Private international law

“ Corporations organized for private purposes come within the field of international law, when in time of war their property or other rights are impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law. ”

“ But the limitations implied in the popular meaning of comity have sometimes been made the ground for deciding questions of private international law in the manner supposed to be most for the interest of litigants belonging to the territory; the phrase is consequently reprobated by most European continental writers, and had better be dropped. The justice on which private international law is founded acknowledges no interest but the general one of intercourse between persons sharing a common civilization in different countries. ”

“ This is why the private international law is of such recent date. In fact, scarcely any two of the writers upon it agree as to its nature and scope. Some authors, convinced of the inanity of theory, have believed that the law should rest upon facts; in presence of the extreme diversity of national legislation, they have appealed to the comity that peoples should observe in their relations with each other; each in its legislation having an interest in looking to the welfare of the foreigner, inasmuch as its own citizens are taken into account by the foreign laws. ”

“ One word about the two kinds of law known as Public and Private International law.
The fact that the laws of different countries are different gives rise to problems whenever the Courts of one country have to deal with a set of facts where some foreign element is involved, for instance a citizen or an inhabitant of another country, or property which is in another country, or a contract or transaction which took place abroad. Now we have long got past the stage at which the Courts could simply disregard the foreign element, could say this man is a foreigner, therefore he has no rights ”

“ International Law, being a law for the conduct of States only and exclusively, has nothing to do directly with the conduct of private individuals, and both assertions are, therefore, nowadays untenable. Their place must be taken by the statement that, States being sovereign and the outbreak of war bringing the peaceful relations between belligerents to an end, it is within the competence [Pg 136] of every State to enact by its Municipal Law such rules as it pleases concerning intercourse, and especially trading, between its own and enemy subjects. ”

“ That the law is essentially the same is no guarantee that in all countries there will be a unanimity of judicial pronouncement on every point thereof. If ever—and it is not outside the range of practical possibility—an international agreement, including all states, were arrived at concerning all the topics of the so-called international private law and international criminal law, there would, for the reason under consideration, still continue to be no security that the same law would in every point receive the same treatment from the courts of all countries. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ This system we are not likely to abandon; and while we shall no farther recommend its adoption to other nations, in whole or in part, than it may recommend itself by its visible influence on our own growth and prosperity, we are, nevertheless, interested to resist the establishment of doctrines which deny the legality of its foundations. We stand as an equal among nations, claiming the full benefit of the established international law ”

“ They will also respect each other's right freely to choose and develop its political, social, economic and cultural systems as well as its right to determine its laws and regulations. Within the framework of international law, all the participating States have equal rights and duties. They will respect each other's right to define and conduct as it wishes its relations with other States in accordance with international law and in the spirit of the present Declaration. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ At present, international affairs are regulated by the principle that a nation must not intervene unless its interests are involved: diplomatic usage forbids intervention for the mere maintenance of international law. ”

“ 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. ”

“ No other single act will serve as this will serve to restore confidence among the nations in the laws which they have themselves set and determined for the government of their relations with one another. Without this healing act the whole structure and validity of international law is forever impaired. ”

“ 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. ”

“ When nations enter into treaties, there is no principle of international or natural law, or justice, which requires the contracting parties to consult foreign nations as to the terms and conditions of the contract. Each nation is a free agent, possessing absolute liberty and power to enter into any alliance which is deemed to be for its best interests, security, or progress, subject only to an arraignment before the high bar of a general {198} public opinion where treaties and alliances are discussed upon the broad principles of truth and justice. ”

“ Thus it is that, for the sake not only of international interests but of that true national welfare which depends upon the conservation of international interests, international law of an adequate sort must be created and must gain the respect and allegiance of all the nations that create it. ”