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Volume IV · Page 330
| Law No. 10 since individual states cannot
establish international law, but only the community of nations can do so. This
is a generally recognized principle of international law which took root in
practice as well as in theory. For the correctness of this conception, I
particularly mention the statements of the Professor for International Law,
Norman J. Padelford, who, in an article published in April 1938, commented upon
the Washington Agreement of 1922 and thereby came to the conclusion that, in
spite of the consensus of opinion of the five powers present at the conference,
these were not entitled to establish new rules of international
law.¹ International law can only be created (1) by international agreement and (2) by a conception of law which is generally recognized by all states and which finds its expression in the actions of these states. Only these sources of law are generally recognized as valid international law. This conception is clearly expressed in a decision quoted by Cobbett according to which, in order to prove the existence of a rule of international law, it must be set forth that this has either found express sanction by international agreement or that it must have grown to be a part of international law by the frequent practical recognition of states in their dealings with each other.² There does not exist an international agreement made by the community of nations, according to which a plea of superior orders is impossible. Such an agreement has not been signed so far. In 1923, it is true, the attempt was made during the Washington Conference to come to an international agreement to the effect that the plea of superior orders shall be impossible in international law. However, this agreement did not come about. The Washington Agreement was not ratified. France especially declined to ratify this Agreement just because of the provision in it that the plea of superior orders should not be admissible. With regard to this, I refer to an article by the French teacher of international law, Raoul Genet, of 1938, according to which France had objected at that time that, for example, the com[...manders] |
¹ Norman J. Padelford, Professor of International Law, Fletcher School of Law and Diplomacy, in the periodical "The American Journal of International Law", 1938, page 279, "This conclusion was reached in spite of the consensus of opinion that it was not competent for the five powers present at the Conference to establish new rules of international law ***."
² Cobbett, Leading Cases on International Law, volume I, page 6, "It was said that in order to prove an alleged rule of international law it must be shown 'either to have received the express sanction of international agreement', or 'it must have grown to a part of international law by the frequent practical recognition of States, in their dealings with such other'."
