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Definition and Nature of International Law
Author(s): Roland R. Foulke

Source: Columbia Law Review , Dec., 1919, Vol. 19, No. 6 (Dec., 1919), pp. 429-466
Published by: Columbia Law Review Association, Inc.
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COLUMBIA
LAW REVIEW
Vol. XIX DECEMBER, 1919 No. 6
DEFINITION AND NATURE OF

INTERNATIONAL LAW
This article will be devoted to a discussion of the nature

and definition of international law, and will be an application to
state conduct of the reasoning already applied to individual con-
duct. It has already been pointed out that law, when classified
with respect to the external factors determining conduct, may be
divided into the jural conception of the conduct of bodies which
are not subject to the restraints of external political power, and
the jural conception of the conduct of bodies which are so subject.
Independent states have also been distinguished and described as
the only bodies in the world whose conduct is not subject to ex-
ternal political power. International law, therefore, is that
branch of law which relates to the conduct of independent states.
In the previous article we have pointed out that independent
states are living organisms having certain inherent powers and
unrestrained by any exterior political power. The unrestrained
exercise of this power would result in anarchy. Each state is
in fact restrained by certain factors, and the exercise of re-
strained power by a state results in an appreciable amount of
international order. Our task now is to discover what those re-
straints are and how they may be described and their operation
known. It is important for the student of international law
clearly to keep in mind that we start with unrestrained power of
organisms as a fact, and study the restraints which exist on the
exercise of those powers.
Note.-All rights reserved. Substantially Chapter Three of a treatise

on International Law now in course of publication. Section numbers,
headings and cross references omitted. Chapter One on "The Definition
and Nature of Law" appeared in the November number of the Columbia
Law Review. Chapter Two of the treatise deals with the facts of inter-
national life.

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430 COLUMBIA LAW REVIEW
A state has an interest in an object, just as an individ

when any change in that object will affect the state. Sin
ever, the activity of a state is confined almost entirely w
own limits by the facts of international life, it follows that
terests of a state will be few in .number. Those which m
are enumerated in tabular form in the note.l An individual inter-
est will be subordinate to the collective interest of the state.
Thus, an individual has an interest in his own life; the state ha
an interest in its preservation, and it is better that the stat
should be preserved and one or more individuals perish than tha
a few individuals should survive and the state should perish
The extent to which state or individual interests prevail varies
in different communities and in the same community at different
times, depending on various factors which are immaterial to the
present discussion. The interest of a state is unprotected by
external political power, but is protected by the factors determin
ing independent state conduct which will next be discussed.
The factors determining the conduct of an independent state
are easily described, and a brief reference to them will be suffi-
cient. There is no political authority external to an independen
state, consequently no power which can afford redress for dam-
age to a state interest, determine a dispute between two states,
or coerce an independent state to perform any particular act.
States do, however, observe habitual and uniform conduct in
many particulars, to which they are influenced by certain factors,
to understand which we must bear in mind that although state
are in fact organisms, they are operated by men.2 No state can
1A state will have the following interests:
(1) An interest in itself, its territory, form of government, municipal
law.
(2) An interest in its officials, when they venture forth from its juris-
diction, which will be-
(a) On the open sea,
(b) Within jurisdiction of another state,
(c) In jurisdiction of no state.
(3) An interest in its members beyond its borders,
(a) On the open sea,
(b) Within jurisdiction of another state,
(c) In jurisdiction of no state.
(4 An interest in another state.
(a) Another independent state,
(b) A dependent state.
(5) An interest in the open sea and in territory not subject to the
jurisdiction of any other state.
(6) An interest in the maritime belt.
2 For the purposes of this discussion the distinction between state and
government is immaterial and the word "state" will be understood to
include the government unless otherwise indicated by the context.

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INTERNATIONAL LAW 431
act without some one or more human wills determining

The behavior of the state will therefore be subject to th
principles as govern the conduct of men, because no ma
assuming a state office, can divest himself of human at
and become an impersonal machine. An independent s
be governed in its conduct by-(A) Self-interest, (B) I
prejudice, (C) International public opinion, (D) Cus
precedent, (E) Pressure from one or more other stat
from political power. A state act will be influenced in an
case by these factors in varying degrees, and they may
not act together. Self-interest will in some cases con
the others will be defied. The force of habit and custom is so
great in human affairs that a state will endeavor to show that
what is demanded by self-interest is in accordance with prece-,
dent and international public opinion. These factors will be re-
ferred to, for convenience, as international factors determining
the conduct of independent states.3 They are of varying force
and the views of most of the writers on international law are
colored by the emphasis placed on a particular factor to the ex-
clusion of the others.
The principles of ethics as influencing conduct are excluded
from this discussion. These principles, so far as they may be
determined and agreed upon are solely the result of a more ad-
vanced culture and regard for the interest of others than is
common to the average member of the community and are there-
fore representative in a small part of public opinion. The opera-
tion of these principles is too weak, therefore, to justify the in-
clusion of them in the factors which actually operate with effect
in international life.4 The influence of ethics is naturally very
strong in theory, as the writers represent the best element in
the community, and accordingly we find most of them over-empha-
sizing the ethical aspect of the subject and coloring their state-
ments of international law with this view so strongly that they
generally leave an entirely erroneous impression. There is no
universal standard of justice,5 consequently the opinion of what
8 Some of the writers indicate an apprehension of the external factors;

1 Oppenheim, Int. L. (2nd ed.) 13, et seq.
4 See Lawrence, Int. Law (5th ed.) 13, et seq., for a good discussion
of the place of ethics in law and the distinction between them. This dis-
tinction also apprehended by Hall, Int. Law (6th ed.) 2; Woolsey, Int. L.
(6th ed.) 3.
B Hall, Int. Law (6th ed.) 2.

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is just in any particular case will only be the opinion

writer, and it is clear from a cursory examination of the
the international life that the conduct of independent sta
far short of the general standard of justice entertained b
the middle classes of the individuals in the world. Justi
therefore figure in our discussion only as an ideal to be
for but rarely attained,6 and totally irrelevant in an inqu
the jural conception of independent state conduct.
The conduct of independent states as determined by
factors forms a body of facts which may be reduced to
semblance of order by analysis, just as in the case of the
of individuals. The description of that orderly conduc
ferred to as a rule. It is true that the states on particula
sions do endeavor to determine what the rule is, that is, f
description of the conduct to be followed, and determin
action accordingly. Among states we find a very large a
of self-conscious action in which the state is voluntarily a
sciously endeavoring to adjust its conduct to some descr
which may be obtained of conduct in the past, or to the
the international factors of conduct as they operate at th
ticular time.7 There is in international affairs also an unconscious
adjustment of the conduct of each independent state to the inter-
ests of other states and the welfare of the community of states
as a whole, which adjustment is maintained until the incentive to
damage the interest of another state becomes so great that the
international factors of conduct are disregarded and an act of
damage results. The various states follow certain habitual con-
duct from motives of necessity and self-interest; that is, volun-
tarily, without any special pressure from another state.8 This
conduct exists apart from any description. We have the same
difficulty in international relations in separating the rule and
the factors. We can see more clearly, since we are dealing with
larger bodies, how conduct to a large extent is orderly, and how
6 Thus Lawrence, Int. Law (5th ed.) 10-12, says that international
law may be regarded as an a priori investigation into what the rules of
international intercourse ought to be or historical investigation of what
they are: "Two principal views may be held as to the nature and origin
of these rules (of international law). They may be considered to be an
imperfect attempt to give effect to an absolute right which is assumed to
exist and to be capable of being discovered; or they may be looked upon
simply as a reflection of the moral development and the external life of
the particular nations which are governed by them." Hall, Int. Law (6th
ed.) 1.
7 For example, Germany's attempt to justify her violation of the neu-
trality of Belgium in 1914.

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the tendency is voluntarily to adhere to an habitu

conduct unless there is some powerful motive to the
An independent state may have an interest, but it
any potentiality of redress secured by external poli
for the simple reason that there is no such power in
state, therefore, whose interest has been damaged by
of another state, will be able to obtain redress when
by setting in motion the external factors influencing th
independent states to which we have already ref
factors may also be set in motion by a state which
damaged, for selfish purposes. There will often be a
of opinion, as to which there is no power competen
whether in any case there has been a damage to a st
or whether the state is proceeding for the purpose
redress or merely for selfish ends.0 The interest of
be damaged by the force of nature, by the act of ano
by the act of an individual. The independent stat
aged will seek redress through any one or more of
factors influencing state conduct as follows: Where
is caused by act of an independent state against the
state itself; where caused by act of a dependent stat
cluded from international life against the independe
which it is dependent; if.partially existing in intern
against such dependent state to the extent allowed b
pendent state upon which it is dependent. If th
caused by a dependent state dependent on the indep
damaged, the redress is a matter of municipal law u
pendent state exists to such an extent in internation
bring its conduct wholly or partially within the infl
factors already referred to affecting the conduct of
states, in which case the redress is wholly or par
these. If the damage is caused by an individual, a dis
to be drawn between a member of the state and an
a member of the state damaged, the redress is a mat
cipal law. If by a member of another state, the
against the state of which he is a member in the sam
8 The general observance of the rules of international law
pendent states of the world remarked on by Manning
ed.), Amos. 89, 90, where he refers to the conscious culti
law and appeal to its standards. See Lawrence, Int. Law
1 Oppenheim, Int. L. (2nd ed.) 14.
OThe discussion in this article will, for the purpose of th
examination of international law, be confined to conduct
state interest.

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in the case of a dependent state wholly shut off from

tional life. Where the damage is done to a member of
while within the jurisdiction of another state, the indiv
have the redress, if any, afforded by the municipal law
state, and his own state will have a redress through inte
factors of conduct against the other state. In internati
therefore, the law is in a condition of self-help, or rat
should say, international life is in a condition of self-hel
each state must act for itself and cannot rely on any s
political power, as the individual can in municipal
though the state must act for itself, the international f
conduct in many cases constitute an external force assi
state. It is therefore not strictly accurate to confine o
tion to the act of the state and ignore the other element
in many cases the state acting by itself will be unable
redress.
It appears, therefore, that we have certain bodies and facts
concerning those bodies, to wit, their conduct, the external fac-
tors determining that conduct, which operate by way of restraint
on the inherent power of the state organism, and further, that
the conduct so determined may be described in terms of order.
Our next task is to define international law, that is, to see how
the word "law" is applicable to those facts we have referred to.
It is necessary to examine the nature, scope, application and
definition of international law, and then dispose of certain subor-
dinate topics, some of which are to be distinguished and ex-
cluded from the discussion. In defining international law, there-
fore, we have to consider the distinction between the conduct
and the factors determining that conduct, and further remem-
ber that we cannot exclude one or the other of them, but must
embrace them all in our definition. International law, therefore,
is the conception in terms of order of the conduct of independent
states'? as influenced by external and internal factors, from
which external factors are excluded the forces of nature and
external political power, which we may call the jural conception
of the conduct. It is necessary to add internal factors which
were excluded in the definition of law in general, because an
individual state is frequently powerfully impelled by self-interest
to observe a certain course of international conduct, and sec-
ondly, international public opinion will proceed in part from
10 That independent states are concerned has been recognized by some

writers, e. g.-Zouche, L. of Nations (Carnegie ed.) Part I, 1, 2.

