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A CADEMIC
PUBLISHING
WEST ACADEMIC PUBLISHING’S
LAW SCHOOL ADVISORY BOARD

JESSE H. CHOPER
Professor of Law and Dean Emeritus
University of California, Berkeley

JOSHUA DRESSLER
Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR
Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus
University of California, Hastings College of the Law

LARRY D. KRAMER
President, William and Flora Hewlett Foundation

JONATHAN R. MACEY
Professor of Law, Yale Law School

ARTHUR R. MILLER
University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON
’ Professor of Law Emeritus, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER
Justice Thurgood Marshall Distinguished Professor of Law
University of Virginia School of Law

JAMES J. WHITE
Robert A. Sullivan Professor of Law Emeritus
University of Michigan
 PRINCIPLES OF
INTERNATIONAL
LAW
Third Edition

Sean D. Murphy
Manatt/Ahn Professor of International Law
George Washington University
Member, United Nations International Law Commission
President, American Society of International Law

CONCISE HORNBOOK SERIES™

WEST
ACADEMIC
PUBLISHING
The publisher is not engaged in rendering legal or other professional advice, and this publication
is not a substitute for the advice of an attorney. If you require legal or other expert advice, you
should seek the services of a competent attorney or other professional.

© West, a Thomson business, 2006

© 2012 Thomson Reuters
© 2018 LEG, Inc. d/b/a West Academic
444 Cedar Street, Suite 700
St. Paul, MN 55101
1-877-888-1330

Printed in the United States of America

ISBN: 978-1-68328-677-6
For Julie

iii
 Digitized by the Internet Archive
in 2022 with funding from
Kahle/Austin Foundation

https://archive.org/details/principlesofinteOO0Omurp_11r9
 Preface

International law is continually transforming the world in which

we live. So many of the daily transactions in which we or our society
are engaged occur in an environment of transnational rules—such as
when we make a transatlantic telephone call, fly to Mexico, export
computers to Brazil, watch an Australian-made movie, eat Belgian
chocolate confident that it is unadulterated, send troops to
Afghanistan or Iraq, call for the prosecution of war criminals in The
Hague, pursue extradition of a suspected murderer who has fled
abroad, condemn crimes against humanity in North Korea, organize
global reductions in greenhouse gases, or extract natural gas for our
homes from an undersea continental shelf.
This book is about such transnational rules. It explores the basic
foundations of international law: its nature, history, and theoretical
underpinnings, and the players that make it all happen (states,
international organizations, and others). The manner in which
international law is created, interpreted, and enforced is addressed,
as well as mechanisms for dispute resolution. Several chapters are
devoted to discrete subject matter areas, such as human rights,
environment, international crimes, and the law of war. Further, the
inter-relationship of international law with national law is explored,
with a particular focus on U.S. foreign relations law.
The objective of this book is not to provide a comprehensive
account of these areas, for doing so would require several volumes
and even then would be incomplete. Rather, this book seeks to
illuminate the central principles that animate the field and to convey
basic information of use to students and practitioners alike, with
appropriate citations for those interested in further study. To “bring
the material alive,” relevant and contemporary incidents involving
international law .are noted throughout. While traditional
international law is central to this book, new developments in
transnational cooperation are also addressed, such as the adoption of
major multilateral treaties, the launching of new international
organizations or tribunals, and the tremendous influence of non-
governmental organizations. New developments, of course, include
trends that challenge international rules and institutions such as, in
recent years, greater resistance to trade agreements, efforts to curtail
the movement of persons across borders, and the withdrawal of states
from international institutions (such as the withdrawal of Burundi
Vv
vi PREFACE

from the International Criminal Court in 2017, the withdrawal of the

United States from the U.N. Human Rights Council in 2018, and the
anticipated withdrawal of the United Kingdom in 2019 from the
European Union)
I wish to express my profound appreciation to Judge Thomas
Buergenthal, since our prior collaborations helped inspire this
volume. My thanks to Sophia Arrighi, José E. Arvelo-Vélez, Marta
Bylica, Joseph Clark, Allison Hellreich, Tara Ippoliti, Jered
Matthysse, Elle Ross, and Herb Somers for their outstanding
research assistance on this project, for comments received from other
professors and practitioners in the field, and for the support of Dean
Blake Morant, as well as my other colleagues, at George Washington
University Law School.
SEAN D. MURPHY
WASHINGTON, D.C.

June 2018
 Summary of Contents

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PART 1. SYSTEMIC ELEMENTS

OF INTERNATIONAL LAW

Chapter 1. Foundations of International Law........ccccccccsssceseeees 3

(xa DDUPUICHULES Ole lMFR atl OMA 15d Wieseecinexancoccconsvsentervevasnesheoesuesepnsec 4
Die Loe Ores Olli ternational JitWo occas sss apy wer satoacoo dance wapiasaucieee: al
CAA ISGOCy Ol LNCernat lO aliLidVan ses ssc duresoaeseuutgdaaeiccuntastenets geod: 21

Chapter 2. Actors of International] Law ................cssssssssssssssooees 35

By sahfeelBENEAS ae 71. ee nar ant coal tee nom) ite ont les ebay 35
Dee MCehN elon sOr ra HI 7a LION Gkanncasaxcuattagnoet
iooraseade vercen aceckerserred ay
Cre ONO GOverninental OroaniZavlOls i isaticnosrtessret efesuaces const Ue
Dae Natural Personsrand Groupsde cae cce cc uk ee ae 76
Pea epaltrersons (COnpOLAatlous).i.csetts ce ie eee eae tea 78

Chapter 3. International Law Creation... eeccceeseeeeseeeeeees 81

Pte A
DRCALLE OGRE RIOT hee CRC Stee fest ecane ony sesnscusannversonayonaurcewaibiee 81
Be CustomanyMinverma tional: Law ie ecccacscseect poevewanpeosoncs sanncensactuee 101
We (TG eme PAM ENING les ala ie cccnciss coceau ent consnsiensenco nye saawengsuessawees We
D. Subsidiary Sources: Courts and TeachingS............ceceeeeeeeees 114
E. Law-Making by International Organizations.................0008 LL.
E WNon-lbegally-Binding Norns (Sott Yaw )iicccccsasccssesssescyaveeaceas 125

Chapter 4. International Dispute Resolution ....................000 141

A. Negotiation, Notification, and Consultation..................:00000+ 141
Boe Vediation-and-Conciliationerssistat water mer iedoles 147
GOR AT IGT AGONY aie fo scon son ons CES ORE SES eee Gee SERA Level 2 149
Day World Countireerionietusdiiers. cidade cancsh hemes. 15%
Ess U.S: Relationship with the World:Gourt? iins:aataweecsen!: 173
PROC MLE ODOM COOUNE Sh muss wtisiier. ooaes boy eoupucnoaseetencoteues 185
GO NAT GIANG OUBUS grdennenasnduvarsconde tines BRONte Stee A: OP ede actak, Oe 191

Chapter 5. International Law Compliance and Coercion... 197

ABA C onim ane... ...nccsees eee tee eee) te tenh hated. 198
B. Non-Forcible and Forcible Coercion of States..........ccccccceeees 22
C. Non-Forcible and Forcible Coercion of Persons.................0006 219

vii
viii SUMMARY OF CONTENTS

Chapter 6. Rules on State Responsibility .............ssccccceeeeseeees 229

Avi General: Principle of Responsibility 22s.220c-c.sse- eoteoetoe serra 230
Bre Attributionof Conduct to: a State’. 2.c:yct ies cia.notsee teareas 231
Corp Concept.of Breach: 3, cn op cccsusnnicersoatevs
dvnasdedaussacnmeeouts eee 234
DD. Obligations of -a-Breaching State... 2:.......0..;00sp0eee eee 236
He. Rights ofan Injured State... ccc enc. ce cnepessactaneea eee 242
PART 2. INTER-RELATIONSHIP OF
INTERNATIONAL LAW AND NATIONAL LAW

Chapter 7. Foreign Relations Law of the United States .....255

Ain “DED ALAUION OL, POW CYS. accra tenciciacicccet cagseacer nee oo eee 250
Bey PEd6Lral-Otate, REL AtlONScncs:cetcscec: saasvesk-sanace cates ee ee 285
C. International Law as-acPart.ot U:S5baw sscs.c.c0-e ee 289
D.. Userof Foreign law in US 00Wain casas 305

Chapter 8. Exercise of National Jurisdiction .................cc0e000 313

A. Jurisdiction and U.S. Foreign Relations Law....................:+++ 313
B. Permissible Bases of Prescriptive Jurisdiction under
International: lua wesc msssa scleenesescostvecsste
eke orem eee eee 319
Cs Jurisdiction to Adjudicate and Enforce: 4100. ee 334
Ds -Act-of State Doctrines. scseacasce ee tee 338

Chapter 9. Immunity from National Jurisdiction ................ 345

A» Diplomatic and Consular lmmunity.......:-.:.00cse eee 346
Bs Special:-Missions: Immunity. oe sxe aaa 350
C. Other Immunities for Foreign State Officials................cee 351
D.., State Immunity ieee wags eeeee 357
E. Immunities Relating to International Organizations ............ 380
PART 3. SPECIALIZED AREAS
OF INTERNATIONAL LAW

Chapter 10. Human Rig nts icc... sccccccovcccsescoessescscncstcette ree 389

A?! Introduction =.40- ene. 2 Ae eee eee 389
B. State Responsibility for Injury to Aliens.....................ssssseeeeees 392
Ce? (Global: Human Rights Instruments?3...- eee 398
D?) Global Human: Rights:Institutions:....02-.4- eee 422
E. Regional Human Rights Instruments/Institutions ................ 432
Fs ) ImmigrationvandsRefuseesis9.1. 7 ae eeeeee 445

Chapter.11. Law. Of te Sea. scicccccsccscecssscecesacssetedeetseeeen

eee 449
Av Introduction: cucter estat secant ee ee etre 449
By Major Maritime: Zones unt... ae eee eee 450
G;’ Regulation of Certain Uses.of the-Seaiisicocscssct eee: 472
 SUMMARY OF CONTENTS ix

08 SSSRoRUhrePherc ALS cecyot5 pee co eR oneal ene it On nec 479

E. Should the United States Ratify the LOSC?...................0000088 482

Chapter 12. International Environmental Law...............:0008 489

DNCMMME SL TRICE ULE ALTO) Ve EWGWeer tte orcas eee a Sack satires ves ooheee oer 489
Dee hegulation in lmportant SeCtONs,.c.11.10s.s0ssssesehondencsoesesgsenevensss 511
OM OSS < SCC LONE I LESUICGl ysiac startet ras net ans aeciassienedshe einesesneeteierle 520

Chapter 13. International Criminal Law ................cceeeeeeeeeseeee 527

Ness AWG Hoye RELCASLO) 0)ae on 1 ey Oe 527
B. General Transnational Cooperation oc..icsgscessoseasenrssocsovseesetsaie 527
C. Transnational Cooperation Concerning Important Sectors... 533
LhYe ibeh ehg oR Carne WI ©;milkv0cjSs en ei RAD ns ee ER en ryt een 541
ia olnternational Criminal Tribunal $5 eas csesadassel-schi scsvssa.cesavers 548
Heme RESTONA COUN OE I TACA Giese coc, 2-2 sasasas sents <ssins'shscoeidau
ss oieconcees 560
LES OA KGaohate BETES ia eRe a as ee ee eee es te Soe ey A Ree ee 561

Chapter 14. Use of Armed Force and Arms Control............. 573

XML SAG TSCLIILIIE CRO he ORGS Teton gee nae Eots See T EE bia
EMCI ILSCIIUSISCL Once act crmnn, Ca tae i ery uconnseoutasnecw tate bac tis son teen MTREOREAE 602
(MANETS CONIULOL. trsiieniae ere etc niet os) one en sr eones ee eana nes heart et es 618

Chapter 15. International Legal Research ............ eee eeeeeeee 629

A. ‘Treatises and Other Scholarly Material ..........2.....:...0:0c0000000 629
BesinternatvionalAereementss site cree sen ae corer ee 633
CR OCOLCN PO CUICE Mr ee re treet rece er en ete er Ne ease eeateins 637
DE International Organization PractiCesr.:c0)..c:cccssctsecccteadec. 640
Ere roUUiClaandenroltra WeCiGlOle mune teet tot stceees nec acraaee 642
Ham General impermetivesearchiani cfr cv eri.tciecrecetotteetonee neretens 645
(ome UrT ner RereLenCc WOOL Ks mtn are an tem erent 646
COAGiesaLIND)aXveeter ee arrece Seet Saeed Scien n see ss sethdts cage snd facade 649
SRN SVG MG DISTDINU
DVODA, car mn acest od BOR SRR RARE Sr GME AA. SR en Res ne ata gh 655

SBE CUMIN)Xero ee ree Pe ee, tains kre eek coat ae aera eee 661
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 Table of Contents

fe PH SOEodOa eh Sli pede Sob meg can, elie aimlloras Srey samt ta dlen nee Arverte a ON V

