CHAPTER IV SOURCES OF INTERNATIONAL LAW 15. Practice and Usage If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right. That collection of customs known as "The Law Merchant" is an example of a source of this class. Of this it has been said: "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the Parloir aux Bourgeois at Paris." 1 Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice." 2 16. Precedent and Decisions The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice. (a) Prize and admiralty courts decisions form in themselves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District 1 Jenks, "Law and Politics in the Middle Ages," p. 30. Prize and ad decisions. Courts, the Circuit Courts and the Supreme Court. The District Courts have original jurisdiction in civil causes of admiralty and concurrent jurisdiction with the miralty courts Circuit and State Courts in suit of an alien, because of violation of international law or treaty of United States. The District Court also has full prize court powers. Appeals from prize courts decisions go directly to the Supreme Court for final judgment; appeals from admiralty decisions go to the Circuit Court for final judgment.1 The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions.2 Whatever the method of the prize court, its decision, if legally rendered, stands as valid in all states.3 Provision was made at the Second Hague Conference in 1907 for the establishment of an international prize court. (b) The decisions of domestic courts upon such matters as extradition, diplomatic privileges, piracy, domestic courts, etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls." 5 Decisions of (c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the 1 Act of Congress, March 3, 1891. 26 U. S. Sts. at Large, 826. United States v. Rauscher, 1886, 119 U. S., 407. • United States Constitution, Art. III, § 2. For English view, see Walker, p. 46, who quotes 3 Burr, 1480. Decisions of courts of value of the decision as a precedent. As arbitration has hitherto been voluntary, there was generally a consensus upon certain points which might become recognized precedents, even though the decision rendered arbitration. might not become a precedent. The principles upon which the court of arbitration bases its decision, more often than the decision itself, furnishes material valuable for international law. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. 17. Treaties and State Papers Treaties and state papers of whatever form 1 indicate the state of opinion, at a given time, in regard to the matters of which they speak. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. The principles may be so well established by successive treaties as to need no further treaty specification. Treaties and state papers, however, vary greatly in value as sources of international law. Laying down new rules or (a) Treaties and state papers may lay down new rules or outline the operation of old rules. As instances of those laying down new rules may be taken several of the Hague Conventions of 1907, the Internaoutlining opera- tional Radiotelegraphic Convention of Novemtion of old rules. ber 3, 1906, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances; the most numerous of these are in the treaties in regard to maritime affairs and consuls. 'Declarations, protocols, conventions, proclamations, notes, etc. Enunciation of established rules. (b) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Declaration of the Conference of London, January 17, 1871, to which the major European states were parties, announces that the signatory powers "recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement." 1 Agreement as to rules to be (c) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856, agreed as to certain principles and rules of maritime held mutually international law, which should be held as bindbinding. ing the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Declaration, and during the same year Spain acquiesced in its principles. Interstate compacts. (d) Most treaties and state papers, however, deal with matters of interstate politics, and are not in any sense sources of international law. They are in most cases little more than interstate compacts. 18. Text Writers During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of 1 III Hertslet, 1904. nations deduced the principles for such cases as might arise. This latter method was especially common among the early writers, such as Victoria and Suarez in the sixteenth century. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authoritative sources. The prolific Moser, in the middle of the eighteenth century, made the historical method more prominent by giving less attention to the natural law, and by founding his system on usage and treaties. Bynkershoek (1673– 1743) had anticipated him in this method in special lines, but Moser extended the system and made it most ample. Succeeding writers mingled the two systems, inclining to the one or to the other. In the early days of the modern period the writers upon the law of nations outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and principles which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value. The Supreme Court of the United States in case of the Paquete Habana in 1900 referring to the determination of questions involving international law, said: "For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concern |