085 239-342

THE INTERACTION OF
PUBLIC AND PRIVATE

INTERNATIONAL LAW
TODAY
BY
B. A. WORTLEY, O.B.E., LL.D.
BIOGRAPHICAL NOTE
Ben Atkinson WORTLEY, born at Huddersfield (England) in 1907.
Graduated LL. B. , University of Leeds (First Class Honours), LL. M.
(Leeds), LL. D. (Manchester), First Class Honours in Law Society's
Final Examination, 1929, and Daniel Reardon Prizeman, Barrister of
Gray' s Inn since 1947. Held teaching and examining posts at Universi-
ties of London, Manchester and Birmingham, also examined for the
Law Society and the Universities of Cambridge, Liverpool and Leeds.
During the War served as in civil defence and as a temporary Instructor
Commander Royal Navy. Awarded O.B.E. (Military Division), now
Professor of Jurisprudence and International Law in the University of
Manchester.
Lecturer at the Hague Academy of International Law 1939 and 1947.
Member of the Committee of Management of the Institute of Advanced
Legal Studies, London University, since 1949. Member of the governing
body of the International Institute for the Unification of Private Law,
Rome, since 1947; a British representative to the Hague Conferences
on Private International Law and on the Uniform Law of Sale, 1951 and
1954; from 1953 a member of the Lord Chancellor's Committee on
Private International Law: member of the Court of Birmingham Univer-
sity, of the editorial committee of the British Year Book of International
Law, of various committees of the Manchester and of the International
Chambers of Commerce, of U. N. E. S. C. O. , of the International Law
Association, of the International Institute for the Unification of Private
Law, and of the Society of Public Teachers of Law. Correspondent of
the Hellenic Institute for International and Foreign Law.
PRINCIPAL PUBLICATIONS
1. Franois Gny, Essay in Modern Theories of Law, London, Oxford
Press, 1953.
2. Recueil d'tudes sur les sources du droit. La thorie des sources en droit
priv positif de Franois Gny considre dans son rapport avec la
jurisprudence anglaise, Recueil Sirey.
3. The Dissolution of Foreign Corporations in Private International Law
in the Light of the "Russian Bank Cases", the British Year Book of
International Law, 1933.
4. The Interpretation of the Companies Act, 1929, Law Quarterly Review,
1954.
5. Some Reflections on Legal Research; Journal of the Society of Public
Teachers of Law, 1935.
6. Broadcasting and Comparative Law, Journal of Comparative Legislation
and International Law, 1935.
7. Draft Uniform Law on Arbitration; Canadian Bar Review, April 1936.
8. The Gold Clause, The British Year Book of International Law, 1936.
9. Rapports prparatoires la Semaine internationale de droit, L'abandon
de famille et ses sanctions, Socit de lgislation compare, 1937.
10. Poland's New Codes of Law, Monograph No. 3, Birmingham Information
Service on Slavonic Countries, May, 1937.
11. The Reform of the Law, III, Codification, and IX, Commercial Arbitra-
tion; both in the Nineteenth Century and After, 1937.
242 B. A. WORTLEYINTERNATIONAL LAW TODAY (4)
12. Administrative Law and the Teaching of the Law of Contract, (in
collaboration) ; Journal of the Society of Public Teachers of Law, 1938.
13. Legal Aspects of Property, The Social Sciences, Le Play House, London,
1938, 3rd Series.
14. Quelques rflexions sur la recherche juridique, Recueil d'tudes en l'hon-
neur d'Edouard Lambert.
15. Idealism in International Law, the Spanish View of the Colonial Problem,
Transactions of the Grotius Society, 1938.
16. Legal Punishment, The Medico-Legal and Criminological Review, 1939,
(Reprinted in Modern Approach to Criminal Law, 1945.)
17. Legal Aspects of Marriage, Education for Christian Marriage, London,
S.P.C.K., 1939.
18. Les problmes soulevs par l'expropriation, Recueil des Cours de l'Aca-
dmie de Droit international, 1939.
19. Legal Education and the Citizen of Today and Tomorrow, Association
for Education in Citizenship, 1939.
20' The Idea of the Law of Nations; in "What we defend", Oxford Uni-
versity Press, 1942.
21. The Christian Tradition in English Law, The Month, 1946.
22. The Veto, The British Year Book of International Law, 1946.
23. Victoria and International Law today; Blackfriars, 1946.
24. Some German Views on the Conflict of Laws, Journal of Comparative
Legislation and International Law, 1946.
25. The General Principles of Private International Law from the English
Standpoint, Recueil des Cours de l'acadmie de droit international,
1947, vol. 71.
26. Keeping the Peace, The Law Quarterly Review, 1947.
27. Human Rights; The Cambridge Journal, July, 1948.
28. Expropriation in International Law; Transactions of the Grotius Society,
1948.
29. The Concept of Man in English Private International Law, Trans-
actions of the Grotius Society, 1948.
30. Human Rights, The Political Quarterly, April, 1949.
31. Law Teaching at Manchester; Journal of Society of Public Teachers,
1949.
32. The International Court of Justice, United Nations Association Year-
book, 1948.
33. Les doctrines modernes sur la justice, Paper read before Union Interna-
tionale des Avocats, Paris, 1949, Doet. 18.
35. International Law, Dublin Review, 1950.
35. An Examination of a Draft of the International Chamber of Commerce
Code of Fair Treatment for Foreign Investments, Paper read at London
Conference of International Bar Association, 1950.
36. La notion de Trust et ses applications dans les divers systmes juridi-
ques. Actes du Congrs International de Droit Priv, Rome, 1951, p. 195.
37. The Unification of the Law from the English Point of View, Interna-
tional Bar Association Madrid Conference, 1952.
38. Superior Orders, Blackfriars, Oxford, 1953.
39. The 1951 Hague Conference on Private International Law; Trans-
actions of the Grotius Society, 1953 (Reprinted in Festschrift Lewald,
Basel, 1953.).
40. Numerous notes, translations, reviews, and lectures in foreign univer-
sities, one of the editors of Dicey, Conflict of Laws, 6th ed. 1949.
SOME ABBREVIATIONS
A.C. Appeal Cases i.e. House of Lords or Privy
Council.
A.D. Annual Digest of International Law Cases.
A.E.R. or All E.R. All England Law Reports.
A.J.Comp.L. American Journal of Comparative law.
A. J. I. L. American Journal of International Law.
B.Y.I.L. British Yearbook of International Law.
Ch.D. Chancery Division Reports.
Cmd. Command Paper, published by H. M. Stationery
Office.
Col.L.R. Columbia Law Review.
H.L.R. Harvard Law Review.
I.C.J. International Court of Justice.
I. L. Q. International Law Quarterly.
I. C. L. Q. International and Comparative Law Quarterly.
L. Q. R. Law Quarterly Review.
Opp. Oppenheim's International Law.
P. Probate Divorce and Admiralty Division Law
Reports.
P.C.I.J. Permanent Court of International Justice.
Tr.Grot.Soc. Transactions of the Grotius Society.
THE INTERACTION OF PUBLIC AND
PRIVATE INTERNATIONAL LAW
TODAY
CHAPTER I
THE NATURE OF PUBLI C AND PRI VATE
I NTERNATI ONAL LAW
1. PRELIMINARY
I
T was when preparing my lectures on Expropriation in
private international law for this Academy in 1939 that
I began to see more vividly than ever how often modern
problems necessitate a wide approach. The outbreak of war
and the consequent expropriations, captures and confiscations,
convinced me that in the future, for most of us, it would not
be good enough to label ourselves "public international lawyers"
or "private international lawyers", or to keep our minds
running in mutually exclusive and separate channels. For
example, the owner who is deprived of his property by the
illegal decree of a Prize Court may well wish to know what
remedies (if any) are available to him in private international
law or in public international law. He will eventually ask
whether or not he can recover his goods and, if not, whether
he can obtain compensation. These practical problems raise
issues in both branches of international law.
I do not propose to say much about expropriation in these
lectures: one day perhaps I shall be able to say more t han
I have done up to date, on this topic. What I want to do is
to try to explain how the rules of public and private inter-
national law are related to each other and how the growth
of one may affect the other.
In five lectures, one cannot expect to provide a complete
treatment of a broad subject like this: to do this it would be
necessary to expound most of public international law and a
good deal of the leading systems of private international law,
an enormous task. In this course I must be content to select
examples, mainly from common law sources, to illustrate my
general thesis that public and private international law do
have many common rules, the development of which can be
studied comparatively, and that these systems do mutually
interact on each other, and, occasionally, the rules of one
will correct and supplement the other, much as in English
and Roman law, equity corrected the traditional law.
It is unfortunate that nowadays there are few books which
treat the public and private international law aspects of a
subject together. Notable modern books of this kind do exist
on speciahst topics, however, for example Dr. Mann's "The
Legal Aspect of Money", 2nd edition, Oxford, 1954, Dr. Domke's
"Enemy Trading in World War II", N.Y., 1943, his "Control
of Enemy Property", N.Y., 1947, Dr. Feilchenfeld's work on
Belligerent Occupation, 1942, and Judge Sir Arnold McNair's
books on "The Law of Treaties", 1938, and on "The Legal
effects of War", 3rd ed., 1948. To these works we refer anyone
who wishes to see how the approach to study which we advocate
can be treated.
2. ORIGIN OF THE TERM INTERNATIONAL LAW
The term "international law", invented by Bentham
l
, is
modern and ambiguous. Standing without qualification, "In-
ternational law" means public international law in current
English usage
2
, whereas private international law is regarded
as a separate subject and is often known in English speaking
countries as the "conflict of laws". This modern dichotomy
was made by Bentham. The traditional term, used before
Bentham, the law of nations, Vlkerrecht, droit des gens, jus
1. v. Principles of Morals and Legislation (1789), Oxford, 1879 ed.,
p. 326, note 1.
2. I Oppenheim : International Law, 7 ed. 1948, p. 6.
(9) CHAPTER I 247
gentium, usually comprised what is called public international
law and also the relatively undeveloped subject of the conflict
of laws
1
.
3. THE J US GENTIUM AND THE usus MODERNUS
The term jus gentium in fact shows where many rules that are
common to public and private international law today come
from: they stem from late Roman law and its medieval and
post-medieval developments in Italy, France and Hol l and
2
.
In medieval Italy, the glossators and Postglossators were
indeed concerned with many matters which are now regarded
as public and private international law. Bartolus
3
and Lucas de
Penna
4
, laid down rules governing both matters. For some,
like Lucas, Roman law and Canon law were of universal appli-
cation; for others, like Bartolus, Canon law applied universally
but Roman law was limited to the territory of the Emperor
5
.
Even as late as the 17th Century Grotius, who as a Protestant
probably did not accept the universal Canon law, in his De
Jure Belli ac Pacis
8
(usually thought of as a treatise in public
international law) dealt with many matters now to be found in
works dealing with private international law. In Book I I , for
example, Grotius deals with ownership (Chapters I I - I V) , with
family law and marriage and the right of association (Chapter V),
with the diversity of laws about succession (Chapter VI I ,
para. XI ) , with promises (he sets out the rule locus regit actum,
for example) (Chapter XI , para. V), with contracts (he deals
with double sales of the same object, Chapter XI I , para. XV) ,
with oaths (he deals with the acceptance of oaths for contractual
purposes by persons who habitually swear by "false gods",
Chapter XI I I , para. XI I ) , as well as with the general rules of
interpretation (Chapter XVI ) .
1. Wolff: Private International Law, 2nd ed., 1950, Oxford, p. 11.
2. Ibid.
3. V. C. N. S. Woolf: Bartolus of Sassoferrato, Cambridge, 1913.
4. V. W. Ullman: Lucas de Penna and the Medieval Idea of Law,
London, 1946.
5. Ullman op. cit., p. 91.
6. Camelie Trans., Oxford, 1927. See P. M. Brown in 35 A.J.I.L. (1941).
p. 513.
Again, in his work on The Usus Modernus of Roman law,
Huber
1
, as Professor Llewelfryn Davies has shown
2
has a
section entitled De Conflicto Legum, in which he deals with pro-
blems relating to the conflict of laws. This section greatly
influenced Lord Mansfield and Blackstone, in England, long
before 1834 when Story wrote his famous treatise on that sub-
j ect ; it is noteworthy that the very modern-sounding rules t hat
Huber sets out, dealing with the territoriality of laws, and with
the duty of temporary allegiance based on residence, came out
of the Digest. The European tradition of the jus gentium was
indeed strongly Roman in character : this jus gentium comprised
both branches of international lawpublic and private. Never-
theless, other systems of law, like the common law, have made
their contribution to the common pool of legal principles that
govern matters involving a foreign element today.
"I t would, however, be indefensible" says Gutteridge, "to treat
Roman law, including the usus modernus, as the only source from which
materials are procurable for the development of the law of nations.
To do so is to place a meaning on the phrase 'principles recognized by
civilized nations' which fails to correspond to the new situation which
has arisen since the age of Grotius, when the law of Rome was the basic
element in almost the whole of the law of Europe and was universally
regarded as the standard by which justice should be measured. Nor can
we afford to ignore the contribution which the common-law systems
are in a position to make towards the filling of gaps in the law of nations.
Such concepts as those of estoppel, of the trust and of the strict and
punctual performance of contractual obligations may, in the future,
have an important part to play in the development of international l aw
3
".
It will indeed be part of our thesis that some important
modern rules of public and private international law have been
developed by states independently of the Roman law tradition.
The traditions of the usus modernus of Roman law in the
countries that received the Roman system, and of the institutional
writings thereon of French, Dutch and German jurists were,
however, widely followed in English, European and American
courts in the 18th and 19th Centuries. In this tradition domicile
and not nationality was all important in private international
law.
1. Praelectiones Juris Romani et Hodierni, 1689.
2. 18 B.Y.I.L. (1937), p. 49.
3. Comparative Law, 2nd Ed., Cambridge, 1949, p. 64.
( I l )
CHAPTER I 249
4. THE FRENCH REVOLUTIONARY TRADITIONS AND THE NATI O-
NALIST MOVEMENTS
Curiously enough, it was the French Revolutionary tradition
of the "Enlightenment", and the English utilitarian movement,
which helped to destroy the conception of a common jus gentium,
a system in which nationality was of little account but domicile
was all important, and in which the ruler was subject to the
rules of law and conscience and had not yet developed into an
abstract irresponsible national sovereign state, claiming to be the
sole source of law.
The French codifiers led the way to a conception of legal
rights based primarily on nationality, and not on the domicile
of the usus modernus. Nationality arose from membership of a
sovereign people; and, in the current revolutionary theory, the
people were capable of granting or withholding rights to non-
nationals in their territory. Though paying respect to the
philosophical conception of the rights of man expressed in
revolutionary declarations, the French Civil Code at first only
accorded rights to non-nationals on a basis of reciprocity, or
comity, a condition not insisted on in contries basing legal
rights on domicile. This was doubtless a well-meaning process,
but the rights of the stateless and of persons whose rights depen-
ded, as in India and as in Mohammedan countries, on religious
laws, did not easily fit in with this new order, and it was with the
arrival of the new national codes that the problem of renvoi was
born, arising as it did from the possible conflict of laws between
one system claiming obedience because of domicile, and an-
other because of nationality. It was with the new national
sovereign, acclaimed "all powerful", t hat the binding force of
the customary jus gentium came to be challenged, for 19th
Century theorists, pointing to their codes, stressed the national
will as expressed by Parliament as the source of national law
l
;
in the international sphere, they tended to think of public
international law as the expression of the will of sovereigns in the
wider sphere of the community of states. It is no coincidence
1. V. Wolff: Private International Law, 2nd ed., pp. 11 and 12.
t hat Manci ni
1
and his followers regarded both public and
private international law as the will of a sovereign who himself
could only be bound by the expression of his own will. The
maxim "pact a sunt servanda" became the dogma of the new
schools of nationalist jurists, among whom we must mention
Hegel
2
, who, like Mancini, was concerned to consolidate a
single national sovereignty in his own country by stressing the
importance of legislation at home and of treaties abroad, as
sources of law in the national and international spheres respec-
tivily. More recently, Mancini' s fellow countryman, Anzilotti,
adopted a similar positivist theme, holding t hat public inter-
national law was based upon the principle that agreements
between states must be respected
3
in the international order
was the fundamental norm of public international law, a view
not dissimilar to that expressed by the Englishman Hall
4
. The
traditional view is that international law is mainly a matter of
custom which existed before the rise of national states.
5. T HE UTILITARIANS
The English Utilitarians of the 19th Century were not only-
great codifiers, but at the same time promoters of legislation
based on national sovereignty. Bentham considered "Int er-
national Law" a more expressive synonym for "droit entre les
gens", to deal with the law governing "t he mutual transactions
between sovereigns as such"
6
. Later Utilitarians, following
Bentham, analyzed law in terms of sovereignty: John Austin,
for example, in his "Province of Jurisprudence determined"
chose to regard only "municipal law" as true positive law,
being alone based on the command of a "sovereign". For him,
1. Cheshire, Private International Law, 4th ed., 1952, p. 181.
2. Philosophy of Right, Tr. Knox, Oxford, 1942, p. 212.
3. Corso di Diritto internazonale, Vol. 1., 3rd. ed., 1928, p. 43; cil. Starke,
International Law, 3rd ed., 1954, p. 24.
4. International Law, 8th ed., 1924, p. 4.
5. P. M. Brown in 35 A.J.I.L. (1941) p. 513/4 considers this expression
restrictive and misleading. PhiUimore devoted the first three volumes of his
"Commentaries on International Law" to "Jus inter gentes" and the fourth to
the "Jus gentium", which he called Private international law or comity".
(13) CHAPTER I 251
international law was a misnomer and custom was not law
until accepted by a sovereign.
The 19th Century Western world was divided up in to
territorial sovereignties, and the free cities and principalities
known in feudal Europe were fast being absorbed in larger
units. For these reasons, it became more plausible t han ever
before to treat international law as, in the main, the law govern-
ing territorial sovereigns in their relations with each other.
When those sovereigns began to replace the usus modernus of
Roman law, the canon law of marriage and the universal law
merchant, by separate national codes containing provisions on
the conflict of laws, it became fashionable to drop the term
"t he law of nations" and to replace it by Bentham' s newly-
coined expression "International Law". In this international
law, operating between territorial sovereigns, the individual
was rarely if ever treated as a subject of international law but,
essentially, as a subject of his own sovereign law-giver, and his
personal international relations were regarded as a matter
primarily for the rules of private international law contained
in the civil code with which he was connected.
6. THE IDENTIFICATION OF LAW WITH SOVEREIGN-WILL, AND
THE DOCTRINE OF INCORPORATION
True law then, came to be identified both by French Revolu-
tionaries and English Utilitarians with the will of the national
sovereign, rather t han with the custom of peoples. Utilitarians
like Austin, even regarded the international law between sover-
eigns as "moral i t y" but not strictly positive law. In this Bentham
and Austin were followed by the English writers Holland
1
and
Jet hro Brown
2
who regarded public international law as "law
in becoming", as a body of rules like any other customary rules,
t hat might be adopted or incorporated into municipal law. Such
writers tended also to adopt the "incorporation theory" of
international law, and not to regard custom as true positive law
1. Jurisprudence, Oxford, 1924, 13th ed.. p. 135. Westlake dissented in
his International Law, Vol. 1, p. 6-7, (Cambridge 1904).
2. The Austinian Theory of Law, London, 1920, p. 51 and Excursus C.
252 B. A. WORTLETINTERNATIONAL LAW TODAY (14)
until accepted by some authoritative body such as a court or a
legislature : a profoundly unhistorical view of custom
1
, but one
which fitted in with the spirit of the 19th Century and which
exalted the power of the state over all forms of customary law.
7. THE PERSISTENCE OF CUSTOMARY LAW
It is noteworthy that, as Brierly has shown
2
, the English
courts, with their respect for customary law, never denied the
validity of international law or the law of nations, and indeed
they have consistently taken judicial notice of it, whereas they
have always required proof of foreign law, including the rules
of conflict of laws applied in foreign courts.
The "law of nations" or international law has been expressed
to be part of the law of England since Barbuit'sCase (1737) Cases
T. Talbot 281
3
; that it is part of the customary rules administered
by English courts: but this is not the same thing as saying that
the law of nations has its force because it has been "incorporated
into English law". It is not the theory of the English common
law that the customary law of nations requires for its validity t hat
it be sanctioned by some legislative, judicial or other approval
before it is binding as law: this aspect of the incorporation
theory would be alien to the English way of thinking about
customary law, though of course it is relevant to the theory
which would require treaties to be incorporated by legislation
where those treaties are intended to codify or alter international
law. The better view is that customary law is law for the
English courtsand for international courtsbefore it has been
judicially or otherwise approbat ed
4
, consequently it is legal
material from the start and not only after a certain official
acceptance. The ambit of Customary Law is indeed:
". . . A sphere in which the Law, both international and municipal,
1. V. Allen: Law in the Making, 4th ed., p. 124 el sec. Excursus A. v.
also Kopelmanas in 18 B.Y.I.L., p. 127 and esp., p. 151.
2. Law of Nations, 4th ed., 1949, p. 77.
3. See also West Rand Mining Co, v Ree [1905] 2 K.B., 391; The Christina
[1938] A. C. 485; and Chung Chi Cheung vRex [1939] A.C. 160; cf. The Pagete
Habana, 175 U.S. 677. v. Lauterpacht in 25 Tr. of Grotius Soc. 1939, p. 51.,
4. Allen, Law in the making, 5th ed., Oxford, 1951, p. 139, and Paton :
Jurisprudence, 2nd ed., Oxford, 1955, p. 146.
(15) CHAPTER I 253
recognizes individual rights independently of the direct or specific
approval of the State
l
.
8. PUBLIC INTERNATIONAL LAW TODAY DEFINITION
The notion that public international law is:
"The body of customary and conventional rules which are considered
legally binding by civilised states in their intercourse with each other"
a
,
clearly bears the marks of the 19th Century emphasis t hat
international law is essentially a law accepted by states. This
definition gives no inkling that some of the rules "considered
legally binding by civilised states" relate to the treatment of
individuals, like rules governing piracy, war crimes and extra-
dition, and the treatment of individual sovereigns, diplomatic
agents and aliens and international institutions. The definition
given by Pitt-Cobbett would however make this clear: "The sum
of the rules accepted by civilized states as determining their
conduct towards each other, and towards each other's subjects"
3
.
It is probably even more accurate now, to add, as does Schwar-
zenberger, that public international law includes relations
between states and other entities having "international persona-
lity"
4
. Again, the expression "considered legally bi ndi ng" is
understood in a very general sense ; for only an entirely positivist
theory of sovereignty will allow a state to be free of the rules of
public international law or of obligations arising from contracts
submitted to the private international law of another state,
merely because it does not consider itself bound thereby, and
this cannot now be seriously put forward as regards customary
rules of law; perhaps it is best, as Brierly does
5
, to omit the
expression "considered legally binding", and to say, as he does,
"which are legally binding". Our definition would therefore read:
"The body of customary and conventional rules legally binding
upon civilised states and other entities having international personality,
in their intercourse with each other. "
1. Lauterpacht : Vol. 25, Tr. of Grotius Soc, p. 64.
2. Oppenheim, International Law, Vol. 1, 7th ed., p. 4.
3. Vol. 1. Cases on International Law, 5th ed. 1947, p. 4.
4. Manual of International Law, 3rd ed., 1952, London, p. 3.
6. Law of Nations, 4th ed., Oxford, 1949, p. 1.
Logically this definition would include rules governing
entities with international personality as diverse as the U. S. A. ,
the U. N.
