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Independence Under International Law

Published online by Cambridge University Press:  27 February 2017

Edward Dumbauld
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Extract

In the first paragraph of the Declaration of Independence the nascent United States acknowledged “a decent Respect to the Opinions of Mankind.” This constituted, to a certain extent, an express acceptance of the binding force of international law, a corpus of rules based upon generally prevalent opinio juris.

Type
Research Article
Information
American Journal of International Law , Volume 70 , Issue 3 , July 1976 , pp. 425 - 431
Copyright
Copyright © 1976 by The American Society of International Law

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References

1 Quotations from the Declaration are from the Dunlap broadside, the earliest and apparently most authoritative text of the document. It was printed by John Dunlap at Philadelphia on the night of July 4, 1776, and watered into the so called “rough” Journal of the Congress at its appropriate place among the proceedings of that date. E. Dumbauld, The Declaration of Independence and What It Means Today 16–17 (2nd ed. 1968). For the quoted passages, see id. 157, 161

2 Dumbauld, The Life And Legal Whitings Of Hugo Grottos 16, 57–82 (1969).

3 J. Boyd, The Declaration of Independence 7 and Doc. Ill (2nd ed. 1945).

4 H. Friedenwald, The Declaration of Independence 69, 73 (1904). Still earlier Silas Deane had been empowered to deal with the French Government on commercial matters. Id. 74–75. The French negotiator was Caron de Beaumarchais, better known as author of le Mariage de Figaro.

5 2 D. H. Miller, Treaties and other International Acts of the United States of America 3–27, 35–41 (1931).

6 The expression “International Law” seems to have been originated by Jeremy Bentham in 1780. Bentham, An Introduction to the Principles of Morals and Legislation, 326 (Chap. XVII, ꜥ, written in 1780, first published in 1789). The preamble to the Declaration claims the status of sovereign equality and independence under “the Laws of Nature and of Nature’s God.” Dumbauld, supra note 1, at 30. But when the “natural law” concepts prevalent in the eighteenth century and earlier were applied to the area of international relations, jus gentium in the modern sense, or what is now commonly called international law, resulted. Id. 36. The title of the celebrated and influential treatise published by Emmerich de Vattel in 1758 was le Droit des Gens, ou Principes de la Loi naturelle Appliqués à la conduite & aux affaires des nations & des souverains. (The title of the English translation by Charles G. Fenwick, published in 1916, is The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and Sovereigns.) A copy of the first edition belonging to Jefferson is in the Library of Congress. The work was actually published in Neuchâtel, although the title page says “London.” Dumbauld, supra note 1, at 188.

7 Id. 161.

8 Eighteenth century thinkers failed to grasp the possibility of federalism within the British Empire as a solution to conflicts between London and the Colonies. In actual practice, as distinguished from theoretical dogma, a certain measure of political decentralization had grown up roughly parallel to later American constitutional developments. Id. 31. See also R. G. Adams, Political Ideas of the American Revolution 185 (1922); C. H. Mcilwain, The American Revolution: A Constitutional Interpretation 56–60 (1923); M. Jensen, The Making of the American Constitution 14–15 (1964).

9 Ware v. Hylton 3 Dall. 199, 281 (1796).

10 Sir John Fischer Williams, Chapters on Current International Law and the League of Nations 14 (1929).

11 Thomas Jefferson was nominated as Secretary of State on September 25, 1789, confirmed and commissioned on September 26, 1789, and entered on duty on March 22, 1790. R. B. Mosher, Executive Register of the United States 1789–1902 at 9 (1903).

12 Report on negotiation with Spain, March 18, 1792, 6 The Writings of Thomas Jefferson 425 (P. L. Ford ed. 1904) [hereinafter cited as Writings]. On March 22, 1792, Jefferson recorded his philosophical observations on extradition of fugitives from justice in connection with a proposal for negotiating a treaty on that subject with Spain. Id. 445–50. The regulation of international rivers is a topic of current importance in international practice. For recent discussions see Vitányi, Béla, The Regime of Navigation on International Waterways, in 5 Netherlands Yearbook of International Law 111–66 (1974)CrossRefGoogle Scholar; 6 id. 3–58 (1975); J. G. Lammers, International Cooperation for the Protection of the Waters of the Rhine Basin against Pollution, 5 id. 59–110; and Lammers, The Draft European Convention of the Council of Europe for the Protection of International Watercourses against Pollution, 6 id. 167–98.