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within each state, and it is difficult to separate that pa

which is external to a particular state, from that which
nal within that state. It is necessary also to disting
point of view. We have past conduct, present conduct
ture conduct, and the principal discussion is as to future
The inquiry in any case will be: (A) What conduct
independent,states in the past habitually followed? (
conduct do they follow at the present time under one o
external factors, none of which include superior political
ity? (C). What conduct may a state consequently be e
in the absence of any compelling self-interest to act othe
follow in the future, under the influence of these extern
determining conduct? Many definitions of internati
have been proposed, and a number of them have been c
in the note."1 These definitions are generally too na
11 International law "is the result of an implied agreement a

civilized nations to abide by those practices which have proved most
conducive to the promotion of profitable intercourse in peace and to the
mitigation of suffering and hardship in war;" Frederic R. Coudert, 36
Amer. L. Reg. and Rev. N. S. 362. "International law is the final expres-
sion of the public opinion of the civilized world respecting the rules of
conduct which ought to govern the relations of independent nations, and
is, consequently, derived from the source from which all public opinion
flows, the moral and intellectual convictions of mankind;" Prof. Cairns,
quoted-Wheaton, Elements (Dana's ed.) 23. The law of nations when
we distinguish it from natural law or international law is the law enjoin-
ing the utility of the great aggregate system of communities; Grotius,
Belli ac Pacis, Whewell's Trans. Proleg. 17. "The rules of conduct
regulating the intercourse of states;" 1 Halleck, Int. L (4th ed.) 50.
"International law consists in certain rules of conduct which moder
civilized states regard as being binding on them in their relations with
one another with a force comparable in nature and degree to that binding
the conscientious person to obey the laws of his country, and which they
also regard as being enforceable by appropriate means in case of in-
fringement;" Hall, Int. Law (6th ed.) 1. "International Law or Common
and Conventional Law of Nations is that body of principles, rules and
customs which are binding upon the members of the international Com-
munity of States in their relations with one another or with the nationals
of other states;" Hershey, Int L. 1. "According to Heffter, one of the
most recent and distinguished public jurists of Germany, 'the law of
nations, jus gentium, in its most ancient and most extensive acceptation,
as established by the Roman jurisprudence, is a law (Recht) founded
upon the general usage and tacit consent of nations. This law is applied,
not merely to regulate the mutual relations of States, but also of indi-
viduals, so far as concerns their respective rights and duties, having
everywhere the same character and the same effect, and the origin and
peculiar form of which are not derived from the positive institutions of
any particular state,"' Heffter, quoted by Wheaton, op. cit. 16.
"International law may be defined as the rules which determine
the conduct of the general body of civilized states in their mutual deal-
ings;" Lawrence, Int. Law (5th ed.) 1. "The law of nature realized in
the relations of separate nations;" 1 Lorimer, Inst. 1. "The law of
nations is the realization of the freedom of separate nations by the

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they emphasize either the description of the conduct o

the other of the international factors, and many of the
porate the ambiguous word "right."
International law is a pure conception, a conceptio
which the external factor of superior political power is
and is therefore difficult for the English-speaking lawyer t
because he is accustomed to thinking of law as having t
ternal factor present. Grasp that distinction he must if
to understand international law. International law can have no
reciprocal assertion and recognition of their real powers;" 1 Lorimer,

cp. cit. 3. "It is in this limited sense, namely, as comprising the rules
which control the conduct of independent states in their relations with
each other, that the term 'Law of Nations' is employed in the following
treatise;" Manning, Int. L. (2nd ed.) Amos. 3. "Law of Nations or
International Law is the name for the body of customary and conven-
tional rules which are considered legally binding by civilized States in
their intercourse with each other;" 1 Oppenheim, Int. L. (2nd ed.) 3.
"From the nature then of States, and from the nature of individuals, cer-
tain rights and obligations towards each other necessarily spring; these
are defined and governed by certain laws. These are the laws which
form the bond of justice between nations . . . and which are the
subject of international jurisprudence and the science of the interna-
tional lawyer, jus inter gentes;" 1 Phillimore, Int. L. (3rd ed.) 3, 4.
Pufendorf says that "the rules of abstract propriety, resting merely on
unauthorized speculation, and applied to international transactions, consti-
tute international law and acquire no additional authority when by usage
of nations they have been generally received and approved of;" 1 Wild-
man, Int. L 28, quoted Woolsey, Int. L. (6th ed.) 12, 13. "I claim then
that the aggregate of the Rules to which nations have agreed to conform
in their conduct towards one another are properly to be designated 'Inter-
national Law;"' Lord Russell, Address at Saratoga Springs, 12 Law
Quar. Rev., 313. "The proper and immediate subjects of the Law of
Nations being those political communities which are in a state of Inde-
pendence, and a test of their independence being their aptitude or capacity
to discharge the obligations of Natural Society towards other political
communities, and to regulate the mode of discharging their obligations
without the consent of any Political Superior, the rules which result from
mutual relations and which govern their intercourse, resolve themselves
into Natural rules and Positive rules and the aggregate body of those
rules which admit of being enforced, constituting the Law of Nations
in the most extensive sense of the term;" Twiss, L. of Nations, Peace
(2nd ed.) 145. "The Law of Nations is the science which teaches the
rights subsisting between nations or states and the obligations correspond-
ent to those rights;" Vattel, Chitty's Trans. Prelim. ?3. "International
Law, otherwise called the Law of Nations, is the law of the society of
states or nations;" 1 Westlake, Int. L. (2nd ed.) 1. "International law,
in a wide and abstract sense, would embrace those rules of intercourse
between nations, which are deduced from their rights and moral claims;
or in other words, it is the expression of the jural and moral relations
of states to one another. . In a more limited sense,
international law would be the system of positive rules, by which the
nations of the world regulate their intercourse with one another. But
in the strictness of truth this definition is too broad, for there
is no such law recognized as yet through all nations. .
Coming within narrower limits, we define international law to be the ag-
gregate of the rules which Christian states acknowledge; as obligatory in
their relations to each other, and to each other's subjects;" Woolsey, op. cit.

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motive, no purpose, no subject, no object. The conduct

by a state may have such a character and also the factor
ing that conduct, but it is difficult to see how the conc
the conduct as so determined can have any such charac
It is true that in practice we say the law compels
statement is ambiguous. What we mean is, that the sta
through its appropriate organs, will attempt to furnis
as to conduct of a certain description.
Much confusion exists because of the failure to disti
the factors and the conduct from the conception of int
law, and a number of different notions have from tim
been put forward, some of which when critically exam
seen to be mere offsprings of that confusion and accord
to be banished from the realm of accurate thought. Ot
tions correctly express one or more aspects of the ope
the international factors of conduct and to that extent are to be
retained. There are several headings under which this part of
the discussion usually appears, and it will perhaps simplify our
attack upon the problem if we take it up under them. The
writers usually discuss the legal nature of international law, the
sanction of international law, the scope and application of inter-
national law, and the subjects and objects of international law.
2, 3. "International law, as understood among civilized nations,

may be defined as consisting of those rules of conduct which reason
deduces, as consonant to justice, from the nature of the society existing
among independent nations; with such definitions and modifications as
may be established by general consent;" Wheaton, op. cit. 23.
"Public international law is the body of generally accepted principles
governing relations among states;" Wilson, Int. L. 3. See n. 3 for collec-
tion of definitions. "International law is the customary law, which deter-
mines the rights and regulates the intercourse of independent states in
peace and in war;" 1 Wildman, Int. L. 1. "International laws are rules
of conduct observed by men towards each other as members of different
states, though members of the same International Circle;" Walker, Sci-
ence, Int. L. 44. "International law consists in those rules of conduct
which civilized states observe in their relations with one another and
with one another's subjects;" Walker, Man. Int. L. 1. "International
law is the code of states and of communities to which has been accorded
recognition of belligerency;" Walker, op. cit. 3. "Law between Nations
is the law which is recognized in the community of different princes or
peoples who hold sovereign power-that is to say, the law which has
been accepted among most nations by customs in harmony with reason,
and that upon which single nations agree with one another, and which is
observed by nations at peace and by those at war;" Zouche, L. of Na-
tions (Carnegie ed.)'Part I, 1. "The various ideas of law formed in
different societies and times, and the various groups of customs which
have been obeyed as law, have probably not yet been sufficiently com-
pared and analyzed, and until an adequate comparison and analysis have
been made, no definition or description of law can be regarded as final;"
Hall, op. cit. 14.

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Thus, many writers undertake to prove that internation

is of a legal nature. If the propositions we have laid d
correct, there is no occasion for the discussion because i
tional law is by the definition a conception in terms of o
the conduct of certain bodies, and therefore as much of
nature as the like conception of the conduct of individu
views of the writers, however, are not disposed of so easi
discussion of the question whether rules of international
legally binding plainly begs the question because it invol
meaning of law, and further, fails to distinguish that the
factor of political power in international relations, an
therefore international law is different from municipal l
however, law is used, as it often is, to mean the externa
of superior political power, then international law is
because there is no superior political power. The controv
therefore, is hopelessly obscured in the ambiguity of th
"law" and reaches no rational conclusion. When it is ca
analyzed we will find it is nothing but a meaningless cont
over words. The views of some of the writers are collected in
the note.l2
12Hall, Int. Law (6th ed.) 13-16, says international law constitutes a
branch of true law because cast in a legal mould and treated in practice
as being legal in character, although lacking the sanction of
determinate political authority, and lying, as he admits, on
the extreme frontier of law. Hall, op. cit. 18, says absolute
independence of state is unnecessary to the conception of a legal relatio
between communities independent of each other; that international law
could exist just as well in a world of equal states dependent on a com-
mon superior, which is true, because then there would be a common
political superior exercising to a greater or less extent the power of
state. It is not, however, a question of conception, but a question of fact
We are studying bodies which have no external superior in fact, and tha
is all there is to it. The facts might have been otherwise, they may be
otherwise in the future, in either of which events we will be studying
different facts. Hershey, Int. L. 5-9, describes international law as a
branch of true law and discusses the external factors determining state
conduct. 'Ihe proposition he states demonstrates the obscurity in the use
of the word law. If true law is municipal law, then law must have
political power to enforce it and international law is not true law. He
points out that some branches of municipal law are not enforced by
political power of the state and that, in some cases, where the political
power assumes to act, it fails because the people are not in accord. That
is to say, the factors determining conduct in municipal life may not agree
with the political power and its exercise will be futile. Lawrence, Int.
Law (5th ed.) 2, says that the principles of international law are rules
whether they are or are not laws, but the question whether it (interna-
tional law) confers rights, depends on whether the term law is properly
applied. The question as to the application of the term law depends
on the definition of the term law. It is reasoning in a circle to argue that
the distinction between international and municipal law is based on any
meaning given the word law. 1 Oppenheim, Int. L. (2nd ed.) 8-15, after