1
, the International Monetary Fund, and the like,
and even individuals (like monarchs and others) customarily
conceived to have international personality; indeed, treaties and
customs may soon make it clear that ordinary individuals have
certain fundamental human rights protectable and even enfor-
ceable in international law. These rights, we suggest, are there even
before they are fully enforceable. When all rights attaching to
individual human beings, alone or in groups, are enforceable,
there will be little reason for distinguishing between public and
private international law, since, by then, Kelsen's notion that
only "so called ' public' international law is international l aw"
2
will be superseded by a world law with a final court of appeal.
But we are looking ahead
3
. For the purposes of our enquiry at
the present day we must still attempt to define private inter-
national law, for as Scelle says, public international Law
dominates but does not replace national law
4
at the present
time.
9. PRIVATE INTERNATIONAL LAW, DEFINITION
Whilst it was difficult for some 19th and 20th Century law-
yers imbued with notions of absolute state sovereignty to accept
the idea that customary public international law was law, when
it had not been expressly accepted by a sovereign, even 19th
Century positivists were prepared to agree that private interna-
tional law was law, because its rules were applied in municipal
courts.
In a recent case dealing with the claim of the Spanish State
to assets in England, Jenkins L. J. expressed the traditional
view t hat :
1. See I.C.J. Rep. 1949, p. 174, A.O. On Reparation for Injuries Suffered
in Service oi' U.N., at pp. 179, 184/5.
2. Principles of International Law, 1952, p. 257.
3. Sec Chapter V on Conventions dealing with Human Rights.
4. Cours de droit int. public, 1948, Paris, Chapter I, at p. 71.
(17) CHAPTER I 255
". . . Private international law is concerned only with the rights of
individuals and not with the competing rights of sovereign states . . . " .
but he went on to show that this distinction is becoming less
well marked:
"English law recognizes the legitimate proprietary rights of foreign
sovereign states, and I see no reason why a right of succession to an
intestate's estate should not be held to answer to that description"
1
.
The emphasis in conflict of laws, or private international law,
is nowadays not so much in the person affected as upon the
tribunal concerned and its right to judge. Dicey, dealing with
courts of municipal law, says:
". . . The vital questions to be considered are the choice of the system
of law to be applied to cases which come before the courts for decision
when they contain some foreign element, and the rules which should
be maintained by the courts as to the limits of the jurisdiction to be
exercised by English or foreign courts respectively"
a
.
Other leading modern English authors like Cheshire
3
,
Graveson
4
and Schmitthoff
5
substantially agree with this
description of private international law.
In general, the private international lawyer is concerned with
the rules of law applied in matters involving a foreign element
in municipal courts, and not with the rules relating to conflicts
between states, unless such conflicts have been expressly sub-
mitted to a municipal tribunal for determination according to
some system of municipal law (which term includes the national
rules of private international law).
10. RELATION OF PUBLIC AND PRIVATE INTERNATIONAL LAW
TODAY
Starting from an undifferentiated system of international law
dealing with the position of states and individuals alike, in the
international community, the 19th Century saw the growth of
the idea of separate systems of public international law and
private international law. By the 20th Century a few writers
1. Re Maldonado [1953], 2 A.E.R., (CA. ), 1579, at p. 1586: [1954]
P.(C.A.), 223, p. 249. See also W. E. Beckett in 1926, B.Y.I.L,, 73.
2. 6th edition, 1949, p. 8.
3. 4th edition, 1952, p. 3.
4. 2nd edition, 1952, p. 10.
5. 3rd edition, 1954, p. 4.
still regarded private international law as a body of rules closely
connected with public international law but distinct from it,
though international in character
1
. Indeed most practising law-
yers have now come to regard private international law as
essentially the law applied in domestic or municipal courts to
matters having a foreign element. The fact that some rules
are widely accepted by those courts does not, according to this
opinion, make private international law a part of international
law.
Sir Frederick Pollock, writing in 1922, was himself inclined to
accept the nationalist position :
"As to the body of doctrine known under the head of Conflict of
Laws or Private International Law, its authority was originally founded
on considerations of natural justice, for so much at least is implied in
the fact that, though it is not j ui inter gentes, it has always been deemed
to belong to the law of nations in the wider and more ancient sense of
jus gentium. But it has now for many years been as much part of the
municipal law of England as the law merchant, and it becomes daily
less and less needful or useful, in any normal case, to cite foreign author-
ities or resort to general principles of convenience. The idea is still
cosmopolitan; and I believe this is so, or tending to be so, in other
countries also"
2
.
Lorenzen has summed up the nationalist position in relation
to the conflict of laws or private international law in these
words :
"The rules of the conflict of laws form a part of the national law of
each state and ... there are as many systems of the conflict of laws as
there are independent states"
3
.
This is no exaggeration today; in one sense there are even
more systems of conflicts of laws governing jurisdiction and
choice of law than that, for many independent states are com-
posite states, like the U.K. and the U.S.A., and such states may
exhibit different rules of the conflict of laws in their different
parts.
In the posthumous edition of Das Internationale Privatrecht
Deutschlands, 1954, Martin Wolff still felt able to say
4
: "Das
1. Vol. IV of Phillimore's work on International Law was concerned
with private international law.
2. History of the Law of Nature: Essays in the Law, 1922. p. 73.
3. 20 Col. L. Rev.. (1920) p. 247 at p. 269.
4. P. 7.
(19) CHAPTER 257
internationale Privatrecht (sei es Gewohnheits-, sei es Gesetzes-
recht) ist kein Vlkerrecht." We must however stress that the
modern reaction is against rigid separation of public and private
international law, for there has indeed, recently been a reaction
against too rigidly a nationalist view of private international
law; for a rigidly nationalist view of private international law
ignores the ground that is common to both systems; some of
this is customary law, some is treaty law. This common ground
needs to be stressed, for a too rigidly nationalist view of private
international law leads to chaos, to "limping marriages", to
mutually contradictory judgments in different countries and to
an ignoring of private claims that may well lead to interna-
tional disputes and disagreements between states. Pushed to its
limits the nationalist school of Anzilotti regards the same State
as a different legal subject according to whether it is acting in
the sphere of public international law or as an entity in private
international law, making contracts and taking concessions and
so forth
x
, a curiously unreal view, we suggest.
Even if different national courts still enforce mutually conflict-
ing rules about jurisdiction and the choice of law, the tendency
will be for those conflicts between the systems of conflicts of
laws to be ironed out by the rationalizing influence of truly
international action by conferences, studies and co-operation.
When international co-operation results in the recognition and
protection of fundamental human rights there will arise again
a body of international law concerned with individuals and the
group life of individuals, and cognizable in national and inter-
national courts; though for the present, until the establishment
of international courts of human rights
2
. any denial of funda-
mental rights by a misapplication of the rules of conflict of laws
by a national court can only be put right (if at all) by diplo-
matic claims for denial of justice, or, in in the case of an injury
to an international organization, by demanding reparation, by
representatives of that organization
3
. The same international
1. Corso, Vol. I. p. , 51, op. cit.
2. See Lauterpacht International Law of Human Rights, 1950, London,
p. 286 et sec. and p. 435 et sec.
3. I.C.J. Rep., 1949, p. 186, A.O. on Reparation for Injuries.
organization may proceed in a tribunal of private international
law or in one of public international law and, if justice is to be
done, the measure of reparation must be the same in either case.
Before ending this first chapter we should like to draw atten-
tion to the valuable materials for the study of the interaction of
public and private international law contained in the Annual
Digest of Public International Law cases. The first volume of
the Digest, covering the years 1925-26, was produced by Sir
Arnold McNair and Professor Lauterpacht in 1929. It has since
been extended to cover selected decisions on the public inter-
national law of war and peace from 1919 to 1948. It represents
an internationalist approach to many matters t hat come before
national courts, for this valuable work of reference distinguishes
between decisions given by international courts and tribunals
and those given by national courts and tribunals. It may be
safely concluded, therefore, that it is now a widely accepted
fact that public international law matters do come before and
and pronounced on by municipal courts, and not only before
international tribunals. The classification of cases established by
McNair and Lauterpacht in 1929 has remained unchanged
right up to 1953 when the last current volume was produced
(covering the year 1948): a tribute indeed to the foresight of
the editors. These topics are included by the editors in their
selections of cases:
Part I, International law in general, including its rela-
tion to municipal law;
Part I I , States as international persons;
Part I I I , State territory;
Part IV, Jurisdiction (including exemption therefrom of
Sovereigns and diplomatic agents) ;
Part V, State responsibility;
Part VI , The Individual in international law (including
nationality and the protection of minorities) ;
Part VI I , Diplomatic and consular intercourse and privi-
leges;
Part VI I I , Treaties;
Part I X, International organisation and administration;
(21) CHAPTER 1 259
Part X, Disputes;
Part XI , War and Neutrality.
If we leave aside the last three headings i.e. International
organisation and administration, disputes between states, war
and neutrality, it is clear that many of the matters referred to in
headings I - VI I I , when the subject of a decision by a municipal
court, and when a foreign element is involved, could be equally
fairly classified as a matter of private international law.
Public and private international law have indeed as Sibert
says, inevitable points of contact ' . These points of contact will
become closer and more frequent when we gradually get away
from systems of private international law that are not interna-
tional, and from systems of public international law that are
not regarded as law.
I. We have already outlined the nature of public and private
international law. Four lectures remain.
II. In our second chapter we shall examine some of the
rules and principles that are now regarded as more specifically
rules of public international law, but which have been drawn on,
or should not be disregarded by the exponents of private inter-
national law.
III. Next we shall investigate the rules of private interna-
tional law which have been, or which may rightly be, used in
public international law matters.
IV. Our next task will be to consider some of the rules or
general principles that are common to public and private
international law and the observance of which is a mark of a
civilised society.
V.Finally we shall consider some of the problems which
are raised by unifying rules of public and private interna-
tional law.
1. Trait de dr. int. pub. , 1951, Vol. I, p. 2.
CHAPTER II
SOME PUBLI C I NTERNATI ONAL RULES IN PRI VATE
I NTERNATI ONAL LAW
(i) The immunities of sovereigns and States, (ii) the immunities
of diplomatic agents and related matters, (iii) the recognition
of new states, of new governments and of state jurisdiction, (iv)
the effects of condemnations in Prize and of acts of war and
certain rules of interpretation peculiar to treaty practice, are
all typical rules of public international law which may have very
considerable repercussions in private international law, since
they may affect private rights in international transactions;
they are all easily assimilated by any national courts applying
customary law.
Cheetham, in a most valuable article on "sources of rules for
conflict of laws"
1
, rightly points out that in matters of jurisdic-
tional immunity and the limits of national territory, the rules of
international law are usually followed in cases involving private
international law.
English courts indeed are governed in these matters by t he
rules of international law. For this reason it has been decided
t hat an English statute is presumed to be in accordance with
the custom of nations and will be so interpreted, unless it is
clear t hat it is intended to go against i t
2
; and the courts will
not easily presume t hat Parliament intended to go counter to
the current of international law or a treaty. Indeed, to admit
t hat a statute violated international law would invite, if not
retaliation, then at least the possibility of diplomatic represen-
tation on behalf of injured foreigners.
1. IMMUNITIES OF SOVEREIGNS AND STATES
State Immunity from process in national courts represents a
concession by one sovereign to another, often at the expense
1. 89 Univ. Penn. L.R., (1941), p. 430 at p. 432.
2. The Zamora [1916] 2 A.C. 77, at p. 108.
(23)
CHAPTER IJ 261
of the conceding sovereign's own subjects. In England, for
example, subjects are able to sue their own sovereign, but they
cannot sue a foreign state.
The rule of the immunity of the foreign Sovereign is firmly
embedded in English private international law; it is usually
ascribed to public international law. In fact, however, there is
much doubt among public international lawyers about the
extent of the rule today, and the discussions of the rule in
courts of private international law in different countries have
done much to delimit and explain its effets.
The rule of state or sovereign immunity, as understood in
England, probably goes back to the medieval feudal rule.
Par in parem non habet imperium. This maxim, relevant in a feudal
world in which magnates were subject to the jurisdiction of
their superiors but not of their equals, certainly saved medieval
courts from being called on to settle competing claims of sover-
eigns to property, possession or other rights; but is this rule so
necessary today?
English courts are possibly too free in granting state immunity.
In the well-known case of Duke of Brunswick v. King of Hanover
(1843), 6 Beav, 1,
1
the Master of the Rolls disallowed a claim
to make the King of Hanover account for moneys received under
a settlement, saying that it was "a general rule in accordance
with the law of nations that a sovereign prince, resident in the
dominion of another, is exempt from jurisdiction of the courts
there". Although the English court will enforce trusts over
property in England on grounds of conscience, even in respect
of defendants absent overseas, it would not do so against a
foreign sovereign defendant. In the Duke of Brunswick's case the
House of Lords was clear that sovereign acts were not triable
by the Court of Chancery.
Lord Campbell drily remarked.
"I have the most sincere deference for the Court of Chancery, acting
within its jurisdiction. I believe there never was a tribunal established
in any country which is more entitled to respect, but still there are
limits to its jurisdiction, it cannot do everything. The Lord Chancellor,
1. Affirmed (1848), 2 H.L.C. 1.
I presume, would not grant an injunction against the French Republic
marching an army across the Rhine or the Alps. The Court of Chancery
must be kept within its jurisdiction, and then I am sure it confers the
highest benefits upon the community" (at p. 27).
It is noteworthy that Grotius, Zouche, Vattel and Bynkers-
hoek, von Martens and Wheaton were all quoted in the court
below (v. p. 14), and no one doubted the relevance of these
authoritative exponents of customary international law ; indeed,
in the House of Lords, Counsel pointed out that the Master of
the Rolls had referred to Bynkershoek's "de foro legatorum",
Chapter 3, but had omitted to refer to Chapter 4 dealing with
"Principis bona in alterius imperio etc". So that the English court
assumed it was following international law and custom in this
matter and was prepared to discuss statements of masters of
international law on the subject of jurisdiction.
Indeed the Master of the Rolls regarded the law of nations
as a primary source of the law to be applied when possible, and
failing that he said he would fall back on comparative law
l
.
The Duke of Brunswick's Case then, rested on a discussion
partly of international custom, and partly on the general prin-
ciples of law. It was followed in De Haber v. Queen of Portugal
(1851), 17 Q. B. , 171 and Wadsworth v. Queen of Spain (1851),
17Q. B. , 215, and in the famous cases of The Charkeeh (1873),
4 A. &E. , 59
a
, and The Parlement Belge (1880), 5 P. D. , ( CA. ) , 197
3
.
I n the Parlement Belge the Court of Appeal, reversing the lower
court
4
, held t hat the immunity of a sovereign extended to his
1. "In a case where there is no precedent no positive law no evidence
of the common consent of nationsno usage which can be relied on
where reasons imputant and plausible are arrayed in opposition to each
other and where no clear and decided preponderance is to be found, it
seems reasonable to endeavour to borrow for our guidance such light,
however feeble and uncertain, as may be afforded by analogous cases,
from whence have been derived rules adopted with great, though not
perfect uniformity by all nations" (p. 47).
2. For a full discussion of these cases v. Gidel, Le droit int. public de la
mer, Vol. II, p. 341, et seq.
3. Followed in The Tervaerte [1922] P. 259; and in The Christina [1938]
A.C. 485.
4. Where Phillimore J. had said: . . . "Neither on principle, precedent,
nor analogy of general international law, should I be warranted in consider-
ing the Parlement Belge as belonging to the category of public vessels which
are exempt from process of law and at all private claims", at p. 149.
(25) CHAPTER II 263
mail ships; this was followed in The Jassy [1906], P. 270; later
this was held to include requisitioned ships: The Broadmayne
[1916], P. 64 ( CA. ) , The Sylvan Arrow [1923], P. 220, and to
last until the end of the requisition and its return to its owners,
The Meandros [1925], P. 61; it did not apply to ships claimed,
but not possessed by a foreign State
1
. The rule was severely
criticized by Scrutton L. J. in The Porto Alexandre [1920], P. 30
at p. 39 and in The Tervaerte [1922], p. 259 ( CA. ) , at p. 272
but it stands.
A foreign sovereign who is also British may nevertheless claim
sovereign immunity, this is still the English law today, it was
founded, according to Scrutton L. J. , upon "legal principles based
on the comity of nations
2
.
In Sayce v. Ameer Ruler Sadiq Mohammad [1952], 1 A. E. R. 326,
McNair J. accepted the certificate of the Commonwealth Rela-
tions Office giving the constitutional history of the Ameer' s
state, which formerly was under British sovereignty, but was
not part of H. M. Dominions, later, on the division of India, it
became part of the Federation of Pakistan, and thus part of the
Commonwealth. The Ameer, however, was held to be entitled
to immunity, in Pakistan and elsewhere in repect of a civil
claim, so t hat his status of immunity, which existed before
partition, continued thereafter. The fact that the Ameer was
alleged to have become a citizen of Pakistan
3
would not alone
disentitle him to any immunity he had under the Duke of Bruns-
wick's Case. For the purpose of the immediate decision McNai r J.
did in fact set out the constitutional position of the Ameer by
quoting from the letter he had received from the Common-
wealth Relations Office, and McNair J . was prepared to accept
the Ameer' s sovereignty for the purpose of immunity even
though, in some respects, the Ameer was dependent on another
power, but he concluded:
"For completeness I may add that I consider that the statement that
the defendant is sovereign ruler of the State of Bahawalpur precludes
1. The Jupiter (No 2) [1925] P. (CA. ), 69.
2. In the Tervaerte [1922] P. (CA. ), at p. 272.
3. A view doubted by the Court or Appeal [1952], 2 Q.B., p. 398, though
see McNair J. in [1952], 1 All E.R., at p. 331.
me from considering the difficult question of the status of component
parts of a federation or the question how far the recognition accorded
in this case is consistent with the recognition accorded to Pakistan as
reported in Kahan v Federation of Pakistan
1
. In my judgment, the
appeal fails and must be dismissed with costs"
2
.
From our point of view the interesting problem is whether the
Ameer, on accepting Federation with Pakistan, retained an
original immunity existing under international law, in which case
that immunity would continue vis vis non-British states not
concerned in the constitutional arrangements made between
him and Britain and Pakistan, or whether, after Federation, the
Ameer' s immunities thenceforth were merely immunities under
Pakistani constitutional law, and dependent solely upon t hat
constitution and therefore operative solely within Pakistan.
It would seem that the Commonwealth Relations Office could,
with some justification, take the view that the Ameer' s immunity
in respect of an alleged breach of contract, in fact depended
upon his own sovereignty existing under international law:
". . . The constitutional position of the Ameer and of his State is now
as follows : (a) The federal legislature of Pakistan (of which the Ameer
is not a member) has power to make laws for Bahawalpur with respect
to the matters set forth in Parts I and II of the schedule to the instru-
ment of April 29, 1951, although in respect of the matters set forth
in Part II the Bahawalpur State legislature has a concurrent legislative
power. The subjects on which the State legislature has exclusive power
are set out in Part I I I of the schedule, (b) Executive authority in the
State in relation to federal subjects is exercisable in accordance with
ss. 8 and 124 and 125 of the Act of 1935, and art. 3 (b) of the instru-
ment of April 29, 1951, that is, either through the Ameer and his
officers, or by officers of the federal government, as the Governor-
General may provide by order made after consultation with the Ameer.
Otherwise executive authority in the State remains in general with the
Ameer, (c) The federal court has the jurisdiction within the State
conferred on it by ss. 204 and 207 of the Act of 1935, and as provided
by cl. 6 of the 1951 instrument, (d) By cl. 7 of the instrument of
accession of Oct. 3, 1947, it was provided that the Ameer was not
committed to accept any future constitution of Pakistan, and that his
discretion to enter into agreement with any future government of Pakistan was
not fettered, but by ell. 4 and 5 of the 1951 instrument he has agreed
to be bound by future changes in the Constitution Act. (e) Clause 8
of the instrument of accession and cl. 9 of the 1951 instrument provide
that nothing in the instrument is to affect the ruler's sovereignty in
1. [1951],2K.B., 1003 (C.A.). A contract concerning the supply of tanks.
2. Saycev. Ameer Ruler Sadig Mohammad [1952] 1 A.E.R., at p. 331. [1952],
2 Q..B., 390 (CA. ).
(27) CHAPTER 11 265
and over the State nor (save as provided by or under the instruments)
the exercise of any powers, authority, rights and jurisdiction enjoyed
by him as ruler, (f) Under the Pakistan Citizenship Act, 1951, the
subjects of the Ameer have now in general also become citizens of
Pakistan, while remaining subjects of the ruler; they are therefore
now British subjects, or Commonwealth citizens, under s. 1 of the
British Nationality Act, 1948. (5) The government of Pakistan have
informed the Secretary of State that the State of Bahawalpur did not,
on accession to the Federation of Pakistan, become a part of His
Majesty's dominions, and that the view of the government of Pakistan is
that the Ameer has continued to be a sovereign ruler and is entitled to immunity
before the courts both within and outside Pakistan in civil cases. (6) In these
circumstances I am to say that the State of Bahawalpur is not a part
of His Majesty's dominions, and that the Ameer, within the limitations
imposed upon him by the constitutional arrangements set out above,
is sovereign ruler of the State ' . "
McNair J. was upheld by the Court of Appeal (Somervell,
Jenkins and Morris L. JJ. ) .
2
.
It would seem, therefore, from this and other cases
3
, that a
sovereign may claim immunity even when clearly to some
extent dependent on another sovereign. Thus any one of the
constituent Soviet Republics would, presumably on this basis,
be entitled to sovereign immunity in English courts, even though
that Republic is clearly not completely independent and even
though it is not, like Byelo-Russia or the Ukraine, a separate
member of the U.N. Indeed, English courts will even recognize
the immunity of a Russian state trading concern publishing
"The Soviet Monitor", from liability for an alleged libel in
England, as was shown in Krajina v. Tass Agency {Moscow)
4
.
In this case the Soviet Ambassador certified that the Tass
Agency was "a department of the Soviet State ... exercising the
rights of a legal entity". It is noteworthy that this extension of
immunity to Socialist trading entities is not by any means
universal, as a glance at cases decided under foreign legal
1. Sayce v Aineer Ruler Sadiq Mohammad [1952] I., AU E.R., 329-330. V.
also [1952], 2 Q..B., 390 (CA. ).
2. [1952], 2 A.E.R., 64 (CA. ).
3. Mighell v. Sultan of Johore [1894] 1 Q..B., (CA. ), 149; Government of
Kelantan [1924] A.C. 797.
4. [1949], W.N., 309: [1949], 2 A.E.R., 274, (CA. ), see Cohen L. J. at
p. 281 for review of U.S. Cases and his conclusion that even the separate
incorporation of a state controlled trading organisation will not lead
per se to an inference that immunity is necessarily lost.
syst ems wi t h show. I t was not followed i n Fr ance wher e it was
hel d t ha t :
"Until it had been otherwise decided by a diplomatic agreement,
the widespread examples, dans tous les domaines , of commercial
activity on the part of the Trade Delegation could only be regarded as
ordinary trading transactions, to which the principle of State sover-
eignty in no way applied" ' .
I ndeed, a respect ed Fr ench cour t , t he Commer ci al Tr i buna l
of Marsei l l es, has hel d t ha t :
"Both on principle and on what is now well-established authority in
our national law the acts of a State, performed by it in a private capacity,
in respect of obligations of private law, in virtue of a contract of an
absolutely private nature and not connected with the exercise of public
authority, fall under the general rules of law and so are subject to the
ordinary jurisdiction"
2
.
An Italian court has even adopted a doctrine of implied
waiver of immunity in terms strongly reminiscent of Anzilotti.