DASTI ORG IA PEI G. ORR RR Le he on pie ae mene ae XIX

LIST UO POMBE
DAG LON Sineatka wt her Sncapte Seeeeorccaaie
Pat ae eee xsi

PART 1. SYSTEMIC ELEMENTS

OF INTERNATIONAL LAW

Chapter 1. Foundations of International Law.............ccccceseeeeees 3

ao Structunes:of InternationaliLaw.sc5-a0 sheet ea eene e280 4
Basic Horizontal Structure: Interaction of States....................5- 4
Vertical Structure: International OrganizationsS.............ccccccee a
Vertical Structure: Interface with National Law............0........ 8
Vertical/Horizontal Structure: Interaction of Persons............. 10
BA wheories:ol Interra tional, Wawos sco. aeteonepetend aeeanteiret oie. at
International Natural lawiestests.cs eat been one ees & ite
International Legal Positivism. .,...edepiestestaseeah testers tenes 13
International begalMealismiin.e3 25. anciu.ts-) tei dedederetcet 15
New lreanti it ass.-teaees.,) dota en eon lode. sureeerinial. Wi.
International Lawiandeonomucs Woes .c- hee eeritctede to 18
International Law/International Relations ................ccceeecece eens 19
Gt Muistoryof International waxes} eer oie 2A
Ancient Timegm: masher) eresahertctal.ihorclelttaake. 21
MiddleyAges ini unopes Sneek Ok oe: creo etl 23
RiscoteNationsotatesin..widt Seni tetares... bleed eae S 24
RiseiOMEOSiLIVISMUE LAS cactielous et de Senn llacamon tl. 26
Rostaworladiwarllt brends:2 casero. seen ae. beet sce2a
Internationalsbaw intAmeri¢ansHistony Wien tera... 28
PurthenReading rm Hvaatesed
Giant amneeteiaieet.. A 32

Chapter 2. Actors of International Law ...............ceccssssensereeeeeees 35

NAR MOU ACES et ets re et dente ce reer heats Saath Mai, sacastls one Bineninh ee 35
IRECORMIMO LOL SCACES oak caste te, cree een cee SeScanssn cts ieee 36
Modern Trends.in: Recognition of States..:.nncentit..t. ede 39
Recognition of Goverment sx ae ashe elh. ocean aye ates 41
Modern Trends in Recognition of Governments...............0000008 42
PECO
SD ICIONI ID WM PRACTICE ree 6 5a j50 a0; fe aeresues-aarhaesm
samen es44
RTleSION eSLAbeIS UCCESSION.......coptbe Rate T aa hekiles bh Se PRET eset bia Sot eoebe stews 49
Rules on Delimitation of Land Boundaries...................::c0eceeeees50
Beibermaiongl Organizations. cress ..titace es aeedteestc cent eet 52
PS EERNELCLOT eee ce ce Se os lo nena voc cow pevavoxee wade SaCh @ben es OF,
xii TABLE OF CONTENTS

Legal Personality 5..../s.c0-s.cssonmteatecnassnsannarcage eedoesarceosestesmesadte-es 53

Legal Responsibility 5252 2esachs. totus sodeon sere nectencei seas eodsnaceranertes 56
Structure and: Powers :cseisnteccneiersesesce Mee ee tee ee eee ates 59
Examples of International Organizations...............::ccesssereeeees 64
Cc. Non-Governmental Organizations ii... tee er ee 73
D: Natural Persons and Groups... 76
EB. begal Persons (Corporations) c.c1.,<.,.cu0res ee roe eee eee 78
Print hier Reading xinstisessxcevcesanectssosteneeucaecasaceunth
careteeee eens eee 719

Chapter 3. International Law Creation. .............ccccccscssscsssseeees 81

A... Treaties, eee Oe ee ee oe, he he oes eo eee 81
Introductionyys. 4.5 Rae ore eek eee once ceea ener 81
Witatils4 Treaty sie wasammsadereass cncatoree eeeeth oon eee nae 83
Making Treaties... Anya ee eee 84
Reserving-te-Treatiessc.cit ie ele eee ee oer eT eos 87
Operation ‘of Treaticsny eee a ee es 94
Invalidity, Termination, Withdrawal or Suspension. ............... 98
B.. Customary International aw 2302 hc eee eee eee 101
Introdtieticit 4.255 Se ee ee ere eee 101
A.General Practices ni ee ee: 102
Accepted.as-Law (Opinio SUris). ieee eee ee 104
Persistent.Objecton- Rules... Fe ee. 105
Contept.of.Jtis: Cogenssicasciiitee On 106
Relationship of Treaties and: Custom. .ci.c.11..0ereeeet torre 108
Criticisms of Customary International Laws. 4... Wit
C.....General.Principles of Maw ee ea ee eee. 112
D:; Subsidiary Sources; Courts and Meachings 113...) eee 114
E. Law-Making by International Organization6...................00000 117
IntrodUctiotirardescsaeniecvicdeeeteivest
ein eee Ue 17
Emergent World Legislature? U.N. Security Council............ 118
Transnational.-Public:Regulation: (CAO. eee ere 120
F; ..Non-Legally-Binding Norms (Soft\ Law’ )...227..233--3.-- 125
Vague-or- General Treaty Provisions! 0... .22.cc eee 126
Declarations om Polttical Pacts by. States......2.. eee 127
Recommendations of International Organizations ................ 129
Codes of Behavior for States or Non-State Actors..............000 Tot
Etixt nei Eeaucitie sortete eter ae ete ns Se a ae aed 138 ©

Chapter 4. International Dispute Resolution .................cce0008 141

A. Negotiation, Notification, and Consultation. ...............ssss0scece- 141
B: ..Mediation andi Gonciliation: sae. eee eee 147
Gy. -APbitration avisssscdstesiectdencnic
eee oe he ee 149
Commencing an Arbitrationin «ater ee ee 149
How-Arbitration (Works yicne, sates sie bheneeeeleite centtee, Sad ee 153
 TABLE OF CONTENTS xiii

DEE WVOLLOIGOUDEIY 8 irene Hak hte tne oar. 2 2.0 So SS 157

Permanent Court of International Justice............cccceeeeeeeseeeees 157
International.C Our ObdUstiCl. ...sesscacutrsee ues ee eee 159
E.” US: Relationship with the World Court :.....0..5..).0hdetiikes 173
Jurisdiction Pursvanitorlreaties +. oes es 173
Jurisdiction Under the “Optional Clause” .................c0essceeeee 175
Most Recent Cases Involving the United States ...............000. 178
Overallatleal rack Recor dee c.ceererin a aea es 183
Re Other invernationaliGourt ses .c.6.c.0c eins canteens eee 185
Court of Justice of the European Union.................ccccsccccceeees 185
European Courtiof Human Rights.\. 7s. oer ee es Pl oo
Inter-American Court of Human Rights ..............:::ccccccceeeeeeees 187
Atricanelnternational Courts css vac ee 188
International Criminal Courts :.2c.000n kee eee ote 189
International Tribunal for the Law of the Sea... 190
Ge National COurtairre ssc rr ecco cones eset eee nce: SUL 191
Hur ther Peea Ging vss eee cto ck ee eles Reece ce ee Greene km 194

Chapter 5. International Law Compliance and

GSC TO agree eee sos cesson vonces ssonsse cue oe esdecanasceeceasswacesceesursosscvtuness 197
ve ©COMBI LEANA CE Pelee Meee car Cone amet nsw cans 5 4 ssi seed Nak Wag ajevreenzeaceueauNchees 198
PLPECUIOE MICA ECO MATILLINEILG as ccsnes.soncearossmecs nataooaceante ecoeecaeeeeres 198
Effect of Reputational Consequence ...........::ccccccccceceesesesssteaes 200
HEAT OLMRECIDEOCIL na. cnet scarica ciscncieeert erat eke ante sereemacceuameseeceucnate 201
Hifectofs Compliance: Pull sof the: Rule 2. ces. ccssec oes cencsceesessnsnee 202
Techniques for Identifying Non-Compliance ......................000 208
Capacitye Dustin eres irs sececcaa a keecs tt eae one? Nos cacate ces wane tnece 207
Compliance: Due.to National, Processes. cicccs.-n.sccu-steopt-c-bheersas 208
B. Non-Forcible and Forcible Coercion of States ..............:::00000 Dz
DaplomigiGrmanchions 64.2) o ree tern eet nies hema ee 212
ESCO mOMITCHOANICUIONS 60.0 + ccastoeesnusateeesrecon ence cee ere 214
Military Mntorcement..:.0542.c60-5 eco ee oan ata escetee 247
C. Non-Forcible and Forcible Coercion of Persons................00008 219
ECONO IIICHOAIICUIONS a Sire een cts assaeee hs censiaventis ead ew kt ean: 219
Actions in National Courts to Enforce International
UB peg Reg De EOC Oe poe Dace emer 223
Civil Actions to Enforce a Private Transaction .................0008 224
MAT UIC Pet O ACI rcs eet Gee Ndr ae etic ea oe AL deans Seanad: Dah

Chapter 6. Rules on State Responsibility ............cccscccssseeseees 229

Ame CCNeLAt EFinciple Ol WeSPONSIDUIGY) nc cnc e-essseanlevens dacaUsaceens oes 230
Pe ALLL DUOMO CONOUICE LOLA OLALE coxtercascccte cesmdrdeces ober anctit 231
(CRG ONLE DUO DECACIN eae nce seesteces atop etn tee soca noes Saceriee sess tkasae 234
ODI vavlONs Ora BreACUlOs OLAUC scccc.ctcciea.c.cescreecc-Pabivosanensss 236
ROSCLEUEIONee eee Se ee etree noises a catsdenauifoessuu's Suoldseeeeeenel Devel
Xiv TABLE OF CONTENTS

COM PENS AtHO DE ii iuiccscocanesnedtombecdelivauteere

ee ee ee eee 237
Satisfactioniencie sce: eee 240
Interests cuhels Mais ersvessasnscoe eee a oe en ee eee 241
ET (Rights of-ani Injured States sete ee ee 242
Invocation of Breaching State’s Responsibility «0.0.0.0... 242
Countermeasures edhe Sees ee ee 248
Further Readings 3445. seek ne ee ae ee ee 251
PART 2. INTER-RELATIONSHIP OF
INTERNATIONAL LAW AND NATIONAL LAW

Chapter 7. Foreign Relations Law of the United States .....255

Av® “Separation Ol POWENS: src ccen verte ok eke enon eee ees 2968
Congressional Power tt. ec caer eee eee 255
Becutive Power. acre ciao ureeenc onic conee ase meena eetneaeee 262
JUdIeral"POWELe truncate eee cee nese Orie eee een 281
Bo “Federal-State Relationstse....-.:-sn eee: Biel einer coceaaiee 285
Reasons for Federal Dominance... ee ee 285
Bases tor Striking Down State Waws. ce ee ee 287
C.. International baw as a Pare of U.S. Wawa 289
Treaties in "US, GaWr...cses ccctesnes ces ones ctaesacpeceen ae een eee 290
Statutes and Regulations Implementing Treaties ................. 294
Customary, Internanonal aw im Wis, Uaw see 297
Example: Alien: Tort. Statute. 22-cc.--<00-.-.stecessaeee eee nee eee 301
D. Use of Foreign Uaw in Us luaW ats outs nee eee eee 305
Murther REA ING 3. crssc.ssnesce ae ease nuare coscac ore ee ene oe tea eee ee 310

Chapter 8. Exercise of National Jurisdiction ................cccccee 313

A.* Jurisdiction and U.S. Foreign Relations Law.........../.....-5-<2-- 313
B. Permissible Bases of Prescriptive Jurisdiction under
InternationaltMaweie ne eee cece eee ee 319
GeneraltApprodel nse eee ec eee 319
Werritoria lrJOrisdiction tne eee tee ee 321
Nationality JtUmisdiction eer coo cate ee eee pad
Passtve Personality) uvicdiction'. 00. ee eee 324
Protective JULISCICHON tree ee 325
Universal Jurisdiction. ei te eee 326
Combinations of Jurisdictional bases... eee 330
Discretion to Exercise Permissible Jurisdiction ..................... 330
Reasonableness of Exercising Jurisdiction .............eeeeeeeeeeeeeees
331
Concurrent UrisdiculOn acts tesths ts ares: ssccc1ae so ee 334
C. Jurisdiction to Adjudicate and Enforce...............ccccccccccccceceeeee
334
D.. -Act-of State Doctriney,...c.cvereniesc 205-2. stevsss se Gite ee ee 338
Act'ot.otate Doctrine Generallyan:.o.e. 4...) 338
Act of State Doctrine and the Political Branches................... 340
 TABLE OF CONTENTS XV

Bossible Limitations.to,the:Doctrine.2iiaitt.aset tnd: 341

Btirthoer, Reading aise. .c.2-.ssosna ae ee ee. 343

Chapter 9. Immunity from National Jurisdiction ............... 345

ASS Diplomatic and: Consular immunity adichccsisectseaese. 062 2-346
Urpose Olathe: ln MINE anes cecriarhcnstehl estes atk 346
DYap dan es1G aLVan Clad O9 ec ors eetee ae ee te 2 0, ces et Breast acs ees et 346
ESP TUT OUESET CTU CVE Gioiy ee te eer ete fare SR Se ee RE 349
Ry MS LALULOVY AAW cece, case Sacencisveste ncres tones vaaee ont ies loieccosere es 350
Bae SPeCia ltMissions. AinIn Unity s.. tess f Bact avocctscs oe nite Ai sonal: 350
C. Other Immunities for Foreign State Officials .................. ao. SOL
Immunity Ratione Personae (Head-of-State Immunity)........ 352
MLS YsOCLOIG VIGIL CTI CO. re tscsess ee tnneps cater eteca ease 355
DPS OCA LS Ua MIU TIC ee csrcessvazseyesn vcdoussan MOReLs Ete TAR ME end ee) 357
International Law on State Immunity...............cccseeseccceceeeeees 357
Historical Development in the United States.............. eee 359
Foreign Sovereign Immunities Act (FSIA) Generally ............ 361
mgencies,and Instrumentalities........cc.cr.ciscco-0Peseess eee ete ees363
GeneraliGrant.ot Limmunity.:,ssseccstsse-cs nsasteee BAe ee 366
Weal Vert XCO DIOR. oo csrs nS vosodcivatsssecddres ORC 367
CommerciabActivity Exception .:ceten 2 eee. 6. eee. 368
EXDroprialionsexCeption ctces..ch: Pte ere ite oe eee 370
Inheritance/Immovable Property Exception................::cccceeees 3é1
SPOPtAUXCE DLIOM ceiacacaiecseseceuetccs csovetiescsnorss Rate eee ee 372
NEDIUEAUONSXCEDLIOM sn. xc.cc.c.o.es-s coccn esate cca oak ers cosas te teens 373
Derrorist states xCcepiioner tenes cotter ek toe ee eeeetee.: 374
Counterclaims Exceptions’ <trticct toes eras tae eaes 378
Extent of laiability. coer er eee oe ea ee cee. 379
AttachinenG ang HXeCuLion tcscataerc crete eee oneere ees 379
E. Immunities Relating to International Organizations. ............ 380
Buerthersneadind vetoes atisetiec cs5-s.c vee ee 384
PART 3. SPECIALIZED AREAS
OF INTERNATIONAL LAW