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There can be.no sanction of international law, as th

is applied to municipal law enforced by political author
are, however, the external factors of compulsion whic
defining law as a body of rules for human conduct within a

which by common consent of this community shall be enfor
ternal power, concludes that international law is law in the
because he finds in international life all the three elements of l
a community, which is a community of nations; second, a bo
for the conduct of the members of the community. These ru
in the rules of conduct which have grown up in the last few
and in the written rules created by international agreemen
third element, in a common consent of the members of the
that these rules shall be enforced by external power, which e
power he finds in self-help and intervention on the part of
which sympathize with the state wronged. This external po
ever, does not include superior political power of the state; t
the supposed analogy breaks down as to one of the elements
more, Int. L. (3rd ed.) 76-78, answers the objection that there can
be no law between independent states because no common political
superior, as follows: (1) As a matter of fact, states do recognize the
existence and independence of each other, out of which society law must
necessarily'spring, that the rule of right regulating intercourse between
themselves is such law, which is no answer but simply an assertion that
law exists in such a society, which is denied by the proposition. (2) The
proposition confuses the physical sanction of law enforced by political
superior and the moral sanction of right. (The learned judge would
have more accurately said, the proposition takes only one view of the
possible meaning of law and excludes the other-not so much a con-
fusing of the two as an overlooking of one.) That irrespective of the
international means of enforcing, the law must remain, as God has
willed the society of states as He has that of individuals. (3) Most, if
not all, civilized states have incorporated into their own municipal law
a recognition of the principle of international law. While this clearly
refers to the acknowledgment by individual states of the existence of in-
ternational law, it sheds no light upon the proposition which is as to the
quality or character of that law. (4) History demonstrates that a cer-
tain nemesis overtakes the transgressor of international justice, citing the
first partition of Poland as opening an "Iliad of Woes." It may be
true that a nemesis does overtake the wrongdoer, but an accurate reading
of history will fortify the conclusion that the wicked go unpun-
ished in international life as often as they do in municipal life, and
the instances in which they do in municipal life are certainly very fre-
quent. Twiss, L. of Nations, Peace (2nd ed.) 175, 176, however, answers
more accurately-that the absence of any superior political power is
immaterial since the rules of international conduct are in fact enforced
by factors external to the independent states, and therefore may be
described as law since any rule enforced by external factors is law.
"International Law in Legal Education," J. B. Scott, 4 Columbia Law
Rev. 409, "The Binding Force of International Law," A. Pearce Higgins.
See review in 11 Columbia Law Rev. 699 and 5 Amer. J. Int. Law, 850.
"The Legal Nature of International Law," James Brown Scott, 1 Amer.
J. Int. Law, 8, 31 et seq. "The Influence of Christianity on Law of Na-
tions," 2 Ward, Hist 1 et seq. "The Development and Formation of
International Law," Ernest Nys, 6 Amer. J. Int. Law, 1 et seq., 279 et seq.
"The Influence of the Law of Nature Upon International Law in the
United States," Jesse S. Reeves, 5 Amer. J. Int. Law, 547 et seq. "The
Reconstruction of International Law," Franz von Liszt, 64 Univ. of
Penna. Law Rev., 765. "International Justice," James Brown Scott, 64
Univ. of Penna. Law Rev. 774.

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described as a sanction.13 International life is in a condition of

self-help, that is, each state must, if it cannot persuade another
state to afford redress, take measures to compel that redress.
The difficulty is that this freedom of action has and does result
in many acts of oppression and is used for selfish purposes,
which circumstances have led the writers, confused by ethical
notions, to attempt to pass judgment on particular acts, and sup-
pose that there is some power to determine what a state shall or
shall not do, which supposition, however, is nothing but the opin-
ion of the writer upon the state conduct in question.
There is great confusion among the writers in an attempt to
define the scope and application of international law. The scope
and application which is thus referred to is really a description
of the operation of the international factors of conduct, and since
international law is a conception in terms of order of the conduct
of certain bodies as determined by those factors, our attention
will necessarily be confined to the bodies so subject. The appli-
cation of these factors to the conduct of independent states,
therefore, determines the limits of our inquiry. There are cer-
tain independent states which are said not to be within the scope
of nor subject to international law. An examination of these
bodies and of their peculiar situation will more clearly illustrate
the principle that what we are really discussing is the operation
of international factors of conduct and not the abstract concep-
tion of law.l4 A state is a member of the family of nations
when it is responsive to an equal extent with the other states to
the factors determining the conduct of independent states. Since
there are factors, external and internal, determining the conduct
of independent states, and these factors operate equally on each
13 "The Sanction of International Law," Amos J. Peaslee, 10 Amer. J.

Int. Law, 328 et seq.
14 Hershey, Int. L., 96, observes that some publicists say that the
scope of international law is as wide as humanity itself and its range
extends over the whole earth. 1 Oppenheim, Int. L. (2nd ed.) 30, entitles
his discussion, "Dominion of the Law of Nations," and says "Dominion
of the law of nations is the name given to the area within which inter-
national law is applicable, that is, those States between which interna-
tional law finds validity," and then considers the question of what states
are subjects of the law of nations, whether only Christian or whether
Christian and all others, and concludes that it is Christian and some
others. There is objection to the use of the word "dominion" and the
word "area" in discussing the application of law. Area seems to imply
space, but law applies only to conduct and has no reference whatever
to space. The learned professor's idea that law is law between the
states, that is, fills up spaces between the states, is, it is believed, entirely
out of place.

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state, it follows that if a state is in such circumstance

cannot and will not respond to an equal extent with
independent states to these factors, it cannot fully part
international Iife with them. States, therefore, which
barous and uncivilized, without commerce, and not havi
lic opinion corresponding in a measure to the internatio
opinion of the civilized states of the world, are not in a
to participate equally with the other independent state
benefits of international life.15 Such a state will not b
sive to the same factors which will determine the conduct of
other independent states. This is a, somewhat difficult point to
apprehend. The independent civilized states of the world show
in their relations with each other a state of warfare and violence
which is but little removed from barbarism. It therefore seems
somewhat peculiar to say that a state participating in such a
rough and tumble life can set itself up in any way superior to a
barbarous state, such as, for instance, Afghanistan, Persia, Pata-
gonia, Ethiopia, or the Barbary States as they were in 1800.
The facts remain, however, that these independent civilized
states, in spite of their continual fighting, are subject to the ex-
ternal factors determining state conduct, and even in their wars,
to a greater or less extent, conform their conduct to the rules of
international law. There is, therefore, an appreciable or meas-
urable conformity with international law, hand in hand with fre-
quent instances of its disregard and violation. We must, there-
fore, in considering this aspect of the subject, shut our eyes to
the violations of international law by independent civilized states,
and recognize that the barbarous state would not conform to in-
ternational law even to so great an extent as these independent
civilized states. This has been illustrated by numerous instances
in history, and therefore it has been necessary for the states
comprising the family of nations to adopt towards these com-
munities a somewhat different attitude.16
Since a dependent state has no freedom of international ac-
15 What has been called reciprocating will, 1 Lorimer, Int, 109 et seq.,
reciprocating power, 1 Lorimer, op. cit., 133 et seq.
16 In .their intercourse with distant and weak states there has been
too much disposition among the states of Europe to avail themselves
of that law (law of nations) when it has been "in their favor and to
repudiate its obligations when it would have been against them;" Man-
ning, Int. L (2nd ed.) Amos. 88n; See Woolsey, Int. L. (6th ed.) 4.
International law is not confined to Christian States or members of the
family of nations; I Philjimore, Int. L. (3rd ed.) 20-23; see Lawrence,
Int Law (5th ed.) 57, 58.

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tion, it cannot freely adjust itself to the current of intern

life. Its conduct, therefore, depends on the will of the st
which it depends and is the conduct of that state. The only
duct we are studying is international conduct, and the co
of independent states only is, therefore, the subject of ou
cussion. Independent states can only be expected to look to
independent states for redress for state acts. It would be
less for a state to call a dependent state to account and ha
latter answer that it was subject to another state, to whi
complaining state must look for redress. The scope and op
tion of international law is therefore the scope and operat
the international factors of conduct. There is another amb
in this connection which should be noticed. It is sometimes said
that the rules of international law apply to land, open sea, ves-
sels.17 The factors of international conduct can operate only on
the bodies of the independent states and may determine their
conduct as to land, the open sea, vessels, but cannot affect or in
any way determine the conduct of such objects.
An object is anything which comes within the cognizance of
senses and when used in connection with the word activity indi-
cates that which is affected by the action or to which the action
civilized states. This has been necessary for the setashrdluetau
is directed. A subject is a body under the power of another.
Since international law is an abstract conception, it can have no
subject and no object. The writers, however, constantly use
these words as applicable to various things which they conceive
to be the subjects or objects, as the case may be, of international
law. An independent state is undoubtedly subject to the interna-
tional factors of conduct, but not subject to any abstract concep-
tion of law. The word "subject" therefore is properly applicable
to those bodies, and since the international factors of conduct
connote activity, that is, the activity of the factor, the thing which
is affected by that activity, to wit, an independent state, is properly
described as an object. When, therefore, we accurately use
these words, we find that an independent state is as well the
17Thus, Hershey, Int. L. 171, says that the objects of the law of
nations are (1) Material goods and things; (2) Individuals or persons
(including corporations), and that the main things to which the rules of
international law apply are land territory, the open sea, vessels and other
public property of various sorts. A tempest may sweep a vessel from
her moorings, but if the port regulations require that she be moved,
that can only be accomplished by the act of individuals whose conduct,
with respect thereto, is determined by the external factor of the political
power of the state.

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object as a subject of international factors of conduc

neither of international law. It is said, for instance, tha
are the subject of international law, and individuals the
The use of the words "subject" and "object" in this co
betrays a failure to keep in mind the exact nature of la
ject and object necessarily imply action of some sort, th
the doer of the act, the other-the end or thing to which
tends or upon which it operates.
We have referred in the note to some of the current views
as to what are objects and subjects of international law.l'
An individual is always subject to the political power of some
state expect in the rare case where he throws off political
restraint and ventures in the international world alone.'9 He is
therefore not in any way affected by the international factors of
conduct because he is subject to a factor, to wit, external superior
political power, which does not exist in the international world,
and which factor, by its operation, shuts him entirely out of
18 States, subjects: Hershey, Int. L 92; Lawrence, Int. Law (5th
ed.) 54, 76; 1 Phillimore, Int. L. (3rd ed.) 79, 213; Wheaton, Elements
(Dana's ed.) 29, 30, Nations, subjects: Twiss, L. of Nations, Peace (2nd
ed.) 145; Wheaton, op. cit. 29,30. Envoys, objects not subjects: 1. Oppen-
helm, Int. L (2nd ed.) 455, 456. Fugitive criminal, from certain point
of view, object: Hershey, op. cit. 263. Individuals and corporations
objects not subjects: Hershey, op. cit. 236; 1 Oppenheim, Int. L. (2nd
ed.) 362, 363. Individuals, subjects: see authors referred to by Hershey,
op. cit. 92 n2. Private corporations, subjects: Wheaton, op. cit. 30, 31.
Princes, subjects: Wheaton, op. cit. 31. Wheaton there says, "The pecu-
liar objects of international law are those direct relations which exist
between nations and states." The objects consist of the rights which
are to be ascertained, protected and enforced by international law; 1
Phillimore, op. cit. 79, 213. The rights of individual states and their
sovereigns constitute the subjects of international law; 1 Wildman, Int
L. 38. Material goods and things, objects: Hershey, op cit. 171. The
open sea, object; 1 Oppenheim, op. cit. 323. See 1 Lorimer, Inst. 15,
who says the general object of international law is liberty. "The proper
and immediate subjects of the Law of Nations being those political com-
munities which are in a state of Independence, and the test of their Inde-
pendence being their aptitude or capacity to discharge the obligations of
Natural Society towards other political communities and to regulate the
mode of discharging those obligations without the consent of any Political
Superior, the rules which result from their mutual relations, and which
govern their intercourse, resolve themselves into natural rules and posi-
tive rules, and the aggregate body of those rules, which admit of being
enforced, constitute the Law of Nations in the most extensive sense of
the term. The Law of Nations accordingly divides itself into natural
or necessary law, and positive or instituted law." Twiss, L. of Nations,
Peace, op. cit. 145. Hall, Int. Law (6th ed.) 17, speaks of the capacity in
corporate person to be subject to law as depending on the existence of
a sense of right and of a sense of obligation to act in obedience to it,
either on the part of the community at large or at least in the man or
body of men in whom the will governing the acts of the community re-
sides.
19 Zouche, L. of Nations (Carnegie ed.), Part II. V. 1.

