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Introduction à l'Etude du Droit Pénal International. By H. Donnedieu de
Vabres. Paris: Librairie de la Société du Recueil Sirey. 1922. pp. 482.
This book is the latest contribution to the increasing literature dealing with what the author calls the new science of international criminal law. It is a work of high scientific value and contains evidence of painstaking research and of historical erudition. At the outset he emphasizes the “frightful progress of international criminality" resulting from the development of facilities for communication and the invention of new instrumentalities for the commission of international crimes. The time has therefore arrived when the world must establish an organized, internationalized system of repression to prevent the further spread of this rapidly increasing criminality. The existing system under which the criminal law is regarded, in the main, as strictly national and territorial and in accordance with which each state punishes criminal acts (with a few exceptions) committed only within its own territories is totally inadequate to meet the situation today. The list of “extra-territorial” crimes should be enlarged and a system of international repression should be organized. M. Donnedieu, however, does not enter in details as to this. His work is mainly historical. He reviews the doctrines of the jurists, the legislation of states and the jurisprudence of the courts, principally of Rome, Greece, France, Germany, the Netherlands and Italy, from early times to the present, in regard to the competence of the courts concerning crimes committed abroad by the state's own nationals and by foreigners either against its nationals or against the security of the state itself.
The birth of modern international criminal law, he tells us, dates from the conclusion of an extradition treaty in the year 1376 between the King of France and the Count of Savoy, which he seems to regard as the first of the kind of which there is any record. (Professor J. B. Moore, however, refers to an English-Scotch extradition treaty in the twelfth century.) Grotius, who advocated the extradition of offenders against the common law including even the state's own nationals, and who recognized the right of asylum only for those who were the victims of an "undeserved hatred," he considers to have been "the most illustrious representative, after Covarruvias, of the principle of universal repression," although the earlier doctrines of Bartolus exerted great influence on the conceptions of later centuries. Throughout history there have been, he says, two opposing and contradictory ideas concerning the extra-territorial competence of the courts and as to the whole problem of international criminal repression. The first was the imperialistic or nationalistic conception which dominated the Roman law and inspired the French jurisprudence of the seventeenth century. It was based on the doctrine of the "interest of the state" which alone determined the competence of the courts and the duty of extradition. The second was the cosmopolitan or universalist doctrine of the Greeks, which was also the doctrine of Grotius and his school, based on the idea of community of rights and obligations and which made the “duty of the state" the test of the competence of the courts. It reflected the notion of the universal repercussion of crime and the legal obligation of states to extradite criminals taking refuge in their territories. It could be summed up in the "universality of the right to punish.”
The conviction which one has after reading M. Donnedieu's treatise is that there is little or no international criminal law in the real sense of the term. There is some legislation and some rules regarding the competence of courts in respect to certain extra-territorial crimes, but aside from a few acts, such as piracy, the slave trade, the white slave traffic, the circulation of obscene publications, etc., there is no international criminal legislation, nor is there as yet any international judicial or police machinery of repression. The recommendation of the recent Peace Conference Commission on Responsibility of the Authors of the War that penal sanctions should be provided for outrages against the elementary principles of international law, and of the Advisory Committee of Jurists which drafted the statute of the Permanent Court that a high court of criminal justice be established to try crimes against international law, indicate a growing sentiment in favor at least of the creation of an international criminal jurisdiction. The Permanent Court, as finally established, however, was given no such jurisdiction. The so-called international criminal law, therefore, remains, as M. Donnedieu admits in his definition, un droit interne, it is merely “the science which determines the competence of the criminal courts of one state vis a vis the courts of foreign states, the application of its criminal laws in respect to the places and persons which they regulate, and the authority, within its territory, of foreign repressive judgments (p. 6). It is, in short, mainly a matter of conflict of laws as between different states. He does not go to the length of saying as much, though it may be inferred from his criticism of the existing state of the law, that he would agree with M. Travers in his more constructive recent work (Le Droit Pénal International), who proposes, in effect, to transfer a large part of the criminal law to the domain of international law, and instead of leaving its enforcement to the sporadic and isolated action of states acting separately, to entrust its execution to an international organization and machinery. Thus the criminal law would in part, be made international, if not supernational, and its execution would cease to be a matter of local or national interest but would become the concern of the whole body of states or of groups of states. There is nothing to indicate, however, that a reform so radical is likely to find many advocates, at least in the immediate future.
JAMES W. GARNER.
International Law chiefly as interpreted and applied by the United States. By
Charles Cheney Hyde. 2 vols. Boston: Little, Brown, and Company. 1922. pp. lix, 832; xxvii, 925. $25.00.
This work is first and foremost a law book, not a philosophical treatise, or an essay upon international ethics, or a Tendenzschrift of any sort. It was intended to be what it is: a systematic text from the positive point of view, wherein one trained in legal ways of reasoning and expression might find a statement as to what the law is. As such its first appeal ought to be to lawyers, whose interest in the subject is primarily professional. Among the mass of general texts on international law there is none quite like this, either in content or in method. The title indicates this difference. To consider international law chiefly as interpreted and applied by the United States is to provide a basis by which the author is enabled to set forth what one not inconsiderable person in international law has authoritatively considered and set forth as its conception of international rights and duties. Not that there is a special international law for the United States (that would be a body of privileges), or, as Mr. Alvarez would have, even for America. The volumes "express an attempt primarily to portray what the United States, through the agencies of its executive, legislative and judicial departments, has deemed to be the law of nations."
