CHAPTER II POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS
I INTERNATIONAL PERSONALITY
Vattel, I. §§ 13-25—Hall, § 7—Westlake, I. pp. 293-296—Lawrence, § 57—Phillimore, I. §§ 144-147—Twiss, I. § 106—Wharton, § 60—Moore, I. § 23—Bluntschli, §§ 64-81—Hartmann, § 15—Heffter, § 26—Holtzendorff in Holtzendorff, II. pp. 47-51—Gareis, §§ 24-25—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 235-241—Despagnet, Nos. 165-166—Nys, II. pp. 176-181—Pradier-Fodéré, I. Nos. 165-195—Mérignhac, I. pp. 233-238—Rivier, I. § 19—Fiore, I. Nos. 367-371—Martens, I. § 72—Fontenay, "Des droits et des devoirs des États entre eux" (1888)—Pillet in R.G. V. (1898), pp. 66 and 236, VI. (1899), p. 503—Cavaglieri, "I diritti fondamentali degli Stati nella Società Internazionale" (1906).
The so-called Fundamental Rights.
§ 112. Until the last two decades of the nineteenth century all jurists agreed that the membership of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. It was and is maintained that these fundamental rights are a matter of course and self-evident, since the Family of Nations consists of Sovereign States. But no unanimity exists with regard to the number, the names, and the contents of these alleged fundamental rights. A great confusion exists in this matter, and hardly two text-book writers agree in details with regard to it. This condition of things has led to a searching criticism of the whole matter, and several writers[177] have in consequence thereof asked that the fundamental rights of States should totally disappear from the treatises on the Law of Nations. I certainly agree with this. Yet it must be taken into consideration that under the wrong heading of fundamental rights a good many correct statements have been made for hundreds of years, and that numerous real rights and duties are customarily recognised which are derived from the very membership of the Family of Nations. They are rights and duties which do not rise from international treaties between a multitude of States, but which the States customarily hold as International Persons, and which they grant and receive reciprocally as members of the Family of Nations. They are rights and duties connected with the position of the States within the Family of Nations, and it is therefore only adequate to their importance to discuss them in a special chapter under that heading.
[177] See Stoerk in Holtzendorff's "Encyklopädie der Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der subjectiven öffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. 279; and others. The arguments of these writers have met, however, considerable resistance, and the existence of fundamental rights of States is emphatically defended by other writers. See, for instance, Pillet, l.c., Liszt, § 7, and Gareis, §§ 24 and 25. Westlake, I. p. 293, now joins the ranks of those writers who deny the existence of fundamental rights.
International Personality a Body of Qualities.
§ 113. International Personality is the term which characterises fitly the position of the States within the Family of Nations, since a State acquires International Personality through its recognition as a member. What it really means can be ascertained by going back to the basis[178] of the Law of Nations. Such basis is the common consent of the States that a body of legal rules shall regulate their intercourse with one another. Now a legally regulated intercourse between Sovereign States is only possible under the condition that a certain liberty of action is granted to every State, and that, on the other hand, every State consents to a certain restriction of action in the interest of the liberty of action granted to every other State. A State that enters into the Family of Nations retains the natural liberty of action due to it in consequence of its sovereignty, but at the same time takes over the obligation to exercise self-restraint and to restrict its liberty of action in the interest of that of other States. In entering into the Family of Nations a State comes as an equal to equals[179]; it demands that certain consideration be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy. Recognition of a State as a member of the Family of Nations contains recognition of such State's equality, dignity, independence, and territorial and personal supremacy. But the recognised State recognises in turn the same qualities in other members of that family, and thereby it undertakes responsibility for violations committed by it. All these qualities constitute as a body the International Personality of a State, and International Personality may therefore be said to be the fact, given by the very membership of the Family of Nations, that equality, dignity, independence, territorial and personal supremacy, and the responsibility of every State are recognised by every other State. The States are International Persons because they recognise these qualities in one another and recognise their responsibility for violations of these qualities.
Other Characteristics of the position of the States within the Family of Nations.
§ 114. But the position of the States within the Family of Nations is not exclusively characterised by these qualities. The States make a community because there is constant intercourse between them. Intercourse is therefore a condition without which the Family of Nations would not and could not exist. Again, there are exceptions to the protection of the qualities which constitute the International Personality of the States, and these exceptions are likewise characteristic of the position of the States within the Family of Nations. Thus, in time of war belligerents have a right to violate one another's Personality in many ways; even annihilation of the vanquished State, through subjugation after conquest, is allowed. Thus, further, in time of peace as well as in time of war, such violations of the Personality of other States are excused as are committed in self-preservation or through justified intervention. And, finally, jurisdiction is also important for the position of the States within the Family of Nations. Intercourse, self-preservation, intervention, and jurisdiction must, therefore, likewise be discussed in this chapter.
II EQUALITY, RANK, AND TITLES
Vattel, II. §§ 35-48—Westlake, I. pp. 308-312—Lawrence, §§ 112-119—Phillimore, I. § 147, II. §§ 27-43—Twiss, I. § 12—Halleck, I. pp. 116-140 —Taylor, § 160—Wheaton, §§ 152-159—Moore, I. § 24—Bluntschli, §§ 81-94—Hartmann, § 14—Heffter, §§ 27-28—Holtzendorff in Holtzendorff, II. pp. 11-14—Ullmann, §§ 36 and 37—Bonfils, Nos. 272-278—Despagnet, Nos. 167-171—Pradier-Fodéré, II. Nos. 484-594—Mérignhac, I. pp. 310-320—Rivier, I. § 9—Nys, II. pp. 194-199, 208-218—Calvo, I. §§ 210-259—Fiore, I. Nos. 428-451, and Code, Nos. 388-421—Martens, I. §§ 70-71—Lawrence, Essays, pp. 191-213—Westlake, Chapters, pp. 86-109—Huber, "Die Gleichheit der Staaten" (1909)—Streit in R.I. 2nd Ser. II. pp. 5-27—Hicks in A.J. II. (1908), pp. 530-561.
Legal Equality of States.
§ 115. The equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality.[180] Whatever inequality may exist between States as regards their size, population, power, degree of civilisation, wealth, and other qualities, they are nevertheless equals as International Persons. This legal equality has three important consequences:
[180] See above, §§ [14] and [113].
The first is that, whenever a question arises which has to be settled by the consent of the members of the Family of Nations, every State has a right to a vote, but to one vote only.
The second consequence is that legally—although not politically—the vote of the weakest and smallest State has quite as much weight as the vote of the largest and most powerful. Therefore any alteration of an existing rule or creation of a new rule of International Law by a law-making treaty has legal validity for the signatory Powers and those only who later on accede expressly or submit to it tacitly through custom.
The third consequence is that—according to the rule par in parem non habet imperium—no State can claim jurisdiction over another full-Sovereign State. Therefore, although foreign States can sue in foreign Courts,[181] they cannot as a rule be sued[182] there, unless they voluntarily accept[183] the jurisdiction of the Court concerned, or have submitted themselves to such jurisdiction by suing in such foreign Court.[184]
[181] See Phillimore, II. § 113 A; Nys, II. pp. 288-296; Loening, "Die Gerichtsbarkeit über fremde Staaten und Souveräne" (1903); and the following cases:—The United States v. Wagner (1867), L.R. 2 Ch. App. 582; The Republic of Mexico v. Francisco de Arrangoiz, and others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. See also below, § [348].
[182] See De Haber v. the Queen of Portugal (1851), 17 Ch. D. 171, and Vavasseur v. Krupp (1878), L.R. 9 Ch. D. 351.
[183] See Prioleau v. United States, &c. (1866), L.R. 2 Equity, 656.
[184] Provided the cross-suit is really connected with the claim in the action. As regards the German case of Hellfeld v. the Russian Government, see Köhler in Z.V. IV. (1910), pp. 309-333; the opinions of Laband, Meili, and Seuffert, ibidem, pp. 334-448; Baty in The Law Magazine and Review, XXV. (1909-1910), p. 207; Wolfman in A.J. IV. (1910), pp. 373-383.
