INTERNATIONAL LAW, the general term for the law governing the relations and intercourse of states with one another. The parties in its application are states (see [State]) and not nations, so that the word “international” does not accurately limit the scope of the subject. Nor do authors always confine themselves to its proper limitation. Thus the rules relating to nationality and naturalization, extradition, patents, trade marks, &c., which affect states on the one side and foreign persons on the other, are generally included among the subject-matter of International Law. There is a special branch of International Law known as Private International Law (see [International Law, Private]) which deals exclusively with the relations of persons belonging to different states, in which states as such are not parties.
The term “international” was first used by Bentham. His explanation of the new term was as follows:—
“The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of “law of nations,” an appellation so uncharacteristic that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor d’Aguesseau has already made, I find, a similar remark; he says that what is commonly called droit des gens ought rather to be termed droit entre les gens. There remain then the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.”[1]
There has been much controversy as to the aptness of the use of the word “law” in this connexion. “International law,” said the 3rd marquess of Salisbury in a speech on the establishment of a Court of International Arbitration, “has no existence in the sense in which the term ‘law’ is usually understood. It depends generally upon the prejudices of writers of text-books. It can be enforced by no tribunal, and therefore to apply to it the phrase ‘law’ is to some extent misleading.”[2] This has been more or less the view not only of most British statesmen but also of many practical English jurists. It found one of its most emphatic exponents in Lord Chief-Justice Coleridge. “Strictly speaking,” he observed in his judgment on the Franconia case,[3] “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 civilized 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 states are but evidence of the agreement of nations, and do not, in England 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.”
In opposition to this view may be cited the more recent one expressed by Lord Russell of Killowen, who challenged Lord Coleridge’s view as “based on too narrow a definition of law, a definition which relies too much on force as the governing idea.” “If,” he added, “the development of law is historically considered it will be found to exclude that body of customary law which in early stages of society precedes law. As government becomes more frankly democratic, laws bear less and less the character of commands imposed by a coercive authority, and acquire more and more the character of customary law founded on consent.... I claim that the aggregate of the rules to which nations have agreed to conform in their conduct towards one another are properly to be designated International Law.”[4] This recalls Blackstone’s definition: “The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to ensure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each.”[5] The current English narrower view owes its origin chiefly to the influence of John Austin, and the current broader one to that of Sir Henry Maine.[6] The increasing popularity of references to international arbitration (see [Arbitration, International]), the adoption of a large number of special treaties making such references compulsory in certain cases, the establishment of and increasing recourse to the court for the decision of difficulties between states created by The Hague “Convention for the pacific settlement of disputes between States” of 1899 (see [Peace]), the adoption of fixed rules of law in the international conventions in 1899, 1907 and 1909 dealing with many of the most controversial questions of international usage, have so transformed the subject that if, as Lord Coleridge said, law implies a lawgiver and a tribunal capable of enforcing it, these conditions are now at any rate partly fulfilled. We shall see below to what extent it may be necessary to regard power of enforcement against transgressors as requisite to give international law the character of law properly so-called.
Sanctions.—The subject of the enforcement of International Law, or its “sanctions,” has given rise to much controversy. The word “sanction” is derived from the Lat. sanctio, which in turn is derived from sancire, to consecrate. In its original sense sanctio means consecration. From this followed the sense of religious obligation. Thus sancire legem is used by Roman writers as meaning that observance was made obligatory, but without reference to the idea of there being a remedy or penalty for non-observance. With the development of an organized judicial system the religious or moral obligation was displaced by the growth of remedial procedure. Cicero observes of some legal restrictions, hoc non sancitur lege civili (this is not consecrated by the civil law, i.e. with penalties). A collateral sense of the word grew up which meant ratification, as where Cicero speaks of sancire acta Caesaris or of sancire foedus.
Bentham, who worked out the theory of legal sanctions as applied to modern law, describes them as equivalent to pleasures and pains derived from four different sources. These are physical, political, moral and religious. The first three belong to experience in the present life, the fourth to that in the present life or hereafter.[7]
Austin’s analysis of this vague subdivision led him to a more precise determination of the relationship of sanctions to law, viz. that a law properly so-called is a command and its sanction is the power to enforce obedience to it. Stated briefly, any other kind of law according to Austin is not positive law but merely called so by analogy. Applying this test to International Law he concludes that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. The law obtaining between nations is only law set by general opinion, with duties which are only enforced by moral sanction; by fear on the part of nations, or by fear on the part of a sovereign, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally respected.[8]
Sir H. Maine’s somewhat indirect answer to Austin may now be taken as the view held at least by British theoretical writers. “Austin,” he said, “has shown, though not without some straining of language, that the sanction is found everywhere, in positive law, civil and criminal. This is, in fact, the great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously, from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be inflicted if they are violated, but, compared with the mass of men in each community, this class is but small; probably it is substantially confined to what are called the criminal classes, and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds of thousands who refrain without a thought on the subject.”[9]
The view, however, that a law is not devoid of binding character because there is no authority to enforce its observance hardly requires justification at the present day. The fact that any well-established international usage is observed, and that states invariably endeavour to answer any reproach of departing from such usage by explanations showing that the incriminated act is justified by recognized rules of International Law, is evidence of its binding character. As the late Professor Rivier, one of the leading authorities on Roman Law, as well as an international jurist of eminence, has expressed it: “The law of nations is positive law because states wish it to be so. They recognize its compulsory character and proclaim it. As they are their own legislators and make their common laws by express or tacit consent, they attest explicitly and implicitly their conviction that its principles are binding upon them, as judicial principles, as law. Innumerable public acts, affirmations, declarations and conventions are there to prove it. On the other hand, never in any published official act of the present age, verbal or written, has a state dared to declare that it did not consider itself bound by the law of nations and its principles.”[10] States, as Professor Rivier says, have again and again solemnly declared their determination to abide by the principles of International Law. Witness the Declaration of Aix-la-Chapelle of November 15, 1818, in which the representatives of five powers, Austria, France, Great Britain, Russia and Prussia, solemnly stated that “the sovereigns in forming this august union have regarded as its fundamental basis their unchangeable resolution never to depart, either amongst themselves or in their relations with other states, from the strictest observance of the principles of the law of nations, principles which, in their application to a permanent state of peace, can alone effectively guarantee the independence of each government and the stability of the general association.” In the negotiations for the Treaty of London concerning the Black Sea (March 13, 1871), at which seven powers were represented, Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey, a resolution on the sanctity of treaties was annexed to the first protocol, stating that the plenipotentiaries recognize that it is an essential principle of the law of nations that “no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement.” Even in 1908, when Austria-Hungary proceeded to the annexation of Bosnia-Herzegovina without obtaining the prior assent of the high contracting powers, who under the treaty of Berlin of 1878 had granted her temporary occupation of the annexed provinces, the protests of the powers concerned were answered by Austria-Hungary declaring that she had done nothing contrary to the law of nations or affecting the sanctity of treaties, because the powers had given their tacit consent to the practical transformation of her temporary into a permanent occupation.