Cambridge University Press The American Journal of International Law
Cambridge University Press The American Journal of International Law
Cambridge University Press The American Journal of International Law
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CONFLICTS OF INTERNATIONAL LAW WITH NATIONAL
LAWS AND ORDINANCES
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2 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 3
The present study will adopt the point of view of the court, to
which end the question should be stated: Is international law (as
evidenced in its appropriate sources) a source of law to which na-
tional courts are obliged to turn in appropriate cases? There can
be no question but that in a controversy involving international
elements, courts of all states will apply international law in the
absence of other more authoritative sources, although the frequency
with which such circumstances occur may vary according to the
completeness with which all possible human relationships are
covered by national codes, ordinances, and precedents. Judges are
not ones to employ the unaided reason when authority can be
studied.
The more important question, however, is that of the attitude of
national courts to international law in case it conflicts with a rule
embodied in some other source of law. This question must be
answered for each country with reference to its own jurisprudence.
SOURCES OF LAW
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4 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
more weight than expert opinions and will seldom in themselves stand
in the way of a judicial application of international law.
It is only when a conflict occurs between international law and a
rule laid down by an official law-making authority, which includes
in the United States constitutional assemblies, in all countries legis-
latures and executive officers issuing ordinances within their compe-
tence, and in Common Law countries courts of justice laying down
judicial precedents, it is only in the case of such a conflict, that
question arises as to the relative superiority of international law
and municipal law in judicial tribunals.
International law may, then, come in conflict with (1) written
constitutions having the force of law, (2) with statutes in the nar-
rower sense, (3) with executive orders issued under proper constitu-
tional or legislative authority, all of which are considered statutes
in the wider sense; or (4) with judicial precedents having the binding
force of law.
Such conflicts may be resolved in two ways. Westlake 6 has
pointed out that, in the Roman world, the practice in the case of a
conflict of laws was to extract the residuum of each and thus con-
struct a jus gentium consisting of the essence of the law of all nations.
In the Middle Ages, because of the extreme diversity in Roman and
barbarian legal ideas and the lack of a common jurisdiction, the very
different process of selecting one law to the exclusion of the other
was adopted, - a system which has continued in the modern rules
of conflict of laws.
Thus in the case of a conflict of laws, one may be applied at the
expense of the other, or an attempt may be made to reconcile the
two rules by applying the essence if not the form of each. Either
selection or interpretation may be resorted to, the first emphasizing
the diversity of bodies of law, the second the unity of law.
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CONFLICTS OF INTERNATIONAL LAW 5
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6 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 7
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8 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
The same rule applies in prize courts. Thus, in the case of the
Zamora,"7 the Judicial Committee of the Privy Council, while hold-
ing that an Order in Council contrary to international law was not
binding, said,
In this case no such conflict existed, but, on the contrary, the Prize
Act of 1864 especially reserved to the prize court its right to apply
international law exclusively.
In American law, also, it is clear that a statute will always be
applied even though it conflict with international law. An Act
of Congress of March 3, 1863,18 permitting the requisition of neutral
vessels before condemnation, was protested by Great Britain as in
violation of international law. Attorney General Bates rendered an
official opinion 19 on the question, and while conceding the British
contention that the Act if rigorously applied might lead to violations
of international law, stated that American officials would neverthe-
less be bound by it.
Under Acts prohibiting the killing of fur seals "within the limits
of Alaskan territory or in the waters thereof," later extended "to
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CONFLICTS OF INTERNATIONAL LAW 9
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10 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 11
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12 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 13
The legality of these measures has not yet formed the subject of
a decision of the prize court; but I wish to take this opportunity of
reminding your excellency that it is open to any United States citizen
whose claim is before the prize court to contend that any Order in
Council which may affect his claim is inconsistent with the principles
of international law and is, therefore, not binding upon the court.
35 The Minerva (1806), Life of Sir J. Mackintosh, London, 1836, 1: 317; Hol-
land, Studies, p. 197; Phillimore, op. cit., Vol. 3, sec. 436; Picciotto, op. cit., p. 32.
It seems possible that this decision furnished the main foundation for Lord Stowell's
utterances in the Fox, five years later. There is a striking similarity in some of
the passages. Sir J. Mackintosh admits that he had no "direct and positive au-
thority" for his assertion.
36 Earl Grey to United States Ambassador Page, July 31, 1915, this JOURNAL,
Special Supp. 9: 164 (July, 1915). Phillimore, op. cit., Vol. 3, sec. 436, says, "It is
clear that it has never been the doctrine of the British prize courts that because they
sit under the authority of the Crown, the Crown has authority to prescribe to them
rules which violate international law."
37 The Zamora, 31 Times L. R. 3, this JOURNAL, 9: 1005.
38 The Fox, Edw. Adm. 312.
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14 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 15
42 The Kim, the Alfred Nobel, the Bjornstjerne Bjornson, the Fridland, this
JOURNAL, 9: 979.
4 Man. Em. Leg., Supp. No. 1, p. 17; this JOURNAL, Special Supp., 9: 14
(July, 1915.)