To the rule of equality there are three exceptions:—
First, such States as can for some parts[185] only be considered International Persons, are not equals of the full members of the Family of Nations.
Secondly, States under suzerainty and under protectorate which are half-Sovereign and under the guardianship[186] of other States with regard to the management of external affairs, are not equals of States which enjoy full sovereignty.
[186] See above, §§ [91] and [93].
Thirdly, the part-sovereign member-States of a Federal State are not equals of full-Sovereign States.
It is, however, quite impossible to lay down a hard and fast general rule concerning the amount of inequality between the equal and the unequal States, as everything depends upon the circumstances and conditions of the special case.
Political Hegemony of Great Powers.
§ 116. Legal equality must not be confounded with political equality. The enormous differences between States as regards their strength are the result of a natural inequality which, apart from rank and titles, finds its expression in the province of policy. Politically, States are in no manner equals, as there is a difference between the Great Powers and others. Eight States must at present be considered as Great Powers—namely, Great Britain, Austria-Hungary, France, Germany, Italy, and Russia in Europe, the United States in America, and Japan in Asia. All arrangements made by the body of the Great Powers naturally gain the consent of the minor States, and the body of the six Great Powers in Europe is therefore called the European Concert. The Great Powers are the leaders of the Family of Nations, and every progress of the Law of Nations during the past is the result of their political hegemony, although the initiative towards the progress was frequently taken by a minor Power.
But, however important the position and the influence of the Great Powers may be, they are by no means derived from a legal basis or rule.[187] It is nothing else than powerful example which makes the smaller States agree to the arrangements of the Great Powers. Nor has a State the character of a Great Power by law. It is nothing else than its actual size and strength which makes a State a Great Power. Changes, therefore, often take place. Whereas at the time of the Vienna Congress in 1815 eight States—namely, Great Britain, Austria, France, Portugal, Prussia, Spain, Sweden, and Russia—were still considered Great Powers, their number decreased soon to five, when Portugal, Spain, and Sweden lost that character. But the so-called Pentarchy of the remaining Great Powers turned into a Hexarchy after the unification of Italy, because the latter became at once a Great Power. The United States rose as a Great Power out of the civil war in 1865, and Japan did the same out of the war with China in 1895. Any day a change may take place and one of the present Great Powers may lose its position, or one of the weaker States may become a Great Power. It is a question of political influence, and not of law, whether a State is or is not a Great Power. Whatever large-sized State with a large population gains such strength that its political influence must be reckoned with by the other Great Powers, becomes a Great Power itself.[188]
[187] This is, however, maintained by a few writers. See, for instance, Lorimer, I. p. 170; Lawrence, §§ 113 and 114; Westlake, I. pp. 308, 309; and Pitt Cobbett, "Cases and Opinions on International Law," 2nd ed. vol. I. (1909), p. 50.
[188] In contradistinction to the generally recognised political hegemony of the Great Powers, Lawrence (§§ 113 and 114) and Taylor (§ 69) maintain that the position of the Great Powers is legally superior to that of the smaller States, being a "Primacy" or "Overlordship." This doctrine, which professedly seeks to abolish the universally recognised rule of the equality of States, has no sound basis, and confounds political with legal inequality. I cannot agree with Lawrence when he says (§ 114, p. 276):—"... in a system of rules depending, like International Law, for their validity on general consent, what is political is legal also, if it is generally accepted and acted on." The Great Powers are de facto, by the smaller States, recognised as political leaders, but this recognition does not involve recognition of legal superiority.
Rank of States.
§ 117. Although the States are equals as International Persons, they are nevertheless not equals as regards rank. The differences as regards rank are recognised by International Law, but the legal equality of States within the Family of Nations is thereby as little affected as the legal equality of the citizens is within a modern State where differences in rank and titles of the citizens are recognised by Municipal Law. The vote of a State of lower rank has legally as much weight as that of a State of higher rank. And the difference in rank nowadays no longer plays such an important part as in the past, when questions of etiquette gave occasion for much dispute. It was in the sixteenth and seventeenth centuries that the rank of the different States was zealously discussed under the heading of droit de préséance or questions de préséance. The Congress at Vienna of 1815 intended to establish an order of precedence within the Family of Nations, but dropped this scheme on account of practical difficulties. Thus the matter is entirely based on custom, which recognises the following three rules:
(1) The States are divided into two classes—namely, States with and States without royal honours. To the first class belong Empires, Kingdoms, Grand Duchies, and the great Republics such as France, the United States of America, Switzerland, the South American Republics, and others. All other States belong to the second class. The Holy See is treated as though it were a State with royal honours. States with royal honours have exclusively the right to send and receive diplomatic envoys of the first class[189]—namely, ambassadors; and their monarchs address one another as "brothers" in their official letters. States with royal honours always precede other States.
(2) Full-Sovereign States always precede those under suzerainty or protectorate.
(3) Among themselves States of the same rank do not precede one another. Empires do not precede kingdoms, and since the time of Cromwell and the first French Republic monarchies do not precede republics. But the Roman Catholic States always concede precedence to the Holy See, and the monarchs recognise among themselves a difference with regard to ceremonials between emperors and kings on the one hand, and, on the other, grand dukes and other monarchs.
The "Alternat."
§ 118. To avoid questions of precedence, on signing a treaty, States of the same rank observe a conventional usage which is called the "Alternat." According to that usage the signatures of the signatory States of a treaty alternate in a regular order or in one determined by lot, the representative of each State signing first the copy which belongs to his State. But sometimes that order is not observed, and the States sign either in the alphabetical order of their names in French or in no order at all (pêle-mêle).
Titles of States.
§ 119. At the present time, States, save in a few exceptional instances, have no titles, although formerly such titles did exist. Thus the former Republic of Venice as well as that of Genoa was addressed as "Serene Republic," and up to the present day the Republic of San Marino[190] is addressed as "Most Serene Republic." Nowadays the titles of the heads of monarchical States are in so far of importance to International Law as they are connected with the rank of the respective States. Since States are Sovereign, they can bestow any titles they like on their heads. Thus, according to the German Constitution of 1871, the Kings of Prussia have the title "German Emperor"; the Kings of England have since 1877 borne the title "Emperor of India"; the Prince of Servia assumed in 1881, that of Roumania in 1882, that of Bulgaria in 1908, and that of Montenegro in 1910, the title "King." But no foreign State is obliged to recognise such a new title, especially when a higher rank would accrue to the respective State in consequence of such a new title of its head. In practice such recognition will regularly be given when the new title really corresponds with the size and the importance of the respective State.[191] Servia, Roumania, Bulgaria, and Montenegro had therefore no difficulty in obtaining recognition as kingdoms.
[190] See Treaty Series, 1900, No. 9.
[191] History, however, reports several cases where recognition was withheld for a long time. Thus the title "Emperor of Russia," assumed by Peter the Great in 1701, was not recognised by France till 1745, by Spain till 1759, nor by Poland till 1764. And the Pope did not recognise the kingly title of Prussia, assumed in 1701, till 1786.
With the titles of the heads of States are connected predicates. Emperors and Kings have the predicate "Majesty," Grand Dukes "Royal Highness," Dukes "Highness," other monarchs "Serene Highness." The Pope is addressed as "Holiness" (Sanctitas). Not to be confounded with these predicates, which are recognised by the Law of Nations, are predicates which originally were bestowed on monarchs by the Pope and which have no importance for the Law of Nations. Thus the Kings of France called themselves Rex Christianissimus or "First-born Son of the Church," the Kings of Spain have called themselves since 1496 Rex Catholicus, the Kings of England since 1521 Defensor Fidei, the Kings of Portugal since 1748 Rex Fidelissimus, the Kings of Hungary since 1758 Rex Apostolicus.
