The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

ESSENTIALS OF INTERNATIONAL PUBLIC LAW AND ORGANIZATION

INTRODUCTION

CHAPTER I
THE NATURE OF INTERNATIONAL LAW

1. Definition of International Law. -- International Law, or the Common and Conventional Law of Nations, is that body of principles, rules, and customs which are generally recognized as binding upon the members of the International Community of States in their relations with one another or with the nationals of other States.1

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1
For various definitions of International Law, see * 1 Calvo, § 1; 1 Hyde, § 1 n.; 1 F. de Martens, Traité, § 3; * 1 P.-Fodéré, Traité, No. 1; and Ullmann, 9-10 n. Halleck ( 3d ed., I, 46) simply defines International Law as "the rules of conduct regulating the intercourse of States." This definition is much too inclusive. There are "rules regulating the intercourse of States" which are not, properly speaking, a part of the Law of Nations. International Law is generally and habitually, though not always, observed; but in this respect it does not differ from municipal or State law, the rules of which are also frequently violated. From the standpoints of brevity and general accuracy, Westlake's definition of International Law (I, p. 1) as the law of the society of states" has much to commend it.

Certain authorities (e.g. Liszt, 3d ed., 1904, § 2, p. 13) distinguish between general (allgemeines) and particular International Law. But rules which are not generally or universally recognized as binding can scarcely be said to deserve the name Intetnational Law at all. Oppenheim. (I, § 1) distinguishes between universal in contradistinction to particular and general International Law. So many divisions seem confusing and unnecessary. However, as long as the League of Nations is not a universal Confederacy, it may sometimes be necessary to refer to the League Law or Law of the League of Nations. According to sonic authorities (e.g. Despagnet, No. 41; and 1 P.-Fodéré, No. 6), the Law of Nations includes a theoretical or ideal, and a real or actual International Law. They explain that the latter tells us what the law is, and the former what it should be. This distinction is undoubtedly a sound one, but this volume deals mainly with positive or real International Law.

Some writers (e.g. Heffter, § 1; and Holtzendorff, in 1 Handbuch, §§ 34) speak of a European International Law. While it may be readily ad

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