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A UNIQUE INTERNATIONAL PROBLEM. Robert Lansing ....
Costa Rica o. Nicaragua. Philip Marshall Brown....
The right to attack unarmed submarine merchantmen. Charles Cheney
Property in naval captures. James Brown Scott..
The cessation of diplomatic relations with Germany. David J. Hill.. 380
Limited use of force. George G. Wilson.
Sanction for international agreements. George G. Wilson...
Projects submitted to the American Institute of International Law.
Amos S. Hershey..
The armed occupation of Santo Domingo. Philip Marshall Brown.. 394
Mexico and the United States. George A. Finch...
Havana Session of the American Institute of International Law. James
Society for the publication of Grotius. James Brown Scott.
Respect for the American Flag. James Brown Scott...
The Danish West Indies. George A. Finch....
Democratic Russia. James Brown Scott...
The attitude of the United States toward political disturbances in Cuba.
James Brown Scott......
The United States at war with the Imperial German Government. James
The relations between the United States and the Central Powers. T. S.
The Chengchia Tun Agreement. James Brown Scott...
The rôle played by the State Duma in the formation of the New Russia.
B. E. Shatsky.....
In memoriam: Joseph H. Choate Richard Olney. James Brown Scott. 638
The Kronprinzessin Cecilie and the Hague Convention VI. George Grafton
CARONICLE OF INTERNATIONAL EVENTS. Kathryn Sellers ......165, 424, 655, 857
175, 440, 666, 867
The United States Supreme Court:
PERIODICAL LITERATURE OF INTERNATIONAL LAW. Kathryn Sellers. . 246, 467,
THE AMERICAN JOURNAL OF INTERNATIONAL Law is supplied to all members
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CONFLICTS OF INTERNATIONAL LAW WITH NATIONAL
LAWS AND ORDINANCES
The decision of the judicial committee of the Privy Council of Great Britain in the case of the Zamora' will undoubtedly go down in history as one of the great triumphs of international law. In the midst of a war involving questions of national existence and, even more important, of the ideals which shall survive and determine the direction of the world's future political and social development, the law of nations has proved itself superior, in the courts of one of the belligerents, to a rule of military expediency promulgated in legal form by that belligerent government. In this case at least a British court has informed its government in unmistakable terms that Orders in Council governing the conduct of war must be in accord with international law or they will not be regarded as law for the prize courts.
This case again brings into prominence the perennial question of the relation of international to municipal law.
Does it prove finally that international law is part of municipal law? 2 It certainly shows that international law is regarded by the judicial committee as a body of rules and principles subject to judicial cognizance. But what reader of Triquet v. Bath, the Maria, the Charming Betsey, the Paquete Habana and West Rand Central Gold Mining Co. v. Rex can doubt that this has been an established rule of Anglo
· The Zamora, L. R. 1916, 2 A. C. 77; this JOURNAL, 10; 427.
: J. B. Scott and W. W. Willoughby, “The Legal Nature of Treaties," this JOURNAL, 1: 831, 2: 357; John Westlake, “Is International Law a part of the Law of England,” Law Quar. Rev. 22: 14; C. M. Picciotto, The Relation of International Law to the Law of England and of the United States of America, N. Y., 1915; Quincy Wright, “The Enforcement of International Law through Municipal Law in the United States," Univ. of Ill. Studies in the Social Sciences, Vol. 5, No. 1, 1916, pp. 11, 219.
• Triquet o. Bath, 3 Burr. 1478 (1764); the Maria, 1 Rob. 340 (1799); the Charming Betsey, 2 Cranch 64 (1804); the Paquete Habana, 175 U. S. 677 (1899); West Rand Central Gold Mining Co. o. Rex, L. R. 1905, 2 K. B. 391, 407.
American jurisprudence for over a century? But the decision goes farther than this. It shows that international law is not only regarded as a source of law in British courts, but that, as compared with the law embodied in Orders in Council, it is a source of superior authority. Suppose, however, the text of the Order in Council had been embodied in an Act of Parliament. What then? The court in this case left no room for doubt that it would have applied the statute.
The question whether international law is a part of municipal law, remains as it was before, a question of point of view and definition. The Austinian can still point out that in the Zamora the court was bound by the Prize Act of 1864,4 which specifically required it to apply international law, and hence the rule applied owed its authority, not to international law, but to an Act of Parliament inherently superior to an Order in Council. Hence he can clude that the court did not apply international law per se, but only the rule of international law as commanded by the national sovereign.
On the other hand, the historical jurist can state that the authority of international law in British prize courts is of extremely complex origin, both historical and practical, and at any rate is beside the point at issue. The fact cannot be disputed that in this case international law was applied and not the Order in Council.
Define international and municipal law from the standpoint of the authorities which can repeal or amend their respective rules, and hence in a certain sense have commanded them, and they have nothing in common. Define them from the standpoint of the actual sources used in administering the two branches of law and they overlap. The first is the standpoint of the legislator, the second of the court. The legislator recognizes as law only that which he has made or at least can repeal. The judge recognizes everything as law which he can apply. The judge when applying principles deduced from a study of international practice does not doubt but that he is applying international law, but the legislator says "these principles cannot be international law, for I can compel the judge to apply others in their stead, and yet I have no authority to repeal or alter true international law."
" 27-28 Vict. Ch. 25, sec. 55, par. 5.