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CHAPTER VII

CUSTOMARY INTERNATIONAL LAW AND TREATYMADE LAW

THE statement has already been made that the background of the League of Nations is the Society of States, and that this Society connotes the existence of international law. This fact is recognized in the Preamble of the League Covenant in which one of its purposes is said to be "to promote international coöperation and to achieve international peace and security . . . by the firm establishment of the understandings of international law as the actual rule of conduct among Governments." Two questions are raised by this quotation: first, what are the understandings of international law; and second, have they not been the actual rule of conduct among governments? In the same paragraph we find that another purpose is the maintenance of "a scrupulous respect for all treaty obligations in the dealings of organized peoples with one another." This leads to the further query: What relation have treaties to international law; are they a part of it, or something distinct from it, since they are separately mentioned?

It has repeatedly been said during the late war that there is no such thing as international law-that there are no rules of importance upon which an agreement has been reached, and that the so-called "law" is broken at will. To the latter statement, it is sufficient to say that the breach of international law does not destroy it any more than the safe-breaker destroys the criminal law. Punishment eventually is meted out to the criminal; and so also Germany is now suffering the penalty for the breach of international law. Yet it must be confessed that there is a disconcerting indefiniteness about the law of nations which leaves it open to attack. It is difficult to give a convincing answer when one is asked

who makes international law, and who enforces it? Certainly it is not made by a legislature, and certainly there is no police force to give it sanction. It must be admitted then that it is not statute law-not rules made by a superior body, for universal application to political subordinates. Nor does it consist of rules which have been built up by the decisions of courts having international authority comparable to the authority of national courts. Statutes and court decisions are the most obvious sources of the rules enforceable in a state. In the first case, power is delegated to a body of men to lay down in advance regulations for the conduct of citizens. The courts, in doubtful cases, construe these rules, and often find it necessary under conditions not anticipated by the statutes to expand their scope and apply them in such ways as virtually to change their meaning. These decisions are preserved, and form precedents for subsequent decisions under the principle accepted in English-speaking countries of stare decisis -let it stand, having been decided. Thus what has been called judge-made law comes into existence. In both of the above cases the whole force of the state stands back of the rules and requires respect for them. There is in existence, however, much law which can be traced neither to a source in statutes nor in decisions. The decisions themselves often recognize a rule as existent through immemorial custom. This is the common law of a country; the decisions of courts do not create it but merely express and apply it. National law in democracies is based on the consent of the governed. Consent to statute law and judgemade law is given indirectly through representatives and by public opinion. Law which is the outgrowth of custom is the direct creation of the citizenry and has their consent in advance.

The Austinian theory of law does not take into consideration the consent of the governed, and recognizes as legal rules only those which emanate from a sovereign body and are impressed on subjects. The force of custom is disregarded, and the element of

'The nearest approach to such courts are the various national prize courts which apply the rules of international law, and whose decisions are commonly used as precedents.

command is emphasized to the exclusion of consent. Austin's definition is: "Every positive law or every law simply and strictly so called is set directly or circuitously by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set directly or circuitously by a monarch or sovereign number, to a person or persons in a state of subjection to its author." The theory does not square with the facts of modern political life in which democracy and representative government are essential features. On Austin's hypothesis there could be no such thing as international law because there would be no source from which it might come. Without doubt customary law based on consent exists in democracies as truly as positive law exists in the older monarchies which might be cited as the best examples in support of Austin's contention; and we need not limit ourselves to his theory in trying to find analogies between national law and international law.

If now we substitute for persons in a democratic commonwealth independent states in a Society of Nations we will find that there is only one basis for law between them, namely, Common Consent. Since there is no international statute law, and since the principle of stare decisis does not apply to decisions of International Courts of Arbitration, we must turn to custom and other evidences of consent to establish the existence of international law. Consent may be either expressed or tacit. In the case of custom it is tacit.

International law in the most restricted sense is that body of rules which sovereign states by common consent, as the result of custom, consider legally binding on themselves. By custom we mean not merely habit or usage but these developed into a rule which is adhered to in the conviction that an obligation exists. That a customary rule exists can be learned only from the conduct of states, and the opinion of men who have devoted themselves to the study of interstate phenomena. The development of the custom

'The Province of Jurisprudence Determined, ed. 1861, Lecture VI. For a discussion of this theory of law see Willoughby, Nature of the State, p. 162-165. "Oppenheim: International Law, 1:22-23.

may be traced in the agreements made between states, and their reaction when a supposed custom is violated whether or not an express agreement has been made. Ordinarily, the precise time when a usage becomes a custom and a custom becomes a rule of law cannot be determined. Perhaps the only circumstance that would positively mark the final transition would be a universal treaty which in terms would be declaratory of existing law. Tacit consent would then be replaced by expressed consent. Such a treaty would not create the rule, but be a means of recording that common consent upon which all international law is based. Neither would it preserve the rule from change, for the very nature of custom is that it is the creature of evolution. Such a treaty can therefore declare only the law as it exists at a given time, and may itself become obsolete as a declaration through customary variation in the rule.

The "understandings" of customary international law may therefore be sought by each state and each person in the records of history, which itself is open to various interpretations. For this reason the opinions of writers on the law of nations have more weight than corresponding treatises on national law. Only by patient study can any one hope to gather from diplomatic documents, arbitral awards, decisions of prize courts, applications of the law of nations by national courts, municipal statutes, and treaties, the data on which to base an opinion. And when experts disagree, we may assume that usage has not yet fully developed into custom. There are enough rules based on customs which are generally observed to constitute a genuine body of law. Isolated examples of disobedience to it may be found, but the rules remain and develop as actual rules of conduct. As matters now stand the non-observance of supposed customary rules by a large group of states over a considerable period would argue not violation of law, but either the absence of a rule or the development of a new rule.

The historical development of international law is usually treated as dividing itself into three periods,' (1) that prior to the See Wilson and Tucker: International Law, p. 13-27.

Christian era, (2) the middle period extending to the year 1648, and (3) the modern period, from 1648 to the present. In the early period we find only the germs of an international law, chiefly relating to maritime commerce, and by analogy with rules which were common to all parts of the Roman Empire. In the middle period we find Rome still the dominant power down to the sixth century, when its place was taken by the Church as a unifying influence. Feudalism, which was the antithesis of the Roman system, laid the basis for the idea of territorial sovereignty. The Crusades then helped to develop the idea of common interests and devotion to a common cause; while the extention of commerce developed well-recognized maritime codes which applied not merely in one state but in the dealings of merchants of different states. Many modern rules of maritime law can be traced to the Amalfitan Tables, the Consolato del Mare, the Laws of Oleron, the laws of Wisby, and the laws of the Hanseatic League. Consuls were sent to reside in foreign countries, and though their functions were purely commercial, they were the forerunners of our present diplomatic system. The period ended with the Peace of Westphalia, 1648, terminating the Thirty Years' War, during which was published Hugo Grotius' De Jure Belli ac Pacis (1625).

The modern period is punctuated with international congresses which hastened the development of law. It was in this period that the modern system took shape based on a widely recognized conception of national states possessing territorial sovereignty. The great congresses referred to not only made international settlements. necessitated by wars, but came to agreements as to their own future conduct. They gave expressed consent to rules which were to be applied in their relations one with another. Did the parties by signature to those agreements make international law? Was any non-signatory state bound by those agreements? Certainly not in any legal sense. International law cannot be created by treaty unless all sovereign states in the Family of Nations are parties; in no case was every such state a party; therefore law was not created. But such treaties are evidences of the evolution of rules, which by subsequent accession, adhesion, or approbation of

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