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Published online by Cambridge University Press: 20 April 2017
1 Arthur Nussbaum holds that dissatisfaction with “positivism” was “the most notable feature” differentiating 20th from 19th century thought in the field. A Concise History of the Law of Nations, New York, 1947, p. 274.
2 Opinions designated as “positivism” have varied considerably. The earlier “positivists” were distinguished from the “naturalists” and the “Grotians” by the faet that they gave major weight to the practice of states in determining what norms were international law, but 19th century “positivists” usually rejected the conception of natural law altogether and sought to distinguish law, as rules which are objectively sanctioned, from both ethics and policy. As a result jurists like John Austin denied that international law was “law” and others held that it was only law in so far as the sovereign states (whom it was assumed alone had power to enforce rules and thus to make them “law”) could be relied upon to observe and enforce its rules. Such reliance in the opinion of writers like Jellinek was hardly justifiable except in the case of rules which the state had explicitly accepted by an act of “Auto-limitation” (Nussbaum, work cited, pp. 212, 281). Most of the 19th century “positivists,” however, thought that general custom, giving evidence of practical expediency or generally accepted moral standards, gave sufficient sanction to justify calling a rule “law” (W. E. Hall, International Law, 1924 (8th ed.), pp. 5–6). Twentieth century “positivists” have usually insisted that international law, like all jural law, deals not with what is as does physical law, but only with what ought to be. They add, however, that it does not concern rules which ought to be subjectively but only with those which ought to be objectively because the legal order has sanctioned them. Among these writers some like Anzilloti base international law on the common will of two or more states to be bound by a rule. This common will is in their opinion, manifested by agreements which create a law, not of subordination, but of coördination, sanctioned by regulated self help (Angelo Sereni, The Italian Conception of International Law, 1943, p. 213). Some like Kelsen derive international law from exercise by a state, a group of states or an international agency of law making power delegated by the ultimate norm of the legal system. In his present opinion this ultimate norm is the rule that international custom shall have binding force. Formerly he regarded the rule pacta sunt servanda as that grundnorm. Kelsen, therefore, holds that there is only one legal system in the world. He is an international “monist.” Anzilotti, on the other hand, is a “dualist.” To him the ultimate fact behind the law is not the existence of the world order defined by normative customs but the existence of sovereign territorial states limited only by the norm pacta sunt servanda. International law and the law of each state are, therefore independent legal systems, the one resting on international agreements, the other on the exercise of sovereign legislative power. The two may be in conflict although the state in accord with the international norm ought to legislate to give effect to its agreements, thus bringing the two into harmony. Kelsen denies the possibility of such conflict because he considers the state to be not a sociological entity with original legislative power but merely a complex of legal norms—a constitution which is valid only in so far as it expresses competences derived from international law. Apparent state legislation contrary to international law is therefore, ultra vires and void (Hans Kelsen, Law and Peace in International Relations, 1942, pp. 66, 113. Nussbaum, work cited, p. 285; H. Lauterpacht, “Kelsen’s Pure Science of Law,” in Modern Theories of Law, 1933, p. 125; Josef Kunz, “The Vienna School and International Law,” in N. Y. U. Law Quarterly Review, March, 1934). Kunz, who, in the main, follows Kelsen, places “the dogma of state sovereignty” in the very center of the theory of international law but not because of theoretical necessity but because the world legal community defined by international custom is still a very primitive society which has delegated law making authority to the states with little limitation (“The Theory of International Law,” in Proceedings of American Society of International Law, 1938, p. 30. See also Kelsen, work cited, pp. 51, 121).
3 See for example Schick, F. B. “The Nuremberg Trial and the International Law of the Future,” this JOURNAL, Vol. 41 (1947), p. 770.Google Scholar
4 Several writers have commented on the influence of Auatinian positivism. See Moore, J. B. International Law and Some Current Illusions, 1924, p. 292 Google Scholar; Lauterpacht, H. “Allegiance, Diplomatic Protection, and Criminal Jurisdiction over Aliens,” in Cambridge Law Journal, 1947, p. 330.Google Scholar
5 “The new invocation of the natural law simply expressed the growing awareness of the fact that treaties and custom cannot tell the whole story of international law, and that a decision on controversial issues can be found only by a process of reasoning which, in addition to the given positive material, includes within certain limits considerations of justice and equity” (Nussbaum, work cited, p. 275).
6 Lauterpacht attributes much of Groitus 's influence to his exemplification of this attitude. “The Grotian Tradition in International Law,” in British Year Book of International Law, 1946, p. 51. See also Boscoe Pound, “Philosophical Theory and International Law,” in Bibliotheca Visseriana, Vol. I (1923), p. 71.
7 Koo, Wellington Jr., “Some Aspects of the Work of the Legal Committee of the General Assembly during the Second Part of the First Session,” in this journal, Vol. 41 (1947), p. 639 Google Scholar; also Seport of the Committee on the Progressive Development of International Law and its Codification, Plans for the Formulation of the Principles of the Nuremberg Charter and Judgment, in the same, Supplement, p. 26.
8 Manley O. Hudson, The Permanent Court of International Justice, 1920–1942, 1943, p. 194. The subcommittee of this committee in reporting the Statute to the First Assembly of the League of Nations stated that it was one of the Courts important tasks “to contribute through its jurisprudence to the development of international law” (the same, p. 195). The jurists who reported the Statute of the International Court of Justice to the San Francisco Conference in 1945 stated that Article 38 “has given rise to more controversies in doctrine than difficulties in practice” and suggested no substantive changes. United States, Department of State, The International Court of Justice, Selected Documents relating to the Draft of the Statute, 1946.