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international life. The political canopy of the individual's

state protects him from international life, and all its inc
and that canopy intercepts the international factors of c
before they can reach him. An individual is touched with
national life, if at all only as a member of an independen
and not in any other capacity. The discussion relates so
the conduct of independent states, and they are distinguish
cause they are the only bodies in existence having no poli
superior power, and every other body and all individualsc
world are subject to such political power. It follows, ther
that there is a vital distinction between the exercise of that po
cal power by the state and the aspect of that state with res
non-existence of political power by any other body. Th
tinction is between municipal life with political jurisdictio
international life and lack of political jurisdiction.20 The
tion of an individual in international law has given rise t
siderable speculation among the writers who have elabo
discussed the question whether he has any rights in intern
law.21 This is another of the many instances of the use o
ambiguous word "right." We shall point out that a state h
right at all except when we use that word in the sense of
terest or of power. The individual, therefore, in so fa
appears or acts through his own state, has also no rights ex
that word is used to describe an interest or power.
The word "right" is used in several different senses, am
which are: (A) power,22 (B) interest, (C) potentiality o
ing redress afforded by the political power of the sta
that which is just. Where interest or power is meant,
words will be substituted for "right." There is no occasion
retaining such an ambiguous term, and it will accordin
discarded, although reference will sometimes be made to
by the writers. No reader of international law can fail to be
struck with the utterly inadequate discussion of the so-called
rights of states which is found in the writers. The discussion
always begs the question by assuming that there is a right, and
then without defining it, enumerating what the writer conceives
may be done in the exercise of that right. Many writers, per-
haps the majority, adhere to the notion that a state has a right,
20Lawrence, Int. Law (5th ed.) 72, et seq.; 2 Lorimer, Inst. 131; Op-
penheim, Int. L. (2 ed.) 362, et seq.
21 Supra, footnote 20.
22 Grotius, Belli ac Pacis, Whewell's Trans. I. c. I. V; Vattel, Chitty's
Trans., Book I ?95.

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and classify under various names, which are appende

note, what they call the right of states.23 The learned a
are sometimes describing the interests of a state and
word "right" in that sense, or they are sometimes descri
powers of a state and using the word "right" in that
loose use of language which is only too prevalent among
on international law and legal philosophers.24 A distinct
formerly drawn between perfect and imperfect rights. A
right was said to be accompanied by a power of compuls
an imperfect right was unaccompanied by any such pow
only compulsion in international life is self-help, the exe
which lies solely in the discretion of the state concerne
distinction, therefore, is without weight and has been d
by some writers.26
The question has been raised by a number of writers w
a state can be guilty of a crime. It seems that it cannot
sense in which the word "crime" is used in municipa
that jurisdiction, a crime is an act punishable by the
power of the state. The word "crime," may be used in an
sense, as designating an act whether it is or is not pu
23For references to conflicting views on the subject of right

Hershey, Int. L. 143 nl.
24The conventional classification of rights with the real equi
is shown in the following table:
Right of Self-preservation = self-interest plus power of protec
interest.
Right of Possession = interest and power.
Right of Jurisdiction - power.
Right of the Sea = interest in and power over the sea.
Right of Legation =power of sending an envoy.
Right of Treaty= power of making a treaty.
Right of Intercourse =power of intercourse.
Right of Civil and Criminal Legislation= power of legislation.
Right of Equality =fact of equality and interest in being equal.
Right of Respect = interest in self and power to compel others t
that interest.
Right of War =power to make war.
See generally as to the above: Hall, Int. Law (6th ed.) 43 et seq.;
1 Helleck, Int. L. (4th ed.) 100, 125, 156, 198, 288; Hershey, Int L., 155,
et seq.; 1 Phillimore, Int. L. (3rd ed.) 213; Twiss, L. of Nations, Peace
(2nd ed.) 178-440; 1 Westlake, Int. L. (2nd ed.) 306; Wheaton, Elements
(Dana's ed.) 89, et seq.; 1 Wildman, Int. L. 2; Wilson, Int. L. 55, et seq.;
Wilson & Tucker, Int. L. 55, et seq.; Woolsey, Int. L. (6th ed.) 15, et seq.
2 Vattel, Chitty's Trans., Prelim. ?17. These authors retain con-
ception of perfect and imperfect right: 1 Halleck, Int. L. (4th ed.) 471,
472; Twiss, L. of Nations, Peace (2nd ed.) 12, 13; 1 Westlake, Int. L
(2nd ed.) 156.
26Hershey, Int. L. 143, nl, says it is now generally abandoned, but
cites no authority.

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by the political power of the state. From the point of vie

ethics, therefore, we may designate the acts of state as cr
but since there is no political power superior to the indepe
states of the world, it seems inadmissible to designate su
as a crime in the sense in which that word is used in the munic-
ipal law.27
The word "responsibility" is used in several slightly different
senses: (A) as meaning the circumstance of being subject to
some external factor determining conduct. Thus, if I murder
my neighbor, I am responsible to the political power of the state.
This is the meaning ascribed to the word by the writers, who say
a state is responsible. They, however, involve themselves in the
ambiguity raised by the use of the word "law," particularly when
they speak of the legal responsibility of states. An independent
state is subject to the external factors determining international
conduct, and a writer therefore must use the word "law" as
standing for the jural conception embracing all these factors or
as defining the particular factor he has in mind as designated by
the word "law." Any other course opens him to the well founded
charge of obscurity. The statement, therefore, that a state is
responsible is predicated entirely on what the factors are and
how the conduct is determined, and to what extent they are
operative, and is therefore a merely identical statement. (B)
The word "responsible" is used by English speaking judges and
lawyers in another sense, as referring to personal capacity to
comply with the requirements of the external factor of political
power. Thus, we speak of the irresponsibility of lunatics, in-
fants and bankrupts; of the responsibility of a normal person
and of a person of financial solvency. Here, the person is sub-
ject to the external factor, but for reasons peculiar to himself, is
unable to conform thereto, which inability may or may not be
an excuse for such failure.28 In the case where the government
27 1 Halleck, Int. L. (4th ed.) 59; Hershey, Int. L. 161 n2; 1 Lorimer,
Inst., 160 et seq.; 1 Oppenheim, Int. L. (2nd ed.) 209, 210; 1 Phillimore,
Int. L. (3rd ed.) 5; 3 Phillimore, Int. L. (3rd ed.) 58.
28 This is one of the many instances which make the writings on inter-
national law such strange reading to practical lawyers. A slight differ-
ence like this in the meaning of the word gives the whole discussion a
different color. Responsibility in the municipal law is the normal state
of affairs, and the case to which our attention is particularly called is the
case where there is a departure from that normal state of affairs, that is,
the case of irresponsibility. The same conception appears in popular
usage when we speak of the irresponsibility of youth. Now the question
is, is there any distinction between states with respect to capacity?

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of a state is decayed or incapable of properly perfor

functions, the state is, for the time being, temporarily
tated from participation in international life. Some
have gone so far as to say that the capacity of the state f
national functions is dependent upon the form of the g
ment, and that an autocracy is such a form of governmen
cludes the state from a proper participation in internatio
The discussion of the origin of international law is in
ii. an indiscriminate use of the words "basis," "source,"
and in a failure to distinguish the various conceptions fo
the word "law" is commonly used. Source means th
which any act, movement or effect proceeds, and is, ac
speaking, that which furnishes a first and continuou
Basis is that on which anything rests, its support or fou
while origin is the commencement of the existence of an
and does not involve the idea of any further supply fro
source. It will now be in order to ascertain, if possib
these words are properly applicable to international
have, therefore, (A) the origin of state conduct which i
an historical fact, (B) the origin of the external factors
pulsion, (C) the origin of the mental apprehension or ju
ception of state conduct. In municipal law, we have the
compulsion of the political power of the state, and find
sary to examine the origin of that political power.
necessity confronts the student of international law be
such external factor exists in the international world. The
origin of the other factors in the international world is clear. A
self-interest of the state originates with its existence. The origin
and growth of international public opinion, the origin and growth
of ethical standards, the origin of pressure from other states wil
originate with the existence of other states. Influence of state
conduct in the past is a matter of precedent. It is submitted that
there can be no accurate idea of the origin of international law
without a clear notion of its various elements. It is almost as
impossible for the academic mind to conceive of law disassociated
Every state is, as we have seen, a living organism having a government

as its organ of participation in international intercourse. We may possi-
bly say that such an organism without civilization, commerce or public
opinion, is in fact incapable as an organism of participating equally
with other states.in international life. Such a distinction has been sug-
gested in the exclusion of certain barbarous and uncivilized states from
the scope of international law and from membership in the community
of states. See Hall, Int. Law (6th ed.) 53, 214, 218, 220; Hershey, Int.
L. 161, et seq.; 1 Oppenheim, Int. L. (2nd ed.) 206 et seq.