Chapters) Ont aan! RiGNS 2s.csccccccecescrcscscasscosneseseccsscocascesecooosseses 389

PAPE LTITELOCUICTIOIerreee, ores teria Soo sas owe tisageapices eet coe tata Seniesa 389
B. State Responsibility for Injury to Aliens............. cc eeeeeeeeeees 392
GC. Globalke Human Rights instruments ...cccc.cccccrecvecteg-icscscoveccees suse398
DUNS Chartemand Human Rights iisnce st scecte ccs ss stescssedeceees eae 398
Universal Declaration of Human Rights...................:::0ss0seeeees 401
Human Rights Covenants (ICCPR and ICESCR) .................. 404
Mtherney iuinan isto MtssLPCAUCS ccss sus. s.scc.scgesscsssccsessecaconsoss 409
U.S. Adherence to Human Rights Treaties ...............cccsssseeeees 420
xvi TABLE OF CONTENTS

De .GlobaliHuman Rights Institutions. ei ee ee 422

Human: Rights. Committees. ....ccccscccicorseensecensensnnedecoeeb teeeers eee 423
UNelumani Rights: Council ica cc ee ee eee 427
U.N. High Commissioner for Human Rights.................ce00 430
U.N. High Commissioner*for Refugees s7).o722.3. n-seccses eee 431
E. Regional Human Rights Instruments/Institutions ................ 432
Fir Perwcnnnivstecscenuaiacteuneencaciasebtnettcatees Maaaa nema shoe eee eens 432
AIMENICAS shvsiteesseeh are ee ee 436
NEV ICA: cecrsrcenatane tramenssasgahneeic GaRAM Meee een at bee ene oe eer ee eee 441
Teharniie States: secicsciicties eee Steere a ee ee es 444
Fe Immigration and ‘Refugees. Baa... See ees 445
Murtiver- Reading rs ccit scot eee ect ete 447

Chapter 11. Law. of the. Sea cccc.cicssecssesosvecovessonetetdecseeceetedsvsesremecees 449

AGE Tit Od UictiOn :snisncecccancs eee a tose aoe eet see ie eee ene 449
Bi .Major. MaritimesZormes Wiis. te te ence ee eee 450
Baselmes:andinternal Waters einen sere eee: 450
Territorial SOA sccecic.s-vcohdcuriscsttee eee etna oe eee Me eee 453
CONT PUOUS ZONE. :accccasacccny aden cnacnce Pena tain ae tee mee 456
Continental Shelf ::acacssnsvistaavoeccuononsessuamst tease eons ene neem 457
Exclusive. Hconomic. ZOne.<., peti eeeee tee cee ee eee 459
Islands and Archipela 206s, .c......cctteee sere ee 462
FSD, SCAG cs cuincste emt ete een eae hale e ATRL oR, 464
Deep. Sea- Bed ALea, sorcssénas-cnes alcavervhaeseoeeecsseus tee eee et eee 467
WVETAES «5cesses vatsces Sous eevesnaconcoce eure cedcanninns {eRe OR te eee een: 468
Delimitation.of Maritime Boundariestau.. on... eee 469
Hot. Pursuit Across. Maritime, Zones (Go. errcnct er eeeen 472
C8 Regulation.of,Certain.U ses of the, Sea... eee 472
Maritime, Pollution. dmcucnccccothara teresa oe ee 472
Wish 1g sr55 5 OSE 8 SO AT RE 474
Brotection.ot Whales .ciccsuccnzctsencacteusoustsvevctuccscnen tae ee eee 477
Recovery ot Underwater Artuactsiic <a ever-ccan ens aaseeercssr
ober. 478
D> (Dispute Settlementvar corns pune ee ete eee 479
E. Should the United States Ratify the LOSC? .....................000. 482
Buether Reading ax x tants ces ssw heres eae cae se ee eee 486

Chapter 12. International Environmental Law..................665 489

Nee OUTUCCULAL GVO VLCW s.:acerun cost ict icneeric tee daiae 5 <2 ae eee eee 489
Historical Pack CPOUNG x cricuastnncceci tod aioe tore ee 489
Recent Developments.s arcu cgateercs. crassa saea eee 494
International and Non-Governmental Organizations............ 497
Key Principles sccccncccn<seschc, eects ee as teasaeas tua seas cutee os eaten eee 500
lechniques.of Legal Regitlatioisnn....:.- 9s -c..s, ky eee 502
Techniques for Imposing: Inia DIMty ancu.ssesseesete ee eee 503
 TABLE OF CONTENTS xvii

Bw Regulation insmportant Sectorsiit... vessel: 511

Ozone:Depletiohhi.... ren hire oe ee ee elo ahs 511
GlobaliClimater@ han ert. ees. ee ee O13
Biological Diversity:-..c. ane eee itd ates eet saeteadee 517
Ome Cross: Sectoral ISsuesn...ccnsiccsarceaeow MOH ao eos 520
PPaAcecalad ea viron in exit <rvecsvencteensacyeaunteavtecseerene
Stree ets 520
Extraterritorial Application of Environmental Law .............. 523
SUIT CHEE LOA GAINS Leetanec. acces oA NteT A eta eek Mek: 525

Chapter 13. International Criminal Law ...............ccccsseeecseeeees 527

BAM LD LLOCMCULON coescr oychas acco castascnticnseb serie oaepoavs ESA As sya
ibe General Transnational "Cooperation sie. eee: 527
Muttial LegalAssistance st anc 44.iaserteeti ditees tee eart. 527
PUREE OTULOMN ocr ee ae, Moey arene seco coven ternods doses sheet ane, See 530
C. Transnational Cooperation Concerning Important
SEC LOPS Ciera ee eres Peet GEOR Arn Ee sesael & 533
PREENONIGWitecerean ketene eestor aaee eit otterhs ReMi es aretsa here thanelcs Wocasusbores 534
INA COLTER xcarctetne Fike et Oh EE EU ROU PLE, 536
COrPruption scene. ARO. MELON, SONI Rie, Sees & 537
OFGANIZEC GLUING. ve haasceo ctv ee 538
CYDERCHIMET cco cman eer etree eee tment 539
DO sinternationabOrimes tse ah eee a 541
General Elements of International Crimes ..................000000008 541
CHIME. Of AG gression Merwe ie ath ee ees ee eds. 542
IW aCe Sint cea nciersee steninecaeaw eRe eet Ee et Ba 544
CrimessAcainst Humanityee + triers. Lce ree eet 546
(FENOCIdER RS Ta) FROM AR eR ee ee ee, 547
hee nternational.Grimmal Tribunals ye.ceeec creed: 548
Ad Hoc U.N. Tribunals for Yugoslavia and Rwanda.............. 548
dntermationaliCriminal, Courtiyaiinss. telson ae enere tee ee 551
Fear hegionaltCourt-for trica A sec veteran ee eee: 560
(abe Fay DETGLG OULLS rs trenscenk-stecevesnscactonon etetee econ eure taeene cated 561
Cambodia Extraordinary Chambers ....2...2000..00....<s2re7ecstes-aoas 561
HMASt Limon ODCCIanE ANG Ga. tie ac, fae hee, Meaes steer hentai ase earoet 563
SupremedraqmCriminal dlerbunial cae ee re eee: 564
KGeovar specialties vena csnseas7 convents oe saeesennaesinnate aasany es565
SIErrarlieOle SOpecra lmCOULt reece etacite mrcetes cee acter eetinate anes cae 566
SDECIAls ir OUMA Ot ie DANOiu. t etre ca eee re ence all 567
Special Criminal Court for the Central African Republic...... 569
Extraordinary African Chambers in Senegal ............:cccccceceee 570
WEE as B(aygleetVOWNEN Ceaer acidee nstnb Atcca Seeder Bice Cd ccna eae eRe 570

Chapter 14. Use of Armed Force and Arms Control............. 573

PAPE ITS GAC AESCL LI) ee Bah tehSase Saes eee As oc ong slo caawensuihadee is oie aes
General Prohibition on the Use of Force.................06..02..s+se0+.- 513
Xviii TABLE OF CONTENTS

Inherent Right of Self-Defense ne. arin tacctes-t00-eeeeeneene eee 580

Peace Enforcement by the Security Council .................::0ssee 592
Peace Enforcement by Regional Organizations..............: 597
Mixed. Bases for the Use of Force 75... Serco eee 599
UN. Peacek Gepinig si: iiisb.csessoseaasesnnee sone kann ee ee 600
Bis Jus In Bello S222 ea ee 602
Réstrictions on: MethodsiofWarfare.c:ta. tee ree eee 603
Protections tor Victims.of Warlare.<:sc450 2. ose eee 607
Example: 2003 Intervention imag ei: c-ceceste ee eee 616
Gee wArims: Controle Site eet ee eee 618
BAC POU ING SOR eeoeieecaveee rune Rae ea Neue renner ees 618
Conventional: Weapons Finnie eee eee 619
Chemical.and Biologicak Weapons tea 1-+-s tee 621
INitelea Wea porns va cczcceeutetenenves conncuakonsden euSeeeonee ate eee 622
Contidence-Building nan. ee Ae 627
Sabi daveicdAner:
VoHN9\:4 eauenenanietenn, see onemttna ysWORT NU aM CC PORTE OTST DR cna jar 627

Chapter 15. International Legal Research ................seeseeeeeeeee 629

A Treatises'and Other Scholarly Material .....c.::<sssstaryscesenoneeeee 629
Be International Avreements macccyectghc eee eee 633
International Agreements Generally .............cccccccssesseeeseeeeeees 633
International Agreements of the United States ................0000 635
C.2 ‘State Practices FEee Oise se Se eee 637
Contemporary Practice of Governments ..............ccccceseeeeeeeeeees 637
Practice of the United States 5.3.¢:gccatuicics een 638
DA InternationalOrcanizanon Practice :-21.5:- ee ee 640
Practice of International Organizations Generally ................ 640
Practice of the United: Nationsmis >. Gssaiin ote ee 640
International Paw: Commission aise ae) Se ee 641
ee -Judicial and/Arbitral: Decisions sarees tee eee 642
Ine General Internet\Research...4.:5.) each eeeee 645
Gy ‘Further, Reference Workss.. i. sassesG ches sussnestet Leet ae 646
CASGENT) RC conn tegen fede eae aetie enti Ss Gate roe eee se cae toate ee ene 649
REATING INDEX oc 3ceonsucsdoedtntobe deems occde 2 Sage ewe at 5 Sar A See 655
 List of Graphics

dart he United Nations oystem). «tnt heed 65

2. States Accepting I.C.J. “Optional Clause” Jurisdiction? ..........00...cc 164
3. Support for International Law in 21 Nations? ...........c
cceeeeceeesceeeeseees 201
4. U.S.G. Constitutional Allocation of Foreign Affairs Powers? .......... ee OO
5. Structure of the U.N. Human Rights Bodies and Mechanisms.%.......... 422
CraL aim On veyseal Maritime, ZONES9 ys. <cur.csesayoresiessc
tastes, coucsessaks astcgahess 451
Wer Legal Continental SRLS ix sesccccessics ot Ae ee es 458
8. IPCC Assessment of Climate Change Factors from 1850 to 20148 ..... 514
9. U.N. Peacekeeping Operations as of June 20119... ccceeeesseceeeeeeees 601

1 Source: United Nations (http://www.un.org/en/aboutun/structure/pdfs/17-

00023e_UN%20System%20Chart_8.5x11_4c_EN_web.pdf).
2 Source: International Court of Justice (http://www. icj-cij.org/).
3 Source: World Public Opinion.org, World Public Opinion on International Law
and the World Court (Nov. 2009) (http://www.worldpublicopinion.org/).
4 Source: U.S. Constitution.
5 Source: United Nations OHCHR (content from http://www.un.org/en/sections/
what-we-do/protect-human-rights/).
6 Source: Canada Department of Fisheries and Oceans, Defining Canada’s
Maritime Zones 1 (2011).
7 Source: U.S. National Oceanic and Atmospheric Administration
(https://www.ngdc.noaa.gov/mgg/ecs/images/MaritimeZones_Eakins.jpg.)
8 Source: Intergovernmental Panel on Climate Change, 2014: Climate Change
2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth
Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing
Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 3.
9 Source: United Nations (http:/www.un.org/Depts/Cartographic/map/dpko/
PKOBN.pdf).
xix
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 List of Abbreviations

AFR. J. INTL & COMP. L. African Journal of International and

Comparative Law
AM. J. INT’L L. American Journal of International
Law
AM. U. INT’L L. REV. American University International
Law Review
AM. U. J. INTLL. & POL’Y American University Journal of
International Law and Policy
BRIT. & FOREIGN STATE British and Foreign State Papers
PAPERS

