Imágenes de páginas
PDF
EPUB

are signatory, the application of conventional international law by courts is acquiring increased importance. It should be observed, however, that such conventions are frequently subject to limitations in application. Thus the Hague Conventions relating to the law of war apply in terms only to wars in which all belligerents are signatories, and of course all such conventions are binding only between signatories. 121 There are also frequent provisos attached to ratifications, and some signatories have never ratified at all. Thus the Declaration of London, although signed by the leading naval Powers, has never been ratified. With these limitations, these law-making conventions are treaties of the same legal validity as the usual bi-lateral treaty. Thus a United States court sustained an arrest and internment, under order of the President, of certain Mexican troops violating United States territory, as no deprivation of liberty without due process of law. 122 It was held that the Hague convention of 1907, to which both the United States and Mexico were signatories, in providing such internment furnished a rule of law immediately applicable by the President. Consequently in acting on this provision "due process of law" was given.

The increase in the number of treaties providing for international co-operation and administration in matters affecting private rights and the duties of public officers, as well as the growing prominence of provisions in bi-lateral treaties relating to personal and property rights of aliens, also increases the opportunities for a judicial application of conventional international law, and renders it necessary that the constitutions of states be so adjusted that the act engaging the national responsibility to fulfil the duties required by these treaties founding an international legal order, shall automatically confer authority upon the judicial and administrative officers to perform the necessary functions, as well as an obligation upon the persons throughout that legal order to obey the rules therein prescribed. In proportion as such treaties multiply in number and are thus executable by legal process, the solidarity of the international legal order will increase, and its administration through judicial tribunals will become more efficient.

121 Hague Conventions, 1907, III, Art. 3; IV, Art. 2; VI, Art. 6; VII, Art. 7; VIII, Art. 7; IX, Art. 8; X, Art. 18; XI, Art. 9; XII, Art. 51.

122 Ex parte Toscano, 208 Fed. Rep. 938.

It is concluded that the legal nature of treaties has been recognized in the leading states of the world, subject to the following tendencies and limitations.

(1) Treaty provisions have been to an increasing extent subject to judicial cognizance, both for determining jurisdiction and rules of decision as a result of two movements:

(a) There is a tendency to require legislative assent to treaties as a step in ratification and hence to give them in fact as great a constitutional sanction as statutes; and

(b) There is a tendency for treaties to become more generally of an executory nature, founding an international legal order, and hence including matters appropriate for judicial application.

(2) The courts of different states have applied appropriate treaty provisions as an immediate source of law in varying degrees, the degree of recognition being in the order here given:

(a) In the United States, by express constitutional provision, courts will apply appropriate treaty provisions in the same manner as statutes, except that they will generally follow the political departments of government in the interpretation of "political questions," and Federal courts will not assume jurisdiction of criminal prosecutions and possibly of extradition on the strength of treaty provisions alone.

(b) In Switzerland, by express constitutional provision, courts have applied appropriate treaty provisions both to determine jurisdiction and rules of decision.

(c) In Germany, the appropriate provisions of treaties published in the Reichsgesetzblatt have the same legal validity as statutes, apparently giving adequate basis for extradition.

(d) In France the opinion is divided, but apparently courts will apply appropriate treaty provisions, except those interpretable as actes du gouvernement and those depriving courts of a jurisdiction which individuals have a right to demand under the civil law. Treaties appear to be less subject to judicial cognizance in the administrative courts (except the Conseil de Prise) than in the ordinary courts.

(e) In England, courts (except prize courts) will not apply treaties as such, either to determine their jurisdiction or the rule of decision. It is possible that international law-making conventions may be an

exception to this rule, but the weight of opinion seems to be that an enabling act of Parliament is necessary to bring the requirements of a treaty before the cognizance of the ordinary courts.

(3) In no country are treaty provisions of an evidently political character, such as those relating to alliances, war and peace, or provisions evidently requiring legislative action, such as an appropriation, regarded as appropriate for judicial application.

(4) Decisions and regulations of national and international organs, when specifically authorized by treaty, will generally be applied by courts in the same manner as treaty provisions.

QUINCY WRIGHT.

3

ALBERICO GENTILI AND HIS ADVOCATIO HISPANICA

International law concerns itself so largely with a state of war that the present world-conflict has necessarily had an important bearing upon many of its usages and principles and the opinion has been freely expressed, by some whose views are entitled to respect, that the events of this war have placed the science itself in jeopardy. Without attempting to express an opinion on that point, it is clear that when the war is over, one of the first tasks to be undertaken must be the readjustment of the dislocated parts of the system to the new conditions which have arisen. In doing this we shall probably be led to trace the development of the principles of international law from their earliest formulation up to the present day; but quite outside of this practical object, the accomplishment of which must be left to the future, it may not be without interest at the present time, from the purely historical point of view, to recur to some of the circumstances in which the science came into existence, by calling attention to a much neglected book which shows us in the making some of the important principles of international law which are at issue today, a book written by a man who introduced the modern method of studying that subject. The writer to whom reference is made is Alberico Gentili, and the work in question is his Advocatio Hispanica or the Pleas of a Spanish Advocate.

While the writings of his great rival, Grotius, have been discussed by numberless scholars and translated into many different languages, Gentili was practically forgotten for three centuries, and it was not until 1874, when Professor Holland delivered his inaugural lecture on the great jurist, that interest in his work began to revive. At last in 1908, on the tercentenary of his death, his admirers, having overcome the opposition of the church from which he had withdrawn, unveiled a statue in his honor in his native town in Italy. The reawakened interest in Gentili has brought to light many of the important facts in his life. His career was a picturesque one-an Italian by birth, yet Regius Professor for many years at Oxford; a Prostestant living in exile on account

of his faith, but accredited advocate of his Catholic Majesty, the King of Spain.

From the little village of Sanginesio in northern Italy, where he was born in 1552, he went up to the famous university of Perugia, which bestowed upon him the degree of Doctor of Civil Law when he was twenty years of age. With his natural ability and with the support of his father, who was a man of substance and of standing in the profession of medicine, he could look forward with confidence to an honorable career in his native land, but Protestantism had infected several of the cities of northern Italy; Alberico and his father became adherents of the new heresy, and in 1579 were obliged to seek refuge beyond the Alps. His brother Scipione stopped in Germany and remained there to pursue the study of law and to become in time professor at the University of Altdorf. Alberico, however, continued his journey into England, where he found a number of compatriots who, like himself, were religious refugees. One of these introduced him to Sir Philip Sidney, to whom Gentili dedicated his first great work, the treatise On Embassies, which was brought out the year before Sidney's tragic death at Zutphen. This was his first important excursion into the field of international law, and the circumstances in which he came to take up the work are worth mentioning. In 1580 the famous Jesuit mission under Campion and Parsons was sent to England to organize a general Catholic movement against Elizabeth. The Duke of Guise, who was interested in the plot, found means of attaching to it James of Scotland and Philip of Spain. By 1583 matters were nearly ripe for action, but the spies of Walsingham had scented the coming danger, and just before the conspiracy for the assassination of Elizabeth could be carried out, documents were discovered at the house of Thomas Throgmorton, one of the active participants in the plot; he was put on the rack, and all the plans of the conspirators were laid bare. The disclosures involved Mendoza, the Spanish Ambassador at the court of Queen Elizabeth, and inquiry was made of Alberico Gentili if Mendoza could be sentenced to death in England. Although the pressure upon Gentili must have been great to yield to the popular demand for the exemplary punishment of the man who had violated the elementary principles of hospitality in supporting the plot of the assassins and revolutionists, he bravely replied that no other

« AnteriorContinuar »