III DIGNITY
Vattel, II. §§ 35-48—Lawrence, § 120—Phillimore, II. §§ 27-43—Halleck, I. pp. 124-142—Taylor, § 162—Wheaton, § 160—Bluntschli, §§ 82-83—Hartmann, § 15—Heffter, §§ 32, 102, 103—Holtzendorff in Holtzendorff, II. pp. 64-69—Ullmann, § 38—Bonfils, Nos. 279-284—Despagnet, Nos. 184-186—Moore, I. pp. 310-320—Pradier-Fodéré, II. Nos. 451-483—Rivier, I. pp. 260-262—Nys, II. pp. 212-214—Calvo, III. §§ 1300-1302—Fiore, I. Nos. 439-451—Martens, I. § 78.
Dignity a Quality.
§ 120. The majority of text-book writers maintain that there is a fundamental right of reputation and of good name belonging to every State. Such a right, however, does not exist, because no duty corresponding to it can be traced within the Law of Nations. Indeed, the reputation of a State depends just as much upon behaviour as that of every citizen within its boundaries. A State which has a corrupt government and behaves unfairly and perfidiously in its intercourse with other States will be looked down upon and despised, whereas a State which has an uncorrupt government and behaves fairly and justly in its international dealings will be highly esteemed. No law can give a good name and reputation to a rogue, and the Law of Nations does not and cannot give a right to reputation and good name to such a State as has not acquired them through its attitude. There are some States—nomina sunt odiosa!—which indeed justly possess a bad reputation.
On the other hand, a State as a member of the Family of Nations possesses dignity as an International Person. Dignity is a quality recognised by other States, and it adheres to a State from the moment of its recognition till the moment of its extinction, whatever behaviour it displays. Just as the dignity of every citizen within a State commands a certain amount of consideration on the part of fellow-citizens, so the dignity of a State commands a certain amount of consideration on the part of other States, since otherwise the different States could not live peaceably in the community which is called the Family of Nations.
Consequences of the Dignity of States.
§ 121. Since dignity is a recognised quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. These are chiefly the rights to demand—that their heads shall not be libelled and slandered; that their heads and likewise their diplomatic envoys shall be granted exterritoriality and inviolability when abroad, and at home and abroad in the official intercourse with representatives of foreign States shall be granted certain titles; that their men-of-war shall be granted exterritoriality when in foreign waters; that their symbols of authority, such as flags and coats of arms, shall not be made improper use of and not be treated with disrespect on the part of other States. Every State must not only itself comply with the duties corresponding to these rights of other States, but must also prevent its subjects from such acts as violate the dignity of foreign States, and must punish them for acts of that kind which it could not prevent. The Municipal Laws of all States must therefore provide for the punishment of those who commit offences against the dignity of foreign States,[192] and, if the Criminal Law of the land does not contain such provisions, it is no excuse for failure by the respective States to punish offenders. But it must be emphasised that a State must prevent and punish such acts only as really violate the dignity of a foreign State. Mere criticism of policy, historical verdicts concerning the attitude of States and their rulers, utterances of moral indignation condemning immoral acts of foreign Governments and their monarchs need neither be suppressed nor punished.
[192] According to the Criminal Law of England, "every one is guilty of a misdemeanour who publishes any libel tending to degrade, revile, or expose to hatred and contempt any foreign prince or potentate, ambassador or other foreign dignitary, with the intent to disturb peace and friendship between the United Kingdom and the country to which any such person belongs." See Stephen, "A Digest of the Criminal Law," article 91.
Maritime Ceremonials.
§ 122. Connected with the dignity of States are the maritime ceremonials between vessels and between vessels and forts which belong to different States. In former times discord and jealousy existed between the States regarding such ceremonials, since they were looked upon as means of keeping up the superiority of one State over another. Nowadays, so far as the Open Sea is concerned, they are considered as mere acts of courtesy recognising the dignity of States. They are the outcome of international usages, and not of International Law, in honour of the national flags. They are carried out by dipping flags or striking sails or firing guns.[193] But so far as the territorial maritime belt is concerned, littoral States can make laws concerning maritime ceremonials to be observed by foreign merchantmen.[194]
[193] See Halleck, I. pp. 124-142, where the matter is treated with all details. See also below, § [257].
IV INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY
Vattel, I. Préliminaires, §§ 15-17—Hall, § 10—Westlake, I. pp. 308-312—Lawrence, §§ 58-61—Phillimore, I. §§ 144-149—Twiss, I. § 20—Halleck, I. pp. 93-113—Taylor, § 160—Wheaton, §§ 72-75—Bluntschli, §§ 64-69—Hartmann, § 15—Heffter, §§ 29 and 31—Holtzendorff in Holtzendorff, II. pp. 36-60—Gareis, §§ 25-26—Ullmann, § 38—Bonfils, Nos. 253-271—Despagnet, Nos. 187-189—Mérignhac, I. pp. 233-383—Pradier-Fodéré, I. Nos. 287-332—Rivier, I. § 21—Nys, II. pp. 182-184—Calvo, I. §§ 107-109—Fiore, I. Nos. 372-427, and Code, Nos. 180-387—Martens, I. §§ 74 and 75—Westlake, Chapters, pp. 86-106.
Independence and Territorial as well as Personal Supremacy as Aspects of Sovereignty.
§ 123. Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy.
For these reasons a State as an International Person possesses independence and territorial and personal supremacy. These three qualities are nothing else than three aspects of the very same sovereignty of a State, and there is no sharp boundary line between them. The distinction is apparent and useful, although internal independence is nothing else than sovereignty comprising territorial supremacy, but viewed from a different point of view.
Consequences of Independence and Territorial and Personal Supremacy.
§ 124. Independence and territorial as well as personal supremacy are not rights, but recognised and therefore protected qualities of States as International Persons. The protection granted to these qualities by the Law of Nations finds its expression in the right of every State to demand that other States abstain themselves, and prevent their agents and subjects, from committing any act which contains a violation of its independence and its territorial as well as personal supremacy.
In consequence of its external independence, a State can manage its international affairs according to discretion, especially enter into alliances and conclude other treaties, send and receive diplomatic envoys, acquire and cede territory, make war and peace.
In consequence of its internal independence and territorial supremacy, a State can adopt any Constitution it likes, arrange its administration in a way it thinks fit, make use of legislature as it pleases, organise its forces on land and sea, build and pull down fortresses, adopt any commercial policy it likes, and so on. According to the rule, quidquid est in territorio est etiam de territorio, all individuals and all property within the territory of a State are under the latter's dominion and sway, and even foreign individuals and property fall at once under the territorial supremacy of a State when they cross its frontier. Aliens residing in a State can therefore be compelled to pay rates and taxes, and to serve in the police under the same conditions as citizens for the purpose of maintaining order and safety. But aliens may be expelled, or not received at all. On the other hand, hospitality may be granted to them whatever act they have committed abroad, provided they abstain from making the hospitable territory the basis for attempts against a foreign State. And a State can through naturalisation adopt foreign subjects residing on its territory without the consent of the home State, provided the individuals themselves give their consent.
In consequence of its personal supremacy, a State can treat its subjects according to discretion, and it retains its power even over such subjects as emigrate without thereby losing their citizenship. A State may therefore command its citizens abroad to come home and fulfil their military service, may require them to pay rates and taxes for the support of the home finances, may ask them to comply with certain conditions in case they desire marriages concluded abroad or wills made abroad recognised by the home authorities, can punish them on their return for crimes they have committed abroad.
Violations of Independence and Territorial and Personal Supremacy.
§ 125. The duty of every State itself to abstain and to prevent its agents and subjects from any act which contains a violation[195] of another State's independence or territorial and personal supremacy is correlative to the respective right of the other State. It is impossible to enumerate all such actions as might contain a violation of this duty. But it is of value to give some illustrative examples. Thus, in the interest of the independence of other States, a State is not allowed to interfere in the management of their international affairs nor to prevent them from doing or to compel them to do certain acts in their international intercourse. Further, in the interest of the territorial supremacy of other States, a State is not allowed to send its troops, its men-of-war, or its police forces into or through foreign territory, or to exercise an act of administration or jurisdiction on foreign territory, without permission.[196] Again, in the interest of the personal supremacy of other States, a State is not allowed to naturalise aliens residing on its territory without their consent,[197] nor to prevent them from returning home for the purpose of fulfilling military service or from paying rates and taxes to their home State, nor to incite citizens of foreign States to emigration.
