THE SANCTION OF INTERNATIONAL LAW In a recent editorial of one of the legal periodicals, the author quotes Alexander Hamilton's statement in the Federalist, that "it is essential to the idea of law that it be attended with a sanction, or in other words, a penalty or punishment for disobedience," and from this premise draws the following conclusion: 1 "The law of nations, so-called, is a mere empty term or phrase, a high resounding name for something in and of itself vain and impotent." To most authorities and students of international law, the author's conclusion is somewhat astounding, but the fact that the statement could be made by a prominent legal editor, illustrates the extent of the present popular distrust of the science. From the substantive point of view, international law has reached an advanced stage of development. The methods of enforcing it are yet imperfect, but it is certainly not now wholly without "sanction." In his Digest of International Law, John Bassett Moore enumerates the following "modes of redress" for infringements of international rights: (1) Negotiation; (2) good offices and mediation; (3) arbitration; (4) withdrawal of diplomatic relations; (5) retortion or retaliation; (6) display of force; (7) use of force; (8) reprisals; (9) pacific blockade; (10) embargo; (11) nonintercourse. Intranational or municipal law relies ultimately for its enforcement on two instruments: (1) the power of public officers to whom the duty of enforcing the law has been delegated by common consent, and (2) the instrument of "self-help." The present methods of enforcing international rights partake almost wholly of the nature of "self-help." In so far, however, as a nation employing them correctly interprets its rights, it is enforcing international law and gives to it "sanction." Even with such remedies, inadequate though they are, the law is enforced in by far the large majority of cases. As in the administration of 1 Bench and Bar, Vol. 9, No. 11, p. 478. law within nations, the spectacular examples of miscarriage of justice, the armed revolts against the law are the exceptions. The records of the foreign office of any great nation, the many historical instances where recalcitrant nations have been forced to obey the law by the employment of some one of these "modes of redress," are evidence that the enforcement of the law is the rule. "LEGAL" AND "ILLEGAL" WAR War is recognized in international law at present as, under some circumstances at least, a legal method of enforcing rights. It is not countenanced as legal when prosecuted for plunder or oppression, or except as an ultimate remedy; nor is there in international law any recognition of the theory that it is beneficial as a sort of national virulent exercise, or that it is the necessary permanent fruit of irreconcilable racial differences. The theory of "legal war" was probably correctly stated in the Instructions for the Government of the Armies of the United States in the Field, issued in 1863, as follows: 2 Modern times are distinguished from earlier ages by the existence at one and the same time of many nations and great governments related to one another in close intercourse. Peace is their normal condition; war is the exception. The ultimate object of all modern war is a renewed state of peace. * * * Ever since the formation and coexistence of modern nations, and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defense against wrong. 3 Some writers in international law, including Vattel and Bynkershoek, have defined war generally as the method by which nations. prosecute their "rights." Grotius was more discriminating and said: 5 "We do not say that war is a state of just contention, because precisely the point to be examined is, whether there be just war, and what war is just." Obviously, war prosecuted by a nation which incorrectly interprets the law and its rights thereunder, operates not to enforce but to defeat the law. 2 General Orders No. 100, War of the Rebellion, Official Records, Series III, 151. 3 Book 3, Ch. 1, Par. 1. Book 1, Ch. 1. 5 Ibid., Par. 2. It is difficult to reconcile with the principle that aggressive war is sometimes "legal" under international law the prevalent theory of the unlimited right of self-defense by nations. Most authorities state unqualifiedly that a nation attacked with force has not only the right but the duty to repel the attack, wholly regardless of its cause. Halleck says: 6 Self-preservation * * * * is one of the most essential and inportant rights incident to State sovereignty. It is not only a right with respect to other states, but a duty with respect to its own members and one of the most solemn and important duties which it owes to them. Even Sir Edward Fry, a Quaker, and former Law Justice of Great Britain, said at The Hague in 1907: * * * My government recognizes that it belongs to the duty of every country to protect itself against its enemies and against the dangers by which it may be threatened, and that every government has the right and the duty to decide what its own country ought to do for this purpose. If the right of a nation to defend itself is unlimited, and if there is also the right to prosecute aggressive war in the enforcement of rights, the curious anomaly, repulsive to standards of legal consistency, results that two warring nations may both be acting quite within their international legal rights and the enforcement of either right is inconsistent with the other. In the evolution of law among individuals there was once a time when "self-help" was used extensively as a means by which rights were enforced. Pollock and Maitland, speaking of medieval English law, say: 7 For a long time, law was very weak, and as a matter of fact, it could not prevent "self-help" of the most violent kind. Nevertheless, at a fairly early stage in its history it begins to prohibit in uncompromising terms any and every attempt to substitute force for judgment. So fierce is it against "self-help" that it can hardly be induced to find a place even for self-defense. 