"Now a foreign state may waive its immunity either expressly or
impliedly. An example of an implied waiver is to be found in a case
where the litigation relates to immovables which the state possesses in
another country, or when one state institutes in the territory of another
a complex of relationships giving rise to ordinary business intercourse
through an agency firmly established by its own representatives. This
last hypothesis is realised in the case before the Court. The Court is not
dealing with individual obligations assumed by the French Government,
but with a multiplicity and succession of relationships with foreign
firms, arising by reason of and following upon the working of an agency
of that Government established on Italian territory. This specific act
of the French Government cannot but imply its consent to render the
Italian court competent to deal with any suits that may in due course
arise locally from its activity "
3
.
This decision is in marked contrast to that of Kahan v. Pakistan
Federation [1951], 2 K.B. 1003, where an agreement to submit
to the jurisdiction of the English courts was held not to be a
binding submission.
The Egyptian courts claim jurisdiction over a foreign govern-
ment acting as a civil person, as when a "Government is sum-
moned for a debt incurred by a public vessel employed in the
1. France, Court of Cassation: A.D., 1929-30, Case No. 7.
2. A.D.. 1923-24, Case 68.
3. Court of Rome: A.D. 1923-24, Case No. 66.
(29)
CHAPTER II 267
carriage of pilgrims and actually unarmed, although designed
for coastal defence"
1
. Though immunity from jurisdiction does
extend to merchant ships chartered for the transport of troops
and commanded by officers of the regular navy
2
.
In view of such decisions as these it is not surprising that the
English application of customary immunity to state trading
vessels and organisations was thought by many to go beyond the
requirements of public international law, indeed after discus-
sions at four international Conferences, (London in 1922,
Gothenberg 1923, Genoa 1925, Brussels 1926) a Draft "Conven-
tion on the immunity of State-owned ships" was agreed upon to
destroy the privileged position of state-owned ships and cargoes
as between States accepting it.
This convention has been signed, but not ratified, by Great
Britain. Thus, it seems that the English courts will be likely to
continue to follow an unnecessarily
3
wide interpretation of State
immunity, for without ratification and indeed without legisla-
tion to implement the treaty, unless the House of Lords finds
some way to modify the present case-law, English law will
continue to accord to those who sue in English courts this
wide view of State immunity based upon an extensive inter-
pretation of public international law. It may well be, parti-
cularly for the positivists who play down the value of un-
written law, that the signature, without more, of a convention
such as the Brussels convention, may give further countenance
to the view that there is no international law in this matter
until the treaty comes into force : an unfortunate result as regard
those who choose to proceed against foreign State-owned ships
in England. Still, no one is bound to sue in Engl and; plaintiffs
may pursue their remedies in countries that are less tender to
foreign sovereigns, or they may proceed by way of diplomatic
representation. Curiously enough, since the passing of the Crown
Proceedings Act, 1947, the Crown itself is liable in damages for
1. Egypt, Civil Tribunal of Mansoura: A.D., 1923-24, Case No. 77.
2. Egypt, Mixed Court of Appeal: A.D., 1923-24, Case No. 74.
3. Some writers, e.g. Fitzmaurice in 14 B.Y.I.L., (1933), p. 100 would
perhaps contest this view that the exemption is unnecessarily wide.
the torts of its crews, in English courts, though not liable to an
action in rem against its ships
a
.
Clearly, a foreign state is not likely to protest against an
immunity accorded, except in the unlikely event of one foreign
State being concerned in proceedings against another in the
courts of England, so until the contingency arises there will be
a curious discrepancy: you may sue the Crown in England,
but you may not sue a foreign State here, though you may be
able to sue it abroad.
Indeed, the English courts now not only recognize a personal
immunity of a foreign sovereign, but also the immunity of
property in his possession or control, and as Lord Atkin pointed
out in The S.S. Christina [1938] A. C. 485, these immunities were
considered by him to be "two propositions of international law
engrafted in our l aw" (at p. 490). This view was cited with
approval by Viscount Jowett in House of Lords, in U.S.A. v.
Dollfus Mieg et Cie. S.A. [1952], 1 A. E. R. , 572, who applied
the principle of immunity to governmental interests "lesser
than proprietary or possessory interests in gold bars", giving
the following reasons :
"I n these circumstances
2
I think we should consider
whether the foreign governments had such a possessory
right in relation to the gold bars as to entitle them to ask
that this action should be stayed. Under English law, there
is a simple contract of bailment, the possession of the goods
bailed passes to the bailee. The bailor has in such a case
the right to immediate possession and by reason of this right
can exercise those possessory remedies which are available
to the possessor. The person having the right to immediate
possession is, however, frequently referred to in English
law as being the 'possessor'in truth, the English law has
never worked out a completely logical and exhaustive
definition of 'possession'. We are bound to decide this case
in accordance with the English law and we have no evidence
of any other system of law. Yet it is germane to remember
1. Street, Governmental Liability, 1953, p. 55.
2. At pp. 581-582.
(31) CHAPTER II 269
that the English law has incorporated the doctrine of State
immunity from international law. It would be an unsatis-
factory position if the extent and ambit of this doctrine
were to depend on the special and peculiar doctrine of each
jurisdiction in relation to 'possession' with the result that
differing results might be arrived at according to whether
the case was governed by English law or, for example, by
Scottish law. The basis of the rule was explained by Lord
Atkin [1939], 1 A. E.R. 722, in The Arantzazu Mendi, as
being intended either to secure reciprocal rights of immunity,
or to avoid the risk of injured pride if jurisdiction is sought
to be exercised, or to avoid the risk of belligerent action if
government property is seized or injured, and the distinction
between "possession" and the "immediate right to posses-
sion" would have no bearing on these considerations.
I agree with Jenkins, J., in thinking that the fact that
the foreign governments had the immediate right to posses-
sion of the sixty-four bars made it impossible consistently
with the established principle of English law relating to
State immunity for relief to be given in this action by
ordering the delivery up of the bars or by granting an
injunction restraining the bank from parting with their
possession, for, if either of these courses were taken, it would
be necessary for the foreign governments to take proceedings
in this country if they wanted to recover the gold here.
The doctrine of immunity should not, I think, be confined to those
cases in which the foreign sovereign was either directly in possession
of property by himself or at least indirectly by his servants, for, if
it were so confined, the doctrine would not be applicable to the case
of any bailment
1
. I can find nothing in any decided case to
support any such limitation. We have been referred to
certain American cases which I have considered with care,
but I do not think that any of these cases affords any
justification for such a limitation of the doctrine of sovereign
immunity as is here sought to be introduced. Jenkins, J.,
1. Our italics.
in the course of his j udgment , to which I would desire to
express my indebtedness, expresses the matter as follows
[1949] 1 A. E. R. , 960:
"A foreign sovereign State (unless embodied in a personal sovereign
visiting this country) cannot, so far as I can see, be in actual physical
possession of property here otherwise than by its servants. Accordingly,
if actual physical possession by a foreign sovereign State were essential
to immunity on the score of possession by such State, immunity on that
ground could only be claimed in respect of property in this country in
the actual physical possession either of some personal sovereign or
of a person who could be shown to be in the strict sense a servant of a
foreign sovereign State (so as to make his possession that of his master) or
else to be himself entitled to diplomatic immunity. The application or
exclusion of the principle of immunity would thus be made to depend
on nice distinctions respecting the particular mode in which a foreign
sovereign State might happen to exercise dominion over property
brought by it to this country in its possession or control. For instance, if
gold was brought to this country by a foreign sovereign State to be
applied in the purchase of goods for the public purposes of that State
and placed in the hands of a servant of the State concerned to be applied
in making such purchases in accordance with its directions, the gold
would be protected by the principle of immunity on the score of possession
by the foreign sovereign State, irrespective of any immunity from process
the servant might be entitled to claim in his own person. If, on the other
hand, gold brought to this country by a foreign sovereign State for
similar purposes was deposited by it with a banker or other agent for
safe custody and disposal in accordance with its directions, the gold would
at once become exposed in the hands of the banker or other agent to
any adverse claims there might be, and the principle of immunity
would afford no protection from actions brought by third parties against
the banker or other agent for the purpose of establishing such claims.
I cannot think that it would be right to make application or exclusion
of-the principle of immunity (based as it is on substantial reasons of
policy) turn on nice distinctions of this kind. "
Although I agree with the observations of Lord Maugham
in the Christina case
l
that the doctrine of immunity should
not be extended, yet I think that we should unduly limit the
doctrine if we were to decline to apply it to any bailment
which might be made by or on behalf of the foreign sovereign
in which the action is brought against the bailee. If it were
so limited, the result would be that, if the foreign sovereign
deposited his bag or jewellery with the railway or with the
hotel or with the bank, proceedings could be taken against
the bailee claiming the delivery of the article which had
been deposited by or on behalf of that sovereign."
1. V. Ante.
(33) CHAPTER II 271
Lord Tucker took a similar view, also approving of Jenkins J .
as he then was (p. 592).
Incidentally, the suggestion t hat immunity depends not on
customary law, but on reciprocity, was firmly rejected by
Lord Porter in U.S.A. v. Dollfus MiegetCie S.A. [1952] 1 A. E. R. ,
586, saying:
"The question is: what is the Law of Nations by which civilized
nations in general are bound, not how two individual nations may
treat one another; see per Lord Maugham in The Christina [1938] 1
A.E.R., 739".
Lord Porter did not need to discuss whether an immunity
which he admitted to be dependant on a general rule of interna-
tional law and not on reciprocity, might not also be disregarded
by the English court for exceptional reasons also to be found in
international law. For example, if the U. K. found herself
denied justice in a foreign country, could she not pass legislation
imposing legitimate measures of reprisals under public inter-
national law? We think she could certainly pass such legislation
without violating international law.
The traditional English view of the immunity accorded by
customary international law to state owned property is however
coming to be more . and more questioned and critically revie-
wed
1
, and the rul e-of the Brussels Convention is regarded
as a sensible one. In U.S.A. v. Dollfus Mieg & Cie S.A., [1952]
1 A. E. R. , at p. 589 Lord Radcliffe quoted, with apparant
approval, the statement by Lord Langdale in the Duke of
Brunswick's Case, t hat a foreign sovereign might be made a
party to a chancery suit to administer property, to let him have
the "opportunity to come in to establish his interest"; and in
a very recent case the Privy Council refrained from giving an
opinion on whether a sovereign could claim immunity in respect
of immovables "within the area of the court' s territorial jurisdic-
tion", but expressed the view, not indeed binding upon English
courts, but worthy of great consideration, t hat the rule of
sovereign immunity was not always absolute:
1. German Law did not accord immunity even before the Brussels
convention. Wolff: Pr. int. law, p. 57: The Visargis and the Siena A.D., 1938-40,
Case 94. A similar view was expressed in Zarine v. Users of S.S. Ramara [1942]
Irish Rep. 148.
Viscount Simon said :
"Thei r Lordships do not consider t hat there has been finally
established in England (from whose rules the rules to be
applied in the court at Singapore would not differ) any
absolute rule t hat a foreign independent sovereign cannot be
impleaded in our courts in any circumstances. It seems
desirable to say this much, having regard to inferences that
might be drawn from some parts of the Court of Appeal' s
j udgment in The Parlement Belge, and from the speech of
Lord Atkin in Compania Naviera Vascongado v. Christina S.S.
The word "i mpl ead" is capable of more than one meaning
when used in relation to judicial proceedings which them-
selves comprehend a great variety of forms, and further
distinctions have been suggested between what is direct and
what is indirect impleading, but for the present purpose the
definition of "i mpl eadi ng" can be taken to be t hat which
is laid down by Brett, L. J. , delivering the j udgment of
the Court of Appeal in The Parlement Belge, where he com-
pares the position of a ship-owner whose vessel is seized
in proceedings alleging liability arising from a collision
with the position of a subsequent innocent purchaser of
the vessel. The Lord justice says (5 P. D. , 219):
"Either is affected in his interests by the judgment of a court
which is bound to give him the means of knowing that it is about
to proceed to affect those interests, and that it is bound to hear
him if he objects. That is, in our opinion, an impleading"
l
.
Impleading, in this sense, does not depend merely on an
answer to the more technical question whether a person is
actually a part y or ought to be regarded as a necessary part y
to the proceedings. There have certainly been cases in the Court of
Chancery in which a foreign sovereign has been impleaded to the
extent that the rights to a trust fund under the jurisdiction of the
court have been the subject of adjudication, despite the f act that the
sovereign has a possible interest in the fund
2
. The best known case
is Lariviere v. Morgan, and although the decision in that case
1. In the Sultan of Johore v. Bendahara [1952] A.C. 318, at pp. 324,
340, 342, [1952] 1 All E.R., at pp. 1268-1269.
2. Our italics.
(35) CHAPTER II 273
was reversed on its facts when it reached the House of Lords,
Lord Cairns, L. C. (L. R. 7 H. L. 430) seems to have felt no
doubt as to the propriety of the jurisdiction exercised.
Indeed, in Duke of Brunswick v. King of Hanover, Lord
Langdale, M. R., evidently contemplated (6 Beav. 39)
that in proceedings of such a kind the name of the foreign
sovereign would be included among those of the defendants.
An action in rem against a ship impleads persons who are
interested in the ship. That is settled law. There is even high
authority for the view that such persons are or may be
directly impleaded by such proceedings : see the Christina case,
per Lord Atkin [1938] 1 A. E. R., 721, and per Lord Wright
(ibid., 730). If, however, it had been definitely determined
that in no case could a foreign sovereign be impleaded
without his consent, there could have been no justification
for reserving the case of a sovereign's ship engaged in
ordinary commercea reservation that was, in fact, made
by the majority of the House of Lords in the Christina case.
For a sovereign is impleaded by an action in rem against
his ship, whether it is engaged in ordinary commerce or is
employed for purposes that are more usually distinguished
as public. The extent of the impleading is the same in the
one case as in the other. Indeed, a great deal of the reasoning
of the judgment in The Parlement Belge would be inexplica-
ble if there could be applied a universal rule without possible
exception to the effect that, once the circumstance of a
foreign sovereign being impleaded against his will can be esta-
blished, a proceeding necessarily becomes defective by virtue
of that circumstance alone. To say this is merely to disavow
an alleged absolute and universal rule. It does nothing
to throw doubt on the existence of the general principle."
It is true of course that the Privy Council's view cannot
prevail against that of the House of Lords. But it may well be
that the rule granting indiscriminate immunity may come to be
whitded down, partly by the House of Lords restrictively inter-
preting the cases now forming English private international law
and partly by Treaties.
It is to be hoped that Treaties may be made under public
international law, so that the hardship caused by follow-
ing a rule of English private international law t hat results from
an extensive interpretative elaboration of a rule of customary
public international may be removed. The rule about immunity
was designed to protect the dignity of and peace between sover-
eigns, and never, one supposes, to put a sovereign who trades
in a position of one having a particular economic privilege.
The bolder judicial interpretation of the rule of immunity which
restricts it to property publias usibus destinatum, seems more reaso-
nable than the present English rule of private international law.
Recent attempts to extend immunity in respect of all forms
of state-trading and similar activity, may well be regarded by
international lawyers as nothing more t han over-sympathetic
concessions by national courts operating under their own private inter-
national law rules, and not as concessions necessarily deriving from the
jus gentium
x
.
2. IMMUNITIES OF DIPLOMATIC AGENTS AND INTERNATIONAL
INSTITUTIONS
Diplomatic Immunity. Perhaps one of the most generally accep-
ted and widely known rules of the jus gentium is t hat which lays
down t hat ambassadors shall be inviolable. Grot i us
2
gives a
mass of classical Roman law and Biblical instances illustrating
this rule : later institutional writers can refer to an acknowledged
international custom in this matter. The rule is generally
accepted in national systems of private international law.
The customary law of nations governing the immunity of
diplomatic agents certainly been fully received into the common
l aw
3
. In the case of the Magdalena Steam Navigation Co. v. Martin
(1859), 28 L. J . Q. B. , 310, it was held by the Court of Queens
Bench that the envoy of the Republic of Guatemala and New
Grenada could not be sued f or ^ 600 in respect of contributions
1. See the arguments of Mr. Lindner in Kahan v. Pakistan Federation [1951]
2 K.B., 1003, at p. 1005.
2. De Jure Belli ac Pacis, Book II, Chapter 18.
3. See Satow: Diplomatic Practice, Vol. I, 1917, Chaps. 18-24. Sir Cecil
Hurst in 12 Ree. des cours, p. 120-245; for an English version see his "Col-
lected Papers", 1940, pp. 171-294.
(37) CHAPTER II 275
alleged to be due from him in respect of shares in the plaintiff
Company. It is noteworthy t hat Campbell L. C. J. adopted the
principle "omnis coactio abesse a legato debet" from Grotius's "De
Jure Belli ac Pacis" in preference to a dictum of Sir Edward
Coke that an ambassador was liable on contracts that were good
jure gentium, and a suggestion in Taylor v. Best 14 C.B. 487, that
an ambassador might have j udgment given against him to
settle the debt so that execution might follow when he ceased
to be an ambassador. It is significant t hat Campbell L. C. J .
expressly said that this suggestion "was supported by no autho-
rity and would violate the principle laid down by Grotius".
Thus the rule of international law was accepted by the English
Court in preference to the suggestions of leading English jurists.
Nor will the fact t hat an ambassador, accredited to the state
where he is sued, engages in commercial transactions on his
own account lead to a loss of immunity in the English cour t s
l
.
A mere commercial agent of a state, not entitled to diplomatic
status by custom or treaty, will enjoy no such i mmuni t y
2
.
Incidentally, the immunity of an ambassador from liability for
debts is only temporary, and ceases after his recall: so that his
immunity in commercial matters is not complete and eternal.
English courts recognize this immunity even in respect of suits
respecting the title to movables, The Amazone [1940] P. 40
( CA. ) (an action concerning a motor yacht).
Sir Cecil Hurst in his lectures in this Academy took the view
t hat diplomatic immunity from process extends even to actions
in respect of immovables that an envoy is allowed to possess in
the state to which he is accredited
3
: but again this would
presumably only be during his period of office, unless the
1. Taylor v. Best, 14 C.B. 487; see also Battifol, Tr. elementaire de droit
international priv, p. 719; Tchitchrine's Case, Paris Court of Appeal,
1868, cited Hurst, 12 Ree. des Cours, p. 185; French Court of Cassation
10. 1. 1891, cited by Satow, Diplomatic Practice, Vol. I, 1917, p. 265, where
it was pointed out that the Decree of 13 Ventse of year II, as well as the
code of German Imperial Judicial Organisation, art. 18 and the Austrian
Civil Code, art. 38, were to the same effect; though there is Italian
authority to the contrary, v. Wolff, P.I.L., 2nd. ed., p. 58. But see also
German Law on Judicial Organisation of 1924, art. 20.
2. See Battifol, Trait lmentaire de droit international priv, 1949, p. 718.
3. 12 Ree. des cours, p. 184. See also 1948, A.D., Case No. 104.
immovables were part of the embassy for which the droit
d' htel could be claimed
1
.
An English court has laid it down t hat diplomatic immunity
is accorded for the benefit of the Envoy's state which may renounce
it, and not to profit the Envoy or third parties. So, when in
Dickinson v. Del Solar [1930] 1 K. B. , 376, diplomatic privilege
was waived in respect of a claim arising out of a motor accident,
the court made it clear t hat the privilege was not one which
existed for the benefit of an insurance company but for t hat of
the State served by the Ambassador.
The whole subject of Diplomatic immunity was reviewed by
an interdepartmental committee in England, under the Chair-
manship of Somervell L. J. , which reported on the 13th Jul y 1951
(Cmd. : 8460/1952) ; it recommended no change in the immunities
accorded by English Courts except that local nationals should
not be accepted as embassy servants save when on conditions of
not enjoying a personal diplomatic immunity: of these later.
The Report set out the Foreign Office practice in these words :
"When a dispute arises between a person living in this country and
a person possessing diplomatic immunity here and the dispute cannot
be settled directly between the parties, it is commonly reported to the
Foreign Office and the Foreign Office then approaches the diplomatic
mission concerned with the requests that the Head of the Mission will
either waive the immunity of the member of his staff so that the dispute
can be decided in the ordinary way in the courts or that the matter
should be decided by a private arbitration conducted under conditions
which are fair to both sides. Such requests are commonly acceded to,
and the cases where this approach has not brought about a proper
settlement of the matter have generally been cases where, owing to delay,
the foreign diplomat in question has already left the country before trie
matter can be dealt with, a delay which is generally due to a failure
of the party who thinks he is injured to approach the Foreign Office
promptly.
If a case arose where the foreign mission concerned was neither
willing to waive immunity nor to persuade the foreign diplomat to
accept a reasonable arbitration and the foreign diplomat remained in
this country, the Foreign Office would i
v
^ e circumstances feel obliged
unless there were exceptional features in the 'ase, to inform the foreign
mission concerned that this individu; I could no longer be accepted as
a person holding a diplomatic appoin! *nen' in this country. "
2
.
Thus it comes out t hat the use of a procedure of public interna-
1. 1 Oppenheim, p. 716, note 2.
2. Cmd. 8460/52, pp. 3 and 4.
(39) CHAPTER II 277
tional law may bring about the satisfaction of a debt or other claim
arising in the sphere of private international law.
To return to the question of the Diplomatic immunities of
servants of ambassadors: the Somervell Committee considered
the international law applied "down to secretaries and attachs"
1
but considered there were differences among writers on inter-
national law with regard to the position of domestic servants, and
were inclined to think the immunity accorded in England was
perhaps too extensive since they recommended "t hat the
Foreign Secretary should in future refuse to accept any local
national as holding any position in a foreign Embassy in this
country, including the position of a 'domestic Servant' , except
in the condition t hat such person shall not enjoy a personal
Diplomatic immunity"
2
.
Thus, by administrative action, can difficulties be avoided
and the same result obtained as occurs in countries like the
U. S. S. R. which do not recognize the immunity of servants of
any nationality
1
, and the somewhat wide immunities resulting
from Diplomatic Privileges Act 1708, which made it an offence to
issue process against an ambassador or other public minister
or his domestic servant, may be circumvented. A state is not
bound to accept its own subject as the ambassador of a foreign
power and there is no reason why it should have to accord
diplomatic immunity to its subjects who are ambassadors' ser-
vants
3
.
It is noteworthy too t hat the report recognizes t hat the
principle of retaliation in public international law might justify
the passage of legislation "empowering H. M. G. by appropriate
procedure to reduce the immunities at present accorded to the
embassy or missions of any foreign country so t hat they shall
correspond with the immunities granted by t hat foreign country
to our own embassies or missions"
4
.
The report rightly says: "a state cannot rely abroad on an
1. P. 6.
2. P. 7.
3. P. 5 citing Macartney v. Garbutt (1890) 24 Q..B.D., 368 ;Engelke v. Musman
[1928] A.C. 433, at p. 450.
4. P. 7.
alleged principle of international law which it does not apply
at home".
We have already suggested t hat a similar solution could be
applied in the case of sovereign immunity in matters of com-
merce. In this connection it may be noted t hat English courts
held t hat an embassy servant lost any immunity from process
by distress for rates when he engaged in the trade of a lodging-
house keeper, Novello v. Toogood (1823) 1 B. & C. 544, a case
in which Vattel, Molloy, Bynkershoek, Grotius and Wiquefort
were all cited. So too in Re Cloete (1891) 65 L. T.,| (C.A.),' 102,
a colourable and unrecognized appointment as honorary
attach was held not to confer immunity
x
. It was, rather, an
attempted abuse of law.
Incidentally The Diplomatic Privileges Act, 1708 (7 Anne c. 12)
has always been held to only declaratory of the l aw
2
: the
statute was passed to mollify the then Czar whose Ambassador
had been wrongly imprisoned for a civil debt and to make it
an offence to interfere with Ambassadorial immunity.
