About Authority and Saction of International Law, Historical 2

This Jus Gentium of the Imperial jurisconsults is identical with the Law of Nature, or Natural Law, of many modern ethical and juridical writers; and both are, in fact, the law of God, made known somewhat dimly to the whole human race at all times, and set forth with unmistakable certainty and transcendent power in His revealed will. This is, in truth, the highest law by which moral beings can be governed; highest in its Lawgiver, who is omnipotent over each individual man, as well as over societies and states; highest in the absolute perfection of the rules which it contains; highest in the absolute cogency of the commands which it utters; highest in the absolute obligation of the duties which it enforces; highest in the absolute certainty and irresistible coercive power of the sanctions which it wields, and which operate upon the deepest spiritual nature of every human being.

It must be clear to you, I think, that writers who adhere to these opinions are not likely to trouble themselves greatly with the question of the original obligatory force of International Law. If the Law of Nations be binding on states considered as moral beings on account of its derivation from the Law of Nature or of God, states when in a healthy moral condition will defer to them as individual men do to the morality of the Ten Commandments. The whole question in fact, as laid down by liens, and with less moderation by Pomeroy, is a question of ethics, and all demand of a legislative sanction may be discarded. But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled, ‘A Digest of the International Law of the United States,’ and it consists of documents relating to that subject issued by Presidents and Secretaries of State, of the decisions of Federal Courts, and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following, all of them accepted by the American Federal Government.

‘The law of the United States ought not, if it be avoidable, so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations, unless the contrary be expressly prescribed. An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains, nor should it be construed to violate neutral rights or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country .’ Again: ‘The Law of Nations is part of the Municipal Law of separate states. The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody. The Law of Nations, unlike foreign Municipal Law, does not have to be proved as a fact. The Law of Nations makes en integral part of the laws of the land. Every nation, on being received at her own request into the circle of civilised government, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency amongst civilised states, and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilised nations.’

Here you see that according to American doctrine International Law has precedence both of Federal and of Municipal Law, unless in the exceptional case where Federal Law has deliberately departed from it. It is regarded by the American lawyers as having very much the same relation to Federal and State law as the Federal Constitution has, and this no doubt is the reason why in so many famous American Law books Constitutional Law and International Law are the first subjects discussed, International Law on the whole having precedence of Constitutional Law.

The principle on which these American doctrines of International Law repose is, I think, tolerably plain. The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, ‘of which the memory of man runneth not to the contrary.’ They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations. This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of International Law, and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by Governments and lawyers of the civilised sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations.

There is, however, one community which on one occasion went near to dissenting from the American opinion and from the assumptions which it involves. This was our own country, Great Britain. In one celebrated case, only the other day, the English judges, though by a majority of one only, forged their decision on a very different principle, and a special Act of Parliament was required to re-establish the authority of International Law on the footing on which the rest of the world had placed it. The case was one of great importance and interest, and it was argued before all the English judges in the Court of Criminal Appeal. It is known as the Queen v. Keyn, but is more popularly called the ‘Franconia’ Case (2 Ex. Div. 63). The ‘Franconia,’ a German ship, was commanded by a German subject, Keyn. On a voyage from Hamburg to the West Indies, when within two and a half miles from the beach at Dover, and less than two miles from the head of the Admiralty pier, the ‘Franconia,’ through the negligence, as the jury found, of Keyn, ran into the British ship ‘Strathclyde,’ sank her, and caused the death of one of her passengers. Keyn was tried for manslaughter, and was convicted at the Central Criminal Court; but the question then arose whether he had committed an offence within the jurisdiction of English tribunals.

The point on which that question turned was this. All the writers on International Law agree that some portion of the coast water of a country is considered for some purposes to belong to the country the coasts of which it washes. There is some difference of opinion between them as to the exact point to which this territorial water, which is considered as part of a country’s soil, extends. This doctrine, however, if it were sound, must at some time or other have been borrowed by the English courts and lawyers from international authority. Previous to the appearance of International Law, the law followed in England was different. The great naval judicial authority was then the Admiral of England, whose jurisdiction was over all British subjects and other persons on board British ships on the High Seas . If the doctrine of the international jurists prevailed, a change must, at some time or other, have taken place in the law, and the point arose as to whether any such change could be presumed, and by what agency it could have been effected. The judges were very nearly equally divided on the point, which is a fundamental one affecting the whole view to be taken of the authority of International Law in this country. In the end it was decided by the majority of the judges that no sufficient authority was given for the reception in this country of the so-called International doctrine; but there was no question that this doctrine was the doctrine of the majority of states, and the inconvenience of having one rule for England and another for the rest of the civilised world was palpably so great that Parliament finally stepped in, and in the year 1878 passed what is called the ‘Territorial Waters Act,’ by which the jurisdiction of the English Courts which had succeeded to the jurisdiction of the Admiral of England was declared to extend according to the International rule to three miles from the coast line of England. In the course of the judgments which were given, which are extremely learned, curious, and interesting, Lord Coleridge. who was with the minority of the judges, used the following language:

‘My brothers Brett and Lindley have shown that by a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. I concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country discrepancies, after all, not serious since the time at least of Grotius are not material in this question; because they all agree in the principle that the waters, to some point beyond low-water mark, belong to the respective countries on grounds of sense if not of necessity, belong to them as territory in sovereignty, or property, exclusively, so that the authority of France or Spain, of Holland or England, is the only authority recognised over the coast Raters which adjoin these countries. This is established as solidly as by the very nature of the case any proposition of International Law can be. Strictly speaking, “International Law “is an inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common lawgiver to sovereign states; and no tribunal has the power to bind them by decrees or coerce them if they transgress. The Law of Nations is that collection of usages which civilised states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English Courts give effect, as part of English law, to such agreement’ (p. 153).

Lord Chief Justice Cockburn, on the other hand, after discussing at length the views of thirty writers of different countries and commenting on the difference between them, goes on to remark: ‘Can a portion of that which was before high sea have been converted into British territory without any action on the part of the British Government or Legislature — by the mere assertions of writers on public law — or even by the assent of other nations? And when in support of this position, or of the theory of the three-mile zone in general, the statements of the writers on International Law are relied on, the question may well be asked, upon what authority are these statements founded? When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? — to say nothing of the difficulty which might be found in saying to which of these conflicting opinions such assent had been given’ (p. 202).

From Henry Maine, “Its Authority and Sanction”, International Law

• About Authority and Saction of International Law, Historical
• About Authority and Saction of International Law, Historical 3
• About the Origins and Sources of International Law, Historical
• Mandatory or Binding vs. Persuasive Authority
• Primary vs. Secondary Authority
• About the Declaration of Paris, Historical

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About Authority and Saction of International Law, Historical 3, About Authority and Saction of International Law, Historical, About the Declaration of Paris, Historical, About the Origins and Sources of International Law, Historical, High Seas, Law books, Mandatory or Binding vs. Persuasive Authority, Primary vs. Secondary Authority, Rights and the Law Classification, Historical, State law, Treaties, country.