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from ethics as it is for the practicing lawyer to form an

law without political power of a state to enforce it. Diffi
the intellectual feat is in each case, it must be performed
either can clearly understand the subject of international
We have collected in the note a reference to the views of some
of the writers. It appears from an examination of them that
they all fail to distinguish the various elements for which the
word "law" may stand, and most of them emphasize the ethical
element and ignore that of precedent, self-help and force.29 This
adjustment of conduct is as necessary to the life of the com-
munity of states as it is to individual life within a community.
Necessity, therefore, is a powerful force impelling orderly con-
duct among independent states.80 Some writers base interna-
tional law on common consent,31 but no one has been able to
point to any evidence of that consent. It is not that the states
cohsent to law, but that they voluntarily exist in a community
life, which life necessitates law. The law goes with the commu-
nity life. It might as well be said that a man who rides a bicycle
consents to balance himself. The balancing goes with the riding
to which the consent is given.
There is this distinction, however, to be drawn as to the con-
tract theory between municipal law and international law. Every
individual comes into a community involuntarily-by being born
into it; sometimes voluntarily-by moving in; but mostly by
birth. It is therefore not possible to find in fact any consent,
agreement or promise by any individual, express or implied; but
in the case of states, the members of a community of nations do
enter the body more or less voluntarily and by the express act
of the members already in. There is no evidence of any promise
made by any state at the time of its becoming a member, either
express or implied, or of any understanding that such state shall
abide by the rules of conduct obtaining within the family of
20Wheaton, Elements (Dana's ed.) 3, says that the origin of inter-
national law must be sought in the principles of justice applicable to the
relations of states, and the first inquiry, therefore, is-what are the prin-
ciples of justice which ought to regulate such relations, that is to say,
from what authority is international law derived? 1 Oppenheim, Int. L.
(2nd ed.) 4, says that international law in its origin is essentially a
product of Christian civilization. "The guiding motive or purpose of
international relations should be utility or the satisfaction of collective
needs and interests, whether intellectual, moral or material;" Hershey,
Int. L. 19. The word "should" indicates that the learned professor is
advancing his opinion of the ethical basis of international law.
30Lawrence, Int. Law (5th ed.) 3.
s1 1 Oppenheim, Int. L. (2nd ed.) 16.

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nations. The state by adhering to the gregarious cond

independent states, thereby brings itself within the orde
duct followed therein, and no case has arisen where any s
voluntarily left the community of nations.
We have the conception of conduct which we call law a
facts used in framing that conception. We may go as fa
in the chain of causation as we please, with the danger o
diverted on the way into some collateral issue, a fate wh
befallen many of the writers. The origin of law may
scribed as follows: Man exists as an animal and exhibi
garious instinct,-hence the community life; hence exter
tors determining conduct arising from the presence of ot
among which is the political power of the state; henc
community comprised of these other communities in whi
is no superior political power to determine conduct; h
legal philospher endeavoring to frame a theory of th
hence a difference of opinion as to what to call the men
ception.32
Source means that from which any act, movement or effect
proceeds. The word is used to describe the natural facts of the
physical world, as the source of a river. It is used by historians
as describing the documents from which a knowledge of history
is derived, and in the latter case it is obvious that the documents
are not the source of historical facts themselves, as the spring
is the source of a river. The writers, however, fail to make this
distinction and describe the source of international law in a very
confusiong way.33 The various treaties, statutes, judicial deci-
sions, acts of state, to which they refer, are simply historical facts
from which we may learn what state conduct in the past has been
and how it has been influenced by any of the external factors
determining state conduct. The opinions of the writers have
more or less weight according to the authority of the authors and
extent to which the opinion conforms to the actual necessities
of international life. Some of the views as to the source of
international law are collected in the note.34 Since international
32 Hershey, Int L. 17-19, says that international law is ultimately based

upon the innate or inherited sociability of human nature directed by
specific human needs and interests. 'That the guiding motive or purpose
of international relations should be utility or the satisfaction of collective
needs and interests, whether intellectual, moral or material. Social utility
is the ultimate test of international as well as of all human law;
s "'Source of Law' is therefore the name for an historical fact out
of which rules of conduct rise into existence and legal force;" 1 Oppen-
heim, Int. L. (2nd ed.) 21; Manning, Int L. (2nd ed.) Amos. 66n.
34Hall, Int. Law (6th ed.) 5, takes the view that the evidence of in-

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law is a mental conception of international conduct a

mined by certain factors, the source of that conception
the conduct and the factors, which latter, however, wi
their source in the facts of human existence.
Various kinds or rules of international conduct have been
described by the authors, some of which, when closely examined,
are seen to reflect the particular views as to the special factor of
compulsion influencing state conduct which is in mind. Others
attempt to set up the conception that there are different divisions
of international law irrespective of any external factors involved
and applicable to particular classes of states. Others, under the
guise of different terms, put forward some theory as to the na-
ture of international law. Some of the terms which have
ternational law is to be found in such international usage as can be look

upon as authoritative. I Halleck, Int. L. (4th ed.) 60-68, gives the
sources of international law as follows: (1) Divine law; (2) History;
(3) Roman civil law; (4) Decisions of prize courts; (5) Judgments of
mixed tribunals; (6) Ordinances and commercial laws; (7) Decisions
of local courts; (8) Works of text writers of approved authority; (9)
Treaties and compacts; (10) State papers and diplomatic correspondence.
According to Hershey, Int. L. 19-24, the primary sources of positive
international law are: (1) Custom, based on tacit consent and imitation,
and (2) Convention or express agreement by means of treaties; and he
says that the evidences or witnesses of international law are the places
where law as applied or agreed upon is found, or the documents which
bear evidence or witness to existing principles and customs. He men-
tions: (1) treaties, (2) judicial decisions, (3) unilateral state acts, (4)
opinions of statesmen, (5) writings of eminent jurists, and (6) histories
of international relations. Lawrence, Int. Law, (Sth ed.) 98-114, says there
are five sources: (1) Works of great publicists. (2) Treaties. (3) De-
cisions of prize courts, international conferences and arbitral tribunals.
(4) International state papers other than treaties. (5) Instructions issued by
states for the guidance of their own affairs and tribunals. Lawrence,
op cit. 97, says source may mean: (1) The beginning of law as law,
clothed with the authority required to give it binding force, in which
case the only source of international law is the consent of nations. (2)
The place where its rules are first found, whether in an authoritative or
unauthoritative form. "The word 'source' . . . as applied to law has,
at the least, two distinct meanings, which, however, are clearly connected.
The one is that of the quarter to which recourse must be had to know
what a rule of law is. The other is the immediate fact or group of facts
which originally called a rule of law into existence. It is a peculiarity of
the Law of Nations that, in reference to it, the two meanings are
scarcely distinguishable." Manning, Int. L. (2nd ed.) Amos 66, n. Man-
ning discusses the sources of the law of nations and says that the obliga-
tions on which that law is based consist of (a) natural law, with which
the right obligation of the principle of utility is identical; (b) obligations
arising from custom; (c) obligations arising from convention, and com--
pares to these, three headings: equity, common law and statute law. 1 Op-
penheim, Int. L. (2nd ed.) 22, says that there are two sources of interna-
tional law: (1) Express consent, as a treaty laying down rules for future
conduct; (2) Tacit consent, which is given where states have adopted
the custom of submitting to certain rules of international conduct, and
that treaties and custom are therefore exclusively the sources of the law

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been used are as follows: Actual,35 Administrative,36 Ameri-

can,37 Common,38 Conventional,39 Customary,40 Comity,41 Euro-
pean,37 General,42 Ideal,35 Morality,43 Natural,44 Necessary,45
Positive,46 Real,35 Particular,42 Theoretical,35 Universal,47 Volun-
tary.48 These distinctions are unnecessary, and, it is submitted,
unsound. If international law applies to all independent states,
it must have the character of continuity and universality. Inter-
national law is a body of rules all having the same quality and
nature. There can be no distinction in this respect between
of nations. 1 Phillimore, Int. L. (3rd ed.) 68, recapitulates a rather

rambling and somewhat confused discussion of the sources of interna-
tional jurisprudence by saying that the sources from which that juris-
prudence is derived are: (1) Divine law, of which there are two
branches: (a) Principles of eternal justice implanted by God in all
moral and social creatures, including governments; (b) Revealed will
of God. (2) Reason which governs the application of these principles.
(3) Universal consent of nations expressed by: (a) Positive compact
or treaty; (b) Implied usage, custom and practice, which are evidenced
by precedent, recorded in history, treaties, public documents of states,
marine ordinances, decisions of international tribunals, works of eminent
writers. 1 Phillimore, op. cit. 45, says that the history and
treaties are the repositories and evidence of usage, the great source
of international law, and, on p. 46, quotes Grotius as saying that inci-
dents recorded in history do not merely by virtue of being-so recorded
constitute precedents of international law; that such incidents are bad or
good. 1 Westlake, Int. L. 2nd ed.) 14, says that custom and reason are
the two sources of international law. Wheaton, Elements (Dana's ed.)
23, etseq., says the various sources are: (1) Text writers of authority,
(2) Treaties, (3) Ordinances of particular states prescribing rules for
the conduct of their commissioned cruisers and prize tribunals, (4)
Adjudication of international tribunals, such as boards of arbitration and
courts of prize, (5) Written opinions of official jurists given confidentially
to their governments. (These he calls another depository of interna-
tional law, but has not used the word "depository" with reference to
the former headings.) (6) History of wars, and other transac-
tions relating to the public intercourse of nations. Woolsey, Int. L. (6th
ed.) 28, says the helps for ascertaining what international law is or has
been may be derived principally from the following documents: (1) The
sea laws of various ports, (2) Treaties in which a large number of im-
portant nations have a part, (3) Judicial decisions, (4) State papers on
controverted points, (5) Treaties which, with reason or by accident,
have acquired standing above others. The following emphasize the influ-
ence of the Roman Law: 1 Phillimore, op. cit. 30, et seq.; 1
Westlake, op. cit. 15. For further discussion, see 1 Lorimer, Inst. 19,
ct seq.; 1 Phillimore, op. cit. 643; Twiss, L. of Nations, Peace (2nd ed.)
145-177; Vattel, Chitty's Trans. Prelim., LV.
35 Actual and Theoretical, Real, Ideal: This is modern terminology and
differentiates the law which it may be supposed does exist from the law
which in theory should obtain. It is as impossible to form an accurate
idea of the rules of international law which in fact prevail as it is for
writers to agree on the law which ought to prevail. The distinction is
obviously impossible of application. See Hershey, Int. L., 1 nl.
36 Administrative: International Administrative Law-a branch of in-
ternational jurisprudence which is still in its infancy-has been tenta-
tively defined as "that body of laws and regulations created by the action
of international conferences or commissions which regulate the rela-