BriT. Y.B. INT'L L. British Yearbook of International

Law
C.F.R. Code of Federal Regulations
Cal. 2d California Reports (Second Series)
CARDOZO L. REV Cardozo Law Review
CHI. J. INTL L. Chicago Journal of International Law
Cl. Ct. United States Claims Court Reporter
1983-92
COE Doc. Council of Europe Document
COLUM. L. REV. Columbia Law Review
Common Mkt. Rep. Common Market Reporter
Cong. United States Congress
CONG. REC. Congressional Record
Consol. T.S. Consolidated Treaty Series
CONST. COMMENT. Constitutional Commentary
COLUM. J. TRANSNAT’L L. Columbia Journal of Transnational
Law
DAILY COMP. PRES. DOC. Daily Compilation of Presidential
Documents
Dall. Dallas Series 1790—1800
DEP’T ST. BULL. United States Department of State
Bulletin

xxi
Xxii LIST OF ABBREVIATIONS

ECOSOC Res. United Nations Economic and Social

Council Resolution
(yon, (Cig, Tale. European Court of Human Rights
Eur. H.R. Rep. European Human Rights Reports
EvuR. J. INT'L L. European Journal of International
Law
EUR. PARL. DOC. European Parliament Document
Europ. T.S. European Treaty Series
Exec. Order Executive Order
re2d Federal Reporter 1932-1992 (Second
Series)
F.3d Federal Reporter 1993—present
(Third Series)
F. Supp. Federal Supplement 19382-1960
F. Supp. 2d Federal Supplement 1960—present
(Second Series)
Fed. Appx. Federal Appendix
Fed. Reg. Federal Register
FOREIGN INVESTMENT L..J. Foreign Investment Law Journal
G.A. Res. United Nations General Assembly
Resolution
GEO. L.J. Georgetown Law Journal
GEO. IMMIGRATION L.J. Georgetown Immigration Law
Journal
Gano), J, NaeiL IL Georgetown Journal of International
Law
GEO. WASH. INT’L L. REV. George Washington International
Law Review
GEO. WASH. L. REV. George Washington Law Review
H.R. Con. Res. House of Representatives Concurrent
Resolution
HR. Doc. House of Representatives Document
H.R. Res. House of Representatives Resolution
H.R. REP. House of Representatives Report
HARV. INTL L.J. Harvard International Law Journal
HARV. L. REV. Harvard Law Review
Hum. RTs. L.J. Human Rights Law Journal
 LIST OF ABBREVIATIONS XXiii

ICAO Ass. Res. International Civil Aviation

Organization Assembly
Resolution
ICAO Doc. International Civil Aviation
Organization Document
IC G.Doce: International Criminal Court
Document
LC.J. International Court of Justice, Report
of Judgments, Advisory Opinions
and Orders ;
ICSID REV.—FOREIGN International Centre for Settlement
INVESTMENT L..J of Investment Disputes Review—
Foreign Investment Law Journal
TTDI International Legal Materials
IL ILIR. International Law Reports
Interns Arnee @altee Inter-American Commission on
Human Rights
Ihonere oN, (Cie, JELIR. Inter-American Court of Human
Rights
INT'L & Comp. L.Q. International Law and Comparative
Law Quarterly
Int] Arb. Awd. International Arbitration Awards
INT’L ARB. REP. International Arbitration Reporter
Int] Crim. Trib. former Yugo. International Criminal Tribunal for
the former Yugoslavia
Int’] Crim. Trib. Rwanda International Criminal Tribunal for
Rwanda
INT'L HUM. RTS. REP. International Human Rights Reports
INT'L J. MAR. & COASTAL L. International Journal of Marine and
Coastal Law
INT’L LAW. International Lawyer
INT’L ORG. International Organization
Int] Trib. L. of the Sea International Tribunal for the Law of
the Sea
Iran-U.S. Cl. Trib. Rep. Iran-United States Claims Tribunal
Reports
J. INT’L CRIM. JUSTICE Journal of International Criminal
Justice
XXiv LIST OF ABBREVIATIONS

J. LEG. STUD. Journal of Legal Studies

PANGS: League of Nations Treaty Series
MAX PLANCK Y.B. U.N. L. Max Planck Yearbook of United
Nations Law
MICH. J. INT'L L. Michigan Journal of International
Law
MICH. L. REV. Michigan Law Review
NAFTA Ch. 11 Arb. Trib. North American Free Trade
Agreement Chapter 11
Arbitration Tribunal
NAV. WAR COLLEGE REV. Naval War College Review
NEB. L. REV. Nebraska Law Review
NETH. INT'L L. REV. Netherlands International Law
Review
NETH. Q. HUM. RTS. Netherlands Quarterly of Human
Rights
NETH Y.B. INT’L L. Netherlands Yearbook of
International Law
NUCLEAR L. BULL. Nuclear Law Bulletin
OAS Doc. Organization of American States
Document
OAS Res. Organization of American States
Resolution
OECD Doc. Organisation for Economic Co-
operation and Development
Document
O.J. Official Journal of the European
Union
P.2d Pacific Reporter (Second Series)
P.C.LJ. Permanent Court of International
Justice Report
Pub. L. Public Law
PUB. PAPERS Public Papers of the Presidents
ReC aoe Recueil des Cours de l’Académie de
Droit International
IRalFas, United Nations Reports of
International Arbitral Awards
REV. BELGE DE DROIT INT’L Revue Belge de Droit International
 LIST OF ABBREVIATIONS XXV

S. Con. Res. Senate Concurrent Resolution

Da Ct Supreme Court Reporter

S. EXEC. REP. Senate Executive Report

S. REP. Senate Report
S. Res. Senate Resolution
S. TREATY Doc. Senate Treaty Document
S.C. Res. United Nations Security Council
Resolution
Oui Supreme Court Reports (Canada)
So. 2d Southern Reporter (Second Series)
S.W.3d Southwestern Reporter (Third Series)
Stat. United States Statutes at Large
T.C. Res. United Nations Trusteeship Council
Resolution
TEAS: Treaties and Other International
Agreements Series
Temp. State Dep’t No. Temporary State Department Treaty
Number
TEX. INT'L L.J. Texas International Law Journal
Exo Le REW:. Texas Law Review
U. CHI. L. REV University of Chicago Law Review
U. PA. L. REV University of Pennsylvania Law
Review
WiGMAGie REEVE University of California, Los Angeles,
Law Review
ULNe Doc: United Nations Document
WANES: United Nations Treaty Series
cS: United States Supreme Court
Reports
U.S. CONST. United States Constitution
US.€ United States Code
U.S.C. App. United States Code Appendix
oul: United States Treaties and Other
International Agreements
VA. J. INTL L. Virginia Journal of International Law
VA. L. REV. Virginia Law Review
Xxvi LIST OF ABBREVIATIONS

VAND. J. TRANSNAT’L L. Vanderbilt Journal of Transnational

Law
VAND. L. REV. Vanderbilt Law Review
WASH. POST Washington Post
WEEKLY COMP. PRES. DOC. Weekly Compilation of Presidential
Documents
WTO Doc. World Trade Organization Document
YALE J. INTL L: Yale Journal of International Law
YALE LJ. Yale Law Journal
 PRINCIPLES OF
INTERNATIONAL
LAW
Third Edition
 a a
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TO SALTO |
MOREE aT
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 Part 1

SYSTEMIC ELEMENTS OF
INTERNATIONAL LAW
 i a teat a :

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WAT TAMOTESY: AETMAD
 Chapter 1

FOUNDATIONS OF
INTERNATIONAL LAW
The field of international law is principally concerned with legal
rules that operate among nations (often referred to as “states”). Thus,
it contains rules regulating trade between states, rules setting forth
protections within a state for foreign diplomats and diplomatic
property, and rules for resolving disputes between states before
international courts or tribunals. The field of international law is also
concerned with legal rules that establish international organizations,
rules that operate between a nation and persons within its
jurisdiction, and rules that regulate the relationships of persons
across borders. Public international law (the principal focus of this
volume) is often distinguished from the field of private international
law, which generally concerns regulation of transnational
relationships between individuals, such as_ transboundary
adoptions,! although the line between these two fields is not sharply
drawn.
Unlike national law, international law is largely decentralized;
there is no single legislature, judiciary, or executive responsible for
the creation, interpretation, and enforcement of international law.
Instead there are a variety of ways international law seeks to perform
those functions. As such, the origin and nature of international law
are both unusual and exciting; the field allows a lawyer to “think
outside the box” as to what law is and how it shapes human behavior.
At the same time, fully understanding the field of international law
may take years of study, for it encompasses an enormous range of
topics, from the grander rules that seek to prevent war to the less
dramatic rules that regulate trans-Atlantic telephone calls.
The purpose of this chapter is to introduce the reader to the basic
structure of international law, to some of the theories that exist in
explaining the nature of international law, and to the history of the
field from its origins to the present. By understanding these
foundations of international law, and the “actors” of international
law (discussed Chapter 2), it will be possible to discuss in detail the

1 See Encyclopedia of Private International Law (Jurgen Basedow et al., eds.

2017) (4 vols.). For example, such transnational relationships may arise from contracts
across borders, inter-country adoption or abduction of children, or enforcement of
foreign judgments.
3
4 FOUNDATIONS OF INTERNATIONAL LAW Ch. 1

manner in which international law is created (Chapter 3),

interpreted (Chapter 4), and enforced (Chapter 5).

A. STRUCTURES OF INTERNATIONAL LAW

Basic Horizontal Structure: Interaction of States

In the first instance, international law arises from a horizontal

structure that consists of 193 nation states.2 Each of these nation
states is fully sovereign; none of them regards itself as subordinate
to any other state nor, as a general matter, subordinate to a supra-
national organization. This horizontal structure is extremely
decentralized and means that states normally can only be exposed to
restrictions that they have affirmatively accepted, which occurs when
they regard the restrictions as advancing their national interests.
Imagine that you are a member of a group of 193 persons
stranded on an island. No one in the group 1s willing to cede power to
any single person or small group of persons for the purpose of making
rules that would bind the group as a whole. At the same time, two
persons on the island might develop rules as between themselves,
such as “whenever you give me two coconuts, I will light a fire for
you.” Entering into such a bilateral agreement serves the interests of
the two persons; they both gain more by cooperating than by not
cooperating. This bilateral agreement does not bind other persons; it
only binds the two persons who have entered into the agreement.
Whether the agreement is “legally” binding in some technical sense
is of less interest to the two persons than whether the agreement
leads to compliance.
If one of the persons fails to abide by the rule, then the other
person likely would reciprocate by no longer cooperating in the
arrangement. This dynamic of reciprocity helps keep such bilateral
agreements operating, for the two persons entered into the
agreement because it was in their interests to do so and, unless those
interests change, there is no reason to deviate from the rule.
Moreover, a failure to abide by the rule may have reputational
consequences. For example, if it is known that you received two
coconuts but then refused to light the fire in exchange, others will see
you as an untrustworthy partner on the island. Before long, no one
will want to enter into any agreements with you, and your short-term
gain (obtaining two coconuts for free) is thus at the expense of your
long-term survival. Even if you could survive completely on your own,
most persons do not like being outcasts; they instead strive to be

2 As of 2018, there are 193 member states of the United Nations. For a discussion
of what constitutes a “state,” see Chapter 2(A).
Sec. A STRUCTURES OF INTERNATIONAL LAW 5

regarded by others as community members in good standing. All told,

the more rational choice for each person is to abide by her
agreements.

Such dynamics are quite common in international law. For

example, in the field of trade law, states have agreed under the
General Agreement on Tariffs and Trade (GATT)3 to the entry of
goods and services from each other without restriction, or pursuant
to negotiated tariff levels or quotas. A failure to abide by the
agreement can lead to retaliation by your trading partner and can
have reputational consequences in dealing with other trade partners.
In most instances, the rational choice for a state is to abide by its
trade agreements.4
Agreement to a rule need not be solely bilateral. Every person
on the island may realize that it is in his or her interest for certain
general rules to exist, such as a rule that all physical attacks are
prohibited. If so, a rule of non-aggression is created even without a
legislature, for the community of persons is small enough that,
through consensus of the persons directly affected, a new rule can
emerge. Such a rule is similar to Article 2(4) of the United Nations
Charter, which prohibits the use of force by one state against the
territorial integrity and political independence of another state.®
Issues may arise regarding the enforcement and interpretation
of the non-aggression rule. Consequently, everyone on the island (or
a sub-group) might further agree that if a person is seen physically
attacking someone else, then all the other persons on the island (or
the members of the sub-group) will band together to stop the
attacker. If so, then a means for enforcing the rule through collective
security has emerged. So long as the community of persons is truly
willing to gang up on an attacker, it is likely that the rule will have
“teeth”; violations of the rule either will not occur because they have
been deterred or, if they do occur, will be dealt with quickly and
effectively. Such a rule is similar to Article 5 of the Charter of the
North Atlantic Treaty Organization (NATO), by which member
states agree that an armed attack against one NATO member in
Europe or North America shall be considered an attack against all

3 General Agreement on Tariffs and Trade, Oct. 30, 1947, T.LA.S. 1700, 55
U.N.T.S. 187. The agreement was revised as part of the Uruguay Round, so as to create
a “GATT 1994.” See Marrakesh Agreement Establishing the World Trade
Organization, Annex 1A, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF
MULTILATERAL TRADE NEGOTIATIONS 17 (1999), 33 I.L.M. 81 (1994).
4 See ANDREW T. GUZMAN, How INTERNATIONAL LAW WoRKS: A RATIONAL
CHOICE THEORY (2008).
5 U.N. Charter, art. 2(4), 59 Stat. 1031, T.S. No. 993.
6 FOUNDATIONS OF INTERNATIONAL LAW Ch. 1

