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vention of 1890 119 permits local courts to decide certain matters and provides that such decisions shall be executed by the courts of any signatory state without further trial. Under such provisions as these, courts of states which recognize the legal applicability of treaties must also, it would seem, recognize the legal applicability of such decisions and regulations made in pursuance of treaties.

Both treaties and arbitral decisions have sometimes been resorted to by courts as a source from which to determine the practice of nations and from that the rules of customary international law bearing on the case in hand. Such a use of treaties is of course distinct from that just discussed. As evidence of conventional international law, treaties furnish not only a formal and historical but also a juridical source of law. As evidence of customary international law they furnish simply evidence of the usage which constitutes a source of customary international

law. 120

Treaties have thus been an important source of law for courts, but in varying degrees in different states, depending upon the nature of the rule sought to be applied and the extent of sanction it has received from the public officers of the government. Very seldom will a treaty ratified by the executive alone have an immediate legal effect in respect to private rights, except in prize courts, even when such ratification in theory engages the responsibility of the state. In all countries, assent of the legislature through the passage of an enabling act is necessary to give a complete effectiveness to many treaty provisions, especially those requiring an appropriation of money, or demanding a criminal prosecution. Legislative assent is also usually necessary to make legal norms of the provisions of treaties affecting personal or property rights of subjects, the situation in the United States where one branch of the legislature, acting as an executive council, need alone give assent, being exceptional.

With the present embodiment of many principles of general international law in conventions to which most of the important nations

119 Berne Convention, Oct. 14, 1890, Art. 56, Martens, N. R. G. ü, 19:289.

120 For an excellent discussion of the relation of treaties to customary international law, see Travers Twiss, Law of Nations considered as Independent Political Communities, Oxford, 1884, 1:167, et seq., and Phillimore, op. cit., 1:48.

are signatory, the application of conventional international law by courts is acquiring increased importance. It should be observed, however, that such conventions are frequently subject to limitations in application. Thus the Hague Conventions relating to the law of war apply in terms only to wars in which all belligerents are signatories, and of course all such conventions are binding only between signatories."

121 There are also frequent provisos attached to ratifications, and some signatories have never ratified at all. Thus the Declaration of London, although signed by the leading naval Powers, has never been ratified. With these limitations, these law-making conventions are treaties of the same legal validity as the usual bi-lateral treaty. Thus a United States court sustained an arrest and internment, under order of the President, of certain Mexican troops violating United States territory, as no deprivation of liberty without due process of law.122. It was held that the Hague convention of 1907, to which both the United States and Mexico were signatories, in providing such internment furnished a rule of law immediately applicable by the President. Consequently in acting on this provision “due process of law” was given.

The increase in the number of treaties providing for international co-operation and administration in matters affecting private rights and the duties of public officers, as well as the growing prominence of provisions in bi-lateral treaties relating to personal and property rights of aliens, also increases the opportunities for a judicial application of conventional international. law, and renders it necessary that the constitutions of states be so adjusted that the act engaging the national responsibility to fulfil the duties required by these treaties founding an international legal order, shall automatically confer authority upon the judicial and administrative officers to perform the necessary functions, as well as an obligation upon the persons throughout that legal order to obey the rules therein prescribed. In proportion as such treaties multiply in number and are thus executable by legal process, the solidarity of the international legal order will increase, and its administration through judicial tribunals will become more efficient.

121 Hague Conventions, 1907, III, Art. 3; IV, Art. 2; VI, Art. 6; VII, Art. 7; VIII, Art. 7; IX, Art. 8; X, Art. 18; XI, Art. 9; XII, Art. 51.

122 Ex parte Toscano, 208 Fed. Rep. 938.

It is concluded that the legal nature of treaties has been recognized in the leading states of the world, subject to the following tendencies and limitations.

(1) Treaty provisions have been to an increasing extent subject to judicial cognizance, both for determining jurisdiction and rules of decision as a result of two movements:

(a) There is a tendency to require legislative assent to treaties as a step in ratification and hence to give them in fact as great a constitutional sanction as statutes; and

(b) There is a tendency for treaties to become more generally of an executory nature, founding an international legal order, and hence including matters appropriate for judicial application.

(2) The courts of different states have applied appropriate treaty provisions as an immediate source of law in varying degrees, the degree of recognition being in the order here given:

(a) In the United States, by express constitutional provision, courts will apply appropriate treaty provisions in the same manner as statutes, except that they will generally follow the political departments of government in the interpretation of “political questions,” and Federal courts will not assume jurisdiction of criminal prosecutions and possibly of extradition on the strength of treaty provisions alone.

(b) In Switzerland, by express constitutional provision, courts have applied appropriate treaty provisions both to determine jurisdiction and rules of decision.

(c) In Germany, the appropriate provisions of treaties published in the Reichsgesetzblatt have the same legal validity as statutes, apparently giving adequate basis for extradition.

(d) In France the opinion is divided, but apparently courts will apply appropriate treaty provisions, except those interpretable as actes du gouvernement and those depriving courts of a jurisdiction which individuals have a right to demand under the civil law. Treaties appear to be less subject to judicial cognizance in the administrative courts (except the Conseil de Prise) than in the ordinary courts.

(e) In England, courts (except prize courts) will not apply treaties as such, either to determine their jurisdiction or the rule of decision. It is possible that international law-making conventions may be an exception to this rule, but the weight of opinion seems to be that an enabling act of Parliament is necessary to bring the requirements of a treaty before the cognizance of the ordinary courts.

(3) In no country are treaty provisions of an evidently political character, such as those relating to alliances, war and peace, or provisions evidently requiring legislative action, such as an appropriation, regarded as appropriate for judicial application.

(4) Decisions and regulations of national and international organs, when specifically authorized by treaty, will generally be applied by courts in the same manner as treaty provisions.



International law concerns itself so largely with a state of war that the present world-conflict has necessarily had an important bearing upon many of its usages and principles and the opinion has been freely expressed, by some whose views are entitled to respect, that the events of this war have placed the science itself in jeopardy. Without attempting to express an opinion on that point, it is clear that when the war is over, one of the first tasks to be undertaken must be the readjustment of the dislocated parts of the system to the new conditions which have arisen. In doing this we shall probably be led to trace the development of the principles of international law from their earliest formulation up to the present day; but quite outside of this practical object, the accomplishment of which must be left to the future, it may not be without interest at the present time, from the purely historical point of view, to recur to some of the circumstances in which the science came into existence, by calling attention to a much neglected book which shows us in the making some of the important principles of international law which are at issue today, a book written by a man who introduced the modern method of studying that subject. The writer to whom reference is made is Alberico Gentili, and the work in question is his Advocatio Hispanica or the Pleas of a Spanish Advocate.

While the writings of his great rival, Grotius, have been discussed by numberless scholars and translated into many different languages, Gentili was practically forgotten for three centuries, and it was not until 1874, when Professor Holland delivered his inaugural lecture on the great jurist, that interest in his work began to revive. At last in 1908, on the tercentenary of his death, his admirers, having overcome the opposition of the church from which he had withdrawn, unveiled a statue in his honor in his native town in Italy. The reawakened interest in Gentili has brought to light many of the important facts in his life. His career was a picturesque one--an Italian by birth, yet Regius Professor for many years at Oxford; a Prostestant living in exile on account


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