It is noteworthy that in England the courts accept the ruling
of the executive on any individual case of diplomatic i mmuni t y;
and the executive is of course bound by the customary inter-
national rules on the subject as well as by treaties. But a treaty
does not by itself create a legal privilege in England, nor does it
destroy the rights of the subject, enjoyed by the common law of
England (which include the rules of conflict of laws) ; conse-
quently, legislation
3
was necessary to extend diplomatic
immunities and privileges and to make provisions for the new
sort of privileges and immunities claimed by the U. N. for its
servants
4
and its specialized agencies (see Document A/503 of
20th November 1947 of the sixth committee of the General
Assembly, Rapporteur M. Georges Kaekenbeeck of Belgium).
During the late war it was deemed necessary to make express
provision to accord diplomatic immunities for the benefit of
1. Dicey: Conflict of Laws, 6th ed., 1949, p. 135,
2. Triquet v. Bath 3 Burr., 1478.
3. See now International Organizations (Immunities & Privileges)
Act. 1950.
4. Treaty Series No. 10 (1950), Cmd. 7891.
(41) CHAPTER II 279
representatives of governments in exile and members of national
committees established in the U. K. to assist the allied war
effort. This was done by the Diplomatic Immunities {Extension)
Act 1941. It is noteworthy, however, t hat this Act extended
immunities and privileges by reference to any existing "enact-
ment, rule of law or custom relating to the immunities and privi-
leges of an envoy of a foreign power accredited to H. M. , and of
the retinue of such an envoy . . . " s. 1 (1), i.e. the Act changed
English private international law by direct reference to public
international law.
The International Organisations {Immunities and Privileges) Act,
1950, adopts the same sort of formula (in Part I I of the Schedule)
in respect of "immunity from suit and legal process" but is
slightly more explicit t han the earlier legislation, since it expres-
sly accords "inviolability as to residence" and "exemption or
relief from taxes", i.e. the droit d' htel and freedom from
taxation of customary law, to "members of committees, high
officers and persons on missions". "Ot her officers and servants"
are merely accorded "immunity from suit and legal process in
respect of things done or omitted to be done in the course of
the performance of official duties", and "exemption from income
tax in respect of emoluments received as an officer or servant of
the organisation" (Schedule to Act of 1950, part I I I )
1
.
This lesser immunity may be compared with the customary
exemption from suit which is accorded to an Embassy servant,
except when he engages in trade
2
.
Section 3 of the Act of 1950 makes further innovations in
private international law by accepting the new conventional
international law enabling an order in Council to be made
3
to confer on "t he judges and registrars of the International
Court, and on suitors to t hat court and their agents, counsel
and advocates, such immunities, privileges and facilities as may
1. Part IV of the Schedule accords the Immunities and privileges to
official staffs and high officers' families, on the same lines as those of envoys
of foreign powers.
2. Novello v. Toogood I, B. &C. 552: Brookfield in 19 B.Y.I.L. (1938),
151. V. ante.
3. S. 6 requires a draft order in Council to be laid before Parliament and
"not to be submitted to H. M. except in pursuance of an address presented
by each House of Parliament. . . ", so it requires an affirmative resolution.'
be required to give effect to any resolution of, or convention
approved by, the General Assembly of the United Nations".
This section is a remarkable recognition of the close connexion
between the International Court and the General Assembly,
and alters English private international law. Section 4 is also
new, it enables diplomatic immunities to be accorded to repre-
sentatives of foreign powers attending conferences in the U. K.
Perhaps most interesting of all is section 5, which enables
H. M. to insist on reciprocity of t reat ment :
"Nothing in the foregoing provisions of this Act shall be construed as
precluding His Majesty from declining to accord immunities or privi-
leges to, or from withdrawing immunities or privileges from, nationals
or representatives of any Power on the ground that Power is failing to
accord corresponding immunities or privileges to British nationals or
representatives." (s. 5.)
This is really a limitation upon the privileges and immunities
of individuals accorded by the Act of 1950 and has the effect of
restoring the State' s and the subject's common law rights
against persons who would otherwise be immune or privileged
by the Act, i.e. it restores such rights as the right to sue indivi-
duals for debts or taxes, when British nationals or represen-
tatives have been refused exemption abroad. It is not known
how this would be proved. A note in the London, Edinburgh
and Belfast Gazette would probably be conclusive by s. 2 of the
1950 Act. Would a statement by the Secretary of State of Foreign
Affairs without more bind an English Court? On principle it
could be argued t hat it would bind in the same way as any
other customary communication about immunity. This provi-
sion would seem to indicate the validity of our thesis in these
lectures t hat Sovereign and Diplomatic Immuni t y are subject to
international law by way of legitimate reprisals
1
.
Thus while customary public international law principles
governing diplomatic immunity are received and accepted in our
English courts by virtue of the common law, the treaty obligations
or conventional international law on this matter are received by
1. See also Montell Ogdon: Bases of Diplomatic Immunity, Washington
D.C. 1936, at p. 214 and 215, and Section 32, "A Law which carries its own
Sanction", p. 212.
(43) CHAPTER II 281
English Courts on the terms of the appropriate English legislation
through this legislation often operates with reference to custo-
mary international law
1
, and it will be to the customary law
t hat the courts will turn in order to find the scope and meaning
of immunity.
Immuni t y is not customarily accorded to diplomatic agents
accredited to other states than that where the agent is sued,
unless specially accorded by t reat y
2
. A diplomatic agent
accredited to a state other t han that where he is sued may be
successfully proceeded against, if the foreign court will accept
jurisdiction over the envoy, though it would, we suggest, be
against public policy for such a j udgment to be enforced by
action or registration in the country to which he is actually
accredited; for example English courts would probably not
allow the enforcement, in England, of a j udgment obtained
abroad against an envoy accredited to the British Crown in the
U. K. Such an action would be against public policy, as well as
contrary to the Foreign Judgments (Reciprocal Enforcement) Act, 1933,
which applies where a convention has enabled a foreign j udg-
ment to be enforced by registration.
Diplomatic immunity from civil and criminal process in the
English courts lasts during the period t hat an envoy is accredited
and for a reasonable time thereafter
3
; the public international
law remedy against an envoy is to demand his recall ; when the
envoy (a) ceases to represent his Government, or (b) when his
Government ceases to be recognized by the power to which he
is accredited his immunity ceases and the ordinary remedies
available under private international law may be pursued.
Oppenheim
1
rightly, we suggest, submits t hat a set-off or
counter claim may be used by a defendant in an action brought
by a diplomatic person as a defence or counterclaim, but not
1. Cf. Diplomatic Immunities (Commonwealth Countries & Republic
of Ireland) Act, 1952.
2. 1 Oppenheim, p. 721.
3. Re Suarez [1917], 2 Ch. 131. See Jones in 25 B.Y.I.L. (1948) 262. The
question of recognition is one to be decided by the Executive in England, in
accordance with public international law, and the courts are bound by
the executive's decision. V. later.
4. Op. at., p. 716.
t o permit any excess to be recovered from the plaintiff over and
above t he sum claimed by him.
Thus it is t hat the principles of public international law with
regard to sovereign and diplomatic immunity may be of the
utmost value in the consideration of problems of private inter-
national law with regard to claims in contract or tort involving
a foreign element. So too, the refinements worked out by
national courts on these matters may extend and enrich public
international law.
3. RECOGNITION OF NEW STATES OF NEW GOVERNMENTS AND
OF STATE TERRITORY
Closely connected with sovereign and diplomatic immunity
are the problems raised by the recognition of new governments
of existing states and of the existence of new states.
On these matters the Anglo-American courts try to accept
the repercussions of the operations of public international law
on litigation coming before them by following the lead given
to them by the executive, so that the executive and the j udi -
ciary "speak with one voice". We do not propose to go into the
details of the theories and practice of "recognition" here, they
have been fully dealt with in recent years by Laut erpacht
x
and
Chen
2
, but one or two recent points do specially concern our
theme.
The new State of Pakistan has been recently recognized by
the court in England as a Federation that is immune from legal
proceedings
3
, as laid down on the certificate of the Common-
wealth Relations office and, the English court followed the
executive in accepting the de jure recognition of the Ki ng of
Italy as Emperor of Ethiopia
l
. The de jure recognition of a new
sovereign of a succession state clearly results in admitting his
claim to assets belonging to the old sovereign; thus the holders
of those assets in a foreign country will obtain a good receipt if
1. Recognition in International Law, Cambridge, 1947.
2. Recognition in International Law, London, 1951.
3. Kahan v. Federation of Pakistan [1951] 2 K.B., 1003. (C.A.).
4. Haile Selassie v. Cable & Wireless Co Ltd (No. 2) [1939] Ch. (CA. ), 182.
(45) CHAPTER II 283
they hand over such assets to the succession state and will be
able to resist claims to such assets made by the old sovereign
who is no longer recognized de jure or defacto. A few practical
problems raised by the international law rules of recognition
illustrate the impact of those rules on private international law.
First, the recognition of claims of the succession state under
international law to state property situated abroad, will not
necessarily imply a recognition of the claims made to the
personal property of a deposed sovereign
1
: and the passing of
confiscatory legislation by the new sovereign will not have
extraterritorial effect in England over the personal property
of the old sovereign. It is interesting that although, as we have
seen, the distinction between the public and personal property
of a sovereign is not yet clearly accepted in England for the
purposes of enforcing claims against a foreign sovereign, this
distinction is made in respect of the personal assets of a deposed
sovereign in order to protect his assets for the benefit of himself
and his creditors against the claims of the successor state.
Secondly, the fact that a sovereign is recognized as a successor
state by the United Kingdom does not mean that such a sover-
eign will also be recognised by other states at the same time, if
at all. Consequently a holder of assets claimed by a successor
state so recognized in England will obtain a good receipt from
the successor, so far as English courts are concerned, but that
discharge will not necessarily be recognized in the courts of
other countries that have not recognized the successor state,
and assets in the control of the same person in a country where
recognition has not yet been accorded may not be so handed
over to the successor state so as to obtain a good receipt, valid in
the courts of the situs. Ideally all states should recognize a
successor state at the same point of time if they all followed
international law: in fact they do not do so
2
.
Thirdly, the moment of recognition of a new state or a new
1. Banco de Viscaya v. Don Alfonso de Borton y Austria [1935] 1 K.B., 120;
Republic of Italy v. Hombros Bank Ltd. [1950] 1 AU E.R., 430.
2. Boguslawski & Another v. Gdynia Ameryka Line [1951] 1 K.B., 162 (CA. );
Civil Air Transport Line v. Central Air Transport Corporation [1953] A.C. 70
(P.C.).
government may be most important to a private individual faced
with conflicting claims by rival governments. This conflict, which
would not occur if a universally valid test of recognition of
governments could be applied, does occur, as it did in Bogus-
lasvskyv. Gdynia America Line(ante). Pending the establishment of
some generally accepted international test of recognition or of
some international machinery to decide such matters, locus regit
actum, and the baille of assets which rival governments claim,
will be bound to accept the view of the law laid down by the
court operating where the assets are
x
. Thus "Subsequent de jure
recognition of a new government as the result of successful
insurrection can in certain cases annul a sale of goods by a
previous government"
2
.
The baille who under compulsion of a local court hands
over assets to a claimant sovereign must be content with this
rule of t humb, and he must, in practice, be careful not to
assume t hat he can adopt the same procedure in another juris-
diction where he may also hold assets.
Fourthly a point expressly left open by the Privy Council in
Sultan of Johore v. Bendahara [1952] 1 A. E. R. , 1261, at p. 1267,
was whether or not in the absence of a conclusive certificate
from the appropriate branch of the executive, the court could
itself accept secondary evidence of sovereign immunity.
At least one school of thought considers t hat a "temporizing
certificate from the Executive leaves the courts free to interpret
the problem in the light of international l aw"
3
, so t hat the
interpretation of such certificates may well afford national
courts dealing with problems of private international law the
chance to make a contribution to the study of the public
international law.
I n the matter of State territorial Jurisdiction, it is clear from
the important recent decision of the I. C. J, on the extent of
Norwegian territorial waters *, that this decision on the
1. Bank voor Handel v. Slatford [1951] 2 AU E.R., 779.
2. Per Viscount Simon in Civil Air Transport Inc. v. Central Air Transport
[1953] A.C.. at p. 93.
3. 1 Opp. p. 685 note 5 ; Lyons in 29 B.Y.I.L., (1952), at p. 255.
4. Anglo-Norwegian Fisheries Case. I.C.J., Rep. 1951, p. 116.
(47) CHAPTER II 285
public international law of state jurisdiction will have many
repercussions on private international law. There is and could
hardly be any English statute purporting to define the extent of
Norwegian territory, and it seems clear therefore that English
and other courts will henceforth be bound to accept the Norwe-
gian claim to define them, in so far as it is backed by the decision
of the I. C. J. , when asked to pronounce upon the lawfulness or
otherwise of an expedition to fish in those waters without
Norwegian permission, or in the absence of a treaty acknow-
ledging fishing rights like that agreed between the U. K.
and France in respect of the Ecrehous and Minquiers
1
. Indeed
it would seem that an expedition to fish in territorial waters
when fishing is locally illegal would constitute an unlawful and
therefore unenforceable contract in private international law,
by analogy with the decision o Foster v. Driscoll [1929] 1 K. B. ,
( CA. ) , 470.
In private international law submission to the law of a state
probably includes a submission to "t he living and changing
l aw" of that state
2
. If the state is extinguished by absorption in
accordance with public international law then its law may
cease to exist and the question will arise in private international
law, whether or not the submission must be regarded as ended.
Of course, if parties submit to a legal system which is not
totally extinguished
3
but which continues to operate in a certain
part of the world, for example, where Germans submit to
German law, they may continue to do so even though the part
of Germany in which they resided when they made the contract
has since become Polish, or vice-versa. A possible exception, of
course, may occur when the contract related to real property
situate in the territory which has changed hands, and when a
real remedy, as distinct from a personal remedy, is sought. Also
a domicile in one country may be automatically changed to a
1. See Johnson in 3 I.L.Q.., (1954), pp. 205-207; I. C. J. , Rep. 1953, p. 47,
for the judgement in the dispute.
2. Re Chesterman's Trusts [1923] 2 Ch. (C.A.) 466, 478.
3. Wolff, Private International Law, p. 425.
domicile in another, when for example Csechoslovakia emerged
from Austria
1
.
On the other hand when a country has been completely
over-run and its legal system no longer functions (even in exile)
it would seem that submissions to that system are no longer
valid, possibly the law of the new sovereign may well be deemed
to replace it, though the experience of the recent world war
shows that courts of a government in exile may continue to
function abroad during enemy occupation. If however a coun-
try is over-run unlawfully, for example as a result of an interna-
tionally unlawful act of aggression, then third states would be
justified in defending the rule of law by upholding the contrac-
tual rights made with reference to the law of the State unlaw-
fully overrun and to disregard the acts of an agressor. Any
other solution would be one which would favour the diminution
of rights by an unlawful act. Usually, recognition of the successor
state will settle the problem, as we have seen.
4. PRI ZE DECISIONS : THE REPERCUSSIONS OF WAR AND ACTS OF
WAR UPON MATTERS OF PRIVATE INTERNATIONAL LAW AND
CERTAIN RULES OF INTERPRETATION.
Judge Sir Arnold McNair has written very full book on
"The legal effects of war "
2
, and a summary consideration of
the contents of this work will reveal that the institution of war,
that ultimate sanction of sovereigns, and now possibly of the
Security Council, has had many repercussions in the field of
private international law as understood in England. Sir Arnold
is concerned with such matters as the nature of war itself, he
points out, for instance, t hat the House of Lords considered
Vattel' s views in Jansen v. Dreifontein Consolidated Mines [1902]
A. C. 484, 493 : he also discusses the importance of the exact
times of the commencement and the end of war (which in
England are settled by the executive, R. v. otterill [1947] 1 K. B. ,
41, acting, we must presume, in accordance with international
1. See observations of Karminski J. J. in Stransky v. Stransky [1954] 2 All E. R. ,
536, at p. 538, when, obiter, the judge took this fact for granted.
2. 3rd ed., Cambridge, 1948.
(49) CHAPTER II 287
law). The duty of allegiance and the status of enemy aliens
before English courts in war time, the effect of war on contracts
of all kinds, the effect of belligerent occupation and of peace
treaties are all covered by Sir Arnold' s work and we do not
propose in these lectures to presume to go over this matter
again : we should, however, like to stress that very many of the
illustrative cases show t hat the impact of war affects contracts
and other legal relationships of private law in which more often
t han not there is a foreign element so that the effects of the
public international law of war are most certainly felt in matters
of private international law.
We do not propose to illustrate our theme by going into
details of the law governing acts of warfare and their effect on
private property, but we should like to recall that, in general, a
legitimate act of warfare is not a ground for civil or criminal
personal responsibility of the soldier concerned, in international
law, and private international law must accept this position:
a soldier will, however, be held personally responsible for war
crimes and will be liable, like anyone else, for torts committed
on his own account
1
. In this respect, as we have said elsewhere,
an act of unlawful violence, like a war crime or the crime of
piracy
2
, will not give a title by international law to the things
t akenen the course of such international wrongdoing'.
We should like to conclude this chapter by mentioning one
particularly instructive aspect of the international law of war
and its repercussions on matters of private international law,
that is the effect of the law of Prize on rights arising out of private
international contracts.
A decision in Prize condemning a vessel or cargo is an act of
public international law which directly affects the private interests
of owners and insurers, mortgagees and pledgees and their claims
under private international law. Prima facie the decision of a
Prize Court is res judicata, and will in general be so regarded by
all international and national courts faced with problems
1. V. F.A. Mann, in 1954, L. Q. R. , p. 181.
2. Wortley in 24 B.Y.I.L., (1947), p. 258: pirata non mutt dominium.
arising out of international contracts concerning the goods
condemned; as Dr. Colombos explains in his "Law of Prize"
1
.
Prize Courts which condemn goods as prize usually refuse to enter
into questions of the conflict of laws arising from the effect of
their judgments on contractual and other rights over the goods.
English and American municipal courts will not, as a general
rule, permit a plaintiff to sue for property alleged to have been
condemned by a lawfully constituted Prize Court
2
. Indeed
English courts have for many years accepted the verdicts of duly
constituted prize courts as conclusive for the purposes of insurance
claims
3
an obviously convenient way of recognizing exemp-
tion from liability on the ground of capture by "Kings Enemies"
a "restraint of princes", a great convenience in cases when an
early settlement of claims is most desirable
4
.
It seems to have been well established in England that a
warranty of neutrality meant "neutral according to the views
of the belligerents concerned". In 1782 in Barzillai v. Lewis,
3 Douglas 126, 99 E.R., 573, the Court of King's Bench held
that a condemnation in Prize by a French Court of Admiralty,
which was unambiguous was conclusive for this purpose. Again
in 1784 in Saloucci v. Woodmass, 3 Doug. 345, 99 E.R., 688 Lord
Mansfield said : "this sentence of condemnation, as lawful prize,
affords a presumption that the goods were enemy's property,
unless the contrary appears on the sentence". This was a case in which
the traditional rule operating in England before the Declaration
of Paris was applied, i.e. "Enemy goods could be taken even on
a neutral ship, a friend's goods were free even in an enemy
ship".
In 1803 we find Lord Eldon in Lothian v. Henderson, 3 Bos. & Pul.
500; 127 E.R., 271, (House of Lords) accepting a sentence of a
1. 3rd ed., p. 362 and v. Jambu-Merlin, La jurisprudence des Prises et
le droit international priv, Paris, 1947. Knauth, in 46 Col. L.R., 69 (1946),
at p. 74.
2. The Cosmopolite (1801), 4 C. Rob. 8. Colombos, Prize, p. 246. J. Merlin.
op. cit., p. 282. For an interesting Case see A. Goekoop in Grotius, Int. Y.B.
1940-46, p. 24.
3. Barzillai v. Lewis 3, Douglas, 126, 99 ER. , 573. Salouc v. Woodmass 3,
Douglas, 345, 99 ER. , 688. Lothian v. Henderson 3, Bos. and Pul., 500.
4. Anderson v. Marten [1908] A.C. 334.
(51) CHAPTER II 289
foreign Court of Admiralty as conclusive for the purposes of
assurance, but addi ng:
"There is indeed another class of cases arising out of foreign sentences,
in which the conduct of the French Courts, regulated as it has been
by the ordinances of that country, has met with no small degree of
reprobation, and where the judges of our Courts have held, that unless
the adjudication by ivhich the property in question is condemned be expressly declared
to proceed on the ground of the property belonging to enemies, they are at liberty
to examine the property of such sentence."
It was said by Blackburn J . in Castrique v. Imrie, (1870) L. R. ,
4 H. L. at 434:
". . . Very early in insurance cases a practice began of treating the
judgment of a prize court condemning a vessel as being property of an
enemy as not only conclusive evidence that the vessel was condemned,
which of course it was, but also as conclusive evidence that the vessel
was not neutral.
There are many cases which proceed on the principle that when it
can be made to appear that the judgment of the Prize Court did not
proceed on the ground that the vessel was an enemy's property, it cannot be conclusive
evidence that it was not neutral. In Lothian v. Henderson, 3B & P. 499, the
judgment of the House of Lords was, that in a policy on a ship, warranted
neutral, a stipulation that a condemnation should not be conclusive
evidence that the vessel was not neutral was effectual. Lord Eldon, in
delivering that judgment, expresses a strong opinion that the practice
of receiving the sentences of Prize Court' s as conclusive of the collateral
matter was originally a mistake, but had become inveterate, and could not
now be disturbed . . . "
1
.
In our submission, a sentence of a Prize Court is, prima facie,
conclusive of the statements made therein. Indeed, a decision in
Prize has also been a ground for an English court' s refusal to
consider the claims of third parties based on equities, liens,
pledges, mortgages and the like
2
on the things condemned, with
the exception of a maritime lien for salvage
3
, and a lien for seamen' s
wages
4
. The non-English decisions on this matter are similar. All
have been fully reviewed by Dr. Jambu-Merl i n in his valuable
work "La Jurisprudence des prises maritimes et le droit interna-
tional pr i v"
5
. Merlin points out
6
t hat he has been able to
1. Our italics, at p. 545.
2. The Marie Glaeser [1914] P. 218, following The Tobago (1804), 5. C. Rob,
218. See The Odessa [1916] 1 A.C. (P.C.), 145.
3. The Prince Knud (1942), 1 LI. P.C., 97.
4. Colombos, Prize, op. cit., p. 92.
5. Op. at., esp. Part II.
6. Paris, 1947, p. 216.
find, among the English, French, German, Japanese, Chinese
and Italian cases on Prize, an almost unanimous rejection of
other liens on seized property, save for certain Italian decisions
of 1916 recognizing the right of a bank as pledgee of a cargo
condemned and which could probably have been supported on
other grounds. Colombos indicates t hat the U. S. Prize Courts
also reject the rights of a pledgee *. Rowson
2
points out t hat the
Italian Prize Courts came into line with the rest in World War I I .
In general then, Condemnation in a Public International
Court of Prize affects the private rights of third parties, a fact
that cannot be ignored by private international lawyers
3
, since
the courts of private international law treat the prize decision
as res judicata do generally consider themselves bound to accept
titles lawfully acquired in accordance with public international
law ; if they did not do so, then there would often be legitimate
ground for complaint against them for denial of justice, but it
cannot be said that they will give just cause for a claim for denial of
justice if they refuse recognition to a title not lawfully acquired by public
international law. It seems to us t hat national courts, accepting
public international law doctrines, may without offence, j udge
the decision of a court of a foreign state to be plainly and
manifestly contrary to international law, or at least not in keeping
with the due application of such law, and we think there may be
three cases where modification of the strict rule of res judicata
may occur even in England :
1) A decision in prize must normally be produced to constitute
res judicata
4
; if, from the j udgment , it appears t hat the Court
has been unlawfully set up, e.g. set up in neutral territory, then
the court will not be competent to give a lawful j udgment in
prize
6
, and the purported j udgment may presumable be dis-
regarded by courts of private international law as a nullity.
