on consent. . . . I claim that the aggregate of the rules to which
nations have agreed to conform in their conduct towards one
another are properly to be designated International Law.”[1]
This recalls Blackstone’s definition: “The law of nations is a
system of rules, deducible by natural reason, and established by
universal consent among the civilized inhabitants of the world,
in order to decide all disputes, to regulate all ceremonies and
civilities, and to ensure the observance of justice and good faith
in that intercourse which must frequently occur between two or
more independent states, and the individuals belonging to each.”[2]
The current English narrower view owes its origin chiefly to the
influence of John Austin, and the current broader one to that of
Sir Henry Maine.[3] The increasing popularity of references to
international arbitration (see Arbitration, International),
the adoption of a large number of special treaties making such
references compulsory in certain cases, the establishment of and
increasing recourse to the court for the decision of difficulties
between states created by The Hague “Convention for the
pacific settlement of disputes between States” of 1899 (see
Peace), the adoption of fixed rules of law in the international
conventions in 1899, 1907 and 1909 dealing with many of the
most controversial questions of international usage, have so
transformed the subject that if, as Lord Coleridge said, law
implies a lawgiver and a tribunal capable of enforcing it, these
conditions are now at any rate partly fulfilled. We shall see below
to what extent it may be necessary to regard power of enforcement
against transgressors as requisite to give international law
the character of law properly so-called.
Sanctions.—The subject of the enforcement of International Law, or its “sanctions,” has given rise to much controversy. The word “sanction” is derived from the Lat. sanctio, which in turn is derived from sancire, to consecrate. In its original sense sanctio means consecration. From this followed the sense of religious obligation. Thus sancire legem is used by Roman writers as meaning that observance was made obligatory, but without reference to the idea of there being a remedy or penalty for non-observance. With the development of an organized judicial system the religious or moral obligation was displaced by the growth of remedial procedure. Cicero observes of some legal restrictions, hoc non sancitur lege civili (this is not consecrated by the civil law, i.e. with penalties). A collateral sense of the word grew up which meant ratification, as where Cicero speaks of sancire acta Caesaris or of sancire foedus.
Bentham, who worked out the theory of legal sanctions as applied to modern law, describes them as equivalent to pleasures and pains derived from four different sources. These are physical, political, moral and religious. The first three belong to experience in the present life, the fourth to that in the present life or hereafter.[4]
Austin’s analysis of this vague subdivision led him to a more precise determination of the relationship of sanctions to law, viz. that a law properly so-called is a command and its sanction is the power to enforce obedience to it. Stated briefly, any other kind of law according to Austin is not positive law but merely called so by analogy. Applying this test to International Law he concludes that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. The law obtaining between nations is only law set by general opinion, with duties which are only enforced by moral sanction; by fear on the part of nations, or by fear on the part of a sovereign, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally respected.[5]
Sir H. Maine’s somewhat indirect answer to Austin may now be taken as the view held at least by British theoretical writers. “Austin,” he said, “has shown, though not without some straining of language, that the sanction is found everywhere, in positive law, civil and criminal. This is, in fact, the great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously, from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be inflicted if they are violated, but, compared with the mass of men in each community, this class is but small; probably it is substantially confined to what are called the criminal classes, and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds of thousands who refrain without a thought on the subject.”[6]
The view, however, that a law is not devoid of binding character because there is no authority to enforce its observance hardly requires justification at the present day. The fact that any well-established international usage is observed, and that states invariably endeavour to answer any reproach of departing from such usage by explanations showing that the incriminated act is justified by recognized rules of International Law, is evidence of its binding character. As the late Professor Rivier, one of the leading authorities on Roman Law, as well as an international jurist of eminence, has expressed it: “The law of nations is positive law because states wish it to be so. They recognize its compulsory character and proclaim it. As they are their own legislators and make their common laws by express or tacit consent, they attest explicitly and implicitly their conviction that its principles are binding upon them, as judicial principles, as law. Innumerable public acts, affirmations, declarations and conventions are there to prove it. On the other hand, never in any published official act of the present age, verbal or written, has a state dared to declare that it did not consider itself bound by the law of nations and its principles.”[7] States, as Professor Rivier says, have again and again solemnly declared their determination to abide by the principles of International Law. Witness the Declaration of Aix-la-Chapelle of November 15, 1818, in which the representatives of five powers, Austria, France, Great Britain, Russia and Prussia, solemnly stated that “the sovereigns in forming this august union have regarded as its fundamental basis their unchangeable resolution never to depart, either amongst themselves or in their relations with other states, from the strictest observance of the principles of the law of nations, principles which, in their application to a permanent state of peace, can alone effectively guarantee the independence of each government and the stability of the general association.” In the negotiations for the Treaty of London concerning the Black Sea (March 13, 1871), at which seven powers were represented, Austria-Hungary, France, Germany, Great Britain, Italy, Russia and Turkey, a resolution on the sanctity of treaties was annexed to the first protocol, stating that the plenipotentiaries recognize that it is an essential principle of the law of nations that “no power can liberate itself
- ↑ Address at Saratoga Springs, N.Y., 1896 (Law Quarterly Review, October 1896).
- ↑ Commentaries on the Law of England, 4th ed., iv. 66.
- ↑ Austin’s view, as set out in the Province of Jurisprudence Determined, is that laws proper, or properly so-called, are commands; laws which are not commands are laws improper or improperly so-called. A command implies a definite superior in a position to enforce the command. Where there is no superior to impose obedience there is no law. Rules which “are imposed among nations or sovereigns by opinions current among nations are usually styled the law of nations or international law. Now, a law set or imposed by public opinion is a law improperly so-called” (p. 147). For Sir H. Maine’s views see below.
- ↑ Introduction to the Principles of Morals and Legislation (Oxford, 1879), pp. 24 et seq.
- ↑ Province of Jurisprudence Determined (1861), p. 177; Austin explains his view more fully at p. 127.
- ↑ International Law, p. 50.
- ↑ Droit des gens (1896), i. 22. Compare Savigny: “A community of judicial conscience can be formed among nations like that which positive law creates in the bosom of one people. The foundations of that intellectual community are constituted partly by a community of race, partly and especially by a community of religious convictions. Such is the basis of the law of nations which exists principally among European Christian states, but which was not known to the peoples of antiquity. We are entitled to look upon this law as a positive law, although it is an incomplete judicial formation” (eine unvollendete Rechtsbildung), System des heutigen römischen Rechts (1840), i. § 11.
