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incidental thereto. It has been found, however, that even when not restrained by the tenor of local statutory or other regulations, the natural prejudices of the most enlightened and scrupulous tribunal established under belligerent authority tend to weaken its impartiality and to diminish foreign respect for its conclusions.2 Awards of international tribunals such as courts of arbitration possessed of a neutral empire (if not of entire neutral membership) afford impressive evidence of the requirements of international law. The impartiality and acumen revealed by the neutral members of such bodies have oftentimes been productive of decisions entitled to great respect by States generally. This has been notably true in the case of the awards of the Court of Arbitration organized in pursuance of the Hague Conventions of 1899 and 1907.3 Those to be rendered by the Permanent Court of International Justice (of which the establishment is anticipated at an early date) will doubtless serve from time to time increasingly to bear testimony of the highest order as to what the law of nations really is.4

§ 4. Absence of a Legal Sanction.

The domestic laws of a State are commonly enforced by the territorial sovereign. There is a sanction which, although not essential to the existence of the law, is of a strictly legal character, inasmuch as it is established and applied by the lawgiver, and because in theory it is enforced only when a legal duty has been violated, and with close regard for the extent of the harm publicly or privately sustained.

With respect to international law the situation is otherwise. Doubtless the society of civilized States approves of the enforcement of the rules of that law by appropriate means, and by various processes. It does not, however, as yet prescribe the procedure to be followed by an aggrieved State, nor even enjoin, under certain conditions, recourse to war. Powerful forces, nevertheless,

1 Dana's Wheaton, Dana's Note No. 11. In this connection, see judgment by Lord Parker of Waddington in The Zamora [1916], 2 A. C. 77; 4 Lloyd's Prize Cases, 84.

2 See Discussion between United States and Great Britain during The World War, §§ 894-895.

See, for example, the award in the Pious Fund Case between the United States and Mexico, Oct. 14, 1902, For. Rel. 1902, Appendix II, 15; J. B. Scott, Hague Court Reports, 3; also award in the North Atlantic Coast Fisheries Arbitration between the United States and Great Britain, Sept. 7, 1910, Proceedings, North Atlantic Coast Fisheries Arbitration, Senate Doc. No. 870, 61 Cong., 3 Sess., I, 103; J. B. Scott, Hague Court Reports, 146. See Permanent Court of International Justice Designed by Advisory Committee of Jurists, 1920, infra, §§ 573–576.

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unceasingly operate to produce respect for international law. There is, as Mr. Elihu Root has pointed out, an indefinite and almost mysterious influence exercised by the general opinion of the world" regarding the character and conduct of every State. The greatest and strongest governments recognize this influence and act with reference to it; they dread the moral isolation that accompanies it and they desire general approval and the kindly feeling that goes with it." Again, the fear of war also serves frequently to restrain States from violating international obligations. A weak State, however strongly inclined to disregard a legal duty with respect to a powerful neighbor, is reluctant to test its strength on unequal terms with such an adversary. Nevertheless, it should be observed that a weak State may, on the other hand, anticipate with certainty that its adherence to a lawful and commendable course which opposes the designs of an unscrupulous and stronger State will invite attack upon its own. domain. Thus if war ensues because of the breach of international law, or because of fidelity to the principles of that law, the consequences may prove to be in fact identical. For that reason the fear of war, which may serve in a particular case to encourage disregard of an international duty as well as respect for it, is not to be deemed a sanction possessed of a legal character.3

Although without what may fairly be described as a legal sanction, the principles and rules governing the conduct of States do not lack the quality of law. It is no longer seriously maintained

"The Sanction of International Law", Proceedings, American Soc. Int. Law, II, 14, 19-20, where it is added: "The real sanction which enforces those rules is the injury which inevitably follows nonconformity to public opinion; while, for the occasional and violent or persistent lawbreaker, there always stands behind discussion the ultimate possibility of war, as the sheriff and the policeman await the occasional and comparatively rare violators of municipal law."