1. Prize, op. cit., p. 94.
2. 23 B.Y.I.L., p. 301.
3. V. Schiffahrt-Treuhand, G.m.b.H. v. Her Majesty's Procurator-General, [1953]
A.C. 232, at p. 261, indeed "the fact that gives jurisdiction to the Prize
Court is the fact that the ship was physically captured and taken out of
the possession of her former owners.
4. Colombos, Prize, 3rd ed., p. 362.
5. Hague Convention, XI I I art. 4. : J. Merlin, op. cit., p. 283.
(53) CHAPTER II 291
E. D. Dickinson
1
writing before 1939 would accept the view
of the Prize tribunals of France, Germany and Italy, who
"apparently consider a capture made in violation of neutral
territorial waters as absolutely illegal irrespective of whether
the neutral power in whose waters the capture was made
intervenes or not "
2
. This view is somewhat advanced, but
seems closely in accordance with the logic of customary inter-
national law.
2) The Peace Treaties with Italy would also seem to militate
further against the English strict doctrine of res judicata by allow-
ing the examination by the Allied and Associated Powers of
"all decisions and orders of the Italian Prize Court in cases
involving ownership rights of its nationals and to recommend
to the Italian Government t hat rescission shall be undertaken
of such of those decisions or orders as may not be in conformity
with international law . . . " Such recommendations were to be
accepted by Italy and made effective (Annexe XVI I A)
3
.
Taken in the light of Articles 78 and 79 this provision of the
treaty would appear to allow restitution to the United Kingdom
of property wrongly condemned where it may still be retaken
in Italy or from It al i ans
4
. If this view be correct then the
j udgment in Prize is not conclusive as a res judicata in the hands
of the captor, or one of his nationals, or in his territory, since
the ordinary incidents of the decision are modified by treaty
and may result in the dispossession of those who have acquired
the property. This result may also follow from Article 4 of the
Berlin allied Control Commission of 5th Januar y 1945, which
enables prize decisions to be disregarded as did the Franco-
German Armistice of 1940
6
.
3) Fraud on the court, is, like lack of jurisdiction, a ground
for setting aside a j udgment of an English or foreign court,
it is also a ground for setting aside the j udgment of a Prize
1. Jurisdiction following seizure or arrest in violation of international law,
in legal essays in honour of O.K. McMurray, 1935 (U.S.A.), p. 117 at p. 129.
2. Garner, Prize Law, 1927 N.Y. 227-230; v. Colombos, Law of Prize, p. 120.
3. V. also Annexe VI in Rumanian and Finnish Treaties.
4. Similar provisions exist in the Treaties with Roumania and Finland.
5. J. Merlin, p. 296 et seq. gives the texts.
Cour t
1
by proceedings in that court; so too when conclusive evidence
could not be provided at the hearing because o force majeure
2
.
Because the English Courts must have the record of the Prize
Court before them to prove any plea of res judicata
3
then, if the
record is irregular on the face of it, e.g. if it shows a capture
after the end of the hostilities by peace t reat y
4
, it will not
presumably constitute a valid res judicata in Prize. On this point
it must be admitted, there is not much aut hori t y
5
but the
principle seems clear. The fact t hat English courts haye, for
insurance purposes in matters of private international law, tended to
take prize decisions as res judicata, is, we venture to think,
probably explicable on the ground of business convenience, it
is a practice founded on a respect for public international law,
but it may have carried t hat respect too far.
It may or may not be, as Scutton L. J. said, in a much quoted
passage, "a serious breach of international comity if a state is
recognized as a state to postulate t hat its legislation is contrary
to essential principles of justice"
6
. But it is clearly no breach of
comity for a state to permit proof of a record t hat shows t hat
the decision of a court of prize of a state is contrary to a true
interpretation of customary or conventional public international
law ' , which it is purporting to apply.
Indeed recently the British Court at Aden in the Rose Mary
[1953] 1 W. L. R. 246 reviewed foreign legislation in relation to
international law with regard to property and concluded t hat
foreign legislation contrary to public international law may be
disregarded as regards property within the jurisdiction of the
court. Even to say, as Devlin J. said in Bank voor Handel v. Slatford
[1951] 2 A. E. R. , 779, p. 788, t hat "generally property in England
1. Colombos, Prize, p. 366, citing The Alfred Nobel [1918] P. 293, (a clear
case of expressio falsi).
2. Colombos, Prize, p. 367, The Mount Temple (1921) 9 LL.L.R., 475
(rescission of condemnation of part of cargo after rehearing).
3. II Pitt Cobbett, p. 260.
4. The effect of an armistice depends on the terms thereof, Colombos,
Prize, p. 182.
5. Colombos, Prize, p. 181 et seq.
6. Luther v. Sagor [1921] 3 K.B., (C. AJ, 532.
7. See Morgenstern in 29 B.Y.I.L. (1952), p. 265.
(55) CHAPTER II 293
is subject to English law and none ot her" is not to exclude
considerations of public international law which are part of
English law.
Jambu-Merl i n may seem to go rather far when he says:
"Aussi n'hsiterons-nous pas conclure la possibilit de
refuser efficacit un droit cr par une Cour de prises en
violation du systme de conflits de lois du pays de la reconnais-
sance"
1
. Nevertheless, no one could, logically, object to a refusal
of recognition in those cases when private international law
merely follows the principles of public international law
governing prize decisions.
Finally, one small point: certain special modern rules of
interpretation particularly those dealing with the relative value
of formal documents in more than one language, have been
developed for the special needs of public international l aw;
we suggest t hat these may well afford rules to be followed, as
occasion arises, in private international law. For example, when
a document has been written in two languages, each of equal
authority, the interpretation which harmonizes with both lang-
uages will be followed in preference to one which does not
2
.
On the other hand where it is clear that one text is a transla-
tion of another the original will best give the true meaning.
In an arbitration in 1920 between the U. S. and the Reparations
Commission, cited by Hackwort h
3
, where the original text
referred to "due regard for any legal or equitable interests",
it was preferred to a vague French translation of that phrase as
"droits et intrts lgitimes".
On the other hand the very reasonable rule of public inter-
national law that in cases of ambiguity it is permissible to took
at travaux prparatoires often adopted by the Permanent Court of
International Justice
4
, and by Continental courts in private
law matters
8
, is not followed by English courts even in matters
1. Op. cit., p. 287.
2. Mavromatis Case, P.C.I.J., Ser. A. No. 2, p. 6 at p. 19.
3. Vol. V p. 266.
4. Ser. A/B, No. 50, p. 366 at p. 378. Employment of women during
the Night.
5. Allen, Law in the Making, 5th ed. 1951, p. 490.
of private international law. Where the statute incorporating a
treaty is clear, even if it misinterprets the treaty, the statute will
be followed
1
. This attitude of the English courts is not modified
by the recent practice of printing the terms of a treaty as an
appendix to the statute giving effect to it, though it may possibly
be modified in the future in a case where the statute itself is
ambi guous
2
. In this respect the international and continental
rule seems preferable to the British.
But it should be remembered t hat even under the continental
and international rules, travaux prparatoires may not be resorted
to when a treaty is clear on the face of i t
3
.
5. CONCLUSION
To sum up : the body of rules generally called private inter-
national law by the lawyers of each country, contains many
rules t hat have been taken from public international law. The
development of such common rules in any separate system will,
on investigation, show t hat each system has much material to
assist the others in their own growth.
On the other hand, on occasion, public and private interna-
tional law rules appear to conflict with each other, the resolu-
tion of these conflicts can itself be informative and useful, for
the conflicts of laws in the fullest sense of the expression should
include the rules for the resolution of conflicts between public
international law and private international law.
When an English court investigates a question of foreign
private international law it is deemed to be finding a fact and
its decision is not deemed to be a binding precedent for the
1. Ellerman Lines v. Murray [1931] A.C. 126, (false interpretation of Inter-
national Labour Convention).
2. V. Lauterpacht, H.L.R., 1935, 549; Friedman, Legal Theory, 3rd
ed., p. 319; Allen, Law in the Making, 5th ed., p. 487.
3. The Lotus Case, P.C.I.J., Ser. A, No. 10, p. 16; European Comm. of
Danube, Ser. B., No. 14, p. 28. and p. 31; Art. 3 (2), Treaty of Lausanne,
A. O. Ser. B., No. 12, p. 6 at p. 22; Competence of I. L. O. , Ser. B., No. 2-3,
at p. 41. Serbian Loans Case, Ser. A., No. 20-21, at p. 30. For examples
of national courts construing the International Found Monetary Agreement,
see J. Gold in I. M. F. Staff Papers, 1951, p. 315, 1952 p. 482 & 1953,
p. 290.
(57) CHAPTER II 295
future
x
: but when an English court purports to declare a rule
of international law it thereby admits that the rule is law,
whether customary or conventional, and that it must be foll-
owed in England ; the doctrine of Stare decisis
2
will ensure
that this will be so, that is, when the court concerned is the
Court of Appealer the, House of Lords. But international law
' ' ' ' i l ' ( I ' ' M ' J " -.1
is a living and changing thing, i.e. it developes and from time,
1
to time it alters. Must English courts regard themselves as
bound by the living and changing international law, or must
they be content to apply rules found in English cases, even
though they be out of date, in preference to later developments
of international law?
In general, it is likely that alterations to international law
made as a result of multilateral conventions will be embodied in
legislation clearly altering the case law, as did the recent exten-
sions of jurisdictional immunities for the benefit of international
organisations. But what in the case where there is no legislation?
It would seem that the English court will probably follow its
own precedents and apply the obsolete or obsolescent law, much
as the English courts have tended to continue to apply the old
and wide rules of jurisdictional immunities and to show great
tenderness to decisions of prize courts. Is there not, therefore,
a danger of applying municipal doctrines of judicial precedent
to matters that may also be classified as matters of international
law? The result may well be that new developments in inter-
national law may be ignored by the English courts, unless
counsel or judges, versed in international law, can limit the
effects of earlier decisions by declaring them to have been given
on the rules of international law as understood in England at the time
they were decided.
When revising the section of Dicey's "Conflict of Laws"
dealing with "General Rules as to Jurisdiction" of the English
High Court
3
, we took the liberty of introducing there, for the
first time, references to works on public international law. The
1. Lazard Bros. v. Midland Bank [1933] A.C. 289.
2. Allen: Law in the Making, Ch. IV.
3. Op. cit., p. 131 et seq.
effort of reconciliation within the family of international law is
worth while, for further repercussions between public and pri-
vate international law are bound to take place. It is to be hoped
t hat the two systems will not develop without mutual respect
and interest in each other. Where national courts ignore rules
of public international law t hat are relevant to their decisions
and thereby produce decisions t hat differ from those of national
courts operating in due harmony with those rules, the conflict
may well occasion hardship and uncertainty for litigants. I n
the end it will only be by keeping in step with public inter-
national law t hat private international law will become certain
and uniform, and this can be accomplished to some extent by
a wise use of the concept of public policy in courts of private
international law.
Mann in 21 BYIL, (1944), p. 11, andj essup, Modern Law of
Nations, 1948, p. 139, and Wolff in 35 Transactions of the
Grotius Society p. 143, at p. 150, have suggested t hat in commer-
cial contracts between states, and between a state and an
individual, the matter might be submitted to the rules of public
international law, e.g. in the case of loans
1
. If this practice
should arise, then clearly the way would be prepared for further
repercussions of public international law on private international
law. In certain arbitration circles, it has been hinted t hat an
agreement to arbitrate might be made between private indivi-
duals, even though not attached to any particular system of
national law nor to international law. But perhaps there is a
misunderstanding here. Clearly parties can make any rules they
want with regard to the conduct of a an arbitration, but this
freedom must be limited by any imperative rules enjoined by
the system of law in vigour in any place where the arbitration is
invoked or relied on. It is unlikely that any system of law will
allow its imperative legislative provisions to be defeated by
the submission of an individual to the rules of public international
law
1
, and many systems will not permit the imperative rules
of other systems of law linked with a contract to be avoided;
and this for reasons of public policy. The whole subject has
recently been brilliantly reviewed by Professor Yntema in an
article entitled "Autonomy in choice of l aw"
a
.

1. V. alse Wolff, P.I.L., p. 417, (2), 35 Tr. of Grot. Soc, at p. 151.
2. 1 Am'r J. Comp. L., p. 341. [1952].
CHAPTER III
REPERCUSSIONS OF PRIVATE INTERNATIONAL
LAW ON PUBLIC INTERNATIONAL LAW
O
NE of the curious and possibly unexpected results of the
positivist approach to international affairs has been the
gradual neglect of tradition
1
. Doubtless traditional
values were taken for granted by early positivists like Bentham
and Austin, with their native respect for honesty and fair dealing.
Certain things did not need to be said and therefore were not
said, but the failure formally to enunciate certain obvious
principles of "fair dealings among nations" has led to the
assumption in some positivist quarters that lacunae exist in inter-
national law merely because no custom, treaty or case can be
brought forward to justify elementary principles until recently
taken for granted. A somewhat similar attitude to written law
resulted from the old-fashioned liberal assumption that what-
ever was not forbidden, was permitted by law, an assumption
which might, if pushed too far, disregard the principles of honesty
and fair dealing at the basis of civilized social and legal life.
The contention "that under international law everything which
is not prohibited is permitted" was given some countenance in
the Lotus Case
2
but there were there strong dissenting judgments,
especially of Judges Loder, Weiss and Nyholm.
Writers who like to start a consideration of international
law from the French Revolution, seem inclined to assume
that if they cannot find a precedent from some international
tribunal however obscure, or what they term treaty practice,
that there is no international rule on a particular sub-
ject. Such an attitude, which is completely unhistorical,
1. V. Lauterpacht : The Function of Law in The International Community,
Oxford, 1933, p. 68.
2. P.C.I.J., Ser. A, No. 10, p. 18 at p. 34, 44 & 60.
ignores the close links between the leading principles of public
and private international law and the continuous historical
tradition to which both these systems of law are the heirs : above
all it tends to lose sight of the theoretical completeness of any
system of law and rashly assumes there a^e lacunae therein when
in fact there are traditional principles available to prevent an
injury going unrepaired : English writers, familiar with a system
of law by no means solely dependent upon legislation have not
usually lost sight of this principle. Indeed Lauterpacht has
pointed out how British writers, unlike many of their modern
Continental colleagues, never forget the influence of Roman
law on International law *. At first sight this attitude may seem
strange, seeing t hat England has, in general, rejected the direct
reception of Roman law in most private law matters, but it
may perhaps be explained as we have seen, by the fact t hat so
many continental writers on international law of the last hundred
years were concerned to assert national systems of law, and to
reject the traditional view that Roman law represented "written
reason". English classical writers on public and private inter-
national law were, essentially men practising in the Doctor' s
Commons and the Admiralty, (hence the Probate Divorce and
Admirally Division of the High Court). These courts still
follow systems of law with close affinities with Roman law i.e.
the Canon law and the Admiralty law; it was largely from
international sources, and in these courts, t hat many fundamental
rules of private international law were developed e.g. notions
of domicile, marriage and the proper law of the contract. W. O.
Manni ng, Sir Henry Maine, Sir Robert Phillimore and Westlake
were all in this tradition. Indeed Phillimore's 4th volume in
"Int ernat i onal Law" is concerned with private international
law matters. Lorimer was of course in the Scots law tradition,
in which Roman law is still the basis of legal thinking. Conse-
quently, despite the popularity of John Austin among legal
theorists, Great Britain did not need "t he critical writing of
1. Private Law Sources and Analogies of International Law, 1927, p. 24.
See also Lauterpacht, Function of Law in the International Community,
Chapter IV.
(61) CHAPTER III 299
Kelsen, Krabbe, Sal violi and Verdross" to shatter the uncritical
dogma of the will of the state as the ultimate foundation of
conventional international law
1
. The universal canon law and
the law merchant were not in origin the creation of the State,
they were and still are part of the customary law administered by
English courts, where not deliberately altered by legislation.
Writing over fifty years ago, von Bar
2
saw the danger of a
purely local or nationalist approach to private international
law and warned us that, "Private international law stands in
very close connexion with public international law, the Law
of Nations". . . Von Bar told us to beware of exaggeration
"The false impression t hat private international law is only the
domestic law of each separate state".
I t is our thesis t hat modern Private international law rules are
not rules applied solely by national courts. They may indeed
even come to be adopted by international tribunals dealing
with disputes between states or other entities of public inter-
national law, and may thus become part of the case-law of
public international law. In the words of Judge Bustamente in
his dissent in the Brazilian Loans Case on the P. C. I. J. , (himself a
well-known codifier of private international law)
3
:
"I n the case of some problems indubitably coming within the sphere
of public international law, it often happens that no universal treaty
or customary rule has been accepted or followed, and it becomes neces-
sary to choose an international rule that has been followed and enforced
by a single state as one of the principles of its municipal law. "
The following are some examples of the repercussions of
private international law rules on public international law.
1. By direct borrowing from case-law or legislation to be
found in national systems of private international law, to
supplement the rules of public international l aw;
2. By the acceptance in international disputes of national rules
settling nationality (in most systems of law these are to be found
in books on private international law) ;
1. Lauterpacht, Private Law Sources etc. op. cit., p. 58.
2. Private International Law, 2nd ed., (Tr. Gillespie, 1892), at p. viii.
3. P.C.I.J. Judgment 1929, Ser. A., No. 20/21, p. 93 at p. 129.
3. by the acceptance in international disputes of private
international law rules governing jurisdiction of national courts.
1. The direct borrowing of private international law rules to supple-
ment the rules of public international law may occur in connec-
tion with the work of the International Court of Justice, or
of other international tribunals such as arbitral tribunals or
concilation commissions: it may also occur in the acceptance
in diplomatic practice of national rules on the status of envoys and
may well create an international custom. For example, the Diplo-
matic Immunities {Commonwealth Countries and the Republic of Ireland)
Act 1952 recently conferred certain immunities upon the
representatives of Commonwealth countries of the Republic of
Ireland, and upon their staffs and families. This Act marks
another step in the development of the Constitutional laws of
the British Empire and in English private international law,
since it adopts, for such persons, the position of regular diplo-
matic envoyseven though the same Sovereign rules throughout
the Commonwealth.
This Act was indeed the occasion of comment by members
of the corps diplomatique in London, who found that the elevation
of Dominion High Commissioners to the diplomatic status
according to the date of their appointment affected the existing
precedence; but it appears to have been accepted, and may
well be a case of national legislation in a Constitutional and
private international law matter making public international
custom.
The International Court of Justice does not, and its predcessor
the P. C. I. J. , did not, cite many judicial precedents, save its
own
1
, but the court is entitled to use all the sources of law
enunciated in article 38 of the Statute of the Court, when
arriving at its decisions ; these include international custom, the
general principles of law, "judicial decisions and the teachings
of the most highly qualified publicists of the various nations" as
subsidiary sources. When the I. C. J, adverts to principles of
private international law relevant to matters coming before it,
1. V. E. Hambro in Current Legal Problems, 1954, p. 212 at p. 217.
it may thereby incorporate what has thitherto been considered
private international law rules into the corpus of its own deci-
decisions. The decisions of the I.C.J., despite article 59 of the
Charter forbidding the creation of binding precedents, are daily
gathering more influence and even critics of the I.C.J, neces-
sarily discuss and emphasize its case-law.
The most instructive instance of an international court
adopting rules from private international law is to be found
in the decision of the P.C.I.J. in the Serbian Loans Case
1
dealing
with the "gold clauses".
(i) In that case the private international law doctrine of
the proper law was clearly stated and accepted in these words :
"The Court, which has before it a dispute involving the question
as to the law which governs the contractual obligations at issue, can
determine what this law is only by reference to the actual nature of
these obligations and to the circumstances attendant upon their creation,
though it may also take into account the expressed or presumed intention of the
Parties. Moreover, this would seem to be in accord with the practice of municipal
courts in the absence of rules of municipal law concerning the settlements of conflicts
of law."
I n t ha t Case t he P. C. I . J . also ha d t o deci de wh a t a " gol d
f r anc" was, a nd it accept ed t he cur r ent i nt er nat i onal cust om
fami l i ar t o banker s a nd pr i vat e i nt er nat i onal l awyer s :
"The 'gold franc' thus constituted a well-known standard of value
to which reference could appropriately be made in loan contracts when
it was desired to establish a sound and stable basis for repayment.
But, while the 'gold franc' was thus an internationally accepted stand-
ard of value, its definition was to be found in national laws. The French,
and the initial definition of the 'gold franc', which was later adopted
by Belgium and Switzerland, and by the Convention of the Latin Union,
was found in the law of the 17th Germinal, Year Eleven
a
. This law
provided as follows:
(Translation) 'Five grams of silver, nine-tenths fine, shall constitute the
monetary unit, which retains the name of franc.
HEAD I. The minting of money.
Article 6. Gold pieces of twenty and forty francs shall be minted.
Article 7. The standard of these pieces is fixed at nine-tenths fine
with one tenth of alloy.
Article 8. The standard weight of the pieces of 20 francs shall be
one hundred and forty-five to the kilogram and that of
the 40 francs pieces 11\ to the kilogram.'
1. P. C. I. J. , Ser. A., No. 20/21, p. 5, our italics.
2. Ibid, at p. 41.
According to this definition, adopted and recognized by other coun-
tries as above stated, the gold franc, at the time of the bond issues in
question, was the twentieth part of a piece of gold weighing 6.45161
grammes with a fineness of nine-tenths. It is this gold franc, with the
weight and fineness thus enacted by law, which is stipulated particularly
in Article 262 of the Treaty of Versailles, in Article 214 of the Treaty
of St. Germain, and in Article 197 of die Treaty of Trianon.
It is concluded that this was the gold standard of value to which the
loan contracts referred"
1
.
(ii) The presumption, familiar to private international
lawyers that a contracting state, not contracting with reference
to international law, submits to its own law, was also discussed
in the Serbian Loans Case
2
where it was held, as indeed it was
later to be held by the House of Lords in Rex v. International
Trustees [1937] A. C. 500, t hat this presumption of the private
international law is rebuttable, since even in contracts involving
states, the principle of the proper law is often relevant, as was
recently explained in 77t Assunsione [1954] All E. R. , 278 at
p. 293.
(iii) The borrowing of private international law rules may
indeed become inevitable when states submit to municipal law in
their dealings with each other. The matter was well put by the
P. C. I. J. in these words:
"Any contract which is not a contract between States in their capacity as subjects
of international law is based on the municipal law of some country. The question
as to which this law is forms the subject of that branch of law which is at the
present day usually described as private international law or the doctrine of the
conflict of laws. The rules thereof may be common to several States and
may even be established by international conventions or customs, and
in the latter case may possess the character or true international law
governing the relations between States. But apart from this, it has to be
considered that these rules form part of municipal law. "
3
.
That is, the rules to be applied by an international tribunal
may thus be part of a national or municipal system of law,
including both the national rules of private international law,
or those having a wider ambit t hat are common to many
national systems of private international law.
1. Ibid. p. 3334.
2. Ibid. p. 42.
3. Ibid. p. 41.
(iv) I n the Serbian and Brazilian Loans Case the P. C. I. J,
further recognized a distinction between the mode of payment
and the substance or value of the debt, a distinction familiar t o
Courts of private international law before t hat decision and
even more familiar since,
l
in the Gold Clause Cases.
Incidentally, the Public and Private International Law of
money have now been expounded in some considerable detail by
Dr. P. A. Mann
a
, and to this work and to Professor Nussbaum' s
work we refer our hearers
3
for a full consideration of the mut ual
repercussions of the public and private international law in this
matter.
