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1 Fontes Iuris Gentium. Digest of the Decisions of the International Court of Justice, 1976–1985 (Rudolf Bernhardt, Juliane Kokott, Werner Meng & Karin Oellers-Frahm eds., 1990).
2 See 87 AJIL 341 (1993).
3 Id. at 342.
1 Francisco Súarez, De legibus, ac deo legislatore, bk. II, ch. XIX, sees. 2, 6, 8, in 2 Selections from Three Works (Carnegie ed., Gwladys L. Williams trans., 1944) (1612). The sharp distinction between the jus gentium (rules of law common to all legal orders, thus evidenced normally by private law examples) and the jus inter gentes (law between nations) was set out by an English admiralty scholar unmistakably in the next generation. 2 Richard Zouche, Iuris et Iudicii Fecialis, pt. I, sec. I, no. 1 (Carnegie ed., J. L. Brierly trans., 1911) (1650). Actually, doubts about whether universal-uniform “justice”-based natural law existed at all were expressed even by Aristotle. Aristotle, Nichomachean Ethics, bk. V, ch. VII, at 294/295 (H. Rackham trans., Loeb Classical Library 1939) (ca. 350 B.C.).
2 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, ch. XVII, §2, para. 25, esp. n. 1, in A Fragment on Government and An Introduction to the Principles of Morals and Legislation by Jeremy Bentham 426 (Wilfred Harrison ed., 1823 ed., Basil Blackwell 1948) (1789).
3 The leading legal text of the time, and the one familiar to those of our constitutional generation who were lawyers, was, of course, William Blackstone, Commentaries on the Laws of England (1765–1769). Volume 4 (1769) is the only one pertinent to this discussion. See vol. 4, ch. V: “Of Offences Against the Laws of Nations.” Blackstone defined the “law of nations” to include all rules deducible by “natural reason” and adopted “by universal consent among all the civilized inhabitants of the world.” The major area for its play was in transnational trade,
mercantile questions, such as bills of exchange and the like; in all marine causes relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature; the law-merchant … to prizes, to shipwrecks, to hostages and ransom-bills, there is no other rule of decision… . But though in civil transactions and questions of property between the subjects of different states the law of nations has much scope … offences against the law of nations … are principally incident to whole states or nations: in which case recourse can only be had to war ….
See 4 William Blackstone, Commentaries on the Laws of England: Of Public Wrongs 1474–75 (William Draper Lewis ed., Rees Welsh & Co. 1897). Is this what Professor Paust has in mind as the guiding spirit of our Founding Fathers? If so, what happened to the notion of “consent”? But there is much in Blackstone that seems self-contradictory to a modern analyst, and strains in the system that resulted from too easy an adoption of his legal model probably contributed to the massive shift in legal theory in the next generation.
4 Joseph Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies (1834). For a summary analysis of Story’s role in this shift, see Alfred P. Rubin, Private and Public History; Private and Public Law, 82 ASIL Proc 30 (1988).
5 For a criticism of the Court’s approach to this source of law, see Richard B. Lillich, The Rigidity of Barcelona, 65 AJIL 522, esp. 529–31 (1971). Lillich seems to have confused the ICJ’s choice-of-law referral to municipal corporation law with what he argues should have been a referral to municipal corporation law as a source of international law dealing with stockholders’ claims. Some arbitral tribunals have found general principles of law a fertile source of law in some cases. See Wolfgang Friedmann, The Uses of “General Principles” in the Development of International Law, 57 AJIL 279 (1963). The indispensable work, pointing out the limits of the approach, is still Hersch Lauterpacht, Private Law Sources and Analogies of International Law (1927).
6 Harter (Carriage of Goods by Sea) Act of 1893, 27 Stat. 445 (46 U.S.C. app. §§190–195 (1988)); the Jones (Merchant Marine) Act of 1920, ch. 250, 41 Stat. 988, often supplemented and amended, now dispersed throughout 46 U.S.C.
7 Occam’s razor, otherwise called the Law of Parsimony, “Essentia non sunt multiplicanda praeter necessitatem” (Essences [assumptions] are not to be multiplied unless necessary). William of Occam (Ockham) was an English monk and philosopher who died in 1349. See 19 Encyclopedia Britannica 965–66 (11th ed. 1911).
