8. International Law and Statute Law Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its jurisdiction. International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. In case of infraction of its rules nations may resort to war, when the issue may rather depend upon the relative strength of the two states than upon the justice of the cause, or the states may agree to refer their differences to some form of arbitral adjudication. 9. Relation of International Law to Law If law is defined, as by Austin, "a rule laid down for the guidance of an intelligent being by an intelligent being having power over him," 1 it would not be possible to include under it international law without undue liberality in the interpretation of the language. In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded.2 1 "Lectures on Jurisprudence," I. "Walker, "Science of International Law," Chs. I and II, fully discusses Austin's definition. For decisions of the highest courts see West Rand Gold Mining Co. v. The King, L. R. 2 K. B. (1905) 391; The Paquete Habana (1900), 175 U. S., 677. OUTLINE OF CHAPTER III HISTORICAL DEVELOPMENT 10. EARLY PERIOD. (a) Recognition by Greece of international obligations. 11. MIDDLE PERIOD. (a) Supremacy of Roman Empire. (b) Unifying influence of the Church. (c) Feudalism and the territorial basis of sovereignty. (d) Crusades and a broader basis of comity. (e) Chivalry and a basis of equitable dealing. (f) Expansion of commerce and the development of maritime codes. (g) Consuls and the development of maritime law. (h) Discovery of America. (i) Contributions of the Middle Period. 12. MODERN PERIOD FROM 1648. (a) 1648-1713: Development of principles. (b) 1713-1815: Testing of principles. (c) 1815-1898: Practical application of principles. (d) 1898 to date: Progress toward international peace. (2) Results of the First Peace Conference. (3) The Second Peace Conference at The Hague and its conventions. (4) The International Naval Conference of 1908-1909, and Declaration of London. (5) Contributions in this period to international law. 13. INFLUENCE OF THE UNITED STATES. (a) The regulations of 1793 in regard to neutrality. (c) Open-door policy in the Far East. (d) Protection of citizens in their legitimate rights. (e) Contributions to establishment of laws of war. (f) Advocacy of peaceful settlement of international disputes. 14. WRITERS. (a) Life and work of Hugo Grotius (1583-1645). CHAPTER III HISTORICAL DEVELOPMENT 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.1 The early period dates from the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.2 national obli (a) The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition Recognition by Greece of inter- of general obligations.3 The maritime law of Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu, is, after more than two thousand years, the basis of the present doctrine of jettison. gations. 'Bluntschli, "Völkerrecht," Introduction; Lawrence, § 20. 2 Walker, "Science of International Law," Ch. III, p. 58. "But when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted τὰ νόμιμα τῶν Ἑλλήνων, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth." Cicero, "Pro Lege Manilia," Ch. XIII. * Justinian Digest, 14. 2, "If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all." It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors 1 and the formation of alliances.2 (b) Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Rome's contribution to inter- Roman laws to conditions in remote territories. national law. In this early period Rome may be said to have contributed to the field of what is now considered private international law rather than to that of public international law. Wherever Rome extended her political rule, she adapted her laws to the peoples brought under her sway. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name Jus Gentium.3 1 Bluntschli, "Völkerrecht," Introduction; Thucydides, "Peloponnesian War," II, 12, 22, 29. The Amphyctionic League recognized some principles of interstate right and comity, as well as preserved Grecian institutions and religious traditions. This is shown in the oath of the members, "We will not destroy any Amphyctionic town nor cut it off from running water, in war or peace; if any one shall do this, we will march against him and destroy his city. If any one shall plunder the property of the god, or shall be cognizant thereof, or shall take treacherous counsel against the things in his temple at Delphi, we will punish him with foot and hand and voice, and by every means in our power." They also agreed to make and observe humane rules of warfare. See also Bluntschli, "Völkerrecht," Introduction. Maine, "Ancient Law," Ch. III. The idea as to what jus gentium was, of course varied with times. Under the Empire it lost its old meaning. See Cicero, "De Officiis," III, 17; Livy, VI, 17; IX, 11; I, 14; V, 36; Sallust, "Bell. Jug.," XXII; Tacitus, "Ann.," 1, 42; "Quintus Curtius,' IV, 11, 17. 11. Middle Period The varied struggles of the middle period-from the beginning of the Christian Era to the middle of the seventeenth century-had a decided influence upon the body and form of international law. Supremacy of (a) The growth of the Roman Empire, as the single worldpower and sole source of political authority, left small need of international standards. The appeal in case of disagreement was not to such standards, but to Cæsar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expansion of political privileges. (b) A similar unifying influence was found in the growth of the Christian Church which knew no distinction-bond or Unifying influ- free, Jew or Gentile. Christianity, called to be ence of the Church. the state religion early in the fourth century, modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power. The belief in the permanent continuance and universality of Roman dominion was strengthened by the Church, although materially changed in its nature.1 Whatever the inconsistencies in Church and State during the first ten centuries of our era, there had grown up the idea, of great importance for international law, that there could be a ground upon which all might meet, a belief which all might accept, both in regard to political and religious organization. For five hundred years before the days of Boniface VIII (1294–1303), the holder of the papal office had from time to time acted as an international judge. The canon law, codified by Gregory IX (1227-1241), was planned to rival the Corpus Juris Civilis. The Popes, with varying degrees of success, tried to render such international 'Bryce, "Holy Roman Empire," Ch. VII. |