(v) Many of the distinctions familiar to public and private
international law were based on the recognition that gold is
an internationally recognized commoditybut money is a
nationally created thing over which States claim, in the last
resort, to be sovereign and to protect by legislation either
creating a cours forc of money in terms of metal, or by restrict-
ing the use of metal, fixing gold values or exchange restrictions.
It is noteworthy t hat when a Statute is based upon a conven-
tion which refers to a "gold val ue", as does the Carriage of Goods
by Sea Act, 1924, based upon the Brussels Convention of 1922,
and the Carriage by Air Act, 1932, based on the Warsaw Conven-,
tion, the gold value therein laid down must be provided in the
currency of payment when ascertaining the maxima of the
sums for which the carrier is liable thereunder. Thus the gold
value, in a Treaty, may lead to a variation of the sums apparently
fixed by a national statute.
Mann points out
4
t hat the^f 100 liability fixed by the Carriage
of Goods by Sea, Act 1924, at a time when the United Kingdom
was on the gold standard is now by a "gentleman' s agreement"
treated as 200 sterling, despite the doubts expressed by
Carver
5
.
1. Cheshire, op. dt., p. 229 et seq.; Mann on Legal Aspect of Money,
2nd ed., p. 114.
2. Legal Aspect of Money, 2nd ed., 1954, Oxford.
3. Money in the Law, National & International, 2nd ed., 1950.
4. Op at., p. 118.
5. 9th ed., 1952, 1117.
It must not be forgotten however that an international tribunal,
set up to operate for an international purpose, like a judicial or
an arbitral tribunal, can scarcely be said to have a territorial
lex fori of its own, still less can it be deemed to be an encyclopedia
of all laws
x
. Possibly for this reason, authors like Professor (now
Judge) Basdevant tend to regard arbitrators of international
tribunals as charged with finding a reasonable solution to a
difference, leaving aside technical questions of the conflict of
laws. Certainly this is a possibility where the procedure of
conciliation is followed; it may also be possible when an arbi-
trator conceives his function, in the way that a Swedish arbi-
trator does, and says he will follow legal principles though he
cannot be set aside for not doing so. But when an arbitrator in
an international dispute conceives it his dut y" to follow the
l aw", strictly, then, unless he follows public international law,
and if necessary "the general principles of l aw" to supplement
it, he will usually follow the rules of some territorial system with
which he is acquainted, and which he thinks will give justice
when he deals with international problems. In other words, an
international arbitrator, like a conciliator, will often follow rules
of some system of private international law in order to do justice
to the parties before him and, to give effect to the intention of
the parties as far as possible.
When there is a submission to an international tribunal which
habitually applies rules of public international law then the
tribunal will be presumed to know that law
2
; jura novit curia;
but even the I. C. J, will not be presumed to know, still less to
be bound by
3
municipal legislation which it does not habitually
apply, nor will it even be deemed to know the rules of private
international law contained in such municipal lawthey must
be proved with reference to t hat lawthough no doubt it will
be presumed to know so much of them as are merely the accep-
tance, by custom or treaty of parts of public international law.
1. 40 Ree. des Cours, 1932, 157 at p. 172.
2. Brazilian Loans Case (1929), P.C.I.J., Ser. A. No. 20/21, at p. 124.
3. V. Polish Upper Silesia Case, P.C.I.J., Ser. A., No. 7, at p. 19.
"Municipal laws are merely facts."
2. The acceptance in international disputes of national rules
on Nationality (often to the found in works in national systems
of private international law).
Roman law regarded nationality as primarily settled by the
jus sanguinis : the common law regarded it as settled by the jus
soli, and this feudal rule, Foote tells us, was formerly general
throughout Europe
1
, though the feudal rule "nemo potest exuere
de patriam suam", was early abolished in England. In modern
times many states have not only tended to adopt both the Roman
and the feudal criteria in their nationality laws, but they have
also introduced, by legislation, the concepts of naturalization
and denaturalization; as a result of all this double nationality
and statelessness have become relatively common. Punitive de-
naturalization has also become all too common in some coun-
tries. Nationality cannot nowadays be said to be a uniform
concept of public international law
2
, nor can it be said that
nationality must be unique, i.e. t hat every individual must have
a nationality and cannot have more t han one; on the other
hand the conception of domicile which governs most private
rights in Great Britain and the U. S. A. is a unique conception
and single domicile is attributed to every man without exception.
In countries where legal rights of a public and a private
character depend primarily upon nationality, it is nat ural t hat
their systems of private international law should be intimately
linked with nationality, and that their text writers on private
international law should invariably include a statement of the
law of nationality in their works, for nationality, not domicile is,
for them, the principal connecting factor, point d' attachement,
in private international law. In England, Foote, and Westlake
(and Dicey until the last edition)
3
induded in their work an
account of nationality : Cheshire, Graveson and Schmitthoff do
not do so; Wolff has a short chapter on "Nationality as a point
of contact" (Ch. X) . The modern English fashion seems to be
1. Private International Law, 5th ed., 1925, p. 1.
2. V. "Advisory Op. " of P.C.I.J. in the Tunis Morocco Nationality
Decrees, Ser. B., No. 4, p. 7, at p. 24.
3. For convenience this part of Dicey it is recast by Mr. Clive Parry and
was separately published as "British Nationality", London, 1951.
306 B. A. WORTLEY-INTERNATIONAL LAW TODAY (68)
(more on the grounds of convenience perhaps than conviction)
to leave the details of the complicated British (not English) law
of nationality to constitutional law, or to separate treatises, like
those of Clive Parry or Mervyn Jones ; though works like Oppen-
heim on Public International Law do contain a general chapter
on the notion of nationality, and a short account of British
nationality, and to a limited but increasing extent, nationality
is a connecting factor in English private international law.
All this shows t hat the conception of nationality is nowadays
no more than a status accorded or denied by a system's natio-
nal law and that, although it continues to be a vital link between
an individual and a state
J
relevant in public and private inter-
national law alike ,it is a national concept, with international
repercussions in public and private international law, recognized
by public international law not created by it: it is generally
created by national legislation, and the different national laws
on nationality often overlap and contradict each other.
Beckett rightly draws attention to the fact that whilst Anglo-
Saxon authors tend to regard the terms conflict of laws and
private international law as interchangeable, many Continental
writers reserve the term conflict of laws solely for the question
of choice of law and jurisdiction whereas private international
law, for them, includes these rules together with those of natio-
nality. There is indeed much sound sense in including the rules
relating to nationality and alienage in a book on private inter-
national law.
We may perhaps venture to lay down three rules about the
relevance of nationality to public international law.
1. When a problem of private international law comes before
a municipal court, that court will in general apply its own
rules governing nationality
2
to the facts. If for example it is
necessary for the English court to pronounce upon a will of
personalty made outside the U. K. (and not in accordance with
common law which required compliance with the form required
by the law of the testator's domicile at death) then, in order to
1. I Oppenheim, p. 588.
2. In re Chamberlain's Settlement [1921] 2 Ch., 533 at p. 541 & 545.
(69) CHAPTER 111 307
permit the will to be validated by the Wills Act, 1861, it will be
necessary to find out whether the testator was a British subject.
To do this the English court will ordinarily apply the British
nationality legislation
1
. However, with the recognition of
Dominion status, with its large measure of legislative autonomy,
accorded to Australia, Canada, New Zealand and South Africa,
after the Statute of Westminster, 1931, and the creation of the
Irish Free State, it became apparent that Dominion naturaliza-
tion laws might be passed to give 'British Nationality' on easier
terms than those laid down in the uniform Imperial legislation.
Such cases did occur, and the English courts found they could
continue to regard a person naturalized by the law of the
dominion as British for the purposes of the law in that Dominion,
but not British everywhere in the Commonwealth, i.e. not
British under the Imperial Statute, 1914.
However, conflicting views about the existence of British
nationality in a person in different parts of the Commonwealth
may be less likely in future, since the scheme adopted by the
British Nationality Act, 1948, is to make British nationality
depend upon the acquisition of citizenship by the law ruling
in the United Kingdom and Colonies (treated as one legislative
unit) or by the law ruling in any one selfgoverning Dominion.
Conflicts of classification in respect of nationality within the
British Commonwealth will continue to be relatively unimpor-
tant in private international law matters, except perhaps where
rights under treaties are concerned.
Attempts were made to settle questions of conflicts of natio-
nality by the Hague Convention on Conflict of Nationality
Laws of 1930 which expressly provided that the H. C. P. should
apply the principles of that convention when in force" in their
relations with each other", but that "t he inclusion of the above
mentioned principles and rules in the Convention shall in no
way be deemed to prejudice the question whether they do or do
not already form part of international law".
This article in effect shows that rules governing conflicts of
1. The. Foreign Marriages Act, 1892, also requires British nationality as
a connecting factor.
nationality laws may be, or become, part of international law.
Article 1 of the Hague Convention on the Conflict of Natio-
nality Laws of 1930
x
recognizes t hat :
"I t is for each State to determine under its own law who are its natio-
nals. This law shall be recognized by other States in so far as it is consistent
with international conventions, international custom, and the principles
of law generally recognized with regard to nationality. "
The same Convention permits each forum to apply its own
law of nationality since articles 2-5 are as follows:
"Any question as to whether a person possesses the nationality of a
particular State shall be determined in accordance with the law of that
State.
Subject to the provisions of the present Convention, a person having
two or more nationalities may be regarded as its national by each of
the States whose nationality he possesses.
A State may not afford diplomatic protection to one of its nationals
against a State whose nationality such person also possesses.
Within a third State, a person having more than one nationality
shall be treated as if he had only one. Without prejudice to the appli-
cation of its law in matters of personal status and of any conventions in
force, a third State shall, of the nationalities which any such person
possesses, recognize exclusively in its territory either the nationality of
the country in which he is habitually and principally resident, or the
nationality of the country with which in the circumstances he appears
to be in fact most closely connected. "
2
.
Thus the treaty law and practice of public international Law
adopt conceptions of nationality Laws to be found in national
works on private international law.
2. To simplify matters, English courts do not in general
classify persons according to their nationality, nor do they in
general attempt to set limits to foreign states: as far as possible
they merely distinguish between British subjects and aliens, and
the latter term includes stateless persons, so that English Courts
often avoid having to deal with competing foreign nationality
laws, or to decide, the actual nationality of an alien. For
wartime trade, enemy character is fixed with reference to residence
in enemy occupied territory, not co t. iemy nationality. The
criminal law of treason too, is based u jon the existence of a
reciprocal duty of allegiance and piv>i.ection, British allegiance
may arise from the acceptance of British protection by a national
1. Hudson: International Legislation, Vol. V, p. 364.
2. Hudson: International Legislation, Vol. V., p. 364-5.
(71)
CHAPTER 111 309
of another state, R. v. Joyce, [1946] A.C. 347. However, for the
purposes of treaties, including extradition treaties, whether or
not an individual had a specific foreign nationality sometimes
has to be ascertained, where British nationality law does not
settle the matter, foreign nationality law will be applied.
3. National Legislation on nationality or on the personality
of companies not only creates a status for certain purposes of
private international law, but may also enable a person declared
to be a national to seek diplomatic protection, or, having
declared a body of men to be incorporated, may entitle that
corporation to diplomatic protection
1
. The British Government
not only accords diplomatic protection to companies incorpo-
rated in England, but also to British shareholders in companies
incorporated elsewhere
2
.
The right of a state to make laws governing nationality (part
of the so-called reserved domain) may well bind the courts of
that state, but national legislation on this or any other matters
of private international law will not permit a state thereby to
avoid its international obligations
3
.
In the words of the Advisory Opinions of the P.C.I.J. in the
case of the Tunis Morocco Nationality Decrees (Ser. B., Advisory
Opinion, No. 4, p. 7) at p. 24 "... In a matter which, like that
of nationality, is not, in principle, regulated by international
law, the right of a state to use its discretion is nevertheless
restricted by obligations which it may have undertaken towards
other states" (as was the case in Tunis as regards British sub-
jects).
The Hague Convention of 1930 on the Conflict of Nationality
Laws was not ratified by Great Britain but its principles may be
relevant in disputed matters of nationality coming before
international tribunals, even when not formally accepted by
the states concerned. It would, we suggest, be proper for an
1. The Common Law countries tend to look at the place of incorporation
for the nationality of a corporation.
2. See Correspondence with Mexico, cmd. 5758/38. W-E. Beckett in
1931, Tr. of Grotius Soc. 173, M. Jones in 26, B.Y.I.L. (1949), p. 225.
3. Bin Cheng, op cit., Ch. IV, cf. Oscar Chirm Case, P.C.I.J., 1934, A/B 63,
at p. 86.
international court to apply "t he general principles of law" to
reject foreign nationality legislation imposed abusively or
maliciously to injure a person
1
, e.g. by conferring upon a man
the nationality of a country with which he has no connection
whatever solely to conscript him, to confiscate his property or
to claim his extradition.
3. The acceptance in international disputes of national rules
governing jurisdiction (to be found in works dealing; with national
systems of private international law).
Closely connected with nationality, is the problem of the
nature and extent of jurisdiction in state territory. Indeed as we
have seen, nationality very often arises from birth in state
territorythe jus soli of feudal times.
So far as English courts are concerned, the matter of the
extent to which British territory is recognized will be settled by
an English statute, or by a statement of the executive which
binds the courts
1
. If the statute or the executive statement
fails to accord with the international law governing the acquisi-
tion and loss of territory, then diplomatic action on behalf of
any foreign government affected, may be expected, but this
will not directly affect the English court' s decision.
A denial of justice may arise from the application of domestic
notions of private international law where these conflict with
public international law rules.
In his 1951 lecture given in this Academy
2
Professor C. G.
Fenwick submitted that international law was "a higher law
t han the law of the individual state", (including, presumably,
national systems of private international law) and he regarded
the Scottish decision in Mortensen v. Peters (1906), 14 Scots L. T. R.
227, on jurisdiction, as going too far in rejecting the authority
of international law. In t hat case a Norwegian was caught
"ot t er trawling" outside the three mile limit in contravention
of the Herring Fishery Act, 1889. The Lord Justice General
1. The Fagernes, [1927] P. 324, approved by McNair J, in Sayce v. Ameer
Ruler [1952] 1 A.E.R., at p. 330. But it seems doubtful whether the Executive
will give a statement of the extent of foreign state territory. Foster v. Globe
Venture Syndicate Ltd. [1900] Ch. D. 811.
2. 79 Ree. des Cours, p. 1, at Chapter II, p. 12.
indicated he was bound to obey the Act even if it were in viola-
tion of international law, and convicted the Norwegian. The
British Foreign Office intervened to secure the remission of the
fine as a matter of grace, and, although the conviction remained,
its consequences were eliminated through the Norwegian diplo-
matic appeal to public international law. There is every reason
for courts of justice, whether national or international, to
endeavour to harmonize public and private international law
in matters of jurisdiction as in other matters.
Clearly two states cannot both be right fully entitled by
public international law, if they each claim to exercise exclusive
jurisdiction over the same territory as "national territory"; the
fact that their own private international law gives such an
exclusive jurisdiction, does not conclude anything in public
international law, though the exercise of jurisdiction may be
a relevant consideration in a dispute. Disputed jurisdiction, if
not settled by amicable negotiation, or good offices, may need
to be settled by an international court, or body of arbitrators,
after an extensive investigation of title, as in the Eastern Greenland
Case
1
; for national legislation on jurisdiction cannot alone
directly make international law; the mere fact that, in one or
more instances, a state has acquiesced in an exercise of jurisdic-
tion by a foreign state acting under its own legislation may
create an estoppel, but not a custom
z
. A mere unilateral failure
to observe treaty
3
or other obligations will not ipso facto create
a custom nor even an estoppel, for an estoppel requires positive
action on the part of the person estopped and has been defined
as a rule of evidence that "a man shall not be allowed to blow
hot and coldto affirm at one time and deny at anothermaking
a claim on those whom he has deluded to their disadvantage,
and founding a claim on the very matters of the delusion
4
,
per Wilde B.
On the other hand the habitual exercise of jurisdiction over
1. 1933, P.G.I.J., Ser. A/B., 53 at 54 & 62.
2. See dissent of Judge Nyholm in the Lotus (ante), at p. 59.
3. Danzig Railway Officials Case, P.C.I.J.. Ser. B., No. 15.
4. Cave v. Mills, H. & N. , 913, 928; 158 E.R., 740, at p. 747.
territory or territorial waters by national courts in accordance
with national rules of jurisdiction (which may be considered
part of private international law) may be a factor in enabling a
state to prove customary rights under public international law
1
.
Judge Basdevant in the Minquiers and Ecrehos Case
2
said:
"The fact that one State exercised its authority on the disputed islets
or on some of them constitutes no more than the expression of that
States's convictions with regard to its own sovereignty over the islets,
if it be not merely a reflection of its desire, a desire without ulterior
motives, to provide for the protection of its nationals in the absence
of any established authority in the region: a unilateral expression of
such convictions is not sufficient to invalidate a claim of the other State
any more than a protest by one has this effect as against the other. "
Private international law rules about jurisdiction are then not
conclusive in Courts of public international law, but they may
be important pieces of evidence to be considered by an inter-
national tribunal discussing rival claims to Sovereignty or
territory.
1. Anglo Norwegian Fisheries Dispute, 1951, I.C.J.Rep. p. 116; The Minquiers
& Ecrehos, I.C.J.Rep. 1953, p. 47.and the Eastern Greenland Case, 1933,P.C.I.J.,
Ser. A/B., No. 53, p. 22, at pp. 53, 54 & 62.
2. I.C.J. Rep. 1953, at p. 80.
CHAPTER IV
SOME PRINCIPLES COMMON TO PUBLIC AND
PRIVATE INTERNATIONAL LAW
" T T TAS the reception of Roman law at the end of the
\ l \f Middle Ages limited in any sense by the boundaries of
the individual states"? asks von Bar
1
. Clearly it was
not, so far as Continental Europe was concerned.
Nor was Roman law merely the law of the Emperor or his
successor; followed in countries outside the Empire, it was
widely regarded as "written reason" and applied in both public
and private international law matters, consequently, the prece-
dents of one system may properly be appealed to in the adminis-
tration of the other, even where these precedents are in no sense
binding.
The Statute of the International Court of Justice clearly
recognizes that the diversity of national laws is no obstacle to
the administration of international law by lawyers trained in
different countries, and that civilized systems of law have much
in common, for Article 2 of the Statute indeed makes qualifica-
tion for the highest judicial office in a country an alternative
qualification to that of being a "jurisconsult of recognized com-
petence in international law"; and Article 6 recommends the
each national group in the Permanent Court of Arbitration,
when making nominations for the members of the International
Court of Justice "to consult its highest court of justice, its legal
faculties and schools of law, and its national academies and
national sections of international academies devoted to the
study of law". Legal methods differ, but there does exist a com-
mon professional spirit among lawyers of widely differing for-
mations; without this spirit the international court, and even
1. Op. cit., p. 5, note.
international conferences on matters of public and private
international law would not be possible.
The term "l aw" is a generic one; its most general sense it is a
body of rules designed to produce order and to avoid anarchy.
No man can be at once a genuine lawyer and at the same time
an anarchist. The "rule of law" is recognized in national courts
of civilized countries, even though detailed rules of law may be
differently formulated in different places. The "rule of law" is
also recognized in international courts; it represents a civilized
attempt to order human relations and not to leave them to
chance as anarchists would do. Indeed the "rule of l aw" is a
conception that transcends state boundaries: it represents a
common element of our civilization, even though legislation in
different countries varies very widely in the language and man-
ner of enunciation. It is in the professional habits of civilized
lawyers that we can discern certain common ideals and methods
of work. Judges at the International Court must not only be
individually qualified for their high task, but they should also
collectively be representatives of "t he main forms of civilization
and of the principal legal systems of the world"
1
.
Civilization is found in a social life that is ordered by law,
not left to anarchy and caprice; the promotion of an order
governed by legal principles and the objective systematization and
consideration of claims in relation to an ideal of justice, are
professional aims the performance of which distinguishes law-
yers from mere opportunists seeking immediate advantages.
There are indeed many principles of law that are common to
all civilized nations"the general principles of law recognized
by civilized nations" (Article 38), these, are, above all, concer-
ned with obtaining a fair trial and with fair dealings in general,
in matters coming before Courts of public and of private inter-
national law.
Article 38 is indeed a further repudiation of the view that
only rules formally created are valid
2
.
There are, as Gutteridge has said, certain principles found in
1. Art. 9 of the Statute of I. C. J.
2. Bin Cheng, General Principles of Law, 1953, p. 23.
(77) CHAPTER. IV 315
ai r legal systems; in addition there can develop a community
of thought about legal principles that cannot properly be
described as originating in any specified systems:
"If the phrase general principles recognized by civilized nations
means that an international judge must not resort to a principle of
private law unless it is one which is universally applied, then the contri-
bution which comparative law can make to the development of lhe
law of nations is bound to be of a meagre character. There are, no doubt,
certain principles of this kind. Estoppel is a case in point, because it
appears in all systems of civilized law either under its common-law
designation or as an instance of the exceptio doli of Pandectal law. It is
also possible that the growth of more intimate intercourse and exchange
of ideas between the lawyers of different jurisdictions may lead to a
communion of thought which will have its repercussions in the inter-
national sphere and so ultimately prove to be the greatest service which
comparative law can render to the development of the law of nations. "
Maxims like "allegans contraria non est audiendus" or "nullus
commodum capere de sua injuria propria", "jraus omnia corrumpit" and
"ex delicto jus non oritur"
1
, which are at the basis of estoppel and
of the actio doli, are certainly received both in public and in
private international law. A state cannot blow hot and cold
when relying on a treaty
2
, nor taking advantage of its own
unlawful act
3
, the same principle applies in private international
law : when Lord Nel son
4
accepted a Sicilian estate, he was
bound to deal with it only as Sicilian law allowed. It is however
with the principles of law relating to the judicial process and to
judicial interpretation that we are mainly concerned.
1. GENERAL PRINCIPLES OF LAW RELATING TO JUDICIAL
PROCESS.
The principles which relate to the judicial function clearly
follow from the civilized conception of that function; and we
may take them as examples of rules that are common to all
civilized systems. Consequently, precedents and developments
1. V. Lauterpacht, Recognition, p. 421.
2. Mavromatis Case (1924), P.C.I.J., Ser. A, No. 2, p. 6 at p. 33.
Chorzow Case (1927), P.C.I.J., Ser. A, No. 9, p. 4 at p. 31.
3. Eastern Greenland Case (1933), P.C.I.J., Ser. A/B, No. 53, p. 23, Dissenting
Opinion by Anzlotti, at p. 95.
4. Nelson v. Bridport (1846), 8 Beav. 547.
316 B. A. WORTLErINTERNATIONAL LAW TODAY (78)
of these principles are clearly of real value, both to public and
to private international lawyers.
Many of these principles are enunciated in Latin and may
be taken to have a Roman law origin; but simple principles
become elaborated and refined in course of time, and, conse-
quently, developments by national courts and in national
systems of private international law relating to due process are
often valuable elements in the development of public interna-
tional law, and equally, developments of those principles by
international tribunals may well afford assistance to national
courts applying private international law.
(i) "Nemo debet esse judex in propria causa sua" or "nemo sibi esse
judex vel suis jus dicere debet", (C.3.5.1.) are widely accepted
variants of a sound principle that goes to the very nature of the
judicial process.
Clearly an impartial and objective j udge will not j udge a
cause which is his own. Most legal systems safeguard and
solemnly affirm this by requiring judges to take oaths when
assuming office, as they do in England, or to make solemn
affirmations, as is done in the International Court of Justice,
t hat they will act impartially. But although the oath or affirma-
tion has legal consequences, it merely reiterates what is, in any
case, the judicial function. The obligation resting upon a judge to
be impartial would be there even if the judge did not make any solemn
undertaking to be impartial. The oath or undertaking merely renders
explicit what is implicit in the civilized judicial process.