2 Belgium was confronted with such a difficulty in 1914. It was given sharp warning that attempts to maintain the inviolability of its territory against Germany would subject that territory to the full opposition of German belligerent force.

It is not suggested that the fear of war is as strong or frequent an incentive to violations of international law as to acts in pursuance thereof. It seems necessary to observe, however, that the fear of measures which may be undertaken to thwart lawful as well as unlawful conduct, and by a State controlled by conscienceless rulers, with an unjust purpose, cannot be regarded as an agency of the law designed to enforce respect for its precepts.

"The sanction of public opinion, if such there be, attaches equally to principles of purely moral obligation; to identify such a sanction with the sanction of law is to sacrifice the distinction between positive law and ideal morality. War as a sanction is analogous to the act of an individual in a community in enforcing his rights by brute force." Note, Harvard Law Rev., XVIII, 476.

See also Bonfils-Fauchille, 7 ed., § 29; Pradier-Fodéré, I, § 23, p. 77.

RELATION TO EACH STATE AS THE LAW THEREOF [§ 5

that the existence of law is necessarily dependent upon the presence of a power to enforce it. Nor have enlightened States in the course of their practice been disposed to take such a view.2 Acknowledgment that the welfare of the international society is jeopardized by the absence of an appropriate means of enforcing its collective will against a member which is contemptuous of its duties, involves no admission that, until a strictly legal sanction is devised and in fact generally accepted for common application, the principles of international law are entitled to less respect than is accorded the domestic statutes of a single State. It is a cheering and certain token of the advance of civilization that countries which long remain indisposed or impotent to observe as legal duties the common obligations which, international law is acknowledged to impose upon the entire membership of the family of nations, are regarded by enlightened powers with increasing intolerance, and as unfit for the acquisition or retention of normal privileges of independent statehood.

§ 5. Relation to Each State as the Law Thereof.

If there exists a body of international law which States, from a sense of legal obligation, do in fact observe in their relations with each other, and which they are unable individually to alter or destroy, that law must necessarily be regarded as the law of each political entity deemed to be a State, and as prevailing throughout places under its control. This is true although there be no local affirmative action indicating the adoption by the individual State of international law; for the processes by which general acquiescence in its principles has been effected manifest

1 Bonfils-Fauchille, 7 ed., § 29; Rivier, § 3, Vol. I, p. 21.

See, also, J. B. Scott, "The Legal Nature of International Law”, Am. J., I, 831.

"The general opinion of States approves certain rules, not as expressing conduct to be recommended without being enforced, like telling the truth or being charitable, but to be enforced by such means as exist.

"The conduct directed by those rules is in fact generally observed by States and that, not as freely choosing it in each instance, but as obeying the rules; not necessarily from fear of enforcement, but at least from the persuasion that the rules are law." Westlake, 2 ed., I, 7.

The Covenant of the League of Nations expresses agreement to apply a sanction of a legal character against members of the League which disregard certain specified undertakings with reference to the adjustment of disputes by amicable means.

With or without the instrumentality of the League of Nations, or the processes developed in the Covenant thereof, the society of nations appears to be no longer disposed to leave merely to the mercies of an aggrieved State, whether strong or weak, and to the application of penalties of its own devising, the international law-breaker whose offense is deemed to have attained the character of an international felony.

the requisite irrevocable assent of each member of the society of nations.

