[Transcriber's note: Original spelling variations have not been
standardized. Underscores have been used to indicate _italic_ fonts.]
INTERNATIONAL LAW
A TREATISE
BY
L. OPPENHEIM, M.A., LL.D.
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW
HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID
VOL. I.
PEACE
_SECOND EDITION_
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
NEW YORK, BOMBAY, AND CALCUTTA
1912
All rights reserved
TO
EDWARD ARTHUR WHITTUCK
WHOSE SYMPATHY AND ENCOURAGEMENT HAVE ACCOMPANIED THE PROGRESS
OF THIS WORK FROM ITS INCEPTION TO ITS CLOSE
PREFACE
TO THE SECOND EDITION
The course of events since 1905, when this work first made its
appearance, and the results of further research have necessitated not
only the thorough revision of the former text and the rewriting of some
of its parts, but also the discussion of a number of new topics. But
while the new matter which has been incorporated has added considerably
to the length of the work--the additions to the bibliography, text, and
notes amounting to nearly a quarter of the former work--this second
edition is not less convenient in size than its predecessor. By
rearranging the matter on the page, using a line extra on each, and a
greater number of words on a line, by setting the bibliography and notes
in smaller type, and by omitting the Appendix, it has been found
possible to print the text of this new edition on 626 pages, as compared
with 594 pages of the first edition.
The system being elastic it was possible to place most of the additional
matter within the same sections and under the same headings as before.
Some of the points treated are, however, so entirely new that it was
necessary to deal with them under separate headings, and within separate
sections. The reader will easily distinguish them, since, to avoid
disturbing the arrangement of topics, these new sections have been
inserted between the old ones, and numbered as the sections preceding
them, but with the addition of the letters _a_, _b_, &c. The more
important of these new sections are the following: § 178_a_ (concerning
the Utilisation of the Flow of Rivers); §§ 287_a_ and 287_b_
(concerning Wireless Telegraphy on the Open Sea); §§ 287_c_ and 287_d_
(concerning Mines and Tunnels in the Subsoil of the Sea bed); § 446_a_
(concerning the Casa Blanca incident); §§ 476_a_ and 476_b_ (concerning
the International Prize Court and the suggested International Court of
Justice); §§ 568_a_ and 568_b_ (concerning the Conventions of the Second
Hague Peace Conference, and the Declaration of London); § 576_a_
(concerning Pseudo-Guarantees). Only towards the end of the volume has
this mode of dealing with the new topics been departed from. As the
chapter treating of Unions, the last of the volume, had to be entirely
rearranged and rewritten, and a new chapter on Commercial Treaties
inserted, the old arrangement comes to an end with § 577; and §§ 578 to
596 of this new edition present an arrangement of topics which differs
from that of the former edition.
I venture to hope that this edition will be received as favourably as
was its predecessor. My aim, as always, has been to put the matter as
clearly as possible before the reader, and nowhere have I forgotten that
I am writing as a teacher for students. It is a matter of great
satisfaction to me that the prophetic warnings of some otherwise very
sympathetic reviewers that a comprehensive treatise on International Law
in two volumes would never be read by young students have proved
mistaken. The numerous letters which I have received from students, not
only in this country but also in America, Japan, France, and Italy, show
that I was not wrong when, in the preface to the former edition, I
described the work as an elementary book for those beginning to study
the subject. Many years of teaching have confirmed me in the conviction
that those who approach the study of International Law should at the
outset be brought face to face with its complicated problems, and should
at once acquire a thorough understanding of the wide scope of the
subject. If writers and lecturers who aim at this goal will but make
efforts to use the clearest language and an elementary method of
explanation, they will attain success in spite of the difficulty of the
problems and the wide range of topics to be considered.
I owe thanks to many reviewers and readers who have drawn my attention
to mistakes and misprints in the first edition, and I am especially
indebted to Mr. C. J. B. Hurst, C.B., Assistant Legal Adviser to the
Foreign Office, to Mr. E. S. Roscoe, Admiralty Registrar of the High
Court, and to Messrs. F. Ritchie and G. E. P. Hertslet of the Foreign
Office who gave me valuable information on certain points while I was
preparing the manuscript for this edition. And I must likewise most
gratefully mention Miss B. M. Rutter and Mr. C. F. Pond who have
assisted me in reading the proofs and have prepared the table of cases
and the exhaustive alphabetical index.
