International Law, its Past and Future
BY BRIGADIER-GENERAL GEORGE B. DAVIS
Judge-Advocate General, U.S.A.
WHAT is international law, and wherein does it differ from the common law, or from the law-making of the English Parliament, or the Congress of the United States, or the French Corps Législatif: to whom does it address itself, and what penalties ensue upon its violation? To answer these questions, and to get a notion of its sanction and binding force, it is essential in the first place to know what a state is. And from the point of view of international law a state may be defined as a society of persons having a permanent political organization and exercising, within a certain territory, the usual functions of government. All of these distinctions are important. There must be an association of persons, but there need be no community of race—for a nation and a state are by no means the same thing. The kind of government does not matter: it may be absolute or constitutional; suffrage may or may not exist; but it must be independent, reasonably permanent, and strong enough to meet its international obligations as they accrue. Size, too, is non-essential, for Russia and Portugal have the same standing in the family of nations; but there must be a body politic, an organized government exercising its functions within definite territorial limits, and within the area so bounded and limited the law of the state must be supreme. The utterances of the lawmaking power, whether that power be a representative body or an absolute sovereign, are veritable commands which are carried into effect by a branch of the government which derives its dignity and importance from the fact that its chief duty is to execute them.
A state, then, is a body corporate made up of individual units whose conduct is regulated by law: orderly administration is essential; the interests of the individual must be subordinate to the general welfare; the law must prevail, and it cannot prevail unless the citizen submits himself and his affairs to its operation. He may retain the right of individual judgment, but he must not undertake to make that judgment effective by attempting to right his own wrong.
But a state can, and, if it desires to retain its independence and territorial integrity, must, do what the individual citizen of every well-ordered state is expressly prohibited from doing: it can right its own wrong, going to the length, if need be, of waging war—that is, of redressing its wrong by force. The existence of a state presupposes the existence of a lawmaking power, firmly established and strong enough to enforce obedience to its commands. As there is no international legislature and no international executive with forces at its disposal to make its enactments operative or to carry its judgments into effect, hence it follows that there can be no international law unless the sovereign states who are parties to its operation can be induced, or find it to their interest, in the long run, to observe its rules. Hence it is that the rules of international law must be sought in custom and usage, in approved and established precedents, in general uprightness of conduct, in uniformity of practice in the numberless points at which there is international contact in time of peace, and in an earnest and constant disposition to mitigate the severities of war and to withdraw the persons and property of non-combatants from its hardships and burdensome exactions.
If international law be the science of good neighborhood among sovereign states, it is easy to see why it gained no foothold among the crudely organized monarchies of southwestern Asia. In-
