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).