Presumption of the Existence of certain Municipal Rules in Conformity with Rights granted by the Law of Nations.
§ 25. There is no doubt that a State need not make use of all the rights it has by the Law of Nations, and that, consequently, every State can by its laws expressly renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. However, when no such renunciation has taken place, Municipal Courts ought, in case the interests of justice demand it, to presume that their Sovereign has tacitly consented to make use of such rights. If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their Sovereign has tacitly consented to that wider range of its jurisdiction.
A remarkable case illustrating this happened in this country in 1876. The German vessel Franconia, while passing through the British maritime belt within three miles of Dover, negligently ran into the British vessel Strathclyde, and sank her. As a passenger on board the latter was thereby drowned, the commander of the Franconia, the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.[25] To provide for future cases of like kind, Parliament passed, in 1878, the "Territorial Waters Jurisdiction Act."[26]
[25] L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp. 39-45. See also below, § [189], where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pass through its maritime belt.
[26] 41 and 42 Vict. c. 73.
V DOMINION OF THE LAW OF NATIONS
Lawrence, § 44—Phillimore, I. §§ 27-33—Twiss, I. § 62—Taylor, §§ 61-64—Westlake, I. p. 40—Bluntschli, §§ 1-16—Heffter, § 7—Holtzendorff in Holtzendorff, I. pp. 13-18—Nys, I. pp. 116-132—Rivier, I. § 1—Bonfils, Nos. 40-45—Despagnet, Nos. 51-53—Martens, I. § 41—Fiore, Code, Nos. 38-43—Ullmann, § 10—Nippold in Z.V. II. (1908), pp. 441-443—Cavaglieri in R.G. XVIII. (1911), pp. 259-292.
Range of Dominion of International Law controversial.
§ 26. Dominion of the Law of Nations is the name given to the area within which International Law is applicable—that is, those States between which International Law finds validity. The range of the dominion of the Law of Nations is controversial, two extreme opinions concerning this dominion being opposed. Some publicists[27] maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or non-Christian, civilised or uncivilised, is a subject of International Law. On the other hand, several jurists[28] teach that the dominion of the Law of Nations extends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no constant intercourse existed in former times between Christian and Buddhistic States. But from about the beginning of the nineteenth century matters gradually changed. A condition of perpetual enmity between whole groups of nations exists no longer either in theory or in practice. And although there is still a broad and deep gulf between Christian civilisation and others, many interests, which knit Christian States together, knit likewise some non-Christian and Christian States.
[27] See, for instance, Bluntschli, § 8, and Fiore, Code, No. 38.