How far does the obligation of impartiality go? Does the
fact that a j udge shares the nationality of one of the parties make
him partial? Cheng reaches the right conclusion, we believe,
when, after a review of the international practice, he concludes :
"From the fact that national arbitrators in international tribunals
are not agents of their respective states but independent or impartial
judges for both parties appearing before them, as is evidenced by con-
sistent practice,it is clear that their presence on the tribunal is compatible
with the principle nemo debet esse judex in propria sua causa."
1
.
The judges at the International Court of Justice are indepen-
1. Op. cit., p. 283 and p. 289.
(79) CHAPTER IV 317
dent of their national governments, as the form of declaration
they make on taking office makes plain, and even Prize Courts are
deemed to be international courts and to apply international
law (though it is admitted that when they apply purely national
ordinances they cannot be regarded as so acting). The setting up
of an international prize court, manned by judges of non-
belligerent nations and applying only public international law,
might dispel any lingering doubts about the partiality of Prize
courts, but the Hague Convention on this subject has not been
ratified; nevertheless, as we have seen, Prize verdicts are gener-
ally accepted unless, on the face of them, they are plainly contrary
to law (See Chapter I I I ) .
In private international law matters no one suggests that
the fact that a j udge is of the same nationality as one of the
parties makes him partial. Partiality must be proved, not
presumed, for, before any claim is made against a state in
respect of a denial of justice to a foreigner, any local
remedies before local courts of justice, applying national law
(including where necessary private international law) must first
be exhausted. There is indeed, in neither public nor private
international law, any rule that enables partiality or injustice
to be presumed on the ground of nationality alone
1
. But partia-
lity on other grounds than nationality may be proved. Most legal
systems do indeed provide for appeal when a j udge has acted as
a j udge in his own cause, and public international law permits
the imputation of responsibility to a state the judicial organs
of which fail to comply with the minimum standards of inter-
national law.
There is, of course, authority in public
8
and private
3
inter-
national law for the proposition that the partiality of the j udge
invalidates his j udgment . But how far do lesser faults impair the
1. Indeed Cheng (p. 288) even criticises the rule in Art. 31 (3) of the
Statute of the Court which allows each party to choose a judge when
the bench contains no national of either side. The House of Lords invariably
includes a Scots lawyer in Scottish cases.
2. Bin Cheng, op. cit., p. 279.
3. Dicey, op. cit., p. 393 for this English view and sec Wolff, op. cit., section
247, who points out that this is also the Continental view.
See also Foreign Judgments (Reciprocal Enforcement) Act, 1933.
j udgment ? In English law in Dimes v. Grand Junction Canal (1852),
3 H. L. C. , 794, it was held that a j udgment given by a judge who
held shares in a company appearing before him was invalid,
even though it did not appear that he was in any way influenced
by his holding in coming to this decision. We shall see, when we
come to deal with the next maxim, that it is essential, in a
properly conducted judicial proceeding, not only to do justice
but to give the appearance of doing it : the rule in Dimes' Case
would no doubt be applied in public and private international
law cases. When fraud or bribery by the court can be proved,
or a presumption thereof raised, there is no adjudication, and
the "j udgment " whether of a public or private international
law tribunal, may be disregarded.
This brings us to our next maxim.
(ii) Audi alteram partem, is well established in public and private
international law. Broom, in his Legal Maxims, cites BoswelVs
Case, 6 Rep. 48b, in which Seneca is quoted for this traditional
rule of justice:
"Quicunque aliquid statuent, parte inaudita altera, Aequum licet
statuent, haud aequus fuerit." Medea, 195.
Not to hear a party to a dispute is to discriminate and not
to act judicially.
These is ample authority in public
1
and private
2
interna-
tional law cases, and in rules of court procedure, for the view
that parties must be given an opportunity to present their cases ;
of course if they choose not do so, but to let matters go by
default, they have only themselves to blame
3
.
The problem of how to give notice of proceedings to a defen-
dant is perhaps not so important in cases where states are
litigating, as in the case of private individuals. Questions of
recognition of competing claims of states are matters of public
1. See Bin Cheng, op cit., Chap. 14 and Corfu Channel Case Com-
pensation (1949), I.C.J.Rep., p. 244 at p. 248,
2. Foreign Judgments (Reciprocal Enforcement) Act 1933, based onRobinson
v. Fenner, [1913], 3 K.B., 835, Jacobson v. Fraction (1927), 44T. L. R. , (CA. ), 103.
3. V. Cheshire, op cit., p. 623 & 4. See art. 53 of Statute of I. C. J.
(81) CHAPTER IV 319
international law
]
. There is rarely any doubt where a state or
a government is located, and questions of substituted service,
e.g. by advertisement, of importance in private international law,
scarcely arise here. In an international arbitration the submis-
sion will usually provide for service of documents. In the I. C. J. ,
each party nominates an agent.
The two principles of law just expounded are necessarily
implied from the nature of the judicial function, as conceived
in civilised law, and it matters not whether that function is
exercised by a national or by an international t ri bunal : they
pertain to the judicial function as such and without them there
can be no just j udgment . Impartial justice is a conception t hat
transcends any civilized system of law.
(iii) Restitution the Measure of Reparation.
The notion of restitutio in integrum is an essential conception of
any court t hat attempts to provide adequate reparation for a
legal wrong, and just as a national court dealing with private
international law will lay down rules governing the question of
specific restitution or damages, so too an international court
applying public international law will often have to attempt to
apply the same principles. Even in litigation between states,
it may be necessary to assess reparation for losses suffered by
legal entities that are not states as a result of the violation by a
state of their contractual rights : in the Chorzow
2
case for example
the P. C. I. J, discussed on more than one occasion, the losses
suffered by German companies in Poland. International
decisions on the measure of damages cannot but be of assistance
to national courts dealing with international contracts referred
to them.
Leaving aside case of the specific or equivalent, restitution of
a thing detained or destroyed, it must be admitted that the
rules governing the assessment of damages applied in different
national courts of private international law, dealing with mat-
ters of tort or contract, are by no means uniform. The English
courts insist on applying their own rules relating to the measure
1. V. Chapter I I I , ante.
2. P.C.I.J., Ser. A, No. 17, (Merits), the order is at p. 63.
of damages, even in cases having a foreign element t hat come
before them. They gave a Greek girl jilted by a British Naval
officer the measure of damages (including a solatium) for
breach of promise normally accorded in cases concerning English
litigants *; they gave a Brazilian plaintiff, in an action for defa-
mation, the same scale of damage for loss of reputation as they
would have given to an Englishman
B
, even at a time when the
Brazilian law gave no damages for defamation and allowed only
a criminal law remedy. Again, an English court assessed, by
its own rules, damages in respect of a car accident in France,
even though they included heads of damage not recoverable in
France
3
.
To give too much or too little is not to do justice, and the
ideal rules for the measure of restitution and reparation would
be objective and universal in all systems of law. The continued
insistence by public international law tribunals of the minimum
standards of civilized legal life is bound to help to produce this
effect; on the other hand the acceptance by courts of private
international law of the "obligation theory" of Holmes J. (not
followed in England) might well result in the acceptance of the
local standards of the place of the commission of a tort which
might well fall below the minimum standards required by the
generality of legal opinion.
"The breach of an engagement involves an obligation to make
reparation in an adequate form", said the court in the Chorzow
Factory Case
4
. It is in settling the detailed rules of just repara-
tion or restitution for wrongs with international repercussions
t hat the practice of national and international tribunals can be
of the greatest assistance to each other, since both types
of tribunals are concerned with doing justice to claimants.
(iv) The Restriction of Self-Help by Courts.
The Roman law maxi m: "Vim enim vi defendere omnes leges
omnia que jura permittunt"
5
is to be found in most modern civil
1. Kremezi v. Ridgway [1949] 1 A.E.R., 662.
2. Machado v. Fontes [1897] 2 Q..B., 231. (CA. )
3. Kohnke v. Karger [1951] 2 K.B., 670.
4. P.G.I.J., Ser. A, No. 9, at p. 21.
5. Paulus Dig., 45.4.
(83) CHAPTER IV 321
codes, in the common law as well as in writings on public inter-
national law, and in the Charter of the U. N. , but self-defence
is everywhere limited.
So far as conflicts of laws are concerned, the English view
is that the doctrine of self-defence is a defence to an action in
tort brought in England irrespective of the nationality, domicile
or residence of the plaintiff or defendant, provided the force
used is reasonable and necessary
2
. It is equally a defence in
proceedings brought before an English court even in respect of
an alleged assault that has taken place abroad; though as Wolff
says
3
, the lex loci may well determine the legality of self-help in
case of doubt.
Self-defence is, however, no defence to an individual against
a lawful use of state power by a duly authorized agent of the
state acting within his authority, e.g. when a policeman or a
bailiff executes a warrant ; so too in public national law, whilst
a Leve en masse is a legitimate form of self-defence to an
external enemy, individual acts of resistance by francs-tireurs
against lawful acts of warfare will not be defensive measures
and will not entitle an individual to claim damages.
Nevertheless, both courts of public
4
and private international
law are agreed that all forms of self-help are to be restricted as
much as possible in the interests of the judicial process and the
rule of law.
2. THE RULES OF INTERPRETATION OF DOCUMENTS.
Closely connected with the rules governing the judicial
process are the rules of interpretation applied by Courts to ascer-
tain the meaning of documents before them. These rules tend
to be much the same in public and private international law
matters.
In his Chapter dealing with the interpretation of treaties,
2. Salmond on Torts, 11th ed., p. 375.
3. Op. cit., p. 227.
4. Corfu Channel Case: Compensition. I.C. J.. 1949, p. 1, 244 at p. 248
to 250.
Oppenheim
1
rightly ascribes many of the present rules of inter-
pretation, not so much to convention or custom, but to the
reception of the Roman rules by writers like Grotius in so far
as those rules "are full of common sense"
2
. These rules indeed
relate to the construction of documents generally, though others
arise from the common practice of publishing treaties in more
than one language.
It is significant that Grotius' chapter on Interpretation
(Ch. XVI) in Book I I of de Jur e Belli ac Pacis, follows five
chapters dealing respectively with Promises (Ch. XI ) , Contracts
(Ch. XI I ) , Oaths (Ch. XI I I ) , Promises, Contracts and Oaths
of those who hold Sovereign Power (Ch. XI V) , and Treaties
and Sponsions (Ch. XV) . This chapter on Interpretation draws
copiously on Biblical and Classical learning and on Roman Law,
and is clearly intended to cover every sort of engagement in
what we now call public and private international law, and,
save that some few rules are specifically restricted by their
content to questions of alliance and warmaking, the rules are
of general application.
Among the well-known rules mentioned by Grotius are :
1) "If other implications are lacking, words are to be understood
in their ordinary sense"
3
;
2) "Technical terms are to be explained according to their technical
sense"
4
; and
1. Op. cit., Vol. I, p. 856.
2. Ibid., p. 857.
3. Op. cit., Carnegie Translation, p. 409; McNair, Treaties, Ch. XVI,
and Oppenheim I, p. 888 is to the same effect: Phillimore cites Digest L,
17, 34, "Semper in stipulationibus et in ceteris contractibus id sequamur
quod actum est. At si non appareat quid actum est, erit consequens, est id
sequamur, quod in regione, in que actuum est, frequentatur. Can this be
the origin of the lex loci contractus rule?
V. also Danzic Postal Services Case ,P.C.I.J., Ser. B., No. 11, at p. 39.
"It is a cardinal principle of interpretation that words must be inter-
preted in the sense which they would normally have in their context,
unless such interpretation would lead to something unreasonable or absurd".
Also Employment of women during the night, P.C.I.J., Ser. A/B, No. 50,
p. 365 at p. 373. A/O on Article 4 oftheU. N. , charter I.C.J.Rep. 1947-8,
p. 63 : A/O on Admission to U.N., I. C. J. Rep. 1950, p. 8, "If the relevant
words in their natural and ordinary meaning make sense, in their conteut
that is the end of the matter",.
4. Grotius, op. cit., p. 410, I Oppenheim, p. 858.
(85) CHAPTER IV 323
3) the rule rebus sic stantibus may be applied when "promises
contain in themselves that tacit condition, if matters remain in their
present state"
1
, for in such cases good faith requires that regard
be paid to the maxim
4) cessante ratione cesst lex ipsa
2
.
5) The rule of "business efficacity", "ut res magis valeat
quam per eat", commonly used in private international law mat-
ters in connection with the interpretation of the proper law of
the cont ract
3
, has its counterpart in relation to treaties
4
, the
Ciceronian maxim was: ["Omnia hominumfacta adscopum aliquem
at que finem tendunt unde sibi vel aliis utilitatem quondam expectant"
5
6) Again the maxim "Cui libet licet renunciare jure pro se intro-
ducto"
6
, may be reasonably applied to contracts or to treaties.
7) The Contra proferentem rule which occurs in Dig.
X/ V. l . 38. 18, "In stipulantibus quum quaeritur quid actum sit, verba
contra stipulatorem interpretanda sunt", may be applied, as
Phillimore says, to treaties and to State and ordinary
contracts, in cases of ambiguity, for, as Phillimore remarks
7
,
a "part y who might or ought to have expressed himself clearly
and fully must take the consequences of his carelessness, and
cannot, as a general rule, introduce subsequent restrictions or
extensions of his meani ng".
The maxim was adopted by the P. C. I. J. in these words:
"Moreover, there is familiar rule for the construction of
instruments that, where they are found to be ambiguous, they
should be taken contra proferentem. In this the Brazilian
Government by its representative assumed responsibility for the
1. Grotius p. 424, v. McNair, Treaties, Ch. 23 and 34.
2. McNair, op. cit., p. 379, citing the matter of a treaty relative to the
slave trade.
3. The Torni [1932] P., (C.A.) 78, the Assunzione [1954] 1 All E.R.,
278 at p. 291 (CA. ).
4. McNair: Treaties, op. cit., p. 217, P.C.I.J., A.O. on Minority schools in
Albania, Ser A/B, No. 64 at p. 20.
5. Cit. II Phillimore, International Law, p. 105, 3 ed. 1889 cf. P. C. I. J. ,
European Danube Commission, Ser. B, No. 14. at p. 27, Serbian Loans Case,
Ser. A, No. 20/21, p. 5 at p. 32; and McNair, Treaties, Ch. XXI .
6. Moore v. Landauer (1921), 26 Com. Ca. 267.
7. Op. cit., p. 109.
prospectus, which this representative, who had signed the
bonds, had "seen and approved", it would seem to be proper
to construe them in case of doubt contra proferentum and to ascribe
to them the meaning which they would naturally carry to
those taking the bonds under the prospectus. It can hardly be
doubted that those taking the bonds on the faith of the prospec-
tus would understand that they were receiving gold bonds,
which would mean bonds payable in gold value both as to
principal and interest".
1
In the words of Oppenheim: "If two meanings of a stipula-
tion are admissible according to the text of a treaty, such
meaning is to prevail as the party proposing the stipulation
knew at the time to be the meaning preferred by the party
accepting it"
a
.
8) Subject to this, the modern tendency is to show a special
consideration to Sovereigns, and Oppenheim
3
cites the rule
"in dubio mitius", in relation to matters of sovereignty, and there are
three decisions of the P.I.C.J. on the point
4
which rather go
to show that a benign method of interpretation is generally
proper in matters of sovereignty, and indeed English internal
law itself takes this view
5
, since it does not apply the contra
proferentem rule to crown grants, or to limit sovereignty.
9) The maxim expressio unius est exclusio alterius has been
followed by international tribunals
6
, and is a commonplace of
the rules construction before English courts in English cases
7
and those involving a foreign element
8
. Exceptions to general
rules will not be extensively interpreted
9
.
The above examples of the rules of interpretation common to
1. Brazilian Federal Loans Case, (1929), Ser. A, 20/21, Hudson, vol. II, p. 421.
2. Vol. 1, p. 860.
3. l b P. 859. See also McNair, Treaties, p. 215.
4. Frontier between Turkey and Iraq, Ser. B, A. O. (1925) No. 12, p. 6 at p. 25,
Danzig Case, Ser. A/B, No. 43, at p. 142, Wimbledon, P.C.I.J., Ser. A, No. 1,
p. 15 at p. 24/5.
5. Broom, 9th
e
d p. 48.
6. McNair, Ch. XVIII, and B.Y.I.L., 1924, 181-182.
7. Ashbury Carriage C. v. Riche, (1875)H.L., 653.
8. Maltass v. Maltass, (1844), 1 Robb. Ecc. Rep. 67, (A decision on a
treaty with Turkey.)
9. Tunis and Moroccan Decrees P.C.I.J., Ser. B, No. 4, p. 21 at p. 25.
(87) CHAPTER IV 325
public and private international law should suffice to indicate
the interchangeability thereof.
International custom is indeed an important source of rules
of interpretation in matters of public and private international
law:
"In the absence of any contrary provisions laid down by the parties
and not inconsistent with overriding principles of international law,
the conditions of the validity of treaties, their creation, interpretation
and termination are governed by international custom and, in appro-
priate cases, by general principles of law recognized by civilized nations,"
reads article 3 of the Draft Law of Treaties, set out in Professor
Lauterpacht' s Report for the International Law Commission
of the U. N. (A/CN, 4/63, 24th March, 1953).
Professor Lauterpacht comments t hat :
"The binding force of treaties is independent of the will of the states
which conclude them in the exercise of their sovereignty. Their binding
force and other basic conditions of their operation are grounded in
customary international law. While, therefore, states are free to shape
their treaty relations and the conditions of their performance in accord-
ance with their will, they can only do so subject to the overriding
principles of law and principles of good faith." '.
The general principles of law governing the judicial function
are certainly grounded in traditional concepts of good faith:
if a treaty is interpreted by municipal courts, must it not then
come up to the international standards of interpretation? Since,
as Judge McNair says :
"Decisions of diese courts have no conclusive authority between the
contracting parties and neither preclude protests and representations
through the diplomatic channels, nor oust the jurisdiction of an inter-
national tribunal (to which the contracting parties have agreed or may
agree to submit their disputes) ..."
a
.
When the private international law of a State adopts inter-
national standards of interpretation of treaties, the chances are
that no complaint will arise, if it does not do so, then a decision
of a municipal court interpreting a treaty in a private interna-
tional law matter in a manner contrary to the standards of
international law may well give rise to a protest or to a diplo-
matic claim. If, for instance, by applying a purely English rule
1. Ibid., p. 48/9.
2. Treaties, op. cit., p. 164.
of interpretation to legislation based on an international treaty,
when a dispute arises between an Englishman and a foreigner
affected by the treaty, the foreigner should conceive himself to
be harmed by the decision, then after exhausting any available
local remedies he may ask his government to claim against the
British Government for a denial of justice. Such a position might
well occur if a Statute had been passed by the U. K. Parliament
embodying a treaty and, because of the inability of the English
court to consider the travaux prparatoires, available in case of
ambiguity in public international law,
1
a mis-interpretation of
the treaty was unwittingly given to the detriment of foreigner.
In the events of a clash it is clear that such diplomatic proce-
dure may ensure the superiority of the international law stan-
dards over local standards.
1. V. A.O. on Art. 4 of Charter of U.N., I.G.J.Rep... 1947-8, at p. 63.
CHAPTER V
ATTEMPTS TO PREVENT CLASHES BETWEEN
PUBLIC AND PRI VATE I NTERNATI ONAL LAW
1. FROM what we have already said in our first four lectures
it will we hope be clear that whilst public and private
international law have many rules in common, and that
each system may draw upon rules of the other to supplement
its own rules, nevertheless clashes do occur between public
international law rules and private international law rules.
Such clashes should not occur in systems that each have their
spheres of operation clearly defined, and some attempts are
made by lawyers to prevent clashes between public and private
international law by the use of "protective mechanisms".
There are five protective mechanisms used by English private
international lawyers designed to prevent conflicts between
public and private international law:
(i) the acceptance of statements of the Executive with regard
to (a) recognition of Governments, states and insurgents,
(b) the status of sovereigns and diplomatic agents which
we have already discussed;
(ii) the refusal to handle cases t hat might result in enter-
taining questions regarding the title to foreign land or
trespass thereto
1
;
(Hi) the refusal to issue injunctions or orders for specific per-
formance abroad that cannot be enforced
2
;
(iv) the acceptance of the decisions of the Prize Courts duly
constituted, already discussed, and
(v) various attempts to unify private international law by treaty.
Mechanisms used by public international lawyers to prevent
clashes between public and private international law include:
1. Brit. S. Africa Co. v. Companhia de Mozambique [1893] A.C. 602.
2. For criticism of a U.S. attempt to apply monopoly legislation in
England Yale Law Journal 1954 p. 639 to 662.
328 B. A. WORTLEY INTERNATIONAL LAW TODAY (90)
(i) an insistence that states must refuse to entertain diplo-
matic claims for state responsibility for denial of justice
until the local remedies have been exhausted
1
;
(ii) the making of treaties, like that dealing with conflicts of
nationality laws, to settle possible conflicts between natio-
nal legislation on a matter of international concern ; and
(iii) the general attempt progressively to develop and to
codify international law by treaty
2
.
2. A fresh start has been made in the U. N. Commission by the
General Assembly for the codification of international law set
up under art. 13 (a) of the U. N. Chart er
3
. This is a long-term
task which would, if accomplished with care, reduce the number
of conflicting views of public international law and eliminate
many eccentric national interpretations thereof. It is significant
however, that the Statute of the International Law Commission
does not preclude it from entering into "matters of private
international l aw" *, leaving aside the codification of public
international law perhaps the most useful work which can now
be done is to codify that part of international law that relates to
individual human beings in their private capacities, i.e. private
international law.
Three different approaches to this problem are being made
simultaneously, and it will perhaps be useful to say a few words
about each approach.
First, there is the work of the various agencies which endea-
vour to state the rules of private international law in an agreed
form; second, there is the attempt to eliminate the source of
conflicts by unifying different branches of national law; third
there is the attempt to state authoritatively the fundamental
human rights to be recognized in civilized society.
It is noteworthy that these methods are based on the signature
1. E.g. I. C. J. , 1945, p. 215, Injuries Case; Panevezys-Saldutiskis, P.C.I.J.,
S.A./B, 76, at p. 36.
2. V. Oppenheim I, p. 54 et seq.: U.N. Survey, 1949, A/CN/4/1, Rev. 1.
3. See R.Y. Jennings in 24 B.Y.I.L., (1947), p. 301 for a full account of
the position to that date.
4. Art. 1 (2) of the Statute, a. , by Nadelmann in 102 U. of Pa. L. R. ,p. 323
at p. 347.
(91) CHAPTER V 329
of treaties or documents that depend for their validity on public
international law.
(i) The Treaties with Agreed Statements of Private International Law
rules.
There are limited attempts at uniformity in certain matters
of private international law by treaties made in Scandinavia '
and in the Pan-American Union
2
. It will be recalled that the
Cdigo Bustamente has been widely followed in Latin America
3
,
that the Benelux countries have signed a treaty setting forth a
common code of private international law
4
; the Hague Confe-
rence on Private International Law which, since 1893
8
, has
held seven sessions, has recently drafted treaties concerning the
private international law relating to aspects of the family, to
jurisdiction, to wills and succession, gratuitous legal aid and
free delivery of entracts from public records (tat civil) and, just
recently (in 1951), has drafted treaties dealing with the recogni-
tion legal of personality, the choice of law in international sales of
goods, civil procedure and Renvoi
6
. The Hague Conference
on Private International Law has now been set up as a perma-
nent body in touch with the Council of Europe and the Inter-
national Institute for the Unification of Private Law, and is
working on statements of private international law on such
matters such as jurisdiction in international sales of goods and
on the law governing transfer of property in such sales.
