Chapter II: Position of the States Within the Family of Nations (1)

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).

[Sidenote: 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.

[Footnote 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.]

[Sidenote: 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.

[Footnote 178: See above, § 12.]

[Footnote 179: See above, § 14.]

[Sidenote: 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.

[Sidenote: 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:

[Footnote 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]

[Footnote 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.]

[Footnote 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.]

[Footnote 183: See Prioleau _v._ United States, &c. (1866), L.R. 2 Equity, 656.]

[Footnote 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.

[Footnote 185: See above, § 103.]

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.

[Footnote 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.

[Sidenote: 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]

[Footnote 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.]

[Footnote 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.]

[Sidenote: 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.

[Footnote 189: See below, § 365.]

(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.

[Sidenote: 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_).

[Sidenote: 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.

[Footnote 190: See Treaty Series, 1900, No. 9.]

[Footnote 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.

[Sidenote: 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.

[Sidenote: 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.

[Footnote 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.]

[Sidenote: 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]

[Footnote 193: See Halleck, I. pp. 124-142, where the matter is treated with all details. See also below, § 257.]

[Footnote 194: See below, § 187.]

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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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.

[Footnote 195: See below, § 155.]

[Footnote 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.]

[Footnote 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.]

[Sidenote: 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.

[Footnote 198: See above, § 97.]

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]

[Footnote 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.

[Footnote 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.

[Footnote 201: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 601.]

[Sidenote: 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]

[Footnote 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."]

[Footnote 203: See below, § 178 _a_.]

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.

[Footnote 204: This restriction was abolished by article 17 of the Treaty of Paris of 1783.]

[Footnote 205: It is doubtful whether this restriction is still in force; see below, § 258.]

[Sidenote: 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]

[Footnote 206: See above, § 73.]

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.

[Sidenote: 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.

[Footnote 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.]

[Sidenote: 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.

[Sidenote: 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.

[Footnote 208: I follow Hall's (§ 86) summary of the facts.]

[Sidenote: 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]

[Footnote 209: See Wharton, § 50 a, and Moore, II. § 216.]

[Sidenote: 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]

[Footnote 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).

[Sidenote: 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.

[Footnote 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.

[Footnote 212: Many writers constantly commit this confusion.]

[Footnote 213: See below, vol. II. § 9.]

[Sidenote: 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]

[Footnote 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."

[Footnote 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.]

[Footnote 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.

[Footnote 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.]