International Law - Wilson

"International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent."

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International law is usually divided into:-

(a) Public international law, which treats of the rules and principles which are generally observed in interstate action, and

(b) Private international law, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story, "The Conflict of Laws."2 International law, in the true sense, deals only with state affairs.

§ 3. Scope

International law is generally observed by civilized states; even some of those states not fully open to western civilization profess to observe its rules. 3 The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent embassies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, it should not extend its scope so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy.

§ 4. Early Terminology

The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers.

The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows.

(a) Jus naturale is defined broadly by Ulpian4 as "the law which nature has taught all living creatures, so as to be common to men and beasts." Grotius also uses this term, defining it as "the dictate of right reason, indicating that any act from its agreement or disagreement with rational nature has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by God, the author of nature."5 Lieber says, "The law of nature, or natural law ... is the law, the body of rights, which we deduce from the essential nature of man."6 The discussion of jus naturale has been carried on from an early period,7 covering many portions of the field of modern international law, and making possible the broadening and strengthening of its foundation.

(b) Jus gentium, according to Justinian, is "that which natural reason has established among all men, that which all peoples uniformly regard."8 "Jus gentium is common to the whole human kind."9 This idea of a body of law common to all men assumed a different meaning when states multiplied and writer after writer redefined and qualified its meaning. Jus gentium became the subject of many controversies.10 Among the qualifying terms were "internal," "necessary," "natural," "positive."

(c) Other terms were used to name the field or portions of the field of modern international law. Jus fetiale applied particularly to the declaration of war and sanction of treaties.11 Jus inter gentes was used by Zouch in 1650 to name the real field of international law. Law of nations was the term commonly used in England till the days of Bentham; since that time the term international law, which he adopted, has steadily grown in favor, till almost universal in the English language.12 The change in terminology shows in a measure the growth in demarking the field of international law.

§ 5. Historical Bases International law in its beginning may have been largely determined by abstract reasoning upon what ought to be the principles and rules governing interstate relations; but in its later development, as it has become more and more recognized as a safe guide for the conduct of states in their relations with other states, not abstract reasoning as to what ought to be, but direct investigation of what is, has determined the character of the rules and principles. What is state practice in a given case can only be determined by reference to history. From the history of cases and practice, the general rule and principle is derived, and modern international law thus comes to rest largely upon historical bases.