EXISTENCE
36. +Application of the Right in General.+
37. +Extension of the Right to Subjects of the State.+
§ 36. Application of the Right
Besides the general rights of _independence_, _equality_,
_jurisdiction_, _property_, and _intercourse_, the right of existence in
its exercise may lead to certain acts for which the general principles
of international law do not provide rules.[90]
(_a_) In face of actual dangers immediately threatening its existence, a
state may take such measures as are necessary for self-preservation,
even though not sanctioned by international law. Such measures, however,
must be from "a necessity of self-defense, instant, overwhelming, and
leaving no choice of means and no moment for deliberation," and further
"must be limited by that necessity and kept clearly within it."[91] The
wide discussion of the case of the _Virginius_ involved the principle of
the limits of the right of self-defense.[92]
(_b_) The right to act in a manner which international law does not
sanction or denies, even though it may be strictly to preserve the
existence of the state so acting, cannot be upheld as freeing it from
responsibility for such acts, and these acts may be regarded as hostile
by states affected by them.
(_c_) As the domestic acts of a state are not within the province of
international law, a state has the right to administer its internal
affairs in such manner as it may determine fit to secure and further its
existence. It may adopt any form of government; may plan for its growth
by developing its resources, by encouraging immigration; may strengthen
defenses and forces; may regulate trade, commerce, and travel. While
acts of this character may work injury to other states, they are not in
general just grounds for war, but may properly be met by like acts on
the part of other states.
§ 37. Extension of the Right to Subjects of the State
As the subjects of a state are necessary for its existence, the right of
self-preservation has been held to justify certain acts of states to
secure to their subjects in their relations with foreign states such
rights as the foreign states would accord to their own subjects under
similar circumstances. That a local tribunal within a purely domestic
division of a state cannot secure to foreigners rights to which they are
entitled, in no way frees that state, whose sovereignty extends over
such domestic division, from responsibility for violation of the
foreigner's right. International law recognizes only the personality of
the sovereign political unity, and cannot cognize the administrative and
other subdivisions. Hall says, "States possess a right of protecting
their subjects abroad which is correlative to their responsibility in
respect of injuries inflicted upon foreigners within their
dominions."[93] "Fundamentally, however, there is no difference in
principle between wrongs inflicted by breach of a monetary agreement and
other wrongs for which the state, as itself the wrong-doer, is
immediately responsible. The difference which is made in practice is in
no sense obligatory; and it is open to governments to consider each case
by itself, and to act as seems well to them on its merits."[94]