It is a fundamental error to assume that international law is primitive
because it lacks force and that an enforcing agency would cure the ills inci-
dent to international relations. It cannot be too often stressed that concep-
tions of municipal law can never be applied to internationalaw because the
subject matter, individuals on the one hand and sovereign nations on the
other, differ fundamentally. Hence the societal form of association and the
applicability and utility of coercion, must also differ. Individuals can be
coerced by a centralized superior and, in spite of occasional revolutions, can
not legally or usually physically resist societal agents. Sovereign nations
can not have, or be coerced by, any centralized superior because they are
legally equal, and no nation, as Story said, is the custos morum or the police-
man of the others. Any law that prevails among equals cannot be decreed
or enforced by a superior and must be of a type quite different from that which
prevails within the State. The two are law on different levels, which fact
induced Austin to call internationalaw international morality. That was
a recognition of their essential difference. If there were a superior, it would
not be internationalaw; and so long as states are legally equal, as the recent
resolutions admit, there can be no superior authority. Force behind an in-
ternational organization, independent of that of particular states, is unthink-
able so long as the members are sovereign states, and would soon prove fatal
to the organization. It must derive its prestige from different methods- consultative, deliberative, recommendatory, peaceful. The men who founded this nation seemed to have a clear grasp of that elementary human fact in discussing the suggested enforcement of the federal Constitution on the states. International law through the ages made its appeal not by force but by persuasion and application in practice.
Flaws in Post-War Peace Plans
Author(s): Edwin Borchard
Source: The American Journal of International Law, Vol. 38, No. 2 (Apr., 1944), pp. 284, 285f