NATO members.* Many observers believe that this rule helped

prevent armed conflict in Europe throughout the Cold War.
There may, of course, be grey areas in applying the non-
aggression rule. What if you think someone on the island is about to
attack you; may you preemptively attack them? The island has no
judicial court to consider such a matter, so instead you may have to
rely upon the manner in which the community as a whole responds
to such a preemptive act (either accepting an instance of preemptive
self-defense or not accepting it). Indeed, over time the practice of the
community may serve to interpret and reinterpret the meaning of the
rule. In 2002, the United States issued a national security strategy
that claimed, among other things, an evolving right under
international law for the United States to use military force
preemptively against the threat posed by “rogue states” possessing
weapons of mass destruction (WMD).7 The reaction of the
international community was largely unfavorable, suggesting that
such a right may not exist in international law.
Looking at this simple horizontal structure, jurisprudence
scholars have expressed differing views as to the nature of
“international law.” On one end of the spectrum, the British scholar
John Austin in 1832 denied that international law was really “law,”
since law is best understood as a command issued by a sovereign that
was backed by a sanction. Given that international society lacked an
overarching sovereign, Austin felt that the field referred to as
“international law” was best understood as simply a collection of
moral rules.8 At the other end of the spectrum, the Austrian scholar
Hans Kelsen, writing in 1960, saw international law as primitive in
nature, but nevertheless as sitting at the top of a global legal order
of which national laws are a subsidiary part.? Somewhere in the
middle of the spectrum fell H.L.A. Hart, a British scholar who in 1961
regarded international law as a series of “primary rules” (e.g., a rule
to trade coconuts for fire), but as lacking the important “secondary
rules” (e.g., rules about how the primary rules can change over time
and how they are to be interpreted) that are needed to create a true
legal system.!® These starkly differing views continue to attract
adherents today, but are made vastly more complicated when one

6 North Atlantic Treaty, art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T:S. 243.
7 See WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES
OF AMERICA 13-17 (Sept. 17, 2002).
8 See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 142, 200—
01 (H.L.A. Hart ed., 1954) (1832).
9 See HANS KELSEN, PURE THEORY OF LAW (Max Knight trans., 1967) (1960).
10 See H.L.A. HART, THE CONCEPT OF LAW (1961) (especially Chapter X).
 Sec. A STRUCTURES OF INTERNATIONAL LAW 7

introduces the other, more “vertical” aspects of contemporary

international law.
Vertical Structure: International Organizations
International law is not limited to a simple horizontal structure.
Over time, states have come together to establish some supra-
national organizations capable of creating laws that have a binding
effect on their member states. For example, within the European
Union (EU), the 28 member states!! have delegated to the EU
Sweeping powers to regulate broad sectors of their economies,
including the movement of goods, services, labor, and transportation.
On matters such as completion of the internal market, the
environment, or consumer protection, EU legislation is adopted
jointly by the European Council and European Parliament under a
“co-decision procedure.” Certain provisions of the EU treaties and
various EU legislative measures apply directly within the member
states, superseding national law in case of conflict. To that extent,
EU law has a status within the member states comparable to federal
law in the United States. Other international organizations typically
have less sweeping powers than those found in the European Union.
Nevertheless, as discussed in Chapter 3(E), there are other
international organizations and autonomous treaty bodies capable of
creating new rules that bind their member states without the further
consent of those states.

Likewise, in some instances, states have created and submitted

themselves to the compulsory jurisdiction of international courts or
tribunals. For example, 66 states have submitted themselves to the
compulsory jurisdiction of the International Court of Justice (the
judicial wing of the United Nations) if they are sued by another state
that has also accepted the Court’s compulsory jurisdiction. Hundreds
of treaties concluded by states also provide for the Court’s jurisdiction
when a dispute arises with respect to one of those treaties. The
International Court is also available if states mutually agree to bring
a particular dispute before the Court, even if jurisdiction on a
compulsory basis does not exist. Each year, the International Court
decides cases on matters such as territorial and maritime disputes,
diplomatic immunities, or disputes over the use of military force.
While the International Court is one of the oldest and most venerated
fora for pacific settlement of disputes, there are a wide array of such
fora in existence, as discussed in Chapter 4.

11 While as of 2018 there remain 28 members of the European Union, the United
- Kingdom in March 2017 invoked the withdrawal provision of the Treaty on the
European Union, and is thus due to leave the European Union in March 2019. See
Chapter 2(B).
8 FOUNDATIONS OF INTERNATIONAL LAW Ch. 1

Some international organizations are capable of helping enforce

international rules. As discussed in Chapter 5, the U.N. Security
Council stands at the center of such entities, with extensive power to
impose sanctions and to authorize the use of military force to address
threats to peace and security. However, there are numerous other
ways that international organizations help to enforce international
law, such as the process for authorizing retaliatory trade sanctions
by the World Trade Organization, or the indictment and prosecution
by the International Criminal Court of persons for violating the laws
of war, crimes against humanity or genocide.
Vertical Structure: Interface with National Law

A different aspect of the vertical structure of international law

concerns the interface of international law with national law (also
referred to as “domestic law’). National legal systems typically
contain rules about whether international law is automatically
received into the national legal system. Some countries view
international law and national law as part of the same system of law
(the “monist” approach), and thus international law is automatically
a part of the national legal system. Thus, in most civil law countries,
treaties are regarded as internal law as soon as they are ratified and
publicly announced. Indeed, in some countries, such as_ the
Netherlands, treaties have the same rank as constitutional law, and
thus are paramount even with respect to subsequent national
legislation.!2, Other countries, such as the common law and
Scandinavian countries, tend to view international law and national
law as separate, distinguishable bodies of law (the “dualist”
approach). However, national legal systems usually are much more
complicated than these broad approaches suggest, and one must look
at the constitutional rules and judicial practice to fully understand
how any given national legal system relates to international law.
As discussed in Chapter 7, Article VI of the U.S. Constitution
provides that treaties concluded by the United States are part of the
“supreme law of the land,” which has been interpreted to mean that,
in some instances, a treaty properly concluded by the United States
is immediately capable of creating a rule that binds within U.S.
national law. Thus, a private individual may be able to invoke a
treaty provision in a U.S. court as a rule of decision in the case. By
contrast, in the United Kingdom, treaties never have a direct effect

12 See GRONDWET [CONSTITUTION OF THE KINGDOM OF THE NETHERLANDS], art.

94 (1983) (“Statutory regulations in force within the Kingdom shall not be applicable
if such application is in conflict with provisions of treaties that are binding on all
persons or of resolutions by international institutions.”).
Sec. A STRUCTURES OF INTERNATIONAL LAW 9

within U.K. law; there must always be U.K. legislation enacted that
implements the treaty.
Alternatively, a national statute may exist that calls for use of
international law in application of the statute. In the United States,
the Alien Tort Statute provides that federal “district courts shall
have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United
States.”13 Thus, under certain circumstances, non-U.S. nationals
may sue persons in U.S. courts for commission of a tort in violation
of the law of nations, such as the torture of a prisoner-by a
government official, which is prohibited under both the 1984 U.N.
Convention Against Torture!4 and under customary international
law.15 For acts that occur in foreign countries, the Supreme Court has
stated that they must “touch and concern the territory of the United
States” with “sufficient force” to displace the presumption against
extraterritorial application of the statute.16
Many areas of international law have become extremely
complex, such that the reception into national law leads to detailed
national statutes and regulations. For example, after the sinking of
the Titanic in 1912, states joined together to conclude a multilateral
treaty designed to promote the safety of merchant ships at sea. The
agreement was repeatedly revised with increasing detail over the
course of the twentieth century, culminating in the 1974 adoption of
the International Convention for the Safety of Life at Sea (SOLAS),
to which the United States is a party.17 SOLAS has been amended
and supplemented many times, and now contains numerous
regulations setting minimum standards for the construction,
equipment, and operation of ships. One of those regulations requires
certain types of ships to be fitted with an identification system that
automatically informs shore stations (and other ships) of the ship’s
identity, type, position, course, speed, navigational status, and other
safety-related information.!8 Rather than regard SOLAS as binding
law within the United States, or simply making reference to SOLAS
in a brief statute, the United States implements this obligation, in

13 28 U.S.C. § 1350 (2018).

14 Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. TREATY Doc. No. 100-20 (1988), 1465
U.N.T.S. 85 [hereinafter Convention Against Torture]. The convention entered into
force for the United States in 1994.
15 See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
16 Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 125 (2013).
17 Nov. 1, 1974, 32 U.S.T. 47, 1184 U.N.T.S. 276 (entered into force May 25, 1980).
18 Jd., ch. V, reg. 19.
10 FOUNDATIONS OF INTERNATIONAL LAW Ch. 1

the first instance, through relatively detailed statutory provisions!9

and, in the second instance, through detailed federal regulations.”°
Although these statutes and regulations make explicit reference to
SOLAS, in many instances it may not even be apparent to the reader
that the U.S. laws are implementing detailed obligations arising
under international law.
National law also can play an important role in the
interpretation and enforcement of international law. To the extent
that a national court is called upon to decide a case based on a rule
of international law, the national court provides a forum for
interpreting that law. In 2004, the U.S. Supreme Court considered
whether an individual had been arbitrarily arrested in violation of
either treaties (such as the International Covenant on Civil and
Political Rights?!) or customary international law. The Court found
that there was no relevant treaty obligation enforceable in U.S.
courts.22 Further, the Court found that “a single illegal detention of
less than a day, followed by the transfer of custody to lawful
authorities and a prompt arraignment, violates no rule of customary
international law so well defined as to support the creation of a
federal remedy.”23 While the Court’s decision was carefully tied into
the U.S. standard for bringing a claim under the Alien Tort Statute,
the decision nevertheless provides guidance for the U.S. government
and foreign governments when interpreting more generally what
constitutes an unlawful arbitrary arrest under international law.
Further, had the Court found that the arrest was a tort in violation
of international law, the plaintiff hkely would have succeeded in
pursuit of a civil judgment against the defendant, thus allowing
national law to assist in the enforcement of international law.
Vertical/Horizontal Structure: Interaction of
Persons

Another dimension in the structure of international law

concerns the presence and importance of legal and natural persons
operating across borders. Traditional studies of international law
focus on states and international organizations as the principal
means by which international law is created, interpreted, and
enforced. However, over the past century, the field of international
law has seen other “actors” emerge as important participants,
including mid-level government bureaucrats, non-governmental
19 See 46 U.S.C. §§ 70114, 70117 (2018).
20 See 33 C.F.R. § 164.46 (2017).
21 Dec. 19, 1966, 999 U.N.T.S. 171, 6 1.L.M. 368.
22 See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004).
283 Id. at 738.
Sec. B THEORIES OF INTERNATIONAL LAW 11

organizations, corporations, and private citizens. As discussed in

Chapter 2(D) and (E), these other actors play key roles in the lobbying
of governments and international organizations, the creation of
specialized rules at an expert-level, the development of codes of
conduct for private entities that inculcate international legal rules,
the monitoring of compliance, and the pursuit of international and
national litigation to enforce international law.
Looking at international law as simply a matter of monolithic
states interacting with one another misses this important dimension,
for behind the facade of the “state” are real people operating. both
within and outside government, capable of promoting in various ways
international law creation, interpretation, and enforcement. The
structure of this interaction is vertical in the sense of the hierarchy
between a state and the persons within it, but also horizontal in the
sense of persons operating as among themselves across boundaries.

B. THEORIES OF INTERNATIONAL LAW

Among the foundations of international law are theories about
the nature of such law; in what sense is it “law” and how does that
law “bind” states and other relevant actors? As is the case with
national law, there are various and sometimes conflicting theoretical
strands that seek to explain the nature and functioning of
international law.
International Natural Law

For a natural law theorist, international law consists in part of

fundamental principles of right and wrong. These principles are fixed
and universal; they do not change depending upon _ political
inclinations or cultural predispositions of states. Moreover, these
principles are not identified by studying enactments by states;
rather, they are determined through a process of “right reason,”
which to a large degree focuses on whether a particular principle is
inherent in the notion of a society of states and in the essential
characteristics of humanity.
In the initial stages of the development of international law
(discussed infra Section C), international law theorists such as
Francisco de Vitoria, Francisco Suarez, Hugo Grotius, and Samuel
Pufendorf relied heavily on natural law theory to construct what they
believed to be the “law of nations.”24 For them, many of the rules that
comprised international law could be explained by reference to moral
philosophy, ethics, and theology, particularly the teachings of the

24 See ARTHUR NUSSBAUM, A CONCISE HISTORY OF THE LAW OF NATIONS ch. 4 (rev.
ed. 1954).
12 FOUNDATIONS OF INTERNATIONAL LAW Ch. 1

Christian tradition. Today, overt reliance on such metaphysical

sources to construct legal rules has fallen into disrepute, replaced
instead by positivism (discussed below). Yet in many respects,
natural law continues to lurk beneath the surface of international
law.
Thus, in seeking to explain the most rudimentary rules of
contemporary international law, theorists invariably are still led toa
form of natural law reasoning. For example, a grundnorm of
contemporary treaty law is that every treaty in force is binding upon
the parties to it and must be performed by them in good faith, a
concept referred to as pacta sunt servanda (an agreement must be
kept). But why are states bound to this rule? It is certainly true that
they initially consented to be bound by the treaty, but why can they
not, at some later point in time, simply decide that they no longer
wish to be bound? There must be some rule outside the scope of the
treaty itself that binds the state to the treaty. It is possible that states
have agreed to a rule of pacta sunt servanda by adhering to a “treaty
on treaties” that contains the rule.25 Yet, even then, by what theory
is a state bound to abide by that “treaty on treaties”?
In the end, it seems that there must be some first principles of
international law separate from those consented to by states, ones
that are rooted in pre-existing understandings. These metaphysical
norms undergird the rules that arise from the express consent of
states. Other such principles might include those on _ the
independence and legal equality of states, the duty of non-
intervention, and the right of self-defense.?6
Further, while it appears that most of contemporary
international law consists of rules that arise from the express consent
of states, the intellectual heritage of those rules can often be traced
to earlier natural law reasoning, such that the reasoning remains of
relevance to us. Thus, rules constraining the conduct of warfare so as
to protect civilians, while embedded today in treaties such as the
1949 Geneva Conventions and the 1907 Hague Regulations,?7 derive
from rules that date back at least as far as the Book of Deuteronomy.
Similarly, the prohibition on the use of force by one state against
another (unless undertaken in self-defense) is today expressed in a
treaty consented to by states, but the rule is one that has a rich
heritage in the “just war” doctrines that emerged during the

