[598] The whole matter is treated with great lucidity by Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. 310-314, and Heilborn, "System," pp. 58-138.
Again, in those rare cases in which States stipulate by international treaties certain favours for individuals other than their own subjects, these individuals do not acquire any international rights under these treaties. The latter impose the duty only upon the State whose subjects these individuals are of calling those favours into existence by its Municipal Law. Thus, for example, when articles 5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition of the recognition of Bulgaria, Montenegro, Servia, and Roumania, that these States should not impose any religious disability upon their subjects, the latter did not thereby acquire any international rights. Another instructive example[599] is furnished by article 5 of the Peace Treaty of Prague, 1866, between Prussia and Austria, which stipulated that the northern district of Schleswig should be ceded by Prussia to Denmark in case the inhabitants should by a plebiscite vote in favour of such cession. Austria, no doubt, intended to secure by this stipulation for the inhabitants of North Schleswig the opportunity of voting in favour of their union with Denmark. But these inhabitants did not thereby acquire any international right. Austria herself acquired only a right to insist upon Prussia granting to the inhabitants the opportunity of voting for the union with Denmark. Prussia, however, intentionally neglected her duty, Austria did not insist upon her right, and finally relinquished it by the Treaty of Vienna of 1878.[600]
[599] See Heilborn, "System," p. 67.
[600] It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), §§ 1-4, and a few others.
Now it is maintained[601] that, although individuals cannot be subjects of International Law, they can nevertheless acquire rights and duties from International Law. But it is impossible to find a basis for the existence of such rights and duties. International rights and duties they cannot be, for international rights and duties can only exist between States. Likewise they cannot be municipal rights, for municipal rights and duties can only be created by Municipal Law. The opponents answer that such rights and duties nevertheless exist, and quote for example articles 4 and 5 of Convention XII. (concerning the establishment of an International Prize Court) of the second Hague Peace Conference, according to which individuals have a right to bring an appeal before the International Prize Court. But is this a real right? Is it not more correct to say that the home States of the individuals concerned have a right to demand that these individuals can bring the appeal before the Court? Wherever International Law creates an independent organisation, such as the International Prize Court at the Hague or the European Danube Commission and the like, certain powers and claims must be given to the Courts and Commissions and the individuals concerned, but these powers and claims, and the obligations deriving therefrom, are neither international nor municipal rights and duties: they are powers, claims, and obligations existing only within the organisations concerned. To call them rights and duties—as indeed the respective treaties frequently do—is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Municipal Law.
[601] See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in Z.V. I. (1908), pp. 53 and 614; Liszt, § 5; Kohler in Z.V. II. (1909), pp. 209-230.
Individuals Objects of the Law of Nations.
§ 290. But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are objects of the Law of Nations. They appear as such from many different points of view. When, for instance, the Law of Nations recognises the personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the States does in consequence of the recognised territorial supremacy of the States. When, secondly, the recognised territorial supremacy of every State comprises certain powers over foreign subjects within its boundaries without their home State's having a right to interfere, these individuals appear again as objects of the Law of Nations. And, thirdly, when according to the Law of Nations any State may seize and punish foreign pirates on the Open Sea, or when belligerents may seize and punish neutral blockade-runners and carriers of contraband on the Open Sea without their home State's having a right to interfere, individuals appear here too as objects of the Law of Nations.[602]
[602] Westlake, Chapters, p. 2, maintains that in these cases individuals appear as subjects of International Law; but I cannot understand upon what argument this assertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland, "Jurisprudence," p. 341.
Nationality the Link between Individuals and the Law of Nations.