9 Josef Kunz has recognized the need for a dynamic law of nations but writing from a positivistic point of view he considers the problem “not a juridical one but a problem of international legislation”: “The Law of Nations, Static and Dynamic,” in this journal, Vol. 27 (1933), p. 649. Sir Henry Maine pointed out that in primitive legal systems, a condition which, as has been seen, Kunz unhesitatingly attributes to the international legal system, law cannot progress by legislation but only through the application of “legal fictions” or of concepts of justice and equity by courts {Ancient Law, 1870 (4th ed.), p. 15. See also Q. Wright, “Article 19 of the League of Nations Covenant,” in Proceedings of the American Society of International Law, 1936, p. 55; Lauterpacht, Private Law Sources and Analogies of International Law, 1927:
10 This has never been questioned in the case of piracy and many states exercise universal jurisdiction over other offenses against the law of nations: Harvard Research, Draft Convention on Jurisdiction with Bespect to Crime, this journal, Vol. 29 (1935), Supplement, pp. 476–480, 569–572. See also Resolution of Conference for the Unification of Penal Law, Warsaw, 1927, in the same, pp. 641–642, and Harvard Research, Draft Convention on Piracy, in this journal, Vol. 26 (1932). Supplement, pp. 751–754; Cowles,, W. B. “Universality of Jurisdiction over War Crimes,” in California Law Review, Vol. 33 (1945), pp. 177–218 Google Scholar; Wright,, Q. “The Law of the Nuremberg Trial,” in this journal, Vol. 41 (1947), pp. 55–58.Google Scholar
11 The Judgment of Military Tribunal No. III, Nuremberg, Case 3, U.S. vs. Josef Alstoetter et al., Dec. 3, 1947, contains a discussion on this point with citation of historic instances and recent discussions of “genocide,” Record, p. 10643.
12 This JOURNAL, Vol. 41 (1947), p. 221.
13 Harvard Eesearch, Draft Convention on Diplomatic Privileges and Immunities, Art. 18, and comment, in this journal, Vol. 29 (1935), p. 97, and Draft Convention on the Legal Position and Functions of Consults, Art. 21, where it is explained that the immunity for acts in the performance of consular functions extends only to “functions which he is entitled to exercise” and that the receiving state decides this in first instance, applying standards of international law rather than the consul’s instructions (the same, pp. 338–340). It was not necessary to spell out this limitation in the draft on diplomatic officers because persons enjoy a special jurisdictional immunity while they have diplomatic status in addition to the permanent immunity from liability for official acts. It has usually been said that a state is responsible for acts of its officers injurious to aliens if the act was within the scope of the officer’s authority or, in the case of torts by higher officers, if within the color of his authority, as denned by municipal law (E. M. Borchard, Diplomatic Protection of Citizens Abroad, 1916, p. 180; Harvard Eesearch, Draft Convention on, Responsibility of States, this Journal, Vol. 23 (1929), Supplement, p. 157). The question here has concerned the responsibility of the state and not the liability of the officer. That liability may exist under international law even if the state is responsible in ease the aet was beyond the authority of the state under international law. This is notably true of acts of soldiers who are individually liable for breaches of the law of war although under Article 3 of the Hague Convention on Eules of Land Warfare the state is also responsible. Judges that deny justice to aliens may render the state responsible but they may also be criminally liable if the denial of justice violates rules of war or of international justice (see case referred to in note 11 above and Alwyn V. Freeman, “War Crimes by Enemy Nationals Administering Justice in Occupied Territory,” in this JOURNAL, Vol. 41 1947, p. 609.)
14 Kunz has stated this view: Proceedings of the American Society of International Law, 1938, p. 155.
15 The Harvard Eesearch Draft Convention on Aggression defines the legal consequences of “aggression’ which it distinguishes from a “state of war” and draws attention to the fact that the International Law Association, in its Buda Pest Articles of Interpretation, assumed that a violation of the Pact of Paris would constitute ”aggression” in this sense: this Journal, Vol. 33 (1939), Supplement, pp. 823–826.
16 This was the argument stressed by Justice Jackson and accepted by the Tribunal. Jackson also advanced the argument that there was no act of state because the Nazi conspiracy to commit crimes against peace began before the conspirators had taken over the German government and that when they did take it over that government was used as an instrument of the conspiracy, consequently could not act independently as a state. The British prosecution argued that Germany was a criminal state and the defendants were guilty as procurers and accessories to its crimes. The Tribunal did not accept these arguments.
17 Permanent Court of International Justice, Series B, No. 5; 1 Hudson, World Court Reports, p. 204.
18 See case cited in note 11 above and Kelsen,, H. “Legal Status of Germany,” in this Journal, Vol. 39 (1945), pp. 518–526 and in American Political Science Review, Vol. 41 (1947), p. 1188.Google Scholar
19 Judgment, this Journal, Vol. 41 (1947), p. 218.
20 The same, p. 216.
21 Williams vs. Suffolk Insurance Co., 13 Pet. 415; Post, The Supreme Court and Political Questions, 1936.
22 Salimoff vs. Standard Oil Co. of New York, 262 N. V. 220, 1933. Philip Jessup criticizes the Supreme Court for too frequently treating problems as political. “Has the Supreme Court Abdicated one of its Functions,” in this journal,Vol. 40 (1946), p. 168. See also Wright,, Q. Control of American Foreign Relations, New York, 1922, pp. 171–174.Google Scholar
23 “Positive law has always incorporated and does incorporate ideas of natural law and justice” (Lauterpacht, “Kelsen’s Pure Theory of Law,” p. 137). “Whatever is considered ‘just’ in the sense of international morality has at least a tendency of becoming international ‘law,’ ” (Kelsen, Law and Peace, p. 38).