25 See Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155
U.N.T.S. 331 [hereinafter VCLT].
26 See ALLEN BUCHANAN, JUSTICE, LEGITIMACY AND SELF-DETERMINATION:
MORAL FOUNDATIONS FOR INTERNATIONAL LAW (2004).
27 See Chapter 14(B).
Sec. B THEORIES OF INTERNATIONAL LAW 13

theological debates of the Middle Ages. Indeed, certain rules appear

to reflect fundamental beliefs of governments and persons worldwide
(e.g., the abhorrence of genocide), such that the rule is best viewed as
not solely anchored in the existence of a treaty commitment or some
other form of state consent. International law even recognizes the
possibility of rules from which states may not deviate under any
circumstances, regardless of their treaty practice, a concept known
as jus cogens (peremptory norms).28 While most scholars view those
norms as limited in number, the belief that they exist may reflect the
enduring influence of the natural law tradition.
Finally, while most contemporary international law is reflected
in treaties or the practice of states, there remain gaps in those
positive acts of state consent, which invariably must be filled by
decision-makers through resort to other concepts. Likewise, there are
times when the law needs to change to accommodate new
developments. Policy-makers, practitioners, judges, and scholars
confronted with such gaps, or a need for change, will often turn to
basic notions of equity, justice, or “fairness,”29 which in turn seem
rooted in natural law thinking. Thus, the international military
tribunal at Nuremberg convicted certain German defendants for
committing “crimes against peace” because they embarked on an
aggressive war, and for committing “crimes against humanity”
because they inflicted atrocities against their own citizens. The
tribunal did this even in the absence of a treaty or clear customary
practice that created such crimes. While the tribunal’s judgment
sought to make references to various treaties and state practice in
existence prior to the commission of the criminal acts, many
observers see the judgment as resting most securely on more
fundamental notions of what natural law requires.
International Legal Positivism
The central problem with the natural law tradition is in
identifying what rules are compelled by natural law reasoning. One
can posit the existence of universal norms of international law, but
how do we know what they are? States may well disagree on the
existence and content of such norms, leading to uncertainty and
instability in inter-state relations. Consequently, states are much
more attracted to the idea of establishing international rules through
the affirmative (or “positive”) practice of states, typically captured
either expressly in written treaty instruments or tacitly in the

28 See VCLT, supra note 25, art. 53; see also Chapter 3(B).
29 See THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS
(1995).
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BURNING OF THE FRIGATE PHILADELPHIA IN THE HARBOR OF TRIPOLI BY
STEPHEN DECATUR.

Among the exploits of our sailors there is one which for daring is
almost unparalleled in the history of naval warfare. It was a
desperate undertaking, and had the enterprise failed those who
undertook it would probably have been laughed at as foolhardy, but
its success justified the daring of the little band of heroes and
brought not only fame, but reward to all concerned.
The story of the Barbary pirates and their former control of the
Mediterranean is too well known to need repeating. Such was once
the power of the petty states which bordered the southern shore of
the Mediterranean that they levied blackmail on every maritime
nation of the world. No ship entered or left the Mediterranean without
paying tribute to the Moors. The Deys of Algiers, of Tunis, of Tripoli,
became immensely wealthy through the contributions they levied on
Christian vessels and the tributes paid by Christian States for
immunity from piracy. The United States was one of the nations
which officially helped to fill the coffers of these barbarian chieftains,
but even the tribute which was paid did not secure immunity, and in
the early years of this century it was perceived that something must
be done by the government to protect United States commerce in
that quarter of the world. Then came the war with the Algerian
States, a conflict entirely on the sea, for the distance, of course, was
too great for an army to be sent from this country, and the war
practically amounted to a blockade of the ports and the capture of
such corsairs as attempted to enter or leave.
In the autumn of 1803, the Philadelphia, a frigate of thirty-six guns,
in those days a man-of-war of the first class, was blockading the
harbor of Tripoli. A storm came on, the ship was driven to sea, and
on returning after the wind had lulled noticed a brigantine
endeavoring to steal into the port. The Philadelphia gave chase and
pursued the corsair close into the shore and within three miles of the
guns of the forts. Capt. Bainbridge, of the Philadelphia, expressed
his uneasiness at running so close to the shore, but the sailing-
master professed an intimate acquaintance with the neighborhood,
having been there before, and the pursuit was continued. Bainbridge
did not know that he was among reefs, but without a moment’s
notice the ship grounded with such violence that many of the men
were thrown down on the deck. As soon as the corsairs perceived
that the ship was fast they sallied out from Tripoli to attack the
vessel, and during the day of October 31 the fight was kept up while
ineffectual efforts were being made to get off the ship by cutting
away the foremast and throwing overboard all the forward guns, but
toward evening Bainbridge, recognizing the inevitable, and fearing
lest when night came on the ship might be boarded and all on board
massacred by the pirates, he scuttled the ship and surrendered the
vessel.
The pirates swarmed on board, ordered the prisoners, 315 in
number, including twenty-one officers, into their boats and took them
to shore. Day, the American poet, who was one of the crew, thus
describes an experience as the captive of the Moors: “When we
approached the shore, we were thrown headlong into the waves,
foaming from a high breeze, where the water was up to our arm-pits,
and left to strangle, or get ashore as we could. At the beach stood a
row of armed janizaries, through which we passed, amidst cursings
and spittings, to the castle gate. It opened and we ascended a
narrow, winding, dismal passage, which led into a paved avenue
lined with grizzly guards, armed with sabres, muskets, pistols, and
hatchets. Here we halted again a few moments, and were again
hurried on through various turnings and flights of stairs, until we
found ourselves in the presence of his majesty, the puissant Bashaw
of Tripoli.
“The throne on which he was seated was raised about 4 feet from
the surface, inlaid with mosaic, covered with a cushion of the richest
velvet, fringed with gold, bespangled with brilliants. The floor of the
hall was of variegated marble, spread with carpets of the most
beautiful kind. The person of the Grand Bashaw made a very tawdry
appearance. His clothing was a long robe of blue silk, embroidered
with gold. His broad belt, ornamented with diamonds, held two gold-
mounted pistols and a sabre with a golden scabbard, hilt and chains.
On his head he wore a large white turban, decorated in the richest
manner. His whole vestments were superb in the extreme. His dark
beard swept his breast. I should suppose him to be about 40, is
rather corpulent, 5 feet 10 inches in height, and of a manly, majestic
deportment.
“When he had satisfied his pride and curiosity, the guard
conducted us into a dreary and filthy apartment of the castle, where
there was scarcely room for us to turn round and where we were
kept for nearly two hours, shivering in our wet clothes and with the
chills of a very damp night. The Neapolitan slaves, of whom the
Bashaw had more than 150, brought us dry clothing to exchange for
our wet, and we sincerely thanked them for their apparent kindness,
expecting to receive ours again when dry; but the trickish scoundrels
never returned our clothes nor made us any restitution. Our clothing
was new, and what they brought us in exchange was old and
ragged.”
Two days after the ship had grounded the Moors got her off,
recovered most of her guns and brought her into the harbor of
Tripoli, where she formed a substantial addition to the Bashaw’s
fleet. While in captivity Bainbridge found means to communicate
through the Danish Consul in Tripoli with the Americans, and wrote a
letter to Capt. Edward Preble, of the Constitution, then in the
Mediterranean, describing the position of the Philadelphia in the
harbor and suggesting that an expedition be sent to destroy her.
Stephen Decatur was then a young Lieutenant, in command of the
sloop Enterprise. A few days after the letter from Bainbridge was
received he had captured, south of Sicily, a ketch named the
Mastico, filled with female negro slaves, and brought his prize into
Syracuse, where the slaves were liberated and the property on
board was sold for the benefit of the crew. As soon as Decatur heard
of Bainbridge’s suggestion he was eager to undertake the task in his
own ship, the Enterprise. But his proposal was rejected by Preble,
who believed the Mastico better suited for the task, and ordered that
she be employed. “Volunteers for an unusually dangerous service”
were called for, and sixty-two responded, the number being
subsequently increased to sixty-nine, and among them, besides
Decatur himself, then a mere boy of 24, were two other boys
destined to play an important part in naval affairs. One was James
Lawrence, a midshipman of 16 years, the other Thomas
McDonough, of 20.
THE CLERMONT—FULTON’S FIRST STEAMBOAT—1807.
 FIGHT WITH ALGERINE PIRATES.

A large quantity of combustibles was prepared and placed in the

ketch, and with his daring crew Decatur left Syracuse for Tripoli in
company with the brig Siren, which was to wait off the harbor and
pick up the Americans in case they should be compelled to take to
the small boats. On February 9, 1804, the expedition sailed from
Syracuse and arrived off Tripoli by night, but a furious gale from the
shore precluded the possibility of making the attack, and for six days
the voyagers were tossed to and fro on the waves of the
Mediterranean, their little vessel being almost swamped by the
heavy seas.
On the morning of February 16 the sun rose fair and clear, the
combustibles were examined and found to be dry and in good order,
and sail was made for the harbor, the ketch and brig proceeding
slowly in order not to arrive before night. As the darkness came on
the brig paused in the offing, while under a brisk breeze the ketch
sailed into the harbor. An hour later the wind lulled and the ketch
slowly drifted toward the Philadelphia, which was plainly visible from
its great bulk, the lighted portholes indicating that the crew was still
awake. As the ketch approached it was guided so as to foul the
Philadelphia at the bowsprit, and the Maltese pilot who had been
taken on board at Syracuse principally because he could speak
Arabic called to the officer on the Philadelphia and requested
permission to make fast to the ship’s ropes, for the ketch had lost all
her anchors in the storm. Permission was given, and a line was cast,
which was caught by the three or four men who appeared on the
little boat. The remainder, stripped to the waist for battle, and with
cutlasses and pistols ready to hand, lay stowed away behind the
bulwarks and invisible to the corsairs.
The Tripolitan officer in command asked the pilot what ship was in
the offing, for the Siren had been seen, and the Maltese replied that
it was an English brig waiting for daylight to cross the bar and enter
the harbor. Not the least suspicion was roused in the minds of the
corsairs, although the rope which made fast the ketch to the
Philadelphia was even then being handled by the men concealed
beneath the bulwarks of the little slaver. As, however, a line must be
fastened from the stern to the larger vessel before boarding could be
effected, it was quite possible that the men would be discovered as
soon as the ketch was brought alongside. The pilot, however, kept
the Moors entertained with narratives of the cargo the ketch
contained, manufacturing very clever stories of the beautiful slaves
and immense wealth on board. A moment later the stern line was
made fast and the ketch brought alongside, when the Moors
discovered the figures beneath the bulwarks and raised the cry of
alarm, “Americanos! Americanos!”
Decatur had divided his men into five crews—one to remain on
board and guard the ketch, the other four were first to storm the
upper deck of the Philadelphia, then three parties were to go below
and fire the ship, while the fourth held the deck against possible
Moorish re-enforcements. The moment the ketch was brought
alongside Decatur gave the word, “Boarders, away!” and the
American boys swarmed through the portholes and up over the
bulwarks of the Philadelphia. So sudden and furious was the
onslaught that the Moors were taken by surprise, and as the
Americans rushed forward, cutlass in hand, fled before them,
jumping into the water to escape the terrible enemy. Of the Moorish
crew of nearly 300 on board, twenty were killed outright, how many
were drowned could not be ascertained, but a number, afraid to leap
from the ship, hid below to perish a few minutes later like rats in their
holes.
In five minutes from the time of boarding the deck was cleared of
the pirate crew, the work being done solely with the cutlass; not a
shot was fired from beginning to end. The parties appointed to do the
firing at once began the work of hauling the combustibles aboard
and passing them to the lower decks, cabin and hold. Fire was set to
the ship in a dozen different places and the flames spread with such
rapidity that some of the Americans had a narrow escape, and one
was severely scorched by being compelled to pass up through a
burning hatchway. The work was well done, and, as the flames
appeared through the portholes, a rocket was sent up from the ketch
to notify the brig outside that the enterprise had been successful.
Their work finished, the Americans hastily let themselves down
into the ketch, and not a moment too soon, for so rapidly did the
flames spread that there was danger of their little boat taking fire.
The Philadelphia was a mass of glowing flames before the ketch
could be disengaged, and such was the draught of air toward the
burning ship that for some moments it seemed uncertain whether the
ketch could be gotten away. The stern and sails did actually take fire,
but a few buckets of water extinguished the blaze, and the men set
to work with a will at the oars, of which there were four on each side.
The capture of the ship had been effected without apparently the
least suspicion on shore of what was going on. The Philadelphia lay
directly under the guns of the largest fort and not quite 400 yards
away. Long before the swimmers from the ship could reach the
shore the blaze warned the garrisons of the forts that something was
wrong. Small boats were immediately dispatched, some of the
swimmers picked up, and thus the truth became known. As the ketch
was in plain view, a heavy fire was at once commenced and from a
hundred guns on each side of the harbor belched forth flame and
iron in vengeance for the daring act. But whether from haste or
inefficiency, the aim of the gunners was bad, and although shell and
shot plowed up the water all around the ketch she was struck but
once, and then only by a ball going through the sail.
More to be dreaded than the artillery fire was the swarm of boats
crammed with corsairs that put forth from the shore in pursuit.
Decatur said afterwards that the little crew of the ketch must have
been chased by a hundred craft of all sizes, containing probably a
couple of thousand men, but the pirates reasoned very correctly that
Americans who could attempt so desperate an act as the burning of
a ship almost within stone’s throw of the forts were not to be trifled
with in a hand-to-hand engagement, so kept at a respectful distance
and contented themselves with a running fire of musketry. The
Americans replied, those not at the oars maintaining a lively
fusillade, while another rocket was sent up as a signal to the brig for
aid. It was responded to by a rocket in the offing, the Siren’s boats,
full of well-armed men, put off to the rescue, and as soon as they
came within firing distance the Tripolitans withdrew.
Thus was achieved what Lord Nelson called the most daring act of
the age. Not an American was killed, only one was wounded, he very
slightly, and a third was, as already stated, severely scorched. Every
participant in this hazardous adventure received his reward. Decatur,
although only a boy, was made Captain; Lawrence and McDonough
received substantial promotion; and every seaman was voted two
months’ extra pay. The exploit had serious consequences for the
crew of the Philadelphia, for the Dey of Tripoli fell into a furious
passion at the loss of the ship and at once consigned the Americans
to the filthiest dungeons in his castle, where they remained until
liberated at the close of the war. The act of Decatur’s expedition had
an important influence in bringing the war to an early conclusion, for,
as the Danish Consul expressed it in an interview with the Dey, “If
the Americans can burn your ships lying under the guns of the fort,
they may undertake to burn your palace over your head,” and the
Dey seems to have taken the same view of it. He did not have long
to reflect upon the matter, however, for in less than six months
Preble’s squadron arrived off Tripoli with better pilots than those of
the Philadelphia, sailed through the intricate channels, entered the
harbor, bombarded the forts and town, and the Dey was glad to
conclude a treaty of peace, releasing all the American prisoners and
promising not to demand nor exact tribute from American vessels.
Decatur’s later career fully justified the reputation he won in his
earliest exploit, but none of his subsequent deeds of bravery
exceeded the burning of the Philadelphia.

