Smith: The Destruction of Merchant Ships under International Law... von Mach: Official diplomatic documents relating to the outbreak of the PERIODICAL LITERATURE OF INTERNATIONAL LAW. Kathryn Sellers. .246, 467, THE AMERICAN JOURNAL OF INTERNATIONAL LAW is supplied to all members The annual subscription to non-members of the Society is five dollars per an- Single copies of the JOURNAL will be supplied by the publishers at $1.25 per copy. CONFLICTS OF INTERNATIONAL LAW WITH NATIONAL LAWS AND ORDINANCES THE decision of the judicial committee of the Privy Council of Great Britain in the case of the Zamora will undoubtedly go down in history as one of the great triumphs of international law. In the midst of a war involving questions of national existence and, even more important, of the ideals which shall survive and determine the direction of the world's future political and social development, the law of nations has proved itself superior, in the courts of one of the belligerents, to a rule of military expediency promulgated in legal form by that belligerent government. In this case at least a British court has informed its government in unmistakable terms that Orders in Council governing the conduct of war must be in accord with international law or they will not be regarded as law for the prize courts. This case again brings into prominence the perennial question of the relation of international to municipal law. Does it prove finally that international law is part of municipal law? 2 It certainly shows that international law is regarded by the judicial committee as a body of rules and principles subject to judicial cognizance. But what reader of Triquet v. Bath, the Maria, the Charming Betsey, the Paquete Habana and West Rand Central Gold Mining Co. v. Rex can doubt that this has been an established rule of Anglo 3 1 The Zamora, L. R. 1916, 2 A. C. 77; this JOURNAL, 10; 427. 2 J. B. Scott and W. W. Willoughby, "The Legal Nature of Treaties," this JOURNAL, 1: 831, 2: 357; John Westlake, "Is International Law a part of the Law of England," Law Quar. Rev. 22: 14; C. M. Picciotto, The Relation of International Law to the Law of England and of the United States of America, N. Y., 1915; Quincy Wright, "The Enforcement of International Law through Municipal Law in the United States," Univ. of Ill. Studies in the Social Sciences, Vol. 5, No. 1, 1916, pp. 11, 219. 3 Triquet v. Bath, 3 Burr. 1478 (1764); the Maria, 1 Rob. 340 (1799); the Charming Betsey, 2 Cranch 64 (1804); the Paquete Habana, 175 U. S. 677 (1899); West Rand Central Gold Mining Co. v. Rex, L. R. 1905, 2 K. B. 391, 407. 1 American jurisprudence for over a century? But the decision goes. farther than this. It shows that international law is not only regarded as a source of law in British courts, but that, as compared with the law embodied in Orders in Council, it is a source of superior authority. Suppose, however, the text of the Order in Council had been embodied in an Act of Parliament. What then? The court in this case left no room for doubt that it would have applied the statute. The question whether international law is a part of municipal law, remains as it was before, a question of point of view and definition. The Austinian can still point out that in the Zamora the court was bound by the Prize Act of 1864,4 which specifically required it to apply international law, and hence the rule applied owed its authority, not to international law, but to an Act of Parliament inherently superior to an Order in Council. Hence he can conclude that the court did not apply international law per se, but only the rule of international law as commanded by the national sovereign. On the other hand, the historical jurist can state that the authority of international law in British prize courts is of extremely complex origin, both historical and practical, and at any rate is beside the point at issue. The fact cannot be disputed that in this case international law was applied and not the Order in Council. Define international and municipal law from the standpoint of the authorities which can repeal or amend their respective rules, and hence in a certain sense have commanded them, and they have nothing in common. Define them from the standpoint of the actual sources used in administering the two branches of law and they overlap. The first is the standpoint of the legislator, the second of the court. The legislator recognizes as law only that which he has made or at least can repeal. The judge recognizes everything as law which he can apply. The judge when applying principles deduced from a study of international practice does not doubt but that he is applying international law, but the legislator says "these principles cannot be international law, for I can compel the judge to apply others. in their stead, and yet I have no authority to repeal or alter true international law." 27-28 Vict. Ch. 25, sec. 55, par. 5. The present study will adopt the point of view of the court, to which end the question should be stated: Is international law (as evidenced in its appropriate sources) a source of law to which national courts are obliged to turn in appropriate cases? There can be no question but that in a controversy involving international elements, courts of all states will apply international law in the absence of other more authoritative sources, although the frequency with which such circumstances occur may vary according to the completeness with which all possible human relationships are covered by national codes, ordinances, and precedents. Judges are not ones to employ the unaided reason when authority can be studied. The more important question, however, is that of the attitude of national courts to international law in case it conflicts with a rule embodied in some other source of law. This question must be answered for each country with reference to its own jurisprudence. SOURCES OF LAW The important sources of national law arranged in the order of their juridical binding force are: (1) statutes, (2) judicial precedents, (3) opinions of experts, (4) customs, (5) ideas of justice, reason, or expediency. The last three of these sources are in themselves indefinite, and courts will generally apply international law, in appropriate cases, where resort must be made to such sources. In all states international law is deemed to be incorporated in such sources. of law. The opinions of experts include the opinions of text-writers on international law. International law, itself founded on custom, is the law applied when custom is resorted to in determining a case involving international elements. So also, rather than appeal to unaided reason, judges will seldom refuse to lean on the authority of a rule of international law, if such exists, applicable to the case in hand. In Civil Law countries judicial precedents have little J. C. Gray, Nature and Sources of the Law, N. Y. 1909, p. 110; J. P. Hall, "The Force of Precedents in International Law," Int. Jour. of Ethics, 26: 149; W. Loewy, translation, The Civil Code of the German Empire, Boston, 1909, Introduction, pp. xlvii-liii. more weight than expert opinions and will seldom in themselves stand in the way of a judicial application of international law. It is only when a conflict occurs between international law and a rule laid down by an official law-making authority, which includes in the United States constitutional assemblies, in all countries legislatures and executive officers issuing ordinances within their competence, and in Common Law countries courts of justice laying down judicial precedents, it is only in the case of such a conflict, that a question arises as to the relative superiority of international law and municipal law in judicial tribunals. International law may, then, come in conflict with (1) written constitutions having the force of law, (2) with statutes in the narrower sense, (3) with executive orders issued under proper constitutional or legislative authority, all of which are considered statutes in the wider sense; or (4) with judicial precedents having the binding force of law. 6 Such conflicts may be resolved in two ways. Westlake has pointed out that, in the Roman world, the practice in the case of a conflict of laws was to extract the residuum of each and thus construct a jus gentium consisting of the essence of the law of all nations. In the Middle Ages, because of the extreme diversity in Roman and barbarian legal ideas and the lack of a common jurisdiction, the very different process of selecting one law to the exclusion of the other was adopted, a system which has continued in the modern rules. of conflict of laws. Thus in the case of a conflict of laws, one may be applied at the expense of the other, or an attempt may be made to reconcile the two rules by applying the essence if not the form of each. Either selection or interpretation may be resorted to, the first emphasizing the diversity of bodies of law, the second the unity of law. 6 John Westlake, Collected Papers, Cambridge, 1915, p. 291. This theory of the origin of jus gentium was maintained by Savigny, Austin and Maine, but later investigators, such as Muirhead, Sohm, and Willoughby, are inclined to doubt it, considering jus gentium a special branch of the Civil Law applied to aliens. This view, however, does not deny that a comparison and reconciliation of the diverse laws of aliens aided in the development of jus gentium. |