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them. The only distinction is that some of them are

more generally observed than others. The writers
these fanciful distinctions never attempted to apply th
stating them, they proceeded with the subject as if the
tions did not exist. A distinction which is never appli
no material value may well be disregarded. Customary
of international law proceed upon an apprehended dis
tions and activities of national and international agencies wit

to these material and intellectual interests which have received an au-
thoritative universal organization." It relates to such matters as inter-
national communication by means of postal correspondence and teleg-
raphy, international transportation, copyright, crime (e. g. the white slave
traffic), sanitation. It is created by international congresses or con-
ferences, and commissions, and is administered by international commis-
sions and bureaus as well as by national agencies;" Hershey, op. cit. 5.
37 American and European: It has been supposed by some writers that
there is a difference between the international law in America and in
Europe. No such distinction has in fact been pointed out, and it seems
undesirable to perpetuate such an idea. The independent states of the
world form one community; Hershey, op. cit. 1 nl.
38Cof;mmon: Since there is no statutory international law, the word
"common" is inadmissible as designating any part of that law, and can be
used with accuracy only as applying to all international law. The word is
useless in this connection in practice or in theory.
39 Conventional International Law: Manning, Int. L. (2nd ed.) Amos.
86, 87. "The conventional law of nations results from the stipulations of
treaties and consists of the rules of conduct agreed upon by the con-
tracting parties;" 1 Halleck, Int. L. (4th ed.) 54, 55. Conventional law
of nations is sometimes spoken of as the diplomatic branch of the law
of nations; Twiss, L. of Nations, Peace (2nd ed.) 163; Wheaton, Ele-
ments (Dana's ed.) 15.
40 Customary: "The customary law of nations is founded on the tacit
or implied consent of nations as deduced from their intercourse with
each other;" 1 Halleck, Int. L. (4th ed.) 55; Manning, Int. L. (2nd ed.)
Amos. 78; 1 Oppenheim, Int. L. (2nd ed.) 17, 22; 1 Phillimore, Int. L.
(3rd ed.) 38, et seq.; Twiss, L. of Nations, Peace (2nd ed.) 158, et seq.;
Wheaton, Elements (Dana's ed.) 15.
41 Comity: "International comity relates to those rules of courtesy,
etiquette, or goodwill which are or should be observed by governments
in their dealings with one another on the grounds of convenience, honor
or reciprocity;" Hershey, Int. L. 3. "'Comity,' in the legal sense, is
neither a matter of absolute obligation, on the one hand, nor of mere
courtesy and goodwill, upon the other. But it is the recognition which
one nation allows within its territory to the legislative, executive or
judicial acts of another nation, having due regard both to international
duty and convenience, and to the rights of its own citizens or- of other
persons who are under the protection of its laws;" Gray, J., in Hilton v.
Guyot (1894), 159 U. S. 113 at 164. "Comity, as generally understood,
is national politeness and kindness. But the term seems to embrace not
only that kindness which emanates from friendly feeling, but also those
tokens of respect which are due between nations on the ground of right;"
Woolsey, Int. L (6th ed.) 23. See 1 Oppenheim, Int. L. (2nd ed.) 25.
42General and Particular: This distinction attempts to differentiate
the law generally obtaining among all states from the law applicable to
a few particular states. No attempt appears to have been made to apply

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the quality of the laws or their binding effect.49 Some

posed to be more binding than others. Since we have a s
of law in the making that is the development of rules of
tempting to attempt to classify them according to the
their development, but in such a classification it is impo
draw a clear cut line and make an accurate distinction between
the various stages of the development, just as we cannot draw a
line in the development of the chrysalis into the butterfly.
the distinction and it may be dismissed as of no value. Hershey, Int. L.

1 nl. 1 Oppenheim, Int. L. (2nd ed.) 3.
43Morality: Hershey, Int. L. 2, says: "International morality deals
with the principles which should govern international relations from the
higher standpoint of conscience, justice or humanity." The notion of in-
ternational morality is referred to by a number of the writers, but, as
we have already pointed out, is entirely inadmissible in a legal treatise.
Woolsey, Int. L. (6th ed.) 15.
44Natural: "The Natural Law of Nations is founded on the nature
of independent states, as such, and is the result of the relations observed
to exist in nature between nations as independent communities;" Twiss,
L of Nations, Peace (2nd ed.) 146. "Natural Law, according to Puffen-
dorf, is that which is so exactly fitted to suit with the rational and social
nature of man, that humankind cannot maintain an honest and peaceful
fellowship without it;" Twiss, op. cit., 146nl. "The natural law is, ac-
cording to Woolsey, Int. L. (6th ed.) 11, the product of natural reason
and ought, since men are alike in their sense of justice, to be everywhere
substantially the same." See "History of the Law of Nature," Sir Frederick
Pollock, I Columbia Law Rev., 11, et seq.; 2 Columbia Law Rev., 131,
et seq. "Law of Nature as determining the objects of the Law of Na-
tions;" 1 Lorimer, Inst. .19; Maine, Ancient Law (3rd Am. ed.) 70,
et seq.; Manning, Int. L. (2nd ed.) Amos 66, et seq.; Twiss, op. cit. 146-
155; Wheaton, Elements (Dana's ed.) 5, et seq.; Woolsey, Int L (6th
ed.) 11, et seq.
45 Necessary: "We call that the necessary Law of Nations which con-
sists of the application of the Law of Nature to Nations." See Vattel,
Chitty's Trans. Prelim., 7. Woolsey, Int L (6th ed.) 25, objects to
Vattel's distinction of international law into natural or necessary and
positive law. See 1 Halleck, Int. L. (4th ed.) 56; Twiss, L. of Nations,
Peace (2nd ed.) 148; Wheaton, Elements (Dana's ed.) 14.
4 Positive: "These three kinds of law of nations, the voluntary, the
conventional and the customary, together constitute the positive law of
nations;" Vattel, Chitty's Trans. Prelim., 27. "The positive law of na-
tions, on the other hand, is based on the consent of nations and is the result
of the relations instituted between them by their own free will;" Twiss,
L. of Nations, Peace (2nd ed.) 146. See 1 Halleck, Int. L. (4th ed.) 53,
ct seq.; Woolsey, Int. L. (6th ed.) 3, et seq.
47 Universal: Universal international law binding on all civilized
states without exception; 1 Oppenheim, Int. L. (2nd ed.) 3. See Hershey,
Int. L., 1 nl.
48 Volimttary: According to Woolsey, Int. L (6th ed.) 5, voluntary
law seems to be such because it is so by consent of nations. See Twiss,
L. of Nations, Peace (2nd ed.) 146, et seq.; Wheaton, Elements (Dana's
ed.) 12, et seq.
4 Halleck, Int. L. (4th ed.) 51, adopts division as follows: Inter-
national Law:

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The science of international law is the systematic study

the conduct of independent states, which is nothing more
than the philosophy of international law. It is an attem
arrange the jural conception of that conduct according to o
and systematic arrangements, in which attempt the think
be influenced by the various notions of the external factor
conduct which we have described. We may think of that
duct exclusively in terms of one factor and ignore the ot
This is the attitude generally pursued by most of the writ
the subject. The invention of the word "science" is on
other illustration of the fondness of the writers for multi
words.50 There is in every system of law a time when it
to be consciously studied and written about and men begi
think what law is. In most systems of municipal law we can
only imperfectly apprehend the exact point of the beginnings of
such studying. In international law, however, we are able, with
tolerable accuracy, to ascertain the beginning of the study of in-
ternational law, or the beginning, as it is called, of the science
(a) Natural Law of Nations.

Divine Law.
Application of the law of God to states.
(b) Positive Law of Nations.
Conventional Law.
Customary Law.
Normal rights and obligations of states:
Law of Peace
(1) Rights and obligations connected with Independence.
(2) Rights and obligations connected with Property.
(3) Rights and obligations connected with Jurisdiction.
(4) Rights and obligations connected with Equality.
(5) Rights and obligations connected with Diplomacy.
Abnormal rights and obligations of states:
Law of Belligerency
(1) Rights and obligations connected with Belligerency.
Law of Neutrality
(2) Rights and obligations connected with Neutrality.
Lawrence, Int. Law (5th ed.) 117. Woolsey, Int. L. (6th ed.) 26,
divide the rights and obligations known to the science of international
law into: (1) those which are deducible from natural jus which no
action of sovereignty began or can terminate; (2) those deducible from
the idea of a state: (3) those which are begun and can be ended by com-
pact, express or tacit. He makes another division which closely follows
the division of the three grounds or reasons for international rules,
namely, jus, morality and convenience. He says the first class compre-
hends the rights and obligations which can be defined and enforced;
the second, duties and moral claims which cannot be easily defined and
need contact to establish them and the third, arrangements of a purely
voluntary nature.
50 "The Science of the Law of Nations may be accordingly defined
to be the Science of the Rules which govern the International Life of
States;" Twiss, L. of Nations, Peace (2nd ed.) 2, 152, 153; Walker, Sci-
ence, Int. L., 91-111.

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of international law.51. The systematic study of i

law began probably as early as the sixteenth century,
recognized exponents of the learning appeared in th
of the seventeenth century. This study was a study
as it applied to facts which had been unknown to W
rope in fact and in theory for many centuries. The
the existence of independent states. These states
economic development of the life of Europe entirely
any postulate of international law. The growth of th
ated the conduct, of which it became necessary to f
conception, hence the states were antecedent to law,
is antecedent to the municipal law.
No adequate history of international law has been
English. The subject requires a volume in itself, a
historical discussion would be entirely out of pro
systematic treatise on international law as it exists at
time. No such discussion will therefore be attempte
a history will involve a history of international con
times referred to as (A) a history of internation
(B) a history of the philosophy of international
should trace the historical appearance and develop
various ideas which have influenced international law. The fol-
lowing general observations seem to be in point: The discussion
will trace the historical development of international law during
various epochs of the existence of independent state life, and
point out the influence of various factors and different economic
development. International commerce will, no doubt, be found
to play a leading part in this development. A chapter should be
added on the influence of international public opinion on inter-
national law, showing how the general ideas of the world at large
at different times have influenced not only the conduct of inde-
pendent states, but also the prevailing conceptions of what such
conduct should be. With these few general observations, we
shall leave the subject for the attention of some scholar better
equipped for the task than ourselves.52
51 This fact should be kept in mind because many persons speak of the
beginning of international law in the seventeenth century, and say that
international law is scarcely three hundred years old. Such philosophers
are, of course, inaccurate. It is the conscious study of international law
which is only about three hundred years old. For reference to views of
the principal writers see Hall, Int. Law (6th ed.) 2, nl.
62 For discussions of the history of the science of the Law of Nations,
see Hershey, Int. L. 56, 91; Manning, Int L. (2nd ed.) Amos. 8, et seq.;
1 Oppenheim, Int. L. (2nd ed.) 83-104; Wilson & Tucker, Int L 6, et

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Private international law or conflict of laws has to do with the

circumstance that a member of one community or an interest of
his comes within the political power of another community of
which he is not a member. He may be affected by two different
municipal laws. The question will arise-which of the two is to
apply? There are two theories; one, that the municipal court, of
its own judgment, chooses which law shall apply; the other, that
there is a principle of law applicable in all municipal courts deter-
mining in any given case what choice shall be made. If the sec-
ond theory is applied, private international law is a part of inter-
national law, because the municipal court in rendering the deci-
sion makes the conduct of the state conform to that determined
by some international factor operating on all independent states.53
There is a difference of opinion among the writers, and the sub-
ject will be omitted as it is usually discussed by itself, and its
inclusion would destroy the proper proportion and balance of the
work."6
seq "Historical Development," Wilson & Tucker, op. cit. 12, et seq.
"The History of International Relations During Antiquity and the Middle
Ages," Amos. S. Hershey, 5 Amer. J. Int. L. 901 et seq. See Hershey,
op. cit. 26-55. "History of International Law since the Peace of West-
phalia," Amos S. Hershey, 6 Amer. J. Int. L. 30 et seq.; Hershey,
cp. cit. 56-91. For accounts of the history of international law and dis-
cussions of the various theories, see 1 Halleck, Int. L. (4th ed.) 1-49;
1 Oppenheim, op. cit. 45-104. "Ward Foundation and History of the
ILaw of Nations in Europe to the Age of Grotius," Robert Ward. "His-
tory of International Relations before Grotius," Walker, Science, Int. L
57-90; Twiss, L. of Nations, Peace (2nd ed.) 155 et seq.; Woolsey, Int.
L. (6th ed.) 6-10. 1 Oppenheim, op. cit. 4, says that international law,
in the meaning of the term as used in modem times, did not exist during
antiquity and in the first part of the middle ages. What is the difference,
however, between the modern meaning and the ancient? If he means
that the science of international law did not exist, he is correct; if he
does not mean this, it is difficult to tell what he does mean. He also
says (Vol. 1, p. 4) that it is a product of modern civilization and is four
hundred years old and the roots go far back into antiquity. "The In-
ternational Law and Custom of Ancient Greece and Rome," Coleman
Phillipson. See 11 Columbia Law Rev. 489.
53 "The distinction, however, between the two branches of Interna-
tional Jurisprudence is extremely important. It is this: The obligationes
jltris privati inter gentes are not-as the obligationes juris publici inter
gentes are-the result of legal necessity, but of social convenience, and
they are called by the name of Comity-comitas gentium. 1 Phillimore,
Int. L. (3rd ed.) 12, 13.
54Hall, Int. L. (6th ed.) 51, et seq.; Hershey, Int. L. 4, Lawrence,
Int. L. (5th ed.) 5; 1 Oppenheim, Int. L. (2nd ed.) 4; 1 Westlake,
Int. L. (2nd ed.) 246, et seq.; Woolsey, Int. L. (6th ed.) 102-109.
"Grundzuge des Englisch-Amerikanischen Privat-und Prozessrechts,
Besonders in Vergleiche mit den Systemen des Europaischen Kontinents,"
Arthur K. Kuhn. See 10 Amer. J. Int. Law, 674. "A Treatise on the
Conflict of Laws," Vol. 1, Part 1, Joseph Henry Beale. See 10 Amer.
J. Int. Law, 665.