13 Jefferson to George Hammond, May 29, 1792, 7 Writings 12.

14 See supra note 5.

15 Opinion on French treaties, April 28, 1793, 7 Writings 285.

16 id. 285–86.

17 Id.287.

18 3 Classics of International Law: Vattel, The Law of Nations 175 (translated by Charles C. Fenwick, 1916) (Book II, Chap. 12, §197):

The sovereign remains the ally of the State in spite of the changes which have taken place within it. However, if these changes are such as to render the alliance useless, dangerous, or unsatisfactory to him, he is at liberty to disclaim it; for he can say with good reason that he would not have entered into an alliance with that Nation if it had been under its present form of government.

19 7 Writings 293–94.

20 Id 294–95.

21 Id. 295.

22 Id. 296, 298.

23 Id.300.See supra note 18.

24 Jefferson to Genet, June 17, 1793, 7 Writings 398. Genet’s persistent flouting of the American Government led to his recall.

25 Jefferson to Genet, June 5, 1793, id. 363.

26 Id. 398–99.

27 Id. 400.

28 Jefferson to Gouverneur Morris, August 16, 1793, id. 485.

29 Dumbauld, , Neutrality Laws of the United States, 31 AJIL 260 (1937)Google Scholar.

30 7 Writings 488.

31 W. K. Woolery, The Relation of Thomas Jefferson to American Foreign Policy 1783–1793 at 103–21 (1927); C. M. Thomas, American Neutrality in 1793 (1931); Wiltse, C. M., Thomas Jefferson on the Law of Nations, 29 AJIL 66 (1935)Google Scholar.

32 Jefferson to Thomas Pinckney, September 7, 1793, 8 Writings 25. Hence the English instructions of June 8, 1793, to commanders of warships were “manifestly contrary to the law of nations.”

33 Although desirous of establishing the rule that “free bottoms shall make free goods,” the United States recognized that that rulédepends upon recognition by treaty, and that by the customary rule of the law of nations “the goods of a friend are free in an enemy’s vessel, & an enemy’s goods lawful prize in the vessel of a friend.” Jefferson to Gouverneur Morris, August 16, 1793, 7 id. 497; Jefferson to Genet, July 24, 1793, id. 457–59; Opinion on Neutral Trade, December 20, 1793, 8 id. 120–24.

34 Id. 26. This pronouncement was in keeping with Jefferson’s view that “Those who labour in the earth are the chosen people of God, if ever he had a chosen people.” 4 id.85. Likewise characteristically Jeffersonian was the provision of Article 23 of the treaty of commerce of September 10, 1785, with Prussia (negotiated by Franklin, Jefferson, and Adams) that in case of war between the signatories “all women & children, scholars of every faculty, Cultivators of the earth, artizans, manufacturers, and fishermen … & in general all others whose occupations are for the general subsistence & benefit [sic] of mankind shall be allowed to continue their respective employments, & shall not be molested.” 2 Miller, supra note 5, at 178. For drafting of this clause, see 7 J. Boyd (ed.), The Papers of Thomas Jefferson 486, 490–91, 622 (1953); 8 id. 9. Its humanitarian principle has been accepted generally as a rule of customary international law. The Paquete Habana 175 U.S. 677, 686, 690–91 (1900).

35 “Great Britain … may, indeed, feel the desire of starving an enemy nation; but she can have no right of doing it at our loss, nor of making us the instrument of it.” 8 Writings 28.

36 Jefferson to George Hammond, May 15, 1793, 7 id. 326.

38 1 C. Wabben, The Supreme Court in United States History 110–11 (1924); Hudson, M. O., Advisory Opinions of National and International Courts, 37 Harvard L. Rev. 970 (1924)Google Scholar.