law, held in Washington, April 23-25,1914, under the auspices of the American Society of International Law, the following resolutions, reported by a subcommittee, of which the present writer had the honor to be chairman, were unanimously adopted by the Conference:

(1) “In the teaching of international law emphasis should be laid upon the positive nature of the subject and the definiteness of the rules.”

(2) “In order to emphasize the positive character of international law, the widest possible use should be made of cases and concrete facts in international experience.”

(3) “In the teaching of international law care should be exercised to distinguish the accepted rules of international law from questions of international policy.”

(4) “In a general course of international law the experience of no one country should be allowed to assume a consequence out of proportion to the strictly international principles it may illustrate.”

“The interest of students can best be aroused when they are convinced that they are dealing with the concrete facts of international experience. The marshalling of such facts in such a way as to illustrate general principles lends a dignity to the subject which cannot help but have a stimulating influence.

“Hence international law instruction should be constantly illustrated from those sources which are recognized as ultimate authority, such as—

(a) Cases, both of judicial and arbitral determination;

(b) Treaties, protocols, acts and declarations of epoch-making congresses. (Westphalia, 1648; Vienna, 1815-23; Paris, 1856; London, 1909.)

(c) Diplomatic incidents ranking as precedents for action of international character;

(d) The great classics of international law.”

In the case of the Zamora, decided by the Judicial Committee of the Privy Council, April 7, 1916 (2 A.C., p. 77), it was objected on the part of appellants that the provisions of Order in Council No. XXIX material to the present question violated the law of nations, and that the prize court should not act upon them. The court held that the Crown has no power by Order in Council, but prescribed an order to alter the law which theprize courts have to administer, even where that law is imperfectly ascertained and denned; but when an Order in Council mitigates the rights of the Crown in favor of enemiesor neutrals, it is the duty of the prize court to act upon it.

The part taken byt courts of justice in the development of international law is comprehensively considered by the Hon. Baldwin, Simeon E., in the American Law Review for March-April, 1901 Google Scholar; and the “Legal Nature of International Law” forms the subject of an exhaustive article by Dr.Scott, James Brown in the AMERICAN JOURNAL OF INTERNATIONAL LAW for October, 1907.Google Scholar

“The Sources of International Law” forms the subject of a brief article by SirPollock, Frederick in the LawQuarterly Review for October, 1902, p. 418 Google Scholar; this article being subsequently expanded by the author in Vol. XII of the Cambridge Modern History.