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The distinction between international law and munici

is of importance.55 International law, as appears from th
tion, relates to the conduct of independent states and is
any superior political power to enforce it. Municipal law
which is or may be enforced by the political power of th
and therefore can only obtain within the jurisdiction of
There are many analogies between the two systems of l
many cases where the analogy breaks down. The use of
is always dangerous and subject to great caution. The sa
mark applies here.57
It is sometimes said that international law is a part of
ipal law, 58 and a number of learned essays have been wr
answer to the question-is international law a part of mu
law ? Now, in what sense can it be said that any body o
a part of another body of law ? All law applying to the
of the same bodies or the same class of bodies, as, for i
laws applying to Englishmen or Frenchmen, or English
plying to infants, lunatics,59 or laws applying to the con
persons with respect to property, are in each case bodie
that is, they are groups of legal principles distinguished
other legal principles by the difference in the objects t
they apply. It is perfectly obvious that the same rule of
may appear in two or more bodies of law, in other w
objects of different classes may happen to be regulated by th
rule of conduct. For instance, it may be a rule in France
effect that a person is of legal age on reaching twenty-
the same may be the effect of the rule in England. It th
so happens in such case that the same rule applies in eac
of law. It would obviously in such case be improper
to either of these bodies that the rule of one was a part
other. It may be, and sometimes has happened, that a
law has appeared in one body of law, and then subsequen
65The term "municipal" is perhaps unfortunate, as this word

applied to the law of municipalities. The term, however, is wel
and understood in international usage, and too convenient to be
With a little practice the.learned reader will be able to divest t
of the more restricted meaning as relating to municipalities.
56 "Municipal laws are rules of conduct observed by men or
recognized as binding towards each other as members of the sam
Walker, Man. Int. L 401.
57 Manning, Int. L. (2nd ed.) Amos. 91.
58 Snow Cases (1893), 1-4.
59 As to municipal law producing an international effect, see Hall,
Int. Law (6th ed.) 608 nl.

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one reason or another, appeared in another body of law.

case, it is said that the rule of law has been borrowed from
scended from the other body of law. The phrase is frequ
used in the books applicable to such a state of affairs-th
foreign principle of law is part of the municipal law. Th
say of certain doctrines of the Roman law, of the law of
chant or the civil law, that in each case they are part of t
mon law of England. Now, this is obviously an inacc
phrase describing the origin or place of the rule. The rule,
when applied by the court of the country, must be the rule o
law of that country and nothing else. A principle of law
by an English court is, for the time being, to that extent, a r
law of England, and while it may be conveniently disting
from other principles of law because of its origin, it is,
theless, in spite of such loose phraseology, in fact nothing
rule of law applied by an English court and therefore an E
rule of law. It appears, therefore, that this phrase-th
law is part of another law-is inaccurate, and simply is us
describe an historical descent or borrowing; that, in p
fact, there can be no such thing as a part of one body
being part of another body of law. Just as soon as the fo
rule of law is received into a state, it then becomes a part
law of that state.
International law regulates the conduct of states, and munic-
ipal law that of individuals, consequently it cannot in any sense
be accurately said that any rule of international law is ever a
part of the municipal law. The true relation between the two
bodies of law, it is submitted, is this: International law rests
upon and regulates the conduct of independent states; municipal
law rests upon the conduct of individuals within the state. For
example, international law imposes on a state a duty of conduct
with reference to the immunity of ambassadors, that is, the pro-
vision of international law is somewhat to this effect. No state
shall interfere with the property or liberty of action or person
of an ambassador while he is in the discharge of his official du-
ties, nor shall any state permit any of its citizens to interfere
with any such acts of an ambassador. The rule of international
law cannot be addressed to the member of a state because he is
not the subject of international law or within its purview. Ac-
cordingly, a state will prohibit any citizen from any such inter-
ference with an ambassador. The municipal law simply imposes

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on a member a prohibition which the state is bound to imp

because of the application of international law resting upon
Every independent state is bound by international law to
vide certain rules of municipal law within its boundaries. It
may in fact provide otherwise, and when it does so, to that
extent it violates international law. Many instances have oc-
curred where such a municipal law has been adopted. What be-
comes then of the proposition that international law is a part of
municipal law? A court of justice in deciding a controversy to
which there is no municipal law applicable, will presume that
the state would have enacted the proper rule of international law,
and, by not acting, left it be understood that the municipal com-
mon law was in accordance with the obligation imposed on the
state by the provisions of international law.60 So-called offenses
against the law of nations, are, when accurately described, of-
fenses against municipal law, which municipal law is enforced as
a result of the international factors of conduct operating on the
independent states.6'
Several different titles have been used as a designation of
the subject, as laws of war and laws of peace,62 droit des gens or
60 This is the sense in which the language of the judges, quoted in

Hershey, Int. L, 9-11, is to be understood. See Snow Cases, supra,
footnote 58. International law does not have to be proved as a fact;
1 Moore, Dig. of Int. L., 1I. 1 Oppenheim, Int. L. (2nd ed.) 9, says that
the conception of municipal law is narrower than that of law pure and
simple, by which he probably means law in the abstract. "As soon as a
nation has assumed the obligations of international law they become a
portion of the law of the land to govern the decisions of courts, the con-
duct of the rulers and that of the people. A nation is bound to protect
thils part of law by statute and penalty as much as that part which con-
trols the jural relations or in other ways affects the actions of individ-
uals;" Woolsey, Int. L. (6th ed.) 27. This conception, however, perpet-
uates the inaccurate phrase-international law a part of municipal law,
and introduces the novel idea that a state can protect law by statute.
What is this law thus protected by statute? He may mean (1) that the
statute enacts international law, which it can never do; (2) that the
statute enacts what was before a principle only of the common law,
which is possible but beside the controversy, because international law
could never be a principle of the common law. Wilson, Int. L., 15, says
under the heading "Force of International Law," that international law
is part of the municipal law of states, thus entirely missing the point as
to force, if that term can be used, because the question is as to the bind-
ing force of international law on the states of the world.
61 Offenses against the law of nations cognizable by judicial tribunals
are, according to 1 Wildman, Int. L., 199, (1) Offenses against ambassa-
dors; (2) Violations of safe conducts; (3) Libels against sovereign
princes and eminent princes in foreign states; (4) Privacy.
62 This was the title chosen by Grotius, and followed by many writers
since. It, however, suggests an unsound distinction because war is a
part of remedial international law and not the only part.

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law of nations, a translation of juls gentiumn, jus inter ge

law among nations, international law,64 interstate law,6
state law, intrastate law. Of all these phrases, internatio
is the most used, and while none of them is accurate, thi
sufficiently indicates the subject matter of the discussion
to the novice or the expert. It seems immaterial, as s
writers have done, to endeavor accurately to express in th
the precise nature of international law. It has been supp
some that law of nations refers to the historical character or
origin of law, and that international law applies to its jurisdic-
tion and effect. This distinction is not settled in usage and may be
ignored.6 Since nations are not bodies whose conduct is within
the scope of international law, the title is incorrect and it would
be more accurate to say independent state law.67
SUMMARY
Independent states are, as has already been pointed out, liv-

ing organisms having inherent powers, the exercise of which is
unrestrained by any external superior political power. There
are, however, certain external factors determining the conduct
of an independent state, the operation of which results in a cer-
tain amount of international order, and in studying those factors
and their operation, we start with the fundamental fact of inher-
ent organic power of the state, and inquire what those restraints
are, how they may be described, and their operation, which in-
volves an inquiry into the definition and nature of international
law.
63 Zouche, in 1650, first called the subject, "Jus Inter Gentes," but the
phrase "law among nations" is due to the Chancellor d'Aguesseau;
Thomas W. Balch, 64 Univ. of Pa. Law Rev. 113. See, however, Whea-
ton, Elements (Dana's ed.) 20; Woolsey, Int. L., (6th ed.) 10. "Jus
Gentium and International Law," Gordon E. Sherman; 12 Amer. J. Int.
Law 56.
64 The term "international law" was invented by Jeremy Bentham in
1780; Wheaton, Elements (Dana's ed.) 20. "As, however, there cannot
be a sovereign authority above the several sovereign states, the Law of
Nations is a law between, not above, the several states, and is, therefore,
since Bentham, also called 'International Law';" 1 Oppenheim, Int. L
(2nd ed.) 4. International Law has been objected to, Wheaton, op. cit.
16. Hershey, Int. L., 2, et seq., uses the term "International Public Law,"
after using "International Law," thereby suggesting the title "International
Private Law," or, as more commonly used, "Private International Law."
65 Interstate law has been suggested, see Hershey, Int. L. 2, n2.
66 As to title, see Hershey, Int. L. 2; Wheaton, Elements (Dana's ed.)
20, et seq.
67 This obscurity referred to by Lawrence, Int. Law (5th ed.) 8.