8 Even then, there can be problems and different interpretations. For example, was the United States Constitution, adopted as if a treaty in 1788, not to be subject to denunciation as if a treaty, by the “sovereign” states composing the legal union in 1861?
1 Certainly, they were not merely those involving admiralty or prize, and none seem to have involved merely “choice of law” or “conflict of laws,” as Professor Rubin would prefer. See also Alfred P. Rubin, Professor D’Amato’s Concept of American Jurisdiction Is Seriously Mistaken, 79 AJIL 105, 106 (1985) (“a universal law … that has historically been considered part of public international law, including the law of belligerent prize, and … a universal law of nations that is denned to apply to all people, everywhere and at all times” “were popular in the late 18th century” and “are incorporated by implication in our Constitution,” as well as in “the Alien Tort Claims Act” of 1789 (emphasis added)). Further, no opinion that happened to involve a jurisdictional competence in admiralty or prize limited its recognition that the Executive is bound by the law of nations and/or international law to such a case. See, e.g., cases cited in Jordan J. Paust, The President Is Bound by International Law, 81 AJIL 377, 377–83 (1987); Correspondence, 87 AJIL 252, 252–54 (1993). Indeed, Justice Story in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), expressly related the “law of nations” to the President’s constitutional duty faithfully to execute “the laws.” Id. at 149; see also id. at 147, 153; Justice Story’s opinion in United States v. The Schooner Amistad, 40 U.S. (15 Pet.) 518, 594–96 (1841) (interchangeable use of law of nations and international law in response to individual claims and prevailing argument that the “federal executive” has no “power of making our nation accessories to … atrocious violations of human right,” id. at 553); Rubin, supra. Story's approach in Brown, although now anathema to Rubin, was entirely proper since such law is law of the United States. See, e.g., Jordan J. Paust, Customary International Law: Its Nature, Sources and Status as Law of the United State’s, 12 Mich. J. Int’l L. 59, 81–86 & nn.38–39, 44–47 (1990) [hereinafter Customary Law]; 1 Restatement (Third) or The Foreign Relations Law of the United States 40–41, §111 (1987). On the proposition that federal courts most often thought that the “law of nations” rested upon human expectations and practice (what we recognize as the two elements of customary international law), see, e.g., Paust, Customary Law, supra, at 59–61, 68–72.
2 Apparently, Bentham’s Introduction to the Principles was not cited until 1960, and has not been cited since. Indeed, any reference to Bentham has been extremely rare. For the view that his influence is speculative, see Alfred P. Rubin, The Law of Piracy 119–20 n.135 (1988). Even if he originated the phrase “international law” (cf. Mark Janis, Jeremy Bentham and the Fashioning of “International Law,” 78 AJIL 405, 408–09 (1984)), the philosophical meaning of its originator(s) did not spread as its only meaning, especially in the Americas. Indeed, such control over words may not be possible. Also, Joseph Story’s Commentaries on the Conflict of Laws (1834) was not cited often and in no known case is Rubin’s assumed “role” evident. Importantly also, “ ‘foreign laws’ ” (Story), “ ‘the laws of one nation’ ” (Story), the “ ‘law-merchant’ ” (Blackstone), and the law “maritime” as such were not really customary international law. Compare Story, supra, at 24, 33, 38, quoted in Alfred P. Rubin, Remarks, 82 ASIL Proc. 35 (1988) with Janis, supra, at 417; Paust, Customary Law, supra note 1, at 65–67 n.14, 80 n.34; Henry J. Steiner & Detlev F. Vagts, Transnational Legal Problems 579 (3d ed. 1986); Joseph M. Sweeney, Covey T. Oliver & Noyes E. Leech, The International Legal System 190 (3d ed. 1988). To pretend that the first three are customary international law or the “law of nations” as widely understood (see Rubin, Remarks, supra; Alfred P. Rubin, supra p. 590, 591 n.3 and text at notes 4–6; Rubin, Revisingthe Law of “Piracy,” 21 Cal. W. Int’l L.J. 129, 130–31 (1990) (confusing the “law of nations” with merely the domestic or “municipal law” of nations)) will deceive few others. See also Anthony D’Amato, Professor Rubin’s Reply Does Not Live up to Its Title, 79 AJIL 112, 113 (1985).
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