International law, as the local law of each State, is necessarily superior to any administrative regulation or statute or public act at variance with it. There can be no conflict on an equal plane. The precise relationship of a recognized rule of international law to a local statute in contravention thereof is oftentimes obscured by occurrences which take place before the superiority of the former is ultimately established. A local court may be obliged, on account of the nature and the limits of the powers conferred upon it, to enforce the statute; and even a domestic tribunal of last resort may be compelled to affirm such action. This merely signifies that no local forum is possessed of jurisdiction to pass upon the propriety of the conduct of the State in enacting the law; it does not imply that that conduct is internationally defensible, or that the judges approve of it. Moreover, the finality of the local adjudication does not indicate that the conflict has passed through more than a preliminary stage. If the controversy is pressed further, through the diplomatic channel, the State whose enactment is denounced by another as at variance with international law may in fact deny the truth of the allegation. It cannot, however, admit the charge without acknowledging responsibility to make reparation. If disagreement as to the nature of the statute or the extent of the harm produced by it proves incapable of adjustment by negotiation, and the issue be referred to an international court of arbitration clothed with requisite jurisdiction, it will denounce the statute (if deemed to violate international law) and formulate its award accordingly. Observance of the award by the delinquent State (possibly entailing amendatory legislation) will terminate the conflict and establish the supremacy of the international obligation.1

It is important to observe, however, that States are not commonly disposed to defy by local statute recognized duties of international law, and that they are instinctively reluctant to admit that domestic enactments manifest such a purpose. Contro

1 It is this absence of a local court possessed of requisite jurisdiction which is productive of confusion of thought. Difficulty has been encountered in perceiving how an international duty, contractual or otherwise, which cannot be locally enforced in a domestic forum is the local law. The fact is that the duty is locally enforced when the controversy is pressed to a conclusion resulting in an international adjudication, and in an award which is respected by the delinquent State.

Cf. The Ship Rose v. The United States, 36 Ct. Cl. 290, 301, where a tribunal in the United States was clothed with the requisite jurisdiction.

RELATION TO EACH STATE AS THE LAW THEREOF [§ 5

versies of such a character, although oftentimes recurring, are not sufficiently frequent in times of peace to manifest a condition of habitual conflict between international obligations and local enactments. Normally, it is taken for granted that international law prevails in the domain of an enlightened State and will be respected in all the activities of its several agencies. This is notably true in the United States.1 Its tribunals, and in particular the Supreme Court, are reluctant to impute to the Congress or the Executive an intention to violate the law of nations, construing enactments as contemplating observance thereof. Moreover those tribunals, when unrestricted by statutory limitations, apply and enforce the principles of international law as those constituting the law of the land.3

1 See, for example, Art. I, Section 8, of the Constitution conferring on the Congress power "To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Other paragraphs and sections contemplate acts by various departments of the Government, executive, legislative and judicial, pertaining to the foreign relations of the nation, and contemplating by implication, respect for international law. This is manifest, for example, in the provisions of Art. III, Section 2, with respect to the lodgment and exercise of the judicial power of the nation, and in those of Art. II, Section 2, with respect to the treaty-making power.

See Cyril M. Picciotto, The Relation of International Law to the Law of England and of the United States of America, New York, 1915; W. W. Willoughby, "The Legal Nature of International Law", Am. J., II, 357; T. E. Holland, Studies in International Law, Oxford, 1898, Chap. X.; John Westlake, "Is International Law a Part of the Law of England?" Law Quar. Rev., XXIÍ, 14. 2 Marshall, C. J., in the case of The Charming Betsy, 2 Cranch, 64, 118; opinion of Mr. Justice Day in MacLeod v. United States, 229 U. S. 416, 434.

For

Declared Mr. Justice Gray, in The Paquete Habana, 175 U. S. 677, 700: "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations."

See Marshall, C. J., in The Nereide, 9 Cranch, 388, 423; also, The Steamship Appam, 243 U. S. 124.

9, Chap. 20 of the Act of Sept. 24, 1789, 1 Stat. 77, declared that the district courts of the United States should have "cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.' § 24, Paragraph 17, Chap. 231, of the Act of March 3, 1911, 36 Stat. 1093, gave to the district courts original jurisdiction in such cases.

See Philip Quincy Wright, The Enforcement of International Law through Municipal Law in the United States, 1915, 227; Simeon E. Baldwin, "The Part Taken by Courts of Justice in the Development of International Law", Int. Law Association, 15th Report, 35; Evans, Cases, 18, Note, and cases there cited.

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