Volume I Part 2 (1/2)

[Sidenote: Factors influencing the Growth of International Law.]

-- 19. Thus custom and treaties are the two exclusive sources of the Law of Nations. When writers on International Law frequently enumerate other sources besides custom and treaties, they confound the term ”source”

with that of ”cause” by calling sources of International Law such factors as influence the gradual growth of new rules of International Law without, however, being the historical facts from which these rules receive their legal force. Important factors of this kind are: Opinions of famous writers[17] on International Law, decisions of prize courts, arbitral awards,[18] instructions issued by the different States for the guidance of their diplomatic and other organs, State Papers concerning foreign politics, certain Munic.i.p.al Laws, decisions of Munic.i.p.al Courts.[19] All these and other factors may influence the growth of International Law either by creating usages which gradually turn into custom, or by inducing the members of the Family of Nations to conclude such treaties as stipulate legal rules for future international conduct.

[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.]

[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.]

[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.]

A factor of a special kind which also influences the growth of International Law is the so-called _Comity_ (_Comitas Gentium_, _Convenance et Courtoisie Internationale_, _Staatengunst_). In their intercourse with one another, States do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience, and goodwill. Such rules of international conduct are not rules of law, but of comity. The Comity of Nations is certainly not a source of International Law, as it is distinctly the contrast to the Law of Nations. But there can be no doubt that many a rule which formerly was a rule of International Comity only is nowadays a rule of International Law. And it is certainly to be expected that this development will go on in future also, and that thereby many a rule of present International Comity will in future become one of International Law.[20]

[Footnote 20: The matter is ably discussed in Stoerk, ”Volkerrecht und Volkercourtoisie” (1908).]

Not to be confounded with the rules of Comity are the rules of morality which ought to apply to the intercourse of States as much as to the intercourse of individuals.

IV

RELATIONS BETWEEN INTERNATIONAL AND MUNIc.i.p.aL LAW

Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp.

185-189--Taylor, -- 103--Holland, Studies, pp. 176-200--Kaufmann, ”Die Rechtskraft des internationalen Rechts” (1899)--Triepel, ”Volkerrecht und Landesrecht” (1899)--Anzilotti, ”Il diritto intern.a.z.ionale nei giudizi interni” (1905)--Kohler in Z.V. II.

(1908), pp. 209-230.

[Sidenote: Essential Difference between International and Munic.i.p.al Law.]

-- 20. The Law of Nations and the Munic.i.p.al Law of the single States are essentially different from each other. They differ, first, as regards their sources. Sources of Munic.i.p.al Law are custom grown up within the boundaries of the respective State and statutes enacted by the law-giving authority. Sources of International Law are custom grown up within the Family of Nations and law-making treaties concluded by the members of that family.

The Law of Nations and Munic.i.p.al Law differ, secondly, regarding the relations they regulate. Munic.i.p.al Law regulates relations between the individuals under the sway of the respective State and the relations between this State and the respective individuals. International Law, on the other hand, regulates relations between the member States of the Family of Nations.

The Law of Nations and Munic.i.p.al Law differ, thirdly, with regard to the substance of their law: whereas Munic.i.p.al Law is a law of a Sovereign over individuals subjected to his sway, the Law of Nations is a law not above, but between Sovereign States, and therefore a weaker law.[21]

[Footnote 21: See above, -- 9.]

[Sidenote: Law of Nations never _per se_ Munic.i.p.al Law.]

-- 21. If the Law of Nations and Munic.i.p.al Law differ as demonstrated, the Law of Nations can neither as a body nor in parts be _per se_ a part of Munic.i.p.al Law. Just as Munic.i.p.al Law lacks the power of altering or creating rules of International Law, so the latter lacks absolutely the power of altering or creating rules of Munic.i.p.al Law. If, according to the Munic.i.p.al Law of an individual State, the Law of Nations as a body or in parts is considered the law of the land, this can only be so either by munic.i.p.al custom or by statute, and then the respective rules of the Law of Nations have by adoption[22] become at the same time rules of Munic.i.p.al Law. Wherever and whenever such total or partial adoption has not taken place, munic.i.p.al courts cannot be considered to be bound by International Law, because it has, _per se_, no power over munic.i.p.al courts.[23] And if it happens that a rule of Munic.i.p.al Law is in indubitable conflict with a rule of the Law of Nations, munic.i.p.al courts must apply the former. If, on the other hand, a rule of the Law of Nations regulates a fact without conflicting with, but without expressly or tacitly having been adopted by Munic.i.p.al Law, munic.i.p.al courts cannot apply such rule of the Law of Nations.

[Footnote 22: This has been done by the United States. See The Nereide, 9 Cranch, 388; United States _v._ Smith, 5 Wheaton, 153; The Scotia, 14 Wallace, 170; The Paquette Habana, 175 United States, 677. See also Taylor, -- 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great Britain, see Blackstone, IV. ch. 5, and Westlake in _The Law Quarterly Review_, XXII. (1906), pp. 14-26; see also the case of the West Rand Central Mining Co. _v._ The King (1905), 2 K. B. 391.]

[Footnote 23: This ought to be generally recognised, but, in fact, is not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--”_... das Volkerrecht ist ein uberstaatliches Recht, das der Gesetzgebung des einzelnen Staates nicht unterworfen ist und von den Richtern ohne weiteres respectirt werden muss: das Volkerrecht steht uber dem staatlichen Recht_.”]

[Sidenote: Certain Rules of Munic.i.p.al Law necessitated or interdicted.]

-- 22. If Munic.i.p.al Courts cannot apply unadopted rules of the Law of Nations, and must apply even such rules of Munic.i.p.al Law as conflict with the Law of Nations, it is evident that the several States, in order to fulfil their international obligations, are compelled to possess certain rules, and are prevented from having certain other rules as part of their Munic.i.p.al Law. It is not necessary to enumerate all the rules of Munic.i.p.al Law which a State must possess, and all those rules it is prevented from having. It suffices to give some ill.u.s.trative examples.

Thus, on the one hand, the Munic.i.p.al Law of every State, for instance, is compelled to possess rules granting the necessary privileges to foreign diplomatic envoys, protecting the life and liberty of foreign citizens residing on its territory, threatening punishment for certain acts committed on its territory in violation of a foreign State. On the other hand, the Munic.i.p.al Law of every State is prevented by the Law of Nations from having rules, for instance, conflicting with the freedom of the high seas, or prohibiting the innocent pa.s.sage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Munic.i.p.al Law as it is prevented from having by the Law of Nations, or if it does not possess such Munic.i.p.al rules as it is compelled to have by the Law of Nations, it violates an international legal duty, but its courts[24] cannot by themselves alter the Munic.i.p.al Law to meet the requirements of the Law of Nations.

[Footnote 24: This became quite apparent in the Moray Firth case (Mortensen _v._ Peters)--see below, -- 192--in which the Court had to apply British Munic.i.p.al Law.]

[Sidenote: Presumption against conflicts between International and Munic.i.p.al Law.]