L. OPPENHEIM.
WHEWELL HOUSE,
CAMBRIDGE,
_November 1, 1911_.
ABBREVIATIONS
OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT
The books referred to in the bibliography and notes are, as a rule,
quoted with their full titles and the date of their publication. But
certain books and periodicals which are very often referred to
throughout this work are quoted in an abbreviated form, as follows:--
A.J. = The American Journal of International
Law.
Annuaire = Annuaire de l'Institut de Droit
International.
Bluntschli = Bluntschli, Das moderne Völkerrecht der
civilisirten Staaten als Rechtsbuch
dargestellt, 3rd ed. (1878).
Bonfils = Bonfils, Manuel De Droit International
Public, 5th ed. by Fauchille (1908).
Bulmerincq = Bulmerincq, Das Völkerrecht (1887).
Calvo = Calvo, Le Droit International etc., 5th
ed. 6 vols. (1896).
Despagnet = Despagnet, Cours De Droit International
Public, 4th ed. by de Boeck (1910).
Field = Field, Outlines of an International Code
(1872).
Fiore = Fiore, Nouveau Droit International
Public, deuxième édition, traduite de
l'Italien et annotée par Antoine, 3
vols. (1885).
Fiore, Code = Fiore, Le Droit International Codifié,
nouvelle édition, traduite de
l'Italien par Antoine (1911).
Gareis = Gareis, Institutionen des Völkerrechts,
2nd ed. (1910).
Grotius = Grotius, De Jure Belli ac Pacis (1625).
Hall = Hall, A Treatise on International Law,
4th ed. (1895).
Halleck = Halleck, International Law, 3rd English
ed. by Sir Sherston Baker, 2 vols.
(1893).
Hartmann = Hartmann, Institutionen des praktischen
Völkerrechts in Friedenszeiten
(1874).
Heffter = Heffter, Das Europäische Völkerrecht der
Gegenwart, 8th ed. by Geffcken (1888).
Heilborn, System = Heilborn, Das System des Völkerrechts
entwickelt aus den völkerrechtlichen
Begriffen (1896).
Holland, Studies = Holland, Studies in International Law
(1898).
Holland,
Jurisprudence = Holland, The Elements of Jurisprudence,
6th ed. (1893).
Holtzendorff = Holtzendorff, Handbuch des Völkerrechts,
4 vols. (1885-1889).
Klüber = Klüber, Europäisches Völkerrecht, 2nd ed.
by Morstadt (1851).
Lawrence = Lawrence, The Principles of International
Law, 4th ed.(1910).
Lawrence, Essays = Lawrence, Essays on some Disputed
Questions of Modern International Law
(1884).
Liszt = Liszt, Das Völkerrecht, 6th ed. (1910).
Lorimer = Lorimer, The Institutes of International
Law, 2 vols. (1883-1884).
Maine = Maine, International Law, 2nd ed. (1894).
Manning = Manning, Commentaries on the Law of
Nations, new ed. by Sheldon Amos
(1875).
Martens = Martens, Völkerrecht, German translation
of the Russian original in 2 vols.
(1883).
Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens
Moderne De L'Europe, nouvelle éd. par
Vergé, 2 vols. (1858).
Martens, R. |
Martens, N.R. |
Martens, N.S. |
Martens, N.R.G. |
Martens, N.R.G. |
2nd Ser. |
Martens, N.R.G. |
3rd Ser. | = These are the abbreviated quotations of
the different parts of Martens,
Recueil De Traités (see p. 102 of
this volume), which are in common
use.
Martens, Causes
Célèbres = Martens, Causes Célèbres Du Droit Des
Gens, 5 vols., 2nd ed. (1858-1861).
Mérignhac = Mérignhac, Traité De Droit Public
International, vol. i. (1905), vol.
ii. (1907).
Moore = Moore, A Digest of International Law, 8
vols., Washington (1906).
Nys = Nys, Le Droit International, 3 vols.
(1904-1906).
Perels = Perels, Das internationale öffentliche
Seerecht der Gegenwart, 2nd ed.
(1903).
Phillimore = Phillimore, Commentaries upon
International Law, 4 vols. 3rd ed.
(1879-1888).