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16 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
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CONFLICTS OF INTERNATIONAL LAW 17
The same rule appears to apply in French courts. The prize law
is largely found in ordinances, which are of binding force in courts.49
During the Napoleonic Wars, French decrees, such as those of Berlin
and Milan, vied with British Orders in Council in violating inter-
national law, but they were applied in prize courts.50
Ordinarily, in the case of executive orders, the question would
not be so much on the conflict of the order with international law
Gesetzblatt, 1864, p. 369; Huberich and King, op. cit., p. xii), prize courts were to
apply the existing prize regulations, supplemented if necessary by the general
principles of international law and subject to existing treaties. They were also
empowered to apply special rules by way of retaliation. See comments on Ger-
man prize practice in a review of Huberich and King's translation, this JOURNAL,
9: 1028.
48 The Elida, Oberprisengericht, Berlin, May 8, 1915, this JOURNAL, 10: 916.
49 The famous ordonnance de la marine, issued by Louis XIV in 1681, forms the
basis of French prize law. Comprehensive instructions applicable in prize courts
were issued July 28, 1870 (Freeman Snow, Cases and Opinions on International
Law, Boston, 1893, p. 577), and on December 12, 1912 (Naval War College, Inter-
national Law Topics and Discussions, 13: 169).
60 One of the most remarkable of these decrees was that of Bayonne which
ordered the seizure of American vessels entering French ports after the passage of
the American Embargo Act in 1807, under the theory that such seizures were legal
as assisting President Jefferson in enforcing the embargo. Am. St. Pap., For.
Rel., 3: 291. For the various French and British retaliatory orders of the Na-
poleonic Wars, see ibid., 3: 262, 270, 286; British and For. St. Pap., 8: 401-513.
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18 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
51 In the Berlin, L. R. (1914), P. 265; this JOURNAL, 9: 544; after citing the
American decision in the Paquete Habana, 175 U. S. 677, and some Japanese decisions
and instructions the court said: "In this country I do not think any decided and
reported case has treated the immunity of such vessels as a part or rule of the law
of nations: vide the Young Jacob and Johanna, 1 Rob. 20, and the Liesbet von der
Toll, 5 Rob. 283. But after the lapse of a century I am of opinion that it has become
a sufficiently settled doctrine and practice of the law of nations." The alteration
of judicial precedents by international law is also illustrated in the Ringende Jacob,
1 Rob. 89 (1798), in which the court refused to follow the old rule forfeiting neutral
vessels for carrying contraband, but applied the more humane rule of releasing the
vessel, on the ground that international law had changed. See, also, Westlake,
Collected Papers, p. 250.
52 Hague Conventions, 1907, XI, Art. 3.
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CONFLICTS OF INTERNATIONAL LAW 19
the belligerents were not signatories, and based its decision primarily
on the change in the rule of customary international law. During
the seventeenth century both Admiralty and Common Law courts sup-
ported executions against the body on foreign judgments as war-
ranted by international law.53 But international practice did not
approve of the rule, and during the next century the British courts
over ruled the precedent on the ground that international law had
changed.54
There has also been a tendency in both British and American
courts to abandon the old Common Law rule which permitted an
alien enemy no persona standi in judicio, in accordance with altera-
tions in international law. Lord Stowell stated the old doctrine in
the case of the Hoop:55
53Malloy, De Jure Maritimo et Navali, 7th ed. London, 1722, Bk. 5, chap. 9,
sec. 9. Baldwin, " The Part Taken by Courts of Justice in the Development of Inter-
national Law," Am. Law Rev., 35: 228.
54 Sinclair v. Fraser, 20 How. St. Tr. 468, cited Baldwin, op. cit., Am. Law.
Rev., 35: 228.
55 The Hoop, 1 Rob. 196 (1799); Scott, 521, 523.
56 McVeigh v. U. S. 11 Wall. 259 (1870).
57 Act of July 17, 1862, 12 Stat. 319.
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20 THE AMERICAN JOURNAL OF INTERNATIONAL LAW
This decision was cited with approval in the recent British case
of Merten's Patents,58 in which the Court of Appeals permitted an
alien enemy to commence action on appeal. The court distinguished
the right of bringing suit and the right of defending when sued.
Although it did not sustain the appellee's contention that a pro-
vision of the Hague conventions59 required a complete abandonment
of all restrictions upon the legal status of alien enemies, and conse-
quently affirmed the traditional view that such persons could not
commence an original action, yet it admitted that an alien enemy
could be sued, in which case he "could appear and be heard in his
defense," and take all such steps as may be necessary for the proper
presentment of his defense. To deny him these rights, said the
court, "would be to deny him justice and would be quite contrary
to the basic principles guiding the King's courts in the administra-
tion of justice."60
In prize courts a similar tendency to admit alien enemies to a
limited status in court has developed as an accompaniment of the
exemption from seizure of certain types of enemy property at sea,
required under modern international law.6' The extreme doctrine of
the Hoop has undoubtedly been much limited in both Common Law
and Admiralty courts by the progress of international law. The
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CONFLICTS OF INTERNATIONAL LAW 21
62 The newspapers reported that on Feb. 15, 1916, the Reichsgericht handed
down a decision upon an action commenced by a French citizen serving at the front,
and appearing through attorney. The decision of the court below, declaring the
plaintiff's patent right confiscated, was reversed.
63 Oppenheim, op. cit., 2: 133.
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