But much remains to be done to prevent clashes between
legal systems; for inevitably different national systems of law
with their different vocabularies and even their differing views
of private international law, and especially of public policy
1. Wolff, Private International Law, p. 44.
2. Ibid., p. 48 and see Unificacin Legislativa Ibero-americana, 1950
Madrid, by F. Castejon.
3. Ibid., p. 48.
4. Treaty of 11th May, 1951, at the Hague, to be introduced by legis-
lation into the three legal systems, Nadelman, 102 U. of Pa, L.R.P., 323.
5. Documents relatifs la 7eme Session, p. 1-3, contain a short account
of the earlier work of the conferences.
6. Documents relatifs la 7eme session, the Hague, 1952, p. 1 et seq.,
v. Cheshire & Wortley in 38 Tr. of Grotius Soc. (1953), p. 24.
are far from easy to reconcile, as anyone who has taken part in
the debates at the Hague is only too well aware.
(ii) Treaties whereby states adopt uniform International Laws.
An alternative solution to unifying private international law
is t hat of the International Institute for the Unification of
Private Law, which is to obtain the agreement of states to uni-
form laws
1
. The Institute, which was set up by the League of
Nations, has already produced the European Uniform Laws on
Bills of Exchange and Cheques of 1930 and 1931, already
widely accepted, as well as draft uniform laws on such matters
as arbitration in private law (now sent to the U. N. ), agency,
commission and carriers' liability, the enforcement abroad of
maintenance obligations and international loans
2
. Even more
ambitious is the Draft Uniform Law on International Sales of
Goods, this has its satellite drafts on mandates, commission
agency and on contracts by correspondence, and was recently
taken over by the Dutch Ministry of Justice and has already
been the subject of an international conference called by t hat
Government
3
. It is of course well known that multilateral
conventions already exist to supply uniform laws in matters of
sea
4
and air t ransport
5
, arbitration clauses and the enforcement
of foreign awards
6
, on the protection of industrial and literary
property and on postal communications, and these have proved
their worth, though, as we shall see, uniformity in this appli-
cations is not always easy.
(iii) The Statements of Fundamental Human Rights.
Professor Lauterpacht, in his work entitled, "International
Law and Human Rights"
7
, has surveyed the movement towards
restating fundamental rights to which the U. N. O. has given a
1. See Wortley on Unification of Law, Int. Bar Association, Madrid, 1952.
2. V. Unification of Law, Editions Unidroit, 1948, 1951 & 1954 for full
details.
3. Actes de la Confrence sur un projet de Convention relatif une loi
uniforme sur la vente. Ed. Unidroit, Rome, 1952.
4. Brussels Conventions of 1922 and 1923.
5. Warsaw Convention of 1929 on International Carriage by Air
Chicago Convention of 1944 on International Civil Aviation.
6. Geneva Protocol of 1923 and Convention of 1927.
7. London, 1950.
03)
CHAPTER V 331
fresh impetus and has already produced a considerable litera-
ture.
A Universal Declaration of Human Rights has already been
signed
1
, and, whilst it is not a law-making treaty
2
, it may have
considerable effect on legal thinking
3
; a Draft Covenant on
Human Rights is now being hammered out
4
. But it is the
European Convention on Human Rights of 4th November,
1950, that attempts to bring the individual into the field of
public international law in a new way, whenever "domestic
remedies have been exhausted, according to the generally recognized
rules of international law ...
s
" (art. 26), by paving the way for
a European Commission on Human Rights to "receive petitions
addressed to the Secretary General of the Council of Europe
from any person, non-governmental organization or group of
individuals claiming to be the victim of a violation by one of
the H.C.P. of the rights set forth in this Convention, provided
that the H.C.P. against which the complain has been lodged
has declared that it recognizes the competence of the Commis-
sion to receive such petitions", (art. s. 25 (1) ).
If the Commission when set up accepts the petition, it may
act either as a fact finding body, or as a conciliation commission
(art. 28). If no solution is reached, then the Commission may
report on the alleged breach of the Convention to the states
concerned, to the Committee of Ministers and to the Secretary
General of the Council of Europe ; the states concerned are not
at liberty to publish the report (art. 31) when no solution is
reached, but the next step in such a case will be to refer the
question to the Court to be set up under the Convention, within
three months, failing which, the matter will be decided by a
2/3 majority of the Council of Ministers (art. 32 (1) ).
The H.C.P. agree to accept the Court's decision (art. 53) and
article 50 provides:
1. Proclaimed in the General Assembly of the U.N., 10th Dec. 1948.
2. Lauterpacht, op. cit., p. 397.
3. Ibid., p. 408.
4. U.N. Year Book of Human Rights, 1952.
5. Words added by the Committee of Experts. Note the wide recognition
of individual and group life which is most realistic.
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is comple-
tely or partially in conflict with the obligations arising from the present
Convention, and if the internal law of the said Party allows only partial
reparation to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just satisfaction to
the injured part y. "
The intention is therefore to provide for "just satisfaction to
the injured par t y" as distinct from a mere "partial satisfaction"
which may be offered by the national law of the offending party.
Clearly there with be a case here for uniform rules of restitution
and reparation.
If the scheme of the Convention works satisfactorily we shall
have the spectacle of a tribunal, set up by a treaty operating
under public international law, receiving the claims of individual
human beings for full reparation which the ordinary procedure
of national or private international law has proved powerless
to produce, whenever by art. 46, a H. C. P. declares that it
accepts as compulsory the jurisdiction of the court in relation
to the Convention.
Doubtless it will not be easy for the new Court to assert
itself, since there must first be the "denial of justice" resulting
from the unsuccessful exhaustion of "domestic remedies", and
no national court likes to be accused of failing short of the
standards of international law, but the principle of the Conven-
tion is sound enough and, if used, should provide valuable
decisions, especially on what amounts to the exhaustion of
domestic remedies, and on what is a proper measure of repara-
tion to an individual for a violation of his fundamental rights.
If the new court works successfully it may prove the means of
rehabilitating the ordinary human being as a full subject of
public and private international law. It may do much to
establishor to restablisha true jus gentium.
(iv) Some practical difficulties in the way of establishing Uniform rules and
their uniform interpretation.
The signature of a multilateral convention, operating under
public international law, is only the first step towards putting
an end to conflicts by the declaration of uniform rules of inter-
(95) CHAPTER V 333
national law, or by supplying uniform rules of internal law, or
by setting out human rights".
Even when a treaty has been ratified, and the conditions
necessary for it to come into force, e.g. the required number of
ratifications, have been obtained, the treaty is by no means
always, at t hat stage, a document that binds the national courts
of a ratifying state. It is true t hat in some countries, e.g. the
U. S. A. and France, a treaty, duly ratified, becomes part of the
law of the land. In other countries the incorporation of a treaty
is by no means automatic, and it requires special legislation to
put it into effect. It is significant that modern multilateral
treaties like the Uniform Law of Bills of Exchange, promissory
notes and cheques (originally a draft of the International
Institute for the Unification of Private Law) contain a statement
t hat the "H. C. P. undertake to introduce in their respective
territories, either in one of the original texts or in their own
language, the Uniform Law. . . " The French and English texts
of the Uniform Law of Bills of Exchange were "equally authen-
tic", but the problem of finding an exact translation for coun-
tries in which English and French are not officiai languages was
a serious one, and one fraught with difficulties, for a failure to
convey the exact meaning of a uniform law in a translation
may not only result in a divergence of practice and interpreta-
tion in a country supplied with the defective translation, but
it may also impose a considerable strain upon a j udge called to
decide upon an argument that his own translation does not in
fact correspond with the English or French authentic uniform
law.
It is noteworthy that in a resolution attached to the Uniform
Convention on Bills of Exchange addressed to M. Ren David,
then Deputy Secretary General of the Institute
1
, the Confe-
rence recommended that "in order to avoid the adoption of
texts of the Uniform Law translated in different ways in the
same language, the Conference recommends that countries
whose official language is the same should agree to establish an
official translation of the Uniform Law".
1. P. 29.
Such a recommendation might lessen the possibility of
conflicts of interpretation, e.g. in the great Spanish speaking
world, whether local legal usage is the same throughout Spain
and Spanish America I am unable to say, but even with a
perfect text, the problem of securing uniformity of interpretation
still remains a serious practical matter. Conventions forming the
basis of rules of conflict of laws are intended to supply rules for
national courts to apply and, if there is one thing that a national
court prizes above everything else, it is its judicial independence
and its freedom from external pressure in arriving at its deci-
sions.
Once again, a resolution (No. I l l ) in the note to M. David
just referred to
1
, attempted to deal with this problem :
"The Conference further recommends that the parties to the Conven-
tion providing for Uniform Law for Bills of Exchange and Promissory
Notes should communicate to one another the text of the most important
judgments given in their respective territories coming under the appli-
cation of the said Convention. "
This was an excellent idea, but we cannot say if it was ever
carried out. In administrative matters it is not sufficient to
have an idea, but it is also necessary to be able to provide
effective machinery to carry it out! This is the sort oft hi ng an
Institute like the International Institute for the Unification of
Private Law in Rome might well do, and indeed at this years'
meeting of the Board of Governors of the Institute it was resolved
to set up a committee to investigate to what extent uniform laws
have been uniformly interpreted
2
.
Treaties making uniform laws of public and private inter-
national law will of course not produce uniformity if a uniform
1. p. 29.
2. The resolution reads:
1 ) Whereas divergencies in the interpretation of uniform laws on the part
of judges of different countries having adopted such laws raise substantial
obstacles to the complete unification of law, the Governing Council resolved
that this problem should be studied to ascertain the most appropriate
measures for securing uniformity of interpretation. A working committee . . . .
was appointed.
2) The Secretariat will undertake the compilation of a General Digest
of the Unification of Law, containing uniform laws already enacted on an
international level together with draft uniform laws not yet adopted.
(97) CHAPTER V 335
interpretation thereof cannot be assumed. Different and oppo-
sed interpretations of the same authentic text mean a unification
de faade only.
In this matter, the existence of a single Highest Court of
Appeal for more than one country, having similar legislation,
such as exists in the British Isles, is most valuable. Whenever
the House of Lords gives a decision on a Law that is uniform
in the U. K. , such as the Sale of Goods Act, 1893, the Wills Act,
1861, the Merchant Shipping Act, 1893, the Bills of Exchange
Act, 1882 or the Foreign Judgment s (Reciprocal Enforcement)
Act, 1933, the decision will bind the courts of England, Scotland,
and N. Ireland in all future cases; the decision will also have
great weight in those parts of the Dominions and Colonies or
those states of the U. S. A. that have adopted similar legisla-
tion. The Judicial committee of the Privy Council, still the
supreme court for the Colonies and some Dominions, may
give decisions that will carry great weight in the interpre-
tation of uniform legislation, particularly in matters of the
Conflicts of Laws, though they will not of course bind the
English courts.
The notion of a European Court of Cassation was one of
Napoleon' s dreams for securing the uniform interpretation of
the code he bestowed on his own and other countries, but this
dream came to nothing, as Professor Vallindas in his remarkable
article entitled "L' evoluzione dottrinale intorno al problema
dell interpretazione delle convenzioni internazionali di diritto
internazionale pri vat o"
1
, has pointed out. P. Vallindas draws
attention to the possibility of the' divergent interpretations of
uniform law dealing with private international law matters, and
rightly points out that, except in rare cases where a misinter-
pretation causes a denial of justice
2
by a national court to a
foreigner, states have little interest and little opportunity to
interfere with the interpretation of national courts. And this is
so even when the intention was to secure uniformity in some
matter of private international law. Most English lawyers will
1. XIV Ann. di diritto comparato, p. 381, 1940. at p. 405.
2. At p. 382.
recall the different interpretations given by the Court of Appeal
in the Tornt, [1932]. P. 78, and by the Privy Council in the Vita
Food Products Case [1939] A. C. 277 where different legislations,
based on the same convention, resulted in divergent decisions.
Divergencies in legislation incorporating a convention or-
in the interpretation of the same convention, should not occur
since, as we have seen, the aims of such legislation are the
same, and the rules of interpretation in public international law
are, as we have seen, much the same everywhere, and they do
not differ very much from those adopted in matters of private
international law. Certainly, in so far as the meaning of a conven-
tion or treaty is concerned, the rules of public international
law are fairly clear, and often a convention itself lays down
which language or languages are to be treated as authentic,
and nowadays it is not uncommon for a treaty to provide for a
reference to the International Court of justice
1
, or to a court of
Arbitration in case of doubt ; for example in the Treaty on the
Execution of judgments in civil and commercial matters between
Italy and France, dated 3rd June 1930
2
, it was provided that
either state would accept the arbitration therein provided in
case of differences about the interpretation of the convention,
though without interfering with rights already acquired by-
virtue of the doctrine o res judicata. A more ambitious Protocol
for the recognition of the competence of the P. C. I. J, to interpret
the Hague conventions or Private International Law was signed
at the Hague on the 27th March 1931
3
. The advantages of
such references are great, but of course they will not usually
effect earlier decisions already decided by a national court, nor
is the decision of the I. C. J, a precedent that binds of itself in
1. See the protocol of 1928 to give to the P.C.I.J. jurisdiction to interpret
the Hague Conventions on Private International Law. At sphere of the
Court would be enlarged if it could pursuit application by individuals
W. B. Cowles in 33 U.Nebr.L.R., p. 35 at p. 39.
2. Gazz-Ufficiale, 16 Feb., 1938, No. 38.
3. Reprinted in Documents relatifs la 7eme Session de la Confrence
de D.I.P., 1952 p. 543 to which M. van Hoogstraaten recently drew my
attention; see also resolution of Institute of International Law, vol. 35, II,
(1929), p. 204 and the report of Mr. Sfriads, in vol. 351 (1929) p. 505,
le problme de l'accs des particuliers des juridictions internationales.
(99) CHAPTER V 337
an English court, though it will have great persuasive value
l
.
Legislation of course could make the decision of the I. C. J.
binding even on the parties concerned in a given dispute. When
a wrong interpretation has passed into national law the best
way of putting it right in England will be by legislation care-
fully drawn up to give effect to the true interpretation of the
convention as it appears after a decision of an international
court seized of the matter
2
.
To sum up, it cannot be said t hat the pat h traced by Mancini
to restore the lost unity of private international law, by means of
treaties, is an easy one. Not only are there difficulties in wording
and interpreting such treaties, but there are other difficulties too.
The judge of a national court faced with an international treaty
t hat has become part of the private international law he has to
administer, must not only know how to interpret the substance
of the law, but he must also watch certain points of public
international law for example:
(a) when the treaty comes into effect;
(b) when it expires i.e. whether it is for a fixed term or
whether the term is renewable automatically or not, or if it is
denounceable by notice, with what notice;
(c) whether the treaty binds his own country alone or whether
it also binds its colonies or protectorates;
(d) whether the treaty is an open one, available to any
country that cares to sign and ratify it, or whether it is a closed
treaty restricted to a limited number of states, such as the original
signatories, or such other countries as a certain number of
original signatories permit;
(e) whether or not the country adopting the treaty has made
any relevant reservations when signing the treaty.
Though many of these matters will often appear in the legis-
lation incorporating the effect of a treaty dealing with private
international law, this is not always the case. The application
1. Feist's Case, [1934] A.C., 161 at p. 173.
2. For a Report by M. Gidel on La clause, juridictionelle dans les Con-
ventions d'Union, see Insitute of International Law, vol. 39, I, of 1936,
p. 246.
of a uniform law is not an easy task: it is one demanding great
skill and care on the part of diplomatic agents, legislators and
judges. But the path is worth following, particularly if, in the
end, fair, just and uniform solutions to legal problems can be
obtained, and conflicts between different national systems of
private international law, and conflicts between systems of
private international law and public international law can be
avoided ; for in the present stages of development of the sources
of public and private international law there are, as we have
seen, some overlaps and some clashes.
Clearly in an ideal world there would be no clashes: each
system would have its own sphere. If it could be said for instance
that the relations of states between themselves are solely matters
of public international law, even when they involve commercial
matters, that would help, but is this a realistic point of view
1
?
Certainly at one time it might be possible for the War Office
of one state to sell war equipment to another state and to expect
the matter to be governed by public international law only.
But nowadays we are faced with a world in which states trade
through corporations which they control only indirectly, and
the public or private nature of which is by no means uniformly
decided or clear. The new International Court at Luxemburg
of the European Coal and Steel Community, presided over by
M. Pilotti, is essentially a court which deals with questions
that cut across traditional legal distinctions
2
. It is an inter-
national court, open alike to states and to the European Com-
munity.
The future will show what can be done to adapt old rules to
new needs. We can be hopeful ; for never was there more atten-
tion directed to legal science, nor better facilities for study, as
the continued existence and increasing prosperity of this Aca-
demy show.
1. V. Anzilotti, Corso, op. cit., vol. I, p. 55 & 56.
2. G. Behr in 63 Yale, L. J. , p. 1 and A. H. Robertson in 29 B.Y.I.L.,
(1952), at p. 389.
BIBLIOGRAPHY EXCLUDING TREATIES, CASES
LEGISLATION AND ARTICLES CITED IN TEXT
CHAPTER I.
DICEY. Confl i ct of Laws, 6t h ed. , 1949.
CHESHI RE. Pr i vat e I nt . Law, 4t h ed. 1952, especially Chapt ers 1 & I I .
BATTI FOL. Tr ai t lmentaire de droit i nt . priv, 1949. Int roduct i on,
p. 1 & 53.
WOLFF. Da s Int ernat i onal e Pri vat recht Deut schl ands, 3rd ed. 1954,
p. 1-32.
RABEL. Confl i ct of Laws, a Comparat i ve St udy, Vol . I. , Cal l aghan, U. S. ,
1945, Ch. 1.
ANZI LOTTI . Cor so di di ri t t o internazionale Vol. I. , 1928.
GRAVESON. Confl i ct of Laws, 2nd ed. , 1952.
SCHMITTHOFF. Confl i ct of Laws, 3rd ed. , 1954.
OPPENHEI M. I I nt . Law, Vol. I, 7th ed. , 1948, Ch. 1.
BRI ERLY. Law of Nat i ons, 4th ed. , 1949, Oxford.
SCHWARZENBERGER. I nt er nat i onal Law, 1949; Manual of I. L. , 3rd ed. ,
London.
STARKE. I nt er nat i onal Law, 3rd ed. , 1954, London.
The Annual Digest of Int ernat i onal Law Case, 1919-1948.
SCELLE. Cour s de Droi t i nt ernat i onal publ i c, Pari s, 1948.
ROUSSEAU. Droi t i nt ernat i onal public, Paris, 1953.
SI BERT. Tr ai t de droi t i nt ernat i onal Public, Paris, 1951.
HACKWORTH. Di gest of i nt ernat i onal Law, Washi ngt on, 1940. 8 vol.
CHAPTER II.
STREET. Gover nment al Liability, Cambri dge 1953.
GI DEL. Le droit i nt . public de la mer, Vol. I - I I , 1932.
HURST. 12 Ree. des Cours.
U. N. Document A/503 on privileges and i mmuni t i es of specialised agencies.
Cmd. 8460/1952, Repor t of i nt erdepart ment al Commi t t ee on Di pl omat i c
I mmuni t y, H. M. S. O.
LAUTERPACHT. Recogni t i on in Int ernat i onal Law, Camb. 1945.
CHEN. Recognition in Int ernat i onal Law, London 1951.
J AMBU- MERLI N. La Jur i spr udence des Prises et le droi t i nt ernat i onal
priv, Paris, 1947.
COLOMBOS. Law of Prize, 3rd ed.
NI BOYET. 40 Ree. des Cours, 1932.
CHAPTER III.
MANN. Legal Aspects of Money, 1954, 2nd, ed. Oxford.
NUSSBAUM. Money in the Law, 2nd ed. , 1950, U. S. A.
LAUTERPACHT. Funct i on of law in the Int ernat i onal Communi t y, Oxford,
1933.
CLI VE PARRY. Bri t i sh Nationality, London, 1951.
L. N. , Document C. 24. M. 13. , 1931.
md. 5738/39.
FENWI CK. i n 79 Ree. des Cours.
CHAPTER IV.
BIN CHENG. Gener al principles of Law as applied in Int ernat i onal Court s
and Tr i bunal s, London, 1953.
GROTI US. De J ur e Belli ac Pacis, Bk. I I .
MCNAI R. La w of Treat i es, (1938).
WOL F F . Private Int ernat i onal Law, pp. 450-476.
CHAPTER V.
LAUTERPACHT. I nt er nat i onal Law and Human Rights London, 1950.
U. N. Yearbooks on Hu ma n Ri ght s.
Annuaires de l ' Inst i t ut de droi t international (1929) vol. 35 (1) p. 505;
(1936) vol. 39 (1) p. 246.
TABLE OF CONTENTS
CHAPITRE /.The Nature of Public and Private Inter-
national Law 245-260
1.Preliminary : advantage of seeing public and private
international law aspects of the same problem.
2.Origin of the term "international law".
3.The Jus Gentium and the Usus Modernus.
4.The French Revolutionary tradition and the nationalist
movements.
5.The Utilitarians.
6.The Identification of Law with Sovereign-will, and the
doctrine of incorporation.
7.The Persistence of Customary Law.
8.Definition of public international law today.
9.Definition of private international law todav.
10.Relation of public to private internatiinal law today.
CHAPITRE ILSome Public International Rules in Private
International Law 261-296
1.Immunities of Sovereigns and States.
2.Immunities of Diplomatic Agents and International
Organisations.
3.Recognition of New States, of New Governments and of
State Territory.
4.Prize decisions and other matters.
CHAPTER III.Repercussions of Private International Law
in Public International Law 297-312
1.Direct borrowing of Private International Law rules by
international tribunals.
2.Acceptance in international disputes of nationals rules
on nationality (to be found in works on national systems of
private international law).
3.Acceptance in international disputes of national rules
governing jurisdiction (to be found in works on national systems
of private international law).
CHAPTER IV.Some principles common to public and
private international l aw 313-326
1.General Principles of law relating to the judicial process.
(i) Nemo debet esse judex in sua causa.
(ii) Audi alteram partem.
(iii) Restitution and the measure of reparation.
(iv) Restriction of self-help.
2.Some Rules of Interpretation of Documents.
(i) Words to be construed in ordinary sense,
(ii) Technical words in technical sense,
(iii) Rebus sic stantibus,
(iv) Cessante ratione cesst lex ipsa,
(v) Ut res magis valeat quam pereat,
(vi) Cuilibet licet renuntiare jure pro se introducto,
(vii) Contra proferentem,
(viii) In dubas mitins (in relation to sovereigns),
(ix) Expressio unius est exclusio alterius.
CHAPTER V.Attempts to prevent clashes between public
and private international l aw 327-338
1.Protective mechanisms of private international lawyers
and of public international lawyers revealed in preceding
chapters.
2.Modern Positive attempts at Uniformity.
(i) Treaties with agreed statements of private inter-
national law.
(ii) Treaties adopting uniform international laws.
Brussels Convention of 1922 and 1932 (Sea Trans-
port) ;
Warsaw Convention on International Carriage by
Air of 1925 and Chicago Convention on Inter-
national Civil Aviation of 1944 (Air Transport) ;
Geneva Protocol & Convention of 1923 and 1927
(Arbitration awards).
(iii) Statements of Fundamental Human Rights,
Universal Declaration of Human Rights ;
Universal Covenant of Human Rights ;
European Convention on Human Rights.
(iv) Practical difficulties in the way of establishing uni-
form rules and their uniform interpretation.

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