[196] But neighbouring States very often give such permission to one another. Switzerland, for instance, allows German Custom House officers to be stationed on two railway stations of Basle for the purpose of examining the luggage of travellers from Basle to Germany.
[197] See, however, below (§ [299]), where the fact is stated that some States naturalise an alien through the very fact of his taking domicile on their territory.
Restrictions upon Independence.
§ 126. Independence is not boundless liberty of a State to do what it likes without any restriction whatever. The mere fact that a State is a member of the Family of Nations restricts its liberty of action with regard to other States because it is bound not to intervene in the affairs of other States. And it is generally admitted that a State can through conventions, such as a treaty of alliance or neutrality and the like, enter into many obligations which hamper it more or less in the management of its international affairs. Independence is a question of degree, and it is therefore also a question of degree whether the independence of a State is destroyed or not by certain restrictions. Thus it is generally admitted that States under suzerainty or under protectorate are so much restricted that they are not fully independent, but half-Sovereign. And the same is the case with the member-States of a Federal State which are part-Sovereign. On the other hand, the restriction connected with the neutralisation of States does not, according to the correct opinion,[198] destroy their independence, although they cannot make war except in self-defence, cannot conclude alliances, and are in other ways hampered in their liberty of action.
From a political and a legal point of view it is of great importance that the States imposing and those accepting restrictions upon independence should be clear in their intentions. For the question may arise whether these restrictions make the respective State a dependent one.
Thus through article 4 of the Convention of London of 1884 between Great Britain and the former South African Republic stipulating that the latter should not conclude any treaty with any foreign State, the Orange Free State excepted, without approval on the part of Great Britain, the Republic was so much restricted that Great Britain considered herself justified in defending the opinion that the Republic was not an independent State, although the Republic itself and many writers were of a different opinion.[199]
[199] It is of interest to state the fact that, before the last phase of the conflict between Great Britain and the Republic, influential Continental writers stated the suzerainty of Great Britain over the Republic. See Rivier, I. p. 89, and Holtzendorff in Holtzendorff, II. p. 115.
Thus, to give another example, through article 1 of the Treaty of Havana[200] of May 22, 1903, between the United States of America and Cuba, stipulating that Cuba shall never enter into any such treaty with a foreign Power as will impair, or tend to impair, the independence of Cuba, and shall abstain from other acts, the Republic of Cuba is so much restricted that some writers maintain—wrongly, I believe—that Cuba is under an American protectorate and only a half-Sovereign State.
[200] See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79. As regards the international position of Cuba, see Whitcomb, "La situation internationale de Cuba" (1905).
Again, the Republic of Panama is, by the Treaty of Washington[201] of 1904, likewise burdened with some restrictions in favour of the United States, but here, too, it would be wrong to maintain that Panama is under an American protectorate.
[201] See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 601.
Restrictions upon Territorial Supremacy.
§ 127. Just like independence, territorial supremacy does not give a boundless liberty of action. Thus, by customary International Law every State has a right to demand that its merchantmen can pass through the maritime belt of other States. Thus, further, navigation on so-called international rivers in Europe must be open to merchantmen of all States. Thus, thirdly, foreign monarchs and envoys, foreign men-of-war, and foreign armed forces must be granted exterritoriality. Thus, fourthly, through the right of protection over citizens abroad which is held by every State according to customary International Law, a State cannot treat foreign citizens passing through or residing on its territory arbitrarily according to discretion as it might treat its own subjects; it cannot, for instance, compel them to serve[202] in its army or navy. Thus, to give another and fifth example, a State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State—for instance, to stop or to divert the flow of a river which runs from its own into neighbouring territory.[203]
[202] Great Britain would seem to uphold an exception to this rule, for Lord Reay, one of her delegates, declared—see "Deuxième Conférence Internationale de la Paix, Actes et Documents," vol. III. p. 41—the following at the second Hague Peace Conference of 1907: "Nous reconnaissons qu'en règle générale le neutre est exempt de tout service militaire dans l'Etat où il réside. Cependant dans les colonies britanniques et, dans une certaine mesure, dans tous les pays en voie de formation, la situation est tout autre et la population toute entière, sans distinction de nationalité, peut être appelée sous les armes pour défendre leurs foyers menacés."
In contradistinction to these restrictions by the customary Law of Nations, a State can through treaties enter into obligations of many a kind without thereby losing its internal independence and territorial supremacy. Thus France by three consecutive treaties of peace—namely, that of Utrecht of 1713, that of Aix-la-Chapelle of 1748, and that of Paris of 1763—entered into the obligation to pull down and not to rebuild the fortifications of Dunkirk.[204] Napoleon I. imposed by the Peace Treaty of Tilsit of 1807 upon Prussia the restriction not to keep more than 42,000 men under arms. Again, article 29 of the Treaty of Berlin of 1878 imposed upon Montenegro the restriction not to possess a navy.[205] There is hardly a State in existence which is not in one point or another restricted in its territorial supremacy by treaties with foreign Powers.
[204] This restriction was abolished by article 17 of the Treaty of Paris of 1783.
[205] It is doubtful whether this restriction is still in force; see below, § [258].
Restrictions upon Personal Supremacy.
§ 128. Personal Supremacy does not give a boundless liberty of action either. Although the citizens of a State remain under its power when abroad, such State is restricted in the exercise of this power with regard to all those matters in which the foreign State on whose territory these citizens reside is competent in consequence of its territorial supremacy. The duty to respect the territorial supremacy of a foreign State must prevent a State from doing all acts which, although they are according to its personal supremacy within its competence, would violate the territorial supremacy of this foreign State. Thus, for instance, a State is prevented from requiring such acts from its citizens abroad as are forbidden to them by the Municipal Law of the land in which they reside.
But a State may also by treaty obligation be for some parts restricted in the liberty of action with regard to its citizens. Thus articles 5, 25, 35, and 44 of the Treaty of Berlin of 1878 restrict the personal supremacy of Bulgaria, Montenegro, Servia, and Roumania in so far as these States are thereby obliged not to impose any religious disabilities on any of their subjects.[206]
V SELF-PRESERVATION
Vattel, II. §§ 49-53—Hall, §§ 8, 83-86—Westlake, I. pp. 296-304—Phillimore, I. §§ 210-220—Twiss, I. §§ 106-112—Halleck, I. pp. 93-113—Taylor, §§ 401-409—Wheaton, §§ 61-62—Moore, II. §§ 215-219—Hartmann, § 15—Heffter, § 30—Holtzendorff in Holtzendorff, II. pp. 51-56—Gareis, § 25—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 242-252—Despagnet, Nos. 172-175—Mérignhac, I. pp. 239-245—Pradier-Fodéré, I. Nos. 211-286—Rivier, I. § 20—Nys, II. pp. 178-181—Calvo, I. §§ 208-209—Fiore, I. Nos. 452-466—Martens, I. § 73—Westlake, Chapters, pp. 110-125.
Self-preservation an excuse for violations.
§ 129. From the earliest time of the existence of the Law of Nations self-preservation was considered sufficient justification for many acts of a State which violate other States. Although, as a rule, all States have mutually to respect one another's Personality and are therefore bound not to violate one another, as an exception, certain violations of another State committed by a State for the purpose of self-preservation are not prohibited by the Law of Nations. Thus, self-preservation is a factor of great importance for the position of the States within the Family of Nations, and most writers maintain that every State has a fundamental right of self-preservation.[207] But nothing of the kind is actually the case, if the real facts of the law are taken into consideration. If every State really had a right of self-preservation, all the States would have the duty to admit, suffer, and endure every violation done to one another in self-preservation. But such duty does not exist. On the contrary, although self-preservation is in certain cases an excuse recognised by International Law, no State is obliged patiently to submit to violations done to it by such other State as acts in self-preservation, but can repulse them. It is a fact that in certain cases violations committed in self-preservation are not prohibited by the Law of Nations. But, nevertheless, they remain violations and can therefore be repulsed. Self-preservation is consequently an excuse, because violations of other States are in certain exceptional cases not prohibited when they are committed for the purpose and in the interest of self-preservation, although they need not patiently be suffered and endured by the States concerned.