McDUGALL’S PLUCKY FIGHT IN SIMONOSEKI STRAITS.

Another of the almost unrecorded chapters in the annals of the

American Navy was the heroic action between the U. S. ship
Wyoming, Commander McDugall, and three Japanese cruisers
supported by six shore batteries, during the Civil War.
The Wyoming had her part in all the hardest of blockading and
cruising service and fought well whenever she had a chance. She
was sent at the same time as her sister ship, the Kearsarge, to
cruise for that scourge of the seas, the Alabama, and just missed her
by the merest chance on two occasions in the China Seas. From
there the Alabama squared away for the Atlantic again and went to
meet her fate under the heights of Cherbourg, while the Wyoming
sailed to her hardest fight with the forces of the Tycoon.
It was in 1863, toward the end of the dual reign of the Tycoon and
the Mikado. Japan was in the throes of civil war, and the foes of the
rebel princes were resisting to the last the passing of the old feudal
system.
The Prince of Nagato was one of these, and from his tiny kingdom
that fronted on the Straits of Simonoseki he declared himself lord of
all he surveyed, including the neighboring seas, from which he took
as generous toll as did ever the pirate chiefs of Tariffa. He had laid
violent hands upon the vessels of various powers, including Great
Britain, France, the Netherlands, and the United States.
Representatives of these powers had protested, but the protests had
been of little moment. The Japanese central government had
disavowed the acts of the pirate prince, but confessed its inability to
deal with him while more formidable matters engaged its attention.
Meanwhile Prince Nagato throve and flourished, and one day fired
on the American merchantman Pembroke, having failed to wring
tribute or blackmail by any other means, and killed two of her crew.
Another diplomatic protest from the combined foreign
representatives followed, but Commander McDugall, who was in port
with the Wyoming, suggested that if the Mikado could not subdue his
rebellious subject the Wyoming could and would without much
urging. Accordingly, McDugall was given carte blanche to settle
accounts with the Prince of Nagato in behalf of all the powers
concerned.
It was the middle of July when the Wyoming found herself in the
Straits of Simonoseki and in sight of the shore batteries, which were
a part of the prince’s defenses to seaward. Before she had time to
open on the batteries two Japanese gunboats loomed up, one ahead
and one astern, in the narrow straits, and presently a third came
cruising out from among the neighboring islands. It was a nasty
place for a fight, McDugall being without charts or pilots, and the
odds were more than enough for Nelson himself, being forty-eight
guns of the three Japanese vessels to the twenty-six of the old
Wyoming, to say nothing of the batteries on shore.
Working to windward of the nearest Japanese ship, the Wyoming
opened at long range, and worked down on her till when close
aboard there was nothing of the enemy left standing above decks.
The other two vessels had come up in the meantime and engaged
the American on either side, but she lay to and gave them shot for
shot, port and starboard, till her gunners were smoke-blind and the
flame of the guns no longer served to light the battle-cloud that rolled
in white billows over the smooth waters of the straits. It was
desperate work in the shallow water, but the Wyoming was the best
vessel and she outmanœuvered her two opponents from the start,
though twice aground and once afire, with as many men disabled
from splinters and heat as from the enemy’s shot.
Fighting themselves out of one smoke-patch into another, the
three combatants circled around till they had drifted down in range of
the shore batteries, which opened upon the Wyoming. But McDugall
ran across the bows of one of his enemies, raked her as he went
and left her a floating wreck, and then turned his attention to the
batteries. The Wyoming’s men rigged the smith’s forge on deck and
tossed hot shot into the works ashore till they set them afire, and the
soldiers fled, and the crew of the remaining cruiser followed their
example.
McDugall mended his rigging and patched his bulwarks, sent word
to the recalcitrant prince to arrange for indemnity, which he did. The
share of the United States was $300,000.
In this action McDugall’s loss was five men killed and six
wounded.

CAPTAIN McGIFFEN AT THE BATTLE OF THE YALU.

On September 17, 1894, the Chinese ironclad Chen-Yuen with her

sister ship, the flagship Ting-Yuen, and nine smaller war vessels,
met the Japanese off the mouth of the Yalu River.
The Chen-Yuen was protected by 12 and 14-inch armor, and
carried four 12.2-inch, two 6-inch, and twelve machine guns. Her
commander was Captain McGiffen of the United States Navy.
Here the famous battle of the Yalu, the first great trial of modern
ironclads, was fought. Owing to the cowardice of several Chinese
commanders, who ran away at the first exchange of shots, eight
Chinese ships did all the fighting against the twelve ships of the
enemy. The battle was altogether a contest of Orientals, except that
one man of European blood, trained in the naval school of a great
Western power, commanded the Chen-Yuen—Philo Norton McGiffin,
of the United States Navy. His fighting that day was the dramatic
climax of a brave and spotless life that had been a nineteenth-
century revival of knight-errantry. The lives of none of the free-lances
and fearless adventurers from Hawkesworth to Gordon were more
romantic than that of McGiffin.
Cruiser Following Torpedo into Action.
 The reduction by Congress of the U. S. naval force sent adrift
Lieutenant McGiffin, a graduate of Annapolis in the class of ’82. As
China was engaged in war in Asia, McGiffin straightway tendered his
services to the Chinese Government. The result was eventually that
China took one French gunboat in a war otherwise entirely
disastrous to her. In 1887 McGiffin became the head of the Chinese
Naval Academy at Wei-Hai-Wei. This was the reason for his
command of one of China’s two most formidable warships in the
battle which decided the outcome of the Chino-Japanese war.
The crews of the Chinese fleet had gone through their morning
drill and dinner was nearly ready when smoke from the Japanese
ships was sighted by the lookout. The appearance of Japan’s fleet
had been expected for a week, but nevertheless the blood in every
man’s veins throbbed quick as the call to action sounded throughout
the fleet. The Chen-Yuen had already been stripped for action. The
decks were cleared for the passage of ammunition and for the free
movement of the crew and in order to secure unobstructed arcs of
fire for the guns. The small boats had been abandoned, the ladders
overboard or wrapped in wet canvas. These measures were taken to
avoid the danger from fire and flying splinters, both of which are as
much to be feared in a sea-fight as the enemy’s shot. The gun-
shields, by order of Captain McGiffin, had been removed from the
big guns as affording no protection from heavy shot and as serving
to intercept and cause to explode shells that would otherwise pass
over the heads of the gunners. The ship’s firehose had been
connected and let out and bags of sand and coal placed on deck to
form breastwork against small shot. Ammunition for immediate use
was piled beside the guns. The suggestive hospital appliances,
bandages, and cots and chairs rigged for lowering the wounded to
the sick bay, were in position. Buckets of sand were placed about the
decks and inside the superstructure; for when men are torn to pieces
the flow of blood makes the deck slippery.
In less than an hour after the Japanese ships dotted the horizon
the battle had begun. The Chinese sailors were brave and eager for
the fight. They were prepared neither to give nor take quarter and
expected either to win or go down with their ship.
 McGiffin stood motionless on the bridge listening to the reports of
the range announced by the sub-lieutenant in the foretop as the
fleets rapidly neared each other. The ordeal before him and his men
was more terrible than soldiers had been called upon to face in
regular battle since the beginning of human wars. That McGiffin fully
realized the situation was shown by a letter written to his brother
upon starting to meet the Japanese ships. “You know,” he said, “it is
four killed to one wounded since the new ammunition came in. It is
better so. I don’t want to be wounded. I prefer to step down or up
and out of this world.” Not extraordinary words, but splendidly
expressive of a soldier-like way of facing fate.
The closing lines of this letter were sadly prophetic. McGiffin
wrote: “I hate to think of being dreadfully mangled and then patched
up, with half my limbs and senses gone.”
He came home in exactly the condition he had described. and,
true to his determination, chose to step up and out of it all.
There was no sound but the panting of the ship under forced
draught. The men, grouped quietly at their stations, did not venture
to speak even in whispers. “Fifty-two hundred metres,” the range
was called. Then the great yellow flag of China was raised to the
main truck, the quick-firing guns opened fire, and the fight began.
The battle lasted for nearly five hours, with the two Chinese
battleships as its centre.
It was estimated that McGiffin’s ship was hit 400 times and 120
times by large shot or shell. The rain of projectiles visited every
exposed point of the vessel. Early in the fight a shell exploded in the
fighting top, instantly killing every one of its inmates. Indeed, all such
contrivances proved to be deathtraps. Five shells burst inside the
shields of the bow six-inch gun, completely gutting the place. Though
the carnage was frightful, the Chinese sailors, with their commander
to encourage them, stuck to their posts. A chief gunner was aiming
his gun when a shell took off his head. The man behind him caught
the body, passed it back to his companions, calmly finished the
sighting of the piece and fired it.
The Chen-Yuen gave as hard knocks as she received, and until
her ammunition ran low her fire was rapid and more effective than
that of her adversaries. One of the last shells, fired under McGiffin’s
personal direction from a twelve-inch gun, disabled the thirteen-inch
gun on the enemy’s flagship, the Matsushima, and exploded the
powder on deck, killing or wounding more than 100 Japanese
officers and men. Then McGiffin’s Chinamen cheered joyfully.
Throughout the whole fight McGiffin was the dominating spirit of
his ship. He was at once her brains and her inspiration.
Even cowardice itself was moved by his fearless example. At the
opening of the fight he discovered a lieutenant and a dozen terrified
men hidden below one of the engine turrets. McGiffin thrashed the
officer and sent them all on deck, where they afterward fought like
heroes.
The five hours’ strain on the commander was terrific, for there was
no subordinate who could relieve him, and his presence was
required everywhere. Whilst the fight was hottest a fire broke out in
the superstructure above the forecastle. It became necessary to run
out a hose in the range of the starboard guns, which had been
ordered to fire to port across the forecastle. The men refused to do
this until McGiffin called for volunteers and offered to lead them.
Word was sent to the head-gunner at the starboard battery to train
his pieces ahead, and McGiffin and his volunteers started with the
hose for the forecastle. Half of the men were shot down by the
enemy. As the captain stooped over to grasp the hose a shot passed
between his legs, burning his wrists and severing the tail of his coat.
A fragment of a shell that had burst against the tower wounded him a
second time.
Meanwhile men at the forcastle gun were falling rapidly and the
head-gunner was killed. The man who took his place, not knowing
that his comrades were in front of his guns, discharged one of them.
The explosion knocked the captain and his men down and killed
several outright. At the same instant another shot struck McGiffin.
He would probably have remained there unconscious if water from
a gash in the hose had not revived him. His first glance on coming to
his senses was into the muzzle of the starboard gun. It was slowly
moving into position for firing. “What an ass I am to sit here and be
blown to pieces,” thought McGiffin. So he flung himself from the
superstructure and fell eight feet to the deck below. With blood
pouring from his mouth he crawled into the superstructure and told
the men to carry him aft. In a few minutes he was fighting his ship
again.
McGiffin stood very near a large gun when it exploded. He was
almost blinded. His hair and eyebrows were burned off and his
clothes torn and set on fire. There was a series of gashes in his
trousers extending their entire length. Throughout the fight his ears
were stuffed with cotton, as were those of all the gunners, but after
the day’s fighting his ear-drums were found to be permanently
injured by concussion. Several times he was wounded by splinters,
which he extracted himself.
With forty wounds in his body, holding an eyelid up with one hand,
this man of iron nerve led the fighting on his ship until the Japanese
vessels gave up the contest and he alone of all the Chinese
commanders kept his ship in its proper position throughout the fight,
thus protecting the flagship and saving the fleet from total
destruction.
When the Japanese admiral withdrew, McGiffin navigated his ship
to its dock. His mind never lost its effectiveness, though his body
was shattered beyond repair. In fact, his body was described as
being so covered with bruises that it resembled a checker-board.
In this action a new style of sea-fighting was inaugurated and an
American sailor, a young man 34 years of age, set its standard for
daring and fortitude under fire of the modern guns.
After his great battle Captain McGiffin, a mental and physical
wreck, came to America to die. He met death as a brave man
should, with but one regret: He wished that he might have had one
chance to fight for his own country, with a Yankee crew at his back
and a Yankee ship under him.
 OUR NEW NAVY.