6 Halleck, International Law, Vol. I, p. 120. 7 Pollock and Maitland, History of the English Law, Vol. II, p. 574. * As the law has developed, the duty of enforcing it and the right to employ force for this purpose have been under most circumstances taken from individuals and delegated to public officials who act after rights have been judicially determined. "Self-help" has, however, been retained as a supplementary means of enforcing the law in certain instances, notably in the right to abate nuisances and to restrict certain trespasses, and to defend against assaults. The New York Penal Law provides that the use of "force or violence upon or towards the person of another is not unlawful" in six enumerated classes of cases. Selfdefense is specifically authorized, but at the same time, the right is strictly limited in the following language: 9 8 An act, otherwise criminal, is justifiable when it is done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury. An individual does not have the legal right to employ "self-help," except as so authorized, and has no right to defend himself against the acts of either individuals or police officers legally engaged in enforcing the law. Drawing conclusions from analogies is always dangerous, but if the evolution of international law is to follow at all the evolution of intranational law, it seems probable that the future will realize neither the theory that the right of individual nations to use force will be entirely abolished, nor the theory that the right to employ it will continue without limit; but that the responsibility of enforcing international law will at some time be delegated to specially authorized officials, and national "self-help" will be permitted, so far and only so far as it assists in establishing justice and order. INTERNATIONAL "CIVIL" AND INTERNATIONAL CRIMINAL" LAW Intranational law is divided into two classes, civil law and criminal law. Civil law deals with acts and rights affecting primarily individuals only and not the community as a whole. Criminal law deals with acts 8 Section 246. • Section 42. which, though usually infringing the rights of specific individuals, are also conceived as affecting the public welfare and the order of the entire state. International law has not drawn a similar distinction in dealing with the acts of nations. A recognition that there are certain controversies which are essentially of a civil nature has been evident in many recent conferences and conventions. The Russian project at The Hague in 1907 for "compulsory arbitration" enumerated a long list of such controversies, including "conflicts regarding pecuniary damages suffered by a state or its citizens in consequence of illegal or negligent action on the part of any state or the citizens of the latter," disagreements regarding interpretations of treaties concerning postal and telegraphic service and railways, patents, trade-marks, weights and measures, inheritances, and similar subjects. It seems also obvious that certain international treaties partake wholly of the nature of private contracts, and that others signed by many nations may partake of the nature of international legislation, and are of such a character that their breach may involve moral turpitude and may so affect the entire community as to partake of the nature of a crime against the community. Mr. Roosevelt applies this theory with characteristic emphasis in his interpretation of Germany's admitted violation of the treaty guaranteeing Belgium's neutrality,10 in the following language: When Germany thus broke her promise, we broke our promise by failing at once to call her to account. The treaty was a joint and several guarantee and it was the duty of every signer to take action when it was violated. * * * All (Germany's acts) separately and collectively were criminal actions against international right, against civilization, against justice and humanity throughout the world. * * * Even if not called upon to act by the Hague Convention, she (the United States) has the right and the duty as soon as any such gross violations of international law occur. This is the only way to establish proper precedents in international law and to save it from becoming a farce. In so far as this purports to state the legal obligation of the United States, it is not in accordance with hitherto accepted principles of international law. Andrew Jackson took a similar position regarding certain 10 Metropolitan Magazine, Oct., 1915. |