[207] This right was formerly frequently called droit de convenance, and was said to exist in the right of every State to act in favour of its interests in case of a conflict between its own and the interests of another State. See Heffter, § 26.
What acts of self-preservation are excused.
§ 130. It is frequently maintained that every violation is excused so long as it was caused by the motive of self-preservation, but it becomes more and more recognised that violations of other States in the interest of self-preservation are excused in cases of necessity only. Such acts of violence in the interest of self-preservation are exclusively excused as are necessary in self-defence, because otherwise the acting State would have to suffer or have to continue to suffer a violation against itself. If an imminent violation or the continuation of an already commenced violation can be prevented and redressed otherwise than by a violation of another State on the part of the endangered State, this latter violation is not necessary, and therefore not excused and justified. When, to give an example, a State is informed that on neighbouring territory a body of armed men is being organised for the purpose of a raid into its own territory, and when the danger can be removed through an appeal to the authorities of the neighbouring country, no case of necessity has arisen. But if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading the neighbouring country and disarming the intending raiders.
The reason of the thing, of course, makes it necessary for every State to judge for itself when it considers a case of necessity has arisen, and it is therefore impossible to lay down a hard-and-fast rule regarding the question when a State can or cannot have recourse to self-help which violates another State. Everything depends upon the circumstances and conditions of the special case, and it is therefore of value to give some historical examples.
Case of the Danish Fleet (1807).
§ 131. After the Peace of Tilsit of 1807 the British Government[208] was cognisant of the provision of some secret articles of this treaty that France should be at liberty to seize the Danish fleet and to make use of it against Great Britain. This plan, when carried out, would have endangered the position of Great Britain, which was then waging war against France. As Denmark was not capable of defending herself against an attack of the French army in North Germany under Bernadotte and Davoust, who had orders to invade Denmark, the British Government requested Denmark to deliver up her fleet to the custody of Great Britain, and promised to restore it after the war. And at the same time the means of defence against French invasion and a guaranty of her whole possessions were offered to Denmark by England. The latter, however, refused to comply with the British demands, whereupon the British considered a case of necessity in self-preservation had arisen, shelled Copenhagen, and seized the Danish fleet.
[208] I follow Hall's (§ 86) summary of the facts.
Case of Amelia Island.
§ 132. "Amelia Island, at the mouth of St. Mary's River, and at that time in Spanish territory, was seized in 1817 by a band of buccaneers, under the direction of an adventurer named McGregor, who in the name of the insurgent colonies of Buenos Ayres and Venezuela preyed indiscriminately on the commerce of Spain and of the United States. The Spanish Government not being able or willing to drive them off, and the nuisance being one which required immediate action, President Monroe called his Cabinet together in October 1817, and directed that a vessel of war should proceed to the island and expel the marauders, destroying their works and vessels."[209]
[209] See Wharton, § 50 a, and Moore, II. § 216.
Case of the Caroline.
§ 133. In 1837, during the Canadian rebellion, several hundreds of insurgents got hold of an island in the river Niagara, on the territory of the United States, and with the help of American subjects equipped a boat called the Caroline, with the purpose of crossing into Canadian territory and bringing material help to the insurgents. The Canadian Government, timely informed of the imminent danger, sent a British force over into the American territory, which obtained possession of the Caroline, seized her arms, and then sent her adrift down the falls of the Niagara. The United States complained of this British violation of her territorial supremacy, but Great Britain was in a position to prove that her act was necessary in self-preservation, since there was not sufficient time to prevent the imminent invasion of her territory through application to the United States Government.[210]
[210] See Wharton, I. § 50 c, Moore, II. § 217, and Hall, § 84. With the case of the Caroline is connected the case of Macleod, which will be discussed below, § [446]. Hall (§ 86), Martens (I. § 73), and others quote also the case of the Virginius (1873) as an example of necessity of self-preservation, but it seems that the Spanish Government did not plead self-preservation but piracy as justification of the capture of the vessel (see Moore, II. § 309, pp. 895-903). That a vessel sailing under another State's flag can nevertheless be seized on the high seas in case she is sailing to a port of the capturing State for the purpose of an invasion or bringing material help to insurgents, there is no doubt. No better case of necessity of self-preservation could be given, since the danger is imminent and can be frustrated only by capture of the vessel.
VI INTERVENTION
Vattel, II. §§ 54-62—Hall, §§ 88-95—Westlake, I. pp. 304-308—Lawrence, §§ 62-70—Phillimore, I. §§ 390-415A—Halleck, I. pp. 94-109—Taylor, §§ 410-430—Walker, § 7—Wharton, I. §§ 45-72—Moore, VI. §§ 897-926—Wheaton, §§ 63-71—Bluntschli, §§ 474-480—Hartmann, § 17—Heffter, §§ 44-46—Geffcken in Holtzendorff, II. pp. 131-168—Gareis, § 26—Liszt, § 7—Ullmann, §§ 163-164—Bonfils, Nos. 295-323—Despagnet, Nos. 193-216—Mérignhac, I. pp. 284-310—Pradier-Fodéré, I. Nos. 354-441—Rivier, I. § 31—Nys, II. pp. 185-193, 200-205—Calvo, I. §§ 110-206—Fiore, I. Nos. 561-608, and Code, Nos. 543-557—Martens, I. § 76—Bernard, "On the Principle of non-Intervention" (1860)—Hautefeuille, "Le principe de non-intervention" (1863)—Stapleton, "Intervention and Non-intervention, or the Foreign Policy of Great Britain from 1790 to 1865" (1866)—Geffcken, "Das Recht der Intervention" (1887)—Kebedgy, "De l'intervention" (1890)—Floecker, "De l'intervention en droit international" (1896)—Drago, "Cobro coercitivo de deudas publicas" (1906)—Moulin, "La doctrine de Drago" (1908).
Conception and character of Intervention.
§ 134. Intervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. Such intervention can take place by right or without a right, but it always concerns the external independence or the territorial or personal supremacy of the respective State, and the whole matter is therefore of great importance for the position of the States within the Family of Nations. That intervention is, as a rule, forbidden by the Law of Nations which protects the International Personality of the States, there is no doubt. On the other hand, there is just as little doubt[211] that this rule has exceptions, for there are interventions which take place by right, and there are others which, although they do not take place by right, are nevertheless admitted by the Law of Nations and are excused in spite of the violation of the Personality of the respective States they involve.
[211] The so-called doctrine of non-intervention as defended by some Italian writers (see Fiore, I. No. 565), who deny that intervention is ever justifiable, is a political doctrine without any legal basis whatever.
Intervention can take place in the external as well as in the internal affairs of a State. It concerns in the first case the external independence, and in the second either the territorial or the personal supremacy. But it must be emphasised that intervention proper is always dictatorial interference, not interference pure and simple.[212] Therefore intervention must neither be confounded with good offices, nor with mediation, nor with intercession, nor with co-operation, because none of these imply a dictatorial interference. Good offices is the name for such acts of friendly Powers interfering in a conflict between two other States as tend to call negotiations into existence for the peaceable settlement of the conflict, and mediation is the name for the direct conduct on the part of a friendly Power of such negotiations.[213] Intercession is the name for the interference consisting in friendly advice given or friendly offers made with regard to the domestic affairs of another State. And, lastly, co-operation is the appellation of such interference as consists in help and assistance lent by one State to another at the latter's request for the purpose of suppressing an internal revolution. Thus, for example, Russia sent troops in 1849, at the request of Austria, into Hungary to assist Austria in suppressing the Hungarian revolt.
[212] Many writers constantly commit this confusion.
[213] See below, [vol. II. § 9].
Intervention by Right.