ince the last of the naval battles recorded in preceding chapters was fought, the
advance in ships, engines, and guns has been such that warships of the past are
considered obsolete; while the introduction of smokeless powder and projectiles
containing heavy charges of dynamite or gun-cotton has increased the efficacy of
modern ordnance.
The use of armor for ships is so recent, only dating from the time of our civil war,
that modern war-ships have been little in action. In fact the war between England and
the United States, in 1812-15, was the last important naval war previous to the
introduction of steam. The revolution in naval tactics caused by steam was very great,
but our civil war afforded little experience in fleet actions, the important naval affairs
being for the most part attacks of fleets upon land fortifications. The only fairly well-
matched, stand-up fight of that war between vessels was that of the Kearsarge and
Alabama.
Steel has come into use for the hulls of vessels—and the invention, by our own
citizens, of nickel-steel, and of the Harvey process for plates, has caused a revolution
in the application of defensive armor.
We may instance the armor for the battle-ship Maine, which vessel carried on her sides alone four
hundred and seventy-five tons of metal—Harveyized nickel steel. The plate which was tried at the Naval
Proving Ground, at Indian Head, on the Potomac, and upon the proof of which depended the receiving
of the whole quantity from the contracting company, was thirteen feet seven inches long, seven feet
wide, and twelve inches in thickness at the top, tapering to six inches. These measurements may give
some idea of the tremendous power of the implements employed in forging and tempering such a mass
of metal.
It successfully resisted four shots from an eight-inch rifled gun, firing, at only a few yards’ distance, the
best armor-piercing shot, breaking the latter to fragments. Then a ten-inch gun was tried upon the same
plate. Again the shot was broken up, and the plate, already hit four times before, was cracked, but
remained still capable of affording perfect protection. It is not at all probable that any one plate would be
hit five times in the course of an action—and so this armor is considered as near perfection as it is
possible for metallurgists to come, in the present state of knowledge. The Maine and Texas, and the
battle-ships of the Iowa class, as well as the great monitors, Puritan and Monadnock, all of which
vessels are of the latest construction, have these plates, thereby saving much weight, and allowing of
additional armor protection to the upper works. The heavy armor extends from one barbette to the other,
in the Iowa being about 180 feet, and from four and a half feet below the water line to three feet above
it. At the level of the belt is a curving steel deck, three inches thick, to deflect plunging shot; while the
mass of coal is so arranged in the bunkers as to protect the boilers and machinery.
The Iowa carries four 12-inch rifles, mounted in pairs in two turrets, eight 8-inch rifles, also mounted in
pairs in turrets, six rapid-fire 4-inch rifles, and an ample secondary battery of twenty 6-pounder and six
1-pounder rapid-fire guns, and two gatlings—all high powered breech-loading guns of the best American
manufacture.
In the last few years there have also been great changes and improvements in different forms of
explosives, the development of torpedo boats and torpedo-catchers, and modes of defence against
such attacks. Almost all the large vessels have double bottoms, divided in many separate cells like
honeycombs—and packed with a preparation of cocoa-nut fibre, which swells when in contact with
water, thus effectually stopping shot holes. There are also many transverse bulkheads, making many
compartments of the vessel’s hull; while the engines are so cut off by them that one is independent of
any injury to the other. There are also many small engines, for various purposes, and electric light
makes the deepest part of the interior of the great ship’s hull as plain as the upper deck, in full sunlight.
Lastly, the great increase in speed and power of engines tend to make the war-ship a very different thing
from what she was at the time spoken of in the previous chapter.
 There are, of course, limitations to the range and efficiency of the new Navy, owing to the necessity of
replenishing supplies of fuel,—a most difficult and extremely costly process in many parts of the world.
Such modern cruisers as the Columbia carry, to be sure, an immense quantity of coal—and there are
others, such as the New York and the Olympia, which not only possess great speed, but also carry more
fuel than most vessels of their class. They need to do so, for our coaling stations abroad are very few.
Some nations, especially the Italians, who have a very formidable navy, and one far above their
means, have experimented extensively with petroleum, in its crude form, as a fuel, and, it is stated, with
a certain degree of success. But this for the most part is a consideration for those nations which have no
mines of coal under their own control, and we must remember that, in time of war, the supply of
petroleum might be cut off even more effectually than that of coal. But to return:—The use of steel for
the hulls of vessels, the armor, protective decks, and other purposes of construction, has greatly
multiplied the strength of those parts, while it has made the whole much lighter, so that the same
expenditure of steam will carry the structure much farther and much faster. We have already stated that
nickel-steel is able to resist very effectually the most modern projectiles from the latest guns. When, a
few years ago, such qualities were claimed for it by us, the English experts in such matters rather
sneered at the idea, and said that more extensive trials should be had before they could believe in its
value. The experiments were so triumphantly successful that not only was all opposition withdrawn, but
the object then was to get hold of the process as soon as possible. Nickel-steel is what may be called a
great fact, and subsequent discoveries in metallurgy will never destroy its value for certain purposes.
The Harvey process was another thing upon which the Europeans looked with great doubt until the
perfect success of armor made in that way, in trials against very powerful guns at short range, opened
their eyes. This process consists in the hardening of the outside surface of a thick plate to a certain
depth, leaving the back part of the plate with the toughness of the untempered metal, so that the shot
which strikes it has to encounter obstacles of two kinds—the hardness which breaks it up, and the
toughness which prevents serious entry.
As it is, the contest between gun and armor is continually going on. When armor is found which
resists very powerful guns and the newest explosive, a more powerful gun is built, which makes another
increase in armor necessary. At the present time there is no predicting how long this contest may go on,
for the improvements in guns and armor keep equal pace.
New explosives have the same story to tell. They vary in name and in effect, but most of them are
based upon the same chemical principles. Some keep better than others, and are thus best suited for
preservation in the magazines of ships, where, especially in case of faulty construction, or of prolonged
stay in hot climates, the delicate chemical combination of which the modern explosive consists is very
much more likely to undergo change than the old-fashioned “black power”—especially when the latter
was well made.
There is, therefore, constant experimenting, and constant change in opinion in regard to explosives.
Torpedoes are another source of trouble to experts in naval warfare; the fact being that they have
never been sufficiently tried in actual service to settle completely their respective values. Of the mobile
torpedoes one was used with destructive effect during the Chilean War, and some spar-torpedoes were
effective during our Civil War, and during the Russo-Turkish War, where mobile torpedoes were also
used, but it is still a matter of doubt with many naval officers of experience as to what part the mobile
torpedo is to play in any future contest.
As regards torpedo-boats, which launch their torpedoes one at a time, and directly in the line in which
the boat is pointed, the opinion is that they will prove very useful for coast and harbor defence, but unfit
for severe weather or heavy seas, very wearing upon their crews, liable to accidents of a serious nature,
and only able to carry fuel for short runs. Many of the accidents to this class of boats have involved loss
of life, and, while the French and English have increased their number, other nations, such as the
Italians and the Germans, have rather decided against their increase. At one time within recent years
the Italians encouraged torpedo-boats, and in Germany one of the most successful of all builders is the
Shichau Company, which has built boats for all the world but France, America, and England.
The “torpedo catchers,” so called, are quite different affairs from the ordinary torpedo-boat. They are
quite large and swift vessels compared with the ordinary torpedo-boat, and are intended as “counter-
miners,” and, by speed, and ability to keep the sea better, to prevent the swarm of ordinary torpedo-
boats from doing serious damage. Sufficient experience has not been gained in the experimental trials
to know just how much these vessels will do in case of actual warfare, but much is expected of them.
Very lately a well-known English builder of torpedo boats and other small craft has launched a boat
which is said to have made twenty-seven knots, or about the average speed of a passenger train on a
good railroad.
Submarine torpedo-boats have received much attention of late years, when improvements and
inventions, especially in electricity, have rendered them comparatively easy to handle. In France and
Spain, especially, very successful boats have been experimented with. In our own country, where the
idea originated early in the century, there have been several submarine boats built which have remained
for a long time under water, being directed by the crew in any wished-for course. Not long ago Congress
appropriated a large sum for building a sub-marine torpedo boat; but experiments conducted to show
whether an explosion effected by such means would not be also fatal to the boat herself, led to
hesitation on the part of the authorities as to expending the money in that way, and to a proposal to build
surface torpedo boats instead.
Speed is becoming more and more a factor in naval problems. Speed, fuel capacity, a powerful
battery, and protection, especially to the vital parts and to the crew, are now recognized as the requisites
which go to make a fine, or capable ship, and one most likely to be generally useful in war. Among such
vessels may be mentioned the New York, Olympia, and the Columbia, of our own navy. The battle-
ships, so called, come under a different category—being heavily armored, and supposed to be able to
resist heavy projectiles at close quarters. We have a few of these under construction, but none of the
great size which we see in some foreign navies, principally for the reason that many of our ports will not
admit vessels of such great draught of water—and that our authorities consider smaller vessels capable
of being more readily manœuvered. The largest battle-ships we are building will only measure 10,200
tons, while in foreign navies they have them of 15,000 tons. But the best naval opinion is that the latter
are too large; and experts are advocating a return to smaller size and greater number—just as a
reaction has taken place against 110-ton guns.
The latest completed battle-ships are the Iowa, Indiana, Massachusetts and Oregon, all of 10,200
tons, with twin screws, and carrying sixteen guns in the main battery, beside smaller ones of the most
modern type.
The Maine and Texas are battle-ships of the second class—of about 9000 tons, with twin screws, and
carrying about ten guns in the main battery, and a proportion of rapid-fire smaller guns.
Such great battle-ships as these have never been tried in a close general engagement, and, though
viewed with some distrust—especially since the accidental sinking by collision of the Victoria—nations
go on building them in rivalry, and the end is not yet. In case of a grand battle between fleets of these
giant ships, the force being anywhere near equal, the chances would be in favor of the fleet which is
best handled. That is all that anyone can say at present. It may give the reader some idea of these great
armaments to say that, in 1894, England had in her Mediterranean fleet twenty-four vessels of the first
class, none less than 7350, and most of them above 10,000 tons. Thirteen of these were battle-ships,
and eleven protected cruisers.
France and Russia, combined, had at the same period in those parts thirty-three ships, none of which
were below 4000 tons, and most of which were of 10,000 tons or more.
In addition to this we must count numerous torpedo-boats, despatch vessels and gunboats in such
fleets.
The Italian navy is now a very powerful one, and contains in its list some of the largest men-of-war
afloat; and the German navy has made great strides in advance. The Spaniards have some fine ships,
but mostly of the fast cruiser class, armed with powerful guns.
We have heard very much of late regarding the Chinese and Japanese navies. The vessels which
compose these forces have mostly been constructed in France and England—and a few, of moderate
size, have been built at home. The Chinese have a very fine gun-factory, as well as shops for repairs,
but many of their vessels, especially in what has been called their Southern fleet, are in very bad
condition as to hulls, engines—and especially as to the discipline of the crews. This has become much
worse since they dispensed with the services of European officers. Their Northern fleet is in much better
condition, but time alone can prove what it is worth. Neither China nor Japan have any vessels above
8000 tons displacement, and many are much smaller. Their important fighting craft consist of what are
called cruisers—protected and unprotected—but armed with excellent modern high-powered guns, and
torpedoes of the latest model.
The vessels of the Japanese navy are kept in exceptionally good condition in every respect, and their
officers are considered the more able, and their men, with a natural aptitude for the sea, are in excellent
training and discipline. Thus Japan should prove superior to China, if only on account of the better
personnel. Many of the Japanese officers have passed through our own naval school with credit, and
others have been educated in the German service. Some of them, thus educated, have already attained
high command—and all show great enthusiasm and military ardor.
The battle of the Yalu, between these two fleets and treated in a subsequent chapter, was a most
instructive lesson to the navies of the world at large.
While we do not pretend to say that we need such a navy as England (the national life of which
country depends upon her ability to furnish food and clothing from abroad for her population), it is
evident to anyone who thinks for a moment that a country like ours, with the most extensive coast-line of
any, should have a moderately large and very effective navy, if only as a matter of sea-police for our own
shores, while the protection of our vessels and of citizens living and doing business abroad comes
under another head.
Persons, especially those living in the interior of our great country, are apt to think, and to say, that
there is little chance of our becoming embroiled with any of the nations of whose great navies we have
just been speaking. But we have to go back a very few years to show in what danger we have been of
having our coasts invested by hostile fleets for want of proper force to resist them. Spain was very
threatening in the troubles about Cuba in 1873. The attitude of Italy, with her powerful vessels, at the
time of the difficulty about the New Orleans riots, was disquieting for a time, and, had her financial
condition been better, that country would have certainly made a naval demonstration here. Then there
was the still more threatening attitude of Chili, which might have been very serious. However sure we
might be of eventually putting down that warlike little country, immense damage might have been done
by her in a naval raid on our west coast. There is constant need for ships in China; not only for the
protection of Americans, but to assist in keeping down piracy, a very present danger in that part of the
world. Few months pass that it is not necessary to send ships to Hayti, always on the verge of
revolution, or actually in the throes of civil war; and the same may be said of the countries comprising
Central America. Then Brazil may be added to the list of unsettled countries, and we have a large and
important trade there. Of the troubles in Hawaii, and of the cruising against the seal robbers in the North
Pacific, the whole country has heard more than enough, and everyone knows that without a navy we
should be perfectly helpless in such emergencies. The very establishment and maintenance of great
dock-yards and naval stations at Vancouver, Halifax and Bermuda by England admonishes us to at least
partially prepare to resist the threats of naval coercion which was that nation’s favorite mode of treating
with us not so many years ago.