Page:The Green Bag (1889–1914), Volume 21.pdf/570

 The Editor's Bag THE SANCTION OF INTER NATIONAL LAW AT a time when there is much controversy as to whether international law possesses or does not possess a sanction, we may perhaps be excused for offering some considerations concerning it in a department which aims primarily to entertain. Every law emanating from the sovereign is sanctioned. That it may become a law it is not essential that the machinery for its en forcement be already in existence. If Congress when it passed the corporation tax law had provided no means for the collection of the tax, that fact would not make it any the less truly a law. The law is sanctioned from its having been promulgated by the sovereign, and whatever the sovereign people of the United States, through their delegates in Congress, lay down as a rule of social action is law, whether any department of the govern ment is equipped for its enforcement or not and whether the United States Army is able or unable to cope with any insurrection which the attempted enforcement of the law might provoke. The difference between international morality and international law is to be found in the complete freedom of one from all the attributes of sovereignty, and in the investment of the other with the sanction of the publicly promulgated or clearly implied consent of the nations. In so far as nations tacitly unite in the approval of customs and precedents which have controlled their acts for a long period, or reach a general agreement through regular channels regarding the solu tion of mooted questions, an actual or positive international law, totally distinct from inter national morality or VdUterrecht, comes into existence. It requires no sanction beyond that of general international consent to render it positive law. There may be no international police in existence to enforce such law, or to compel the execution of the international court's decrees, but the law is made binding by the principle of international sovereignty which it asserts, and when a crisis arrives that sovereignty, because its powers are un limited, will be able to devise the necessary agencies for its enforcement. It does not follow, because there is no international navy, that a country cannot be compelled to conform to the decrees of the Hague tribunal. The combined strength of the nations greatly

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exceeds that of the strongest of them, and a complete revolution of international law can not take place in consequence of the caprice of any one nation which should attempt to foist its own de facto rules upon the system of international law and compel the com munity of nations to accept them. This view seems to be shared by an eminent scholar who approaches the subject of inter national law from a purelyscientfic standpoint, Dr. E. Von Ullmann, who in his recently published " VdUterrecht" avoids a distinctly national treatment and places his doctrine upon as soundly positive a basis as that of such writers as Hall. Yet this writer maintains that international law is based on the sense of international community. The community interest which has developed among civilized nations cannot exist, he maintains, without norms which are held in common, and which, because they are lived up to, exert an actual compulsion. The view of Westlake is not opposed to this. He writes: "States live together in the civilized world sub stantially as men live together in a state, the differ ence being one of machinery, and we are entitled to say that there is a society of states and a law of that society, without going beyond reasonable limits in assimilating variant cases to the typical case." International Law, pt. I, p. 7, It is well, however, that the community of nations develops slowly, and that the world moves gradually toward the ideal of a world commonwealth. If it were otherwise, the greatest catastrophes the world has ever known would be in store for us. It is much better to build up the international common wealth piecemeal, by means of covenants between the separate powers, than at a stroke through a codification undertaken by pleni potentiaries or through the adoption of a written constitution or world legislature. The failure of the American Constitution to define exactly where the sovereignty of the American people was located cost the country a terrible Civil War, and a constitution which en deavored to dispose of the delicate problems of international sovereignty could not fail to excite jealousy and strife, and to bring about a situation wherein nation would rise up against nation and continent be arrayed against continent in an interminable succes sion of ghastly wars. It is well that the nations should refrain from entering into agreements covering all possible sources of friction for a time, and conduct themselves as best they may, like private individuals adjusting dis