§ 135. It is apparent that such interventions as take place by right must be distinguished from others. Wherever there is no right of intervention, although it may be admissible and excused, an intervention violates either the external independence or the territorial or the personal supremacy. But if an intervention takes place by right, it never contains such a violation, because the right of intervention is always based on a legal restriction upon the independence or territorial or personal supremacy of the State concerned, and because the latter is in duty bound to submit to the intervention. Now a State may have a right of intervention against another State, mainly for six reasons:[214]
[214] The enumeration is not intended to be exhaustive.
(1) A Suzerain State has a right to intervene in many affairs of the Vassal, and a State which holds a protectorate has a right to intervene in all the external affairs of the protected State.
(2) If an external affair of a State is at the same time by right an affair of another State, the latter has a right to intervene in case the former deals with that affair unilaterally. The events of 1878 provide an illustrative example. Russia had concluded the preliminary Peace of San Stefano with defeated Turkey; Great Britain protested because the conditions of this peace were inconsistent with the Treaty of Paris of 1856 and the Convention of London of 1871, and Russia agreed to the meeting of the Congress of Berlin for the purpose of arranging matters. Had Russia persisted in carrying out the preliminary peace, Great Britain as well as other signatory Powers of the Treaty of Paris and the Convention of London doubtless possessed a right of intervention.
(3) If a State which is restricted by an international treaty in its external independence or its territorial or personal supremacy does not comply with the restrictions concerned, the other party or parties have a right to intervene. Thus the United States of America, in 1906, exercised intervention in Cuba in conformity with article 3 of the Treaty of Havana[215] of 1903, which stipulates: "The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a Government adequate for the protection of life, property, and individual liberty...." And likewise the United States of America, in 1904, exercised intervention in Panama in conformity with article 7 of the Treaty of Washington[216] in 1903, which stipulates: "The same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon and the territories and harbours adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order."
[215] See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.—Even if no special right of intervention is stipulated, it nevertheless exists in such cases. Thus—see below, § [574]—those Powers which have guaranteed the integrity of Norway under the condition that she does not cede any part of her territory to any foreign Power would have a right to intervene in case such a cession were contemplated, although the treaty concerned does not stipulate this.
[216] See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 599.
(4) If a State in time of peace or war violates such rules of the Law of Nations as are universally recognised by custom or are laid down in law-making treaties, other States have a right to intervene and to make the delinquent submit to the rules concerned. If, for instance, a State undertook to extend its jurisdiction over the merchantmen of another State on the high seas, not only would this be an affair between the two States concerned, but all other States would have a right to intervene because the freedom of the open sea is a universally recognised principle. Or if a State which is a party to the Hague Regulations concerning Land Warfare were to violate one of these Regulations, all the other signatory Powers would have a right to intervene.
(5) A State that has guaranteed by treaty the form of government of a State or the reign of a certain dynasty over the same has a right[217] to intervene in case of change of form of government or of dynasty, provided the respective treaty of guaranty was concluded between the respective States and not between their monarchs personally.
[217] But this is not generally recognised; see, for instance, Hall, § 93, who denies the existence of such a right. I do not see the reason why a State should not be able to undertake the obligation to retain a certain form of government or dynasty. That historical events can justify such State in considering itself no longer bound by such treaty according to the principle rebus sic stantibus (see below, § [539]) is another matter.
(6) The right of protection[218] over citizens abroad, which a State holds, may cause an intervention by right to which the other party is legally bound to submit. And it matters not whether protection of the life, security, honour, or property of a citizen abroad is concerned.
The so-called Drago[219] doctrine, which asserts the rule that intervention is not allowed for the purpose of making a State pay its public debts, is unfounded, and has not received general recognition, although Argentina and some other South American States tried to establish this rule at the second Hague Peace Conference of 1907. But this Conference adopted, on the initiative of the United States of America, a "Convention[220] respecting the Limitation of the Employment of Force for the Recovery of Contract Debts." According to article 1 of this Convention, the contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. This undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, renders the settlement of the compromis impossible, or, after the arbitration, fails to submit to the award.—It must be emphasised that the stipulations of this Convention concern the recovery of all contract debts, whether or no they arise from public loans.
[219] The Drago doctrine originates from Louis M. Drago, sometime Foreign Secretary of the Republic of Argentina. See Drago, "Cobro coercitivo de deudas publicas" (1906); Barclay, "Problems of International Practice, &c." (1907), pp. 115-122; Moulin, "La Doctrine de Drago" (1908); Higgins, "The Hague Peace Conferences, &c." (1909), pp. 184-197; Scott, "The Hague Peace Conferences" (1909), vol. I. pp. 415-422; Calvo in R.I. 2nd Ser. V. (1903), pp. 597-623; Drago in R.G. XIV. (1907), pp. 251-287; Moulin in R.G. XIV. (1907), pp. 417-472; Hershey in A.J. I. (1907), pp. 26-45; Drago in A.J. I. (1907), pp. 692-726.
[220] See Scott in A.J. II. (1908), pp. 78-94.
Admissibility of Intervention in default of Right.
§ 136. In contradistinction to intervention by right, there are other interventions which must be considered admissible, although they violate the independence or the territorial or personal supremacy of the State concerned, and although such State has by no means any legal duty to submit patiently and suffer the intervention. Of such interventions in default of right there are two kinds generally admitted and excused—namely, such as are necessary in self-preservation and such as are necessary in the interest of the balance of power.
(1) As regards interventions for the purpose of self-preservation, it is obvious that, if any necessary violation committed in self-preservation of the International Personality of other States is, as shown above (§ 130), excused, such violation must also be excused as is contained in an intervention. And it matters not whether such an intervention exercised in self-preservation is provoked by an actual or imminent intervention on the part of a third State, or by some other incident.
(2) As regards intervention in the interest of the balance of power, it is likewise obvious that it must be excused. An equilibrium between the members of the Family of Nations is an indispensable[221] condition of the very existence of International Law. If the States could not keep one another in check, all Law of Nations would soon disappear, as, naturally, an over-powerful State would tend to act according to discretion instead of according to law. Since the Westphalian Peace of 1648 the principle of balance of power has played a preponderant part in the history of Europe. It found express recognition in 1713 in the Treaty of Peace of Utrecht, it was the guiding star at the Vienna Congress in 1815 when the map of Europe was rearranged, at the Congress of Paris in 1856, the Conference of London in 1867, and the Congress of Berlin in 1878. The States themselves and the majority of writers agree upon the admissibility of intervention in the interest of balance of power. Most of the interventions exercised in the interest of the preservation of the Turkish Empire must, in so far as they are not based on treaty rights, be classified as interventions in the interest of balance of power. Examples of this are supplied by collective interventions exercised by the Powers in 1886 for the purpose of preventing the outbreak of war between Greece and Turkey, and in 1897 during the war between Greece and Turkey with regard to the island of Crete.
[221] A survey of the opinions concerning the value of the principle of balance of power is given by Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 40-50, but Bulmerincq himself rejects the principle. See also Donnadieu, "Essai sur la théorie de l'équilibre" (1900) where the matter is exhaustively treated, and Dupuis, "Le principe d'équilibre et le concert européen" (1909), pp. 90-108, and 494-513. It is necessary to emphasise that the principle of the balance of power is not a legal principle and therefore not one of International Law, but one of International policy; it is a political principle indispensable to the existence of International Law in its present condition.
Intervention in the interest of Humanity.
§ 137. Many jurists maintain that intervention is likewise admissible, or even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war. That the Powers have in the past exercised intervention on these grounds, there is no doubt. Thus Great Britain, France, and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey, because public opinion was horrified at the cruelties committed during this struggle. And many a time interventions have taken place to stop the persecution of Christians in Turkey. But whether there is really a rule of the Law of Nations which admits such interventions may well be doubted. Yet, on the other hand, it cannot be denied that public opinion and the attitude of the Powers are in favour of such interventions, and it may perhaps be said that in time the Law of Nations will recognise the rule that interventions in the interests of humanity are admissible provided they are exercised in the form of a collective intervention of the Powers.[222]
[222] See Hall, §§ 91 and 95, where the merits of the problem are discussed from all sides. See also below, § [292], and Rougier in R.G. XVII. (1910), pp. 468-526.