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A state has or may have interest just as an individ

interests of a state are shown in the note.68
An independent state will be governed in its conduct by (a)
self-interest, (b) inherent prejudice, (c) international public
opinion, (d) custom, (e) pressure from one or more other
states. The principles of ethics are excluded as they are so often
overcome by the other factors that they are of little practical
importance. These will be referred to as international factors
of conduct, and they operate with varying force under different
circumstances. The conduct of independent states as deter-
mined by these factors may be reduced to some semblance of
order, just as in the case of conduct of individuals; and that con-
duct may be described in terms of the past, or present, or we
may endeavor to predict what the conduct of an independent
state will be under given circumstances at some definite time in
the future. International conduct, under the influence of these
various factors, tends to adjust itself along more or less deter-
mined lines, only these states are more self-conscious about the
observance of any supposed rule of conduct which exists than is
an individual in municipal life. The conception of that orderly
conduct is a rule of independent state conduct.
The only redress which a state will have for damage to one of
its interests is by setting in motion the external factors influenc-
ing independent state conduct which have already been referred
to. The self-interest of a state will be an internal factor in con-
flict with and sometimes in harmony with the other external fac-
tors. Since the independent state can only obtain redress by set-
ting in motion such factors, it follows that redress may only be
had against the body subject to these factors, to wit, another in-
68 A state will have the following interests:

(a) An interest in itself, its territory, its activity, form of government
and municipal law.
(b) An interest in its officials when they venture forth from its jurisdic-
tion, which will be
On the high sea,
Within jurisdiction of another state,
In jurisdiction of no state.
(c) An interest in its members beyond its borders, which will be
On the high sea,
Within jurisdiction of another state,
In jurisdiction of no state.
(d) An interest in another state, which other state may be independent
or dependent.
(e) An interest in the open sea and territory not subject to the jurisdic-
tion of any other state.
(f) An interest in the maritime belt.

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dependent state, and not therefore against an individu

dependent state having no international function, or a su
nate division of a state, because all these bodies are sub
the political power of an independent state, and whatever
they may propose to take in the matter of such redress
nullified by the act of the independent state on which th
pend. An independent state, therefore, out of regard to
nity, must deal with the principal in the first instance. In
tional law is therefore the conception in terms of order
conduct of independent states as determined by internal a
ternal factors, which external factors exclude the forces
ture and superior political power. International law is
mental conception, just as law is. It can have no motive
pose, object or subject. The external factors may exhib
effects, but the conduct as determined by those factors ca
only in the imagination of the thinker, although conduct itsel
fact, in small segments, may appear to the observer. The
cussion of whether international law has a legal nature
volved in the hopeless ambiguity with which the word "l
used by the writers, and upon examination amounts t
municipal law is enforced by the political power of the
international law is not, therefore it has no legal natu
which the answer is made as follows: in each case there are
external factors determining conduct, and the absence of one
factor in one case, which is present in the other, does not make
the conception of the factors any less law. The controversy is
as to the meaning of the word law and not over the real differ-
ence which exists. There can be no sanction to international
law in the sense in which that word is used in the municipal la
as describing a penalty fixed by the power of the state.
Since international law is a jural conception of the conduct
of independent states, it follows that the conduct of independen
states only is determined by the factors embraced'in the defin
tion. Dependent states, individuals and corporations are entire
outside the discussion.
It was formerly supposed that states outside the family were
not bound by international law, and states, members of the fam-
ily, generally assumed toward them the same arrogant attitude
that the knights of chivalry did toward the meaner persons not
belonging to their order, a state of mind not entirely absent from
some individuals in modern times.
The principle underlying this attitude, however, was that

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INTERNATIONAL LjAW 463
these barbarous states, because of their lack of civilization

merce and sufficient self-interest, were not in a posi
respond to the external factors determining state conduct
same extent as were the independent states of the civilized
and therefore there was a reason and necessity for consid
them in a somewhat different way. This principle, however, d
excuse the Christian powers of Europe from the constant
regard of the territory and jurisdiction of these states w
characterized the colonization movements of the 15th, 16
17th centuries.
There can be no subject or object of international law, b
international factors of conduct operate on independent s
which may therefore be subjects of the factors. An indiv
has no position in international law, as he is subject to the
cal power of his own state or some other state in which h
and cannot, therefore, appear in international life unless h
tures forth as a pirate on the high sea. The external facto
superior political power shuts him off from the internat
world and determines his conduct in a manner which effec
excludes him from the consideration of the international l
He is of importance only as a member of an independent
in which capacity alone he is considered.
The ambiguity of the word "right" has already been po
out, and some of the senses in which the word is used ref
to. The confusion caused by the use of the word in interna
law is intolerable, and it is little short of amazing that th
minds which have hitherto labored on the subject have bee
tent to flounder so long in such an unspeakable quagmire.
A state has an interest in its territory, but the writer
has a right to its territory. The interest is protected by
ernal factors in international life and by nothing else, an
principal factor in such a case is the inherent force and str
of the state in question. It does not help matters to call h
terest a right, indeed it only draws attention away fro
principal feature, which is that the interest of the state is
tected by superior political power, whereas, the similar in
in the municipal law, to which the word "right" is app
protected by such superior political power. The two instan
therefore, are in different categories. It seems inadmissib
apply the word "right" to each of them indiscriminately. I
manner, an independent state has a power, for instance, to
a treaty or send an envoy, a power exercised only by the in

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force of the state, not by delegation of or grant from

power. This is also called a right in the conventional
of international law. It is, however, a totally diffe
from the interest mentioned above of a state in its ter
yet the word "right" is applied to both without an
apprehension of the ambiguity involved. It appears f
instances and others referred to in the article that the word
"right" is entirely too ambiguous for use in accurate thinking.
A state cannot be said to be criminally guilty of a violation of
the law in the sense in which that word is used in the municipal
law, as describing the case where violation of the law incurs the
penalty fixed by the state. The word "criminal" as applied t
state action, can only be used in a moral or ethical sense which
as we have pointed out, is entirely irrelevant in international law
A state is responsible in so far as it is subject to the external
factors determining the independent state conduct, and the writ
ers on international law use the word generally as describin
what a lawyer would call the liability of the state, that is, the fact
that its conduct is so determined by the external factors. This
meaning is somewhat strange to the English-speaking judge and
lawyer, who use the word as referring to the personal capacity
of an individual to comply with the demands of the externa
factors of political control. The notion of the responsibility of
states is of little value and will be discarded. We may, perhaps,
speak of the capacity of a state in so far as we distinguish those
barbarous and uncivilized states which are not fit to participate
in international life on the same terms as other states of superio
civilization and wealth, and possibly also the notion of incapacity
may refer to a state having a government which prevents it from
such participation.
International law originated in the mind of the thinker, who
first began to speculate on the nature of state conduct and ascer
tain how that conduct was determined. It seems clear that the
conduct and the factors determining the conduct were in exis-
tence before the speculation began. Independent states adjusted
their conduct to each other more or less unconsciously from
necessity and from the pressure of the various factors without
doubt for many thousands of years before any legal philosopher
ever drew the breath of life. It is true that in the primeval life
of man intercourse between tribes was rare and usually confined
to armed conflict. It is clear, however, that even here a certain
semblance of order was observed in the conduct of these tribes.

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The source of international law, if it is, as we contend, a

conception, must be in the mind of the person making the con-
ception or in some outside facts from which the conception is
drawn. The general statement is that the sources of interna-
tional law consist of the decisions of prize courts, treaties, state
acts, customs. The word "source" of course, means the
origin of anything, as in the case of a stream, the place in the
ground from which the stream springs; as in the case of a
thought or conception, the mind of the person who originated
the thought. Here, however, we may possibly say that if the
conception or thought is based upon an observation of outside
facts, that then those outside facts are in a measure the source
of the conception, just as we speak of the sources of history,
which are the muniments and historical documents contemporary
to the events of which history is written. The historical book
written by the author is entirely the product of his own mind,
his mental conception of the facts which existed in the past, and
that mental conception of those facts, is derived from a perusal
of certain documents which are referred to as the source of the
history. The discussion over the source of international law,
however, is of very little use because no distinction turns upon
it, and it has no value in the practical application of international
law.
Various kinds of international law have been distinguished.
Some of the distinctions proceed upon the difference in the exter-
nal factors involved determining the conduct, as international
morality, international custom; others upon philosophical dis-
tinctions in the nature of international law itself, as natural,
necessary, positive, which distinctions are also colored by the
idea of the difference in external factors. These distinctions are
of little value in theory and of no practical use whatsoever. The
science of international law is merely a name for the formal
method of studying the subject better described as the philosophy
of international law.
No adequate history of international law has been written in
English, and such a history requires separate and extended dis-
cussion.
Private international law is omitted, as there is some doubt
whether it is a part of international law at all.
Municipal law is the law enforced by any political power
within its jurisdiction. International law is the law enforced by
international factors apart from political power. The distinction

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between the two is clear and is generally accurately appr

It is said, however, that international law is a part of m
law, and a considerable discussion in the books will be f
this subject as to which there is great obscurity of thou
is perfectly obvious upon reflection that the two bodies
are so entirely separate and distinct with respect to one
principal factors determining the conduct in question th
sense can it be said that international law is a part of m
law, or vice versa. What this confusing discussion am
is this: the international factors operating on a state de
the conduct of that state, and the state whose conduct is s
mined must in turn see that its individual members and subordi-
nate officials comply in their conduct with that international
obligation resting upon it. The state, therefore, must make its
municipal law conform to the international obligation unless it
desires to act contrary thereto. In many cases a state will fail
or omit to make such municipal provision, and when a case comes
before a court of that state, as in Great Britain and the United
States of America, it will be decided that the state is in fact
conforming to the international obligation, and the judges will
say loosely that the international law is a part of the municipal
law, by which they mean, more accurately expressed, that the
presumption is that the municipal law of the state conforms to
the international obligation until it appears to the contrary by
express enactment of the appropriate organ of the state.
Various titles have from time to time been used for the sub-
ject, the distinction between which is entirely immaterial for any
purpose. The only necessity is to have a title which will be
clearly understood by all as referring to the particular subject in
hand. The phrase "international law" best meets this require-
ment, although the reference to nationality by the term "interna-
tional" is inaccurate.
ROLAND R. FOULKE.
PHILADELPHIA, PA.

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Definition and Nature of International Law

Author(s): Roland R. Foulke

Stable URL: http://www.jstor.com/stable/1111587

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DEFINITION AND NATURE OF

This article will be devoted to a discussion of the nature

Note.-All rights reserved. Substantially Chapter Three of a treatise

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A state has an interest in an object, just as an individ

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act without some one or more human wills determining

8 Some of the writers indicate an apprehension of the external factors;

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is just in any particular case will only be the opinion

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the tendency is voluntarily to adhere to an habitu

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in the case of a dependent state wholly shut off from

10 That independent states are concerned has been recognized by some

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within each state, and it is difficult to separate that pa

11 International law "is the result of an implied agreement a

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they emphasize either the description of the conduct o

reciprocal assertion and recognition of their real powers;" 1 Lorimer,

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motive, no purpose, no subject, no object. The conduct

2, 3. "International law, as understood among civilized nations,

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Thus, many writers undertake to prove that internation

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There can be.no sanction of international law, as th

defining law as a body of rules for human conduct within a

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described as a sanction.13 International life is in a condition of

13 "The Sanction of International Law," Amos J. Peaslee, 10 Amer. J.

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state, it follows that if a state is in such circumstance

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tion, it cannot freely adjust itself to the current of intern

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object as a subject of international factors of conduc

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international life. The political canopy of the individual's

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and classify under various names, which are appende

23For references to conflicting views on the subject of right

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by the political power of the state. From the point of vie

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of a state is decayed or incapable of properly perfor

Every state is, as we have seen, a living organism having a government

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from ethics as it is for the practicing lawyer to form an

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nations. The state by adhering to the gregarious cond

32 Hershey, Int L. 17-19, says that international law is ultimately based