Customary international law

“ No human society has ever long subsisted, or ever can long subsist, without being bound together by good laws, much less the Society of Nations. It has been the signal merit of the Statesmen of Europe, who have had charge of the international interests of their respective States during the last half century, that they have agreed to modify the customary Law of Nations from time to time so as to adapt it to the enlightened demands of an advancing civilisation. ”

“ Although aliens fall at once under the territorial supremacy of the State they enter, they remain nevertheless under the protection of their home State. By a universally recognised customary rule of the Law of Nations every State holds a right of protection [651] over its citizens abroad, to which corresponds the duty [Pg 396] of every State to treat foreigners on its territory with a certain consideration which will be discussed below, §§ 320-322. ”

“ Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law. International law is not capable of development by the normal processes of legislation, for there is no continuing international legislative authority. ”

“ Today there is no such thing as a code of international law which is binding on the nations. What passes under the name of international law is simply a series of arguments, maxims, precedents and opinions. It is the work, not of legislators, but of scholars. The nations are at perfect liberty to accept it or reject it as they wish. ”

“ If the recognition of a de facto power were a duty imposed upon other nations by International Law, there would be no opportunity for objections founded on principle or policy. But there is no such duty. International Law leaves to each nation, precisely as the Municipal Law leaves to each citizen, what company to keep or what copartnership to form. ”

“ For how could International Law, which is a law between States, give rights to individuals concerning their relations to a State? What the Law of Nations really does concerning individuals, is to impose the duty upon all the members of the Family of Nations to grant certain privileges to such foreign heads of States and diplomatic envoys, and certain rights to such foreign citizens as are on their territory. ”

“ The reasons for nonreview, based as they are on traditional concepts of territorial sovereignty, lose much of their force when the foreign act of state is shown to be a violation of international law. All legitimate exercises of sovereign power, whether territorial or otherwise, should be exercised consistently with rules of international law, including those rules which mark the bounds of lawful state action against aliens or their property located within the territorial confines of the foreign state. ”

“ Thus, an examination of the fundamental character of international law does not lead us to the conclusion that by its very nature only a State can be the subject of rights in international law.
(3) Can, act the contrary, an individual always be subject of rights in international law? The question of an individual being a subject of international law arises when international law (mainly treaties) prescribes rights and duties for an individual. ”

“ Our international rights will then wipe out national rights, in the proper sense of right, and will rule the nations precisely as the civil law of States rules the relations of their subjects among themselves. ”

“ Have not monarchs and other heads of States, diplomatic envoys, and even simple citizens certain rights according to the Law of Nations whilst on foreign territory? If we look more closely into these rights, it becomes quite obvious that they are not given to the favoured individual by the Law of Nations directly. ”

“ A State, therefore, cannot exclude aliens altogether from its territory without violating the spirit of the Law of Nations and endangering its very membership of the Family of Nations. But no State actually does exclude aliens altogether. ”

“ The very act of a foreign state against aliens which contravenes rules of international law, the purpose of which is to support and foster an order upon which people can rely, is at odds with the achievement of stability and predictability in international transactions. ”

“ If you acknowledge that the right of every nation to alter its institutions and government is a law of nations—if you acknowledge the interference of foreign powers in that sovereign right to be a violation of the law of nations, as you really do—if you are forbidden to remain indifferent to this violation of international law (as your President openly professes that you are) —then there is no other course possible than neither to interfere in that sovereign right of nations, nor to allow any other powers whatever to interfere. ”

“ Contrariwise, to refuse inquiry into the question of whether norms of the international community have been contravened by the act of state under review would seem to deny the existence or purport of such norms, a view that seems inconsistent with the role of international law in ordering the relations between nations. ”

“ Except in so far as these have been incorporated in conventions, except in so far as the principles of humanity have been reduced into concrete words and so have become laws binding the consenting nations when they fight, it is not the province of international law to mitigate the blows of war. ”

“ That a system of law should be built up governing the international relations of the States of the world, by which their differences should be adjusted by the orderly processes of legality, excluding as a method of adjustment the chaos of war, may be admitted. ”

“ Civilized nations have always had their official means of dealing with one another through their governments, such as the diplomatic and consular services. Alliances have, from time immemorial, been made between nations, treaties have been solemnly agreed to, and a body of international law has gradually grown up. But treaties and international law have frequently been violated, and no international government has existed with sufficient authority or power to force nations to observe the law or to keep their agreements. ”