Moore's Digest, of course, in a way opened the path. Mr. Hyde frankly acknowledges his obligation to that great work. But he has not merely prepared a text from the Digest, although that alone might have been well worth doing. This work is neither a distillate nor a supersession of Moore's Digest. If there is an adjudicated case, or printed diplomatic document, or any piece of source material throwing light upon the attitude of the United States in reference to any question of international law and omitted by Mr. Hyde, the reviewer confesses his inability to detect the omission. The citations are not restricted to American documents; foreign texts and materials are referred to in sufficient abundance to direct the student farther. It is fair to say, therefore, that here is a legal text, not based upon subjective prepossessions, but one prepared with careful and judicial objectivity in order to show what the United States has officially set forth as its conception of international law. Such a plan may seem strange to many continental jurists, but what obligations all those interested in international law would lie under if the same sort of treatise could be done for international law chiefly as interpreted and applied by Great Britain, and another for France, and another, say, for Japan, and so on, with an ultimate synthesis upon the basis of universality? But no other country has as yet put forth a work comparable with Moore's Digest to prepare the vay for such an undertaking.
Noting, then, this determination on the part of the author to be objective in spirit as well as positive in method, we may well expect the result to be authoritative. Such indeed it ought to be. That the author has views of his own and is not blinded by authority is evident. He does not, however, intrude his opinions upon the text, but relegates them to the footnotes, which are full and illuminating. As illustrations one may recommend a reading of Mr. Hyde's opinion of the position taken by the United States Government in the matter of the Appam (II, 738–9, note), and the delicious reference to President Wilson's adjuration to mental neutrality as affecting international duties (II, 765).
It was quite in harmony with the author's plan and point of view to omit the usual preliminary excursus upon the history of international law. He strikes at once into the subject of legal rights and duties, and these are the product of that international society, made up of “enlightened states" which, “notwithstanding grave and occasional lapses have generally molded their practice,” have felt themselves bound to observe, and therefore commonly do observe, with a sense of legal obligation certain principles and rules of conduct.
In so far as one may speak of an underlying philosophy in Mr. Hyde's work, it would seem to be that by the perfection of international society by the choice of enlightened states in their mutual dealings, there is perpetuated a progressive international law, not fixed and static, but elastic, so as to meet the needs of such a society: "It must be borne in mind that what the consensus of opinion of enlightened states deems to be essential to the welfare of the international society is ever subject to change, and that the evolution of thought in this regard remains as constant as at any time since the United States came into being. Above all, it must be apparent that whenever the interests of that society are acknowledged to be at variance with the conduct of the individual State, there is established the ground for a fresh rule of restraint against which the old and familiar precedents may cease to be availing" (1, 3). This is a doctrine of progress without any necessary neo-Hegelian connotations, although the idea of progress as resulting from the interrelations of enlightened states approaches Kohler's conception of Kulturrecht.
It would seem that a concept of international justice, while pragmatic in character, is none the less essential to the general scheme; thus: "the maintenance of justice is of greater concern to the international society than the continued independence of any member thereof; and justice among nations is obstructed and held in contempt whenever a State, which loses its capacity to perform its common duties towards the outside world, is long permitted to continue its existence without external restraint. This principle is believed to be relentless in its operation” (1, 23). This is a restatement in more modern terminology of Lorimer's classical doctrine of the Reciprocating Will. Naturally from such a point of view the old absolute rights of states fall into the background, and emphasis is shifted to the organized society of enlightened states. Its effect is noticeable in the discussion of intervention (I, 116–132). And yet the state, essentially as at present constituted, is the fundamental postulate and primordial unit of international law.
Centering the general scheme about international persons of normal status (states), the author proceeds to consider their normal rights and duties, those of political independence (recognition, continued existence, selfdefense, and intervention), the general rights of property and control, jurisdiction, and nationality. To substitute the phrase "rights of property and control” for “rights of sovereignty” may be objected to by some: it certainly is not an exact equivalent for the latter phrase, and under it one looks in vain for a discussion of some of those territorial interests which are less than sovereign, e. g., leaseholds, a juristic anomaly perhaps, but none the less important on that account. Can there be military occupancy of leased areas in derogation of the rights of the lessor? Some, again, may question the author's terminology in describing the United States as a “lessee in perpetuity" of the Canal Zone (I, 344). Under the general title of Rights and Duties of Jurisdiction, Mr. Hyde has included a careful analysis and survey of the subject of international claims, a subject essentially juristic and affording abundant illustrations of "justiciable controversies." No chapter shows more discriminating treatment or is likely to have greater professional usefulness than this.
Lack of space prevents consideration of many matters which tempt the reviewer. Servitudes, the most-favored-nation clause, the arming of merchantmen, the “blockade" of Germany,-the treatment of each of these subjects will provoke discussion. The volumes are a distinct contribution to the literature of international law, worthy to be classed, or rather used, with Westlake and Oppenheim, for each work has its peculiar merits. A monument of patient and scholarly research, it is likely to be enduring. All American students must have recourse to it, and others will not be apt to neglect it.
JESSE S. REEVES.