Intervention de facto a Matter of Policy.
§ 138. Careful analysis of the rules of the Law of Nations regarding intervention and the hitherto exercised practice of intervention make it apparent that intervention is de facto a matter of policy just like war. This is the result of the combination of several factors. Since, even in the cases in which it is based on a right, intervention is not compulsory, but is solely in the discretion of the State concerned, it is for that reason alone a matter of policy. Since, secondly, every State must decide for itself whether vital interests of its own are at stake and whether a case of necessity in the interest of self-preservation has arisen, intervention is for this part again a matter of policy. Since, thirdly, the question of balance of power is so complicated and the historical development of the States involves gradually an alteration of the division of power between the States, it must likewise be left to the appreciation of every State whether or not it considers the balance of power endangered and, therefore, an intervention necessary. And who can undertake to lay down a hard-and-fast rule with regard to the amount of inhumanity on the part of a Government that would justify intervention according to the Law of Nations?
No State will ever intervene in the affairs of another if it has not some important interest in doing so, and it has always been easy for such State to find or pretend some legal justification for an intervention, be it self-preservation, balance of power, or humanity. There is no great danger to the welfare of the States in the fact that intervention is de facto a matter of policy. Too many interests are common to all the members of the Family of Nations, and too great is the natural jealousy between the Great Powers, for an abuse of intervention on the part of one powerful State without calling other States into the field. Since unjustified intervention violates the very principles of the Law of Nations, and since, as I have stated above [(§ 135)], in case of a violation of these principles on the part of a State every other State has a right to intervene, any unjustifiable intervention by one State in the affairs of another gives a right of intervention to all other States. Thus it becomes apparent here, as elsewhere, that the Law of Nations is intimately connected with the interests of all the States, and that they must themselves secure the maintenance and realisation of this law. This condition of things tends naturally to hamper more the ambitions of weaker States than those of the several Great Powers, but it seems unalterable.
The Monroe Doctrine.
§ 139. The de facto political character of the whole matter of intervention becomes clearly apparent through the so-called Monroe doctrine[223] of the United States of America. This doctrine, at its first appearance, was indirectly a product of the policy of intervention in the interest of legitimacy which the Holy Alliance pursued in the beginning of the nineteenth century after the downfall of Napoleon. The Powers of this alliance were inclined to extend their policy of intervention to America and to assist Spain in regaining her hold over the former Spanish colonies in South America which had declared and maintained their independence, and which were recognised as independent Sovereign States by the United States of America. To meet and to check the imminent danger, President James Monroe delivered his celebrated Message to Congress on December 2, 1823. This Message contains two quite different, but nevertheless equally important, declarations.
[223] Wharton, § 57; Dana's Note No. 36 to Wharton, p. 36; Tucker, "The Monroe Doctrine" (1885); Moore, "The Monroe Doctrine" (1895), and Digest, VI. §§ 927-968; Cespedès, "La doctrine de Monroe" (1893); Mérignhac, "La doctrine de Monroe à la fin du XIX^e siècle" (1896); Beaumarchais, "La doctrine de Monroe" (1898); Redaway, "The Monroe Doctrine" (1898); Pékin, "Les États-Unis et la doctrine de Monroe" (1900).
(1) In connection with the unsettled boundary lines in the north-west of the American continent, the Message declared "that the American continents, by the free and independent condition which they have assumed and maintained, are henceforth not to be considered as subjects for future colonisation by any European Power." This declaration was never recognised by the European Powers, and Great Britain and Russia protested expressly against it. In fact, however, no occupation of American territory has since then taken place on the part of a European State.
(2) In regard to the contemplated intervention of the Holy Alliance between Spain and the South American States, the Message declared that the United States had not intervened, and never would intervene, in wars in Europe, but could not, on the other hand, in the interest of her own peace and happiness, allow the allied European Powers to extend their political system to any part of America and try to intervene in the independence of the South American republics.
(3) Since the time of President Monroe, the Monroe doctrine has been gradually somewhat extended in so far as the United States claims a kind of political hegemony over all the States of the American continent. Whenever a conflict occurs between such an American State and a European Power, the United States is ready to exercise intervention. Through the civil war her hands were to a certain extent bound in the sixties of the last century, and she could not prevent the occupation of Mexico by the French army, but she intervened[224] in 1865. Again, she did not intervene in 1902 when Great Britain, Germany, and Italy took combined action against Venezuela, because she was cognisant of the fact that this action intended merely to make Venezuela comply with her international duties. But she intervened in 1896 in the boundary conflict between Great Britain and Venezuela when Lord Salisbury had sent an ultimatum to Venezuela, and she retains the Monroe doctrine as a matter of principle.
[224] See Moore, VI. § 957.
Merits of the Monroe Doctrine.
§ 140. The importance of the Monroe doctrine is of a political, not of a legal character. Since the Law of Nations is a law between all the civilised States as equal members of the Family of Nations, the States of the American continent are subjects of the same international rights and duties as the European States. The European States are, as far as the Law of Nations is concerned, absolutely free to acquire territory in America as elsewhere. And the same legal rules are valid concerning intervention on the part of European Powers both in American affairs and in affairs of other States. But it is evident that the Monroe doctrine, as the guiding star of the policy of the United States, is of the greatest political importance. And it ought not to be maintained that this policy is in any way inconsistent with the Law of Nations. In the interest of balance of power in the world, the United States considers it a necessity that European Powers should not acquire more territory on the American continent than they actually possess. She considers, further, her own welfare so intimately connected with that of the other American States that she thinks it necessary, in the interest of self-preservation, to watch closely the relations of these States with Europe and also the relations between these very States, and eventually to intervene in conflicts. Since every State must decide for itself whether and where vital interests of its own are at stake and whether the balance of power is endangered to its disadvantage, and since, as explained above (§ 138), intervention is therefore de facto a matter of policy, there is no legal impediment to the United States carrying out a policy in conformity with the Monroe doctrine. This policy hampers indeed the South American States, but with their growing strength it will gradually disappear. For, whenever some of these States become Great Powers themselves, they will no longer submit to the political hegemony of the United States, and the Monroe doctrine will have played its part.
VII INTERCOURSE
Grotius, II. c. 2, § 13—Vattel, II. §§ 21-26—Hall, § 13—Taylor, § 160—Bluntschli, § 381 and p. 26—Hartmann, § 15—Heffter, §§ 26 and 33—Holtzendorff in Holtzendorff, II. pp. 60-64—Gareis, § 27—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 285-289—Despagnet, No. 183—Mérignhac, I. pp. 256-257—Pradier-Fodéré, I. No. 184—Rivier, I. pp. 262-264—Nys, II. pp. 221-228—Calvo, III. §§ 1303-1305—Fiore, I. No. 370—Martens, I. § 79.
Intercourse a presupposition of International Personality.
§ 141. Many adherents of the doctrine of fundamental rights include therein also a right of intercourse of every State with all others. This right of intercourse is said to contain a right of diplomatic, commercial, postal, telegraphic intercourse, of intercourse by railway, a right of foreigners to travel and reside on the territory of every State, and the like. But if the real facts of international life are taken into consideration, it becomes at once apparent that such a fundamental right of intercourse does not exist. All the consequences which are said to follow from the right of intercourse are not at all consequences of a right, but nothing else than consequences of the fact that intercourse between the States is a condition without which a Law of Nations would not and could not exist. The civilised States make a community of States because they are knit together through their common interests and the manifold intercourse which serves these interests. Through intercourse with one another and with the growth of their common interests the Law of Nations has grown up among the civilised States. Where there is no intercourse there cannot be a community and a law for such community. A State cannot be a member of the Family of Nations and an International Person, if it has no intercourse whatever with at least one or more other States. Varied intercourse with other States is a necessity for every civilised State. The mere fact that a State is a member of the Family of Nations shows that it has various intercourse with other States, for otherwise it would never have become a member of that family. Intercourse is therefore one of the characteristics of the position of the States within the Family of Nations, and it may be maintained that intercourse is a presupposition of the international Personality of every State. But no special right or rights of intercourse between the States exist according to the Law of Nations. It is because such special rights of intercourse do not exist that the States conclude special treaties regarding matters of post, telegraphs, telephones, railways, and commerce. On the other hand, most States keep up protective duties to exclude or hamper foreign trade in the interest of their home commerce, industry, and agriculture. And although as a rule they allow[225] aliens to travel and to reside on their territory, they can expel every foreign subject according to discretion.