“ Every State must not only itself comply with the duties corresponding to these rights of other States, but must also prevent its subjects from such acts as violate the dignity of foreign States, and must punish them for acts of that kind which it could not prevent. ”

“ It must be conceded that the circumstance which gives to principles of international conduct the dignity and authority of law is their general acceptance as such by civilized nations, which acceptance is manifested by international treaties, conventions, authoritative textbooks, practice, and judicial decisions. ”

“ That the act of state doctrine is rooted in a well-established concept of international law is evidenced by the practice of other countries. These countries, without employing any act of state doctrine, afford substantial respect to acts of foreign states occurring within their territorial confines. [6] Our act of state doctrine, as formulated in past decisions of the Court, carries the territorial concept one step further. It precludes a challenge to the validity of foreign law on the ordinary conflict of laws ground of repugnancy to the public policy of the forum. ”

“ The Law of Nations does not consist, therefore, of a mere body of deductions derived from general principles of justice, for there is also a body of doctrine based upon CONSENT; and it is this system of voluntarily recognized obligations which distinguishes international jurisprudence from mere ethical speculation or moral theory. There are CUSTOMS of nations as well as a universally accepted law of nature, and it is in this growth of practically recognized rules of procedure that we trace the evolution of law international—jus inter gentes—as a body of positive jurisprudence. ”

“ It follows that the state which has gone to war in violation of its obligations acquires no right to equality of treatment from other states, unless treaty obligations require different handling of affairs. It derives no rights from its illegality.
“In flagrant cases of aggression where the facts speak so unambiguously that world opinion takes what may be the equivalent of judicial notice, we may not stymie international law and allow these great treaties to become dead letters. ”

“ In these circumstances, no question of international law, or of the extent of the authority of the United States in its international relations, is presented. International law is a part of our law and as such is the law of all States of the Union (The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320) , but it is a part of our law for the application of its own principles, and these are concerned with international rights and duties and not with domestic rights and duties. ”

“ Each endeavours to get all it can, until the inconvenience of the state of war suggests either the formation of those express contracts we call treaties, or mutual consent to those implied contracts which are expressed by international law. The moral rights of a State rest upon the same basis as those of an individual. If any number of States agree to observe a common set of international laws, they have, in fact, set up a sovereign authority or supra-national government, the end of which, like that of all governments, is the good of mankind ”

“ Again, the society of nations, acting collectively, may not unreasonably maintain that a state yielding to such excesses renders itself unfit to perform its international obligations, especially in so far as they pertain to the protection of foreign life and property within its domain. ”

“ Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience ”

“ The existence of a law, properly so called, regulating the relations of nations with each other is, at best, problematical; as yet it is force alone which decides their disputes. This is not the case with the private international laws of different nations. It is they, not the nations, which are on trial; it is individuals, and the courts, and not the sword, which must decide their differences.
In order that we have a private international law, man must enjoy everywhere the same rights whatever be his nationality—that is, he must enjoy everywhere equally the same civil or private rights. ”

“ I am also disappointed in the Court's declaration that the acts of a sovereign state with regard to the property of aliens within its borders are beyond the reach of international law in the courts of this country. However clearly established that law may be, a sovereign may violate it with impunity, except insofar as the political branches of the government may provide a remedy. ”

“ Court of Justice which could establish such responsibility and pronounce a fine or other punishment against a State for neglect of its international duties, State responsibility concerning international duties is nevertheless a legal responsibility. For a State cannot abolish or create new International Law in the same way as it can abolish or create new Municipal Law. ”

“ The result is that cases submitted to mere arbitration, without the backing of an adequate international law, have frequently resulted in decisions which meant nothing more nor less than a mere compromise, unsatisfactory to both parties and yet accepted in the name of peace rather than in the name of justice. The world court of the future will administer an international law created and acknowledged by all nations. ”

“ These questions of the conflict of local law and international treaty stipulations are among the most common which have engaged the attention of publicists, and it is their concurrent judgment that where a treaty creates a privilege for aliens in express terms it cannot be limited by the operations of domestic law without a serious breach of the good faith which governs the intercourse of nations. So long as such a conventional engagement in favor of the citizens in another State exists, the law governing natives in like cases is manifestly inapplicable. ”

“ The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. See United States v. ”

“ At the beginning of the twentieth century, civilized nations acknowledge certain rules of national conduct called international law, but at the end of the eighteenth nothing of the kind had any real weight in regulating international affairs. ”