[225] That an alien has no right to demand to be admitted to British territory was decided in the case of Musgrove v. Chun Teeong Toy, L.R. (1891), App. Cas. 272.
Consequences of Intercourse as a Presupposition of International Personality.
§ 142. Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole institution of legation serves the interest of intercourse between the States, as does the consular institution. The right of legation,[226] which every full-Sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad[227] which every State possesses. The freedom of the Open Sea,[228] which has been universally recognised since the end of the first quarter of the nineteenth century, the right of every State to the passage of its merchantmen through the maritime belt[229] of all other States, and, further, freedom of navigation for the merchantmen of all nations on so-called international rivers,[230] are further examples of provisions of the Law of Nations in the interest of international intercourse.
[227] See below, § [319]. The right of protection over citizens abroad is frequently said to be a special right of self-preservation, but it is really a right in the interest of intercourse.
The question is frequently discussed and answered in the affirmative whether a State has the right to require such States as are outside the Family of Nations to open their ports and allow commercial intercourse. Since the Law of Nations is a law between those States only which are members of the Family of Nations, it has certainly nothing to do with this question, which is therefore one of mere commercial policy and of morality.
VIII JURISDICTION
Hall, §§ 62, 75-80—Westlake, I. pp. 236-271—Lawrence, §§ 93-109—Phillimore, I. §§ 317-356—Twiss, I. §§ 157-171—Halleck, I. pp. 186-245—Taylor, §§ 169-171—Wheaton, §§ 77-151—Moore, II. §§ 175-249—Bluntschli, §§ 388-393—Heffter, §§ 34-39—Bonfils, Nos. 263-266—Rivier, I. § 28—Nys, II. pp. 257-263—Fiore, I. Nos. 475-588.
Jurisdiction important for the position of the States within the Family of Nations.
§ 143. Jurisdiction is for several reasons a matter of importance as regards the position of the States within the Family of Nations. States possessing independence and territorial as well as personal supremacy can naturally extend or restrict their jurisdiction as far as they like. However, as members of the Family of Nations and International Persons, the States must exercise self-restraint in the exercise of this natural power in the interest of one another. Since intercourse of all kinds takes place between the States and their subjects, the matter ought to be thoroughly regulated by the Law of Nations. But such regulation has as yet only partially grown up. The consequence of both the regulation and non-regulation of jurisdiction is that concurrent jurisdiction of several States can often at the same time be exercised over the same persons and matters. And it can also happen that matters fall under no jurisdiction because the several States which could extend their jurisdiction over these matters refuse to do so, leaving them to each other's jurisdiction.
Restrictions upon Territorial Jurisdiction.
§ 144. As all persons and things within the territory of a State fall under its territorial supremacy, every State has jurisdiction over them. The Law of Nations, however, gives a right to every State to claim so-called exterritoriality and therefore exemption from local jurisdiction chiefly for its head,[231] its diplomatic envoys,[232] its men-of-war,[233] and its armed forces[234] abroad. And partly by custom and partly by treaty obligations, Eastern non-Christian States, Japan now excepted, are restricted[235] in their territorial jurisdiction with regard to foreign resident subjects of Christian Powers.
[231] Details below, §§ [348]-353, and [356].—The exemption of a State itself from the jurisdiction of another is not based upon a claim to exterritoriality, but upon the claim to equality; see above, § [115].
[232] Details below, §§ [385]-405.
[233] Details below, §§ [450]-451.
[235] Details below, §§ [318] and [440].
Jurisdiction over Citizens abroad.
§ 145. The Law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy. As every State can also exercise jurisdiction over aliens[236] within its boundaries, such aliens are often under two concurrent jurisdictions. And, since a State is not obliged to exercise jurisdiction for all matters over aliens on its territory, and since the home State is not obliged to exercise jurisdiction over its subjects abroad, it may and does happen that aliens are actually for some matters under no State's jurisdiction.
Jurisdiction on the Open Sea.
§ 146. As the Open Sea is not under the sway of any State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that the vessels and the things and persons thereon remain during the time they are on the Open Sea under the jurisdiction of the State under whose flag they sail.[237] It is another rule of the Law of Nations that piracy[238] on the Open Sea can be punished by any State, whether or no the pirate sails under the flag of a State. Further,[239] a general practice seems to admit the claim of every maritime State to exercise jurisdiction over cases of collision at sea, whether the vessels concerned are or are not sailing under its flag. Again, in the interest of the safety of the Open Sea, every State has the right to order its men-of-war to ask any suspicious merchantman they meet on the Open Sea to show the flag, to arrest foreign merchantmen sailing under its flag without an authorisation for its use, and to pursue into the Open Sea and to arrest there such foreign merchantmen as have committed a violation of its law whilst in its ports or maritime belt.[240] Lastly, in time of war belligerent States have the right to order their men-of-war to visit, search, and eventually capture on the Open Sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.
[240] See below, §§ [265]-266.
Criminal Jurisdiction over Foreigners in Foreign States.
§ 147. Many States claim jurisdiction and threaten punishment for certain acts committed by a foreigner in foreign countries.[241] States which claim jurisdiction of this kind threaten punishment for certain acts either against the State itself, such as high treason, forging bank-notes, and the like, or against its citizens, such as murder or arson, libel and slander, and the like. These States cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory. But if, after the committal of such act, he enters their territory and comes thereby under their territorial supremacy, they have an opportunity of inflicting punishment. The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question must be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations, and the right of protection over citizens abroad held by every State would justify it in an intervention in case one of its citizens abroad should be required to stand his trial before the Courts of another State for criminal acts which he did not commit during the time he was under the territorial supremacy of such State.[242] In the only[243] case which is reported—namely, in the case of Cutting—an intervention took place according to this view. In 1886, one A. K. Cutting, a subject of the United States, was arrested in Mexico for an alleged libel against one Emigdio Medina, a subject of Mexico, which was published in the newspaper of El Paso in Texas. Mexico maintained that she had a right to punish Cutting, because according to her Criminal Law offences committed by foreigners abroad against Mexican subjects are punishable in Mexico. The United States, however, intervened,[244] and demanded Cutting's release. Mexico refused to comply with this demand, but nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the United States to alter her Criminal Law for the purpose of avoiding in the future a similar incident, diplomatic practice has not at all settled the subject.
[241] See Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § 104; Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.
[242] The Institute of International Law has studied the question at several meetings and in 1883, at its meeting at Munich (see Annuaire, VII. p. 156), among a body of fifteen articles concerning the conflict of the Criminal Laws of different States, adopted the following (article 8):—"Every State has a right to punish acts committed by foreigners outside its territory and violating its penal laws when those acts contain an attack upon its social existence or endanger its security and when they are not provided against by the Criminal Law of the territory where they take place." But it must be emphasised that this resolution has value de lege ferenda only.
[243] The case of Cirilo Pouble—see Moore, II. § 200, pp. 227-228—concerning which the United States at first were inclined to intervene, proved to be a case of a crime committed within Spanish jurisdiction. The case of John Anderson—see Moore, I. § 174, p. 933—is likewise not relevant, as he claimed to be a British subject.
[244] See Westlake, I. p. 252; Taylor, § 192; Calvo, VI. §§ 171-173; Moore, II. § 201, and "Report on Extraterritorial Crime and the Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is fully discussed and the American claim is disputed by Mendelssohn Bartholdy, "Das räumliche Herrschaftsgebiet des Strafgesetzes" (1908), pp. 135-143.