Piedelièvre = Piedelièvre, Précis De Droit
International Public, 2 vols.
(1894-1895).
Pradier-Fodéré = Pradier-Fodéré, Traité De Droit
International Public, 8 vols.
(1885-1906).
Pufendorf = Pufendorf, De Jure Naturae et Gentium
(1672).
Rivier = Rivier, Principes Du Droit Des Gens, 2
vols. (1896).
R.I. = Revue De Droit International Et De
Législation Comparée.
R.G. = Revue Général De Droit International
Public.
Taylor = Taylor, A Treatise on International
Public Law (1901).
Testa = Testa, Le Droit Public International
Maritime, traduction du Portugais
par Boutiron (1886).
Twiss = Twiss, The Law of Nations, 2 vols., 2nd
ed. (1884, 1875).
Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908).
Vattel = Vattel, Le Droit Des Gens, 4 books in 2
vols., nouvelle éd. (Neuchâtel,
1773).
Walker = Walker, A Manual of Public International
Law (1895).
Walker, History = Walker, A History of the Law of Nations,
vol. i. (1899).
Walker, Science = Walker, The Science of International Law
(1893).
Westlake = Westlake, International Law, 2 vols.
(1904-1907).
Westlake, Chapters = Westlake, Chapters on the Principles of
International Law (1894).
Wharton = Wharton, A Digest of the International
Law of the United States, 3 vols.
(1886).
Wheaton = Wheaton, Elements of International Law,
8th American ed. by Dana (1866).
Z.V. = Zeitschrift für Völkerrecht und
Bundesstaatsrecht.
CASES CITED
Aegi, § 437, p. 496
Ambrose Light, the, § 273, p. 342 note 2; § 276, p. 345 note 1
Amelia Island, § 132, p. 186
Anderson, John, § 147, p. 205 note 1
Anna, the, § 234, p. 301
Aubespine, L', § 387, p. 459
Bartram _v._ Robertson, § 580, p. 611 note 1
Bass, de, § 387, p. 459
Beckert, Wilhelm, § 402, p. 474
Belgenland, the, § 265, p. 335 note 3
Belle-Isle, Maréchal de, § 398, p. 471
Boisset, M., § 163, p. 220
Botiller _v._ Dominguez, § 546, p. 578 note 2
Brooke, Sir James, § 209, p. 282 note 2
Brunswick, Duke of, _v._ King of Hanover, § 353, p. 433
Canning, George, and the Russian Ambassador, § 481, p. 532
Canning, Sir Stratford, § 375, p. 451
Caroline, the, § 133, p. 187; § 444, p. 501; § 446, p. 501
Casa Blanca, § 446_a_, p. 502; § 476, p. 521
Castioni, _Ex parte_, § 334, p. 415 note 4
Cellamare, Prince, § 388, p. 459
Cespedes, the, § 273, p. 343, note 1
Charkieh, the, § 91, p. 144 note 1; § 450, p. 507 note 1
Charlton, Porter, § 330, p. 408
Chartered Mercantile Bank of India _v._ Netherlands India Steam
Navigation Co., § 265, p. 335 note 2
Cherokee Tobacco, the, § 546, p. 578 note 2
Constitution, the, § 450, p. 507 note 1
Cook _v._ Sprigg, § 82, p. 129 note 4
Costa Rica Packet, the, § 162, p. 217
Cutting, § 147, p. 205
Danish Fleet, the, § 131, p. 186
De Jager _v._ The Attorney-General for Natal, § 317, p. 394
De Haber _v._ Queen of Portugal, § 115, p. 169 note 2
Delagoa Bay, § 247, p. 313
Dogger Bank, § 163, p. 219 note 2
Dubois, § 392, p. 465
Exchange, the, § 450, p. 507 note 1
Fonds pieux des Californias, § 476, p. 521
Franconia, the, § 25, p. 29
Gallatin, § 403, p. 474 note 1
Germany, Great Britain, and Italy _v._ Venezuela, § 476, p. 521
Germany, France, and Great Britain _v._ Japan, § 476, p. 521
Gore and Pinkney, § 458, p. 513
Guébriant, Madame de, § 370, p. 447
Gurney, § 402, p. 473 note 2
Gyllenburg, § 388, p. 459
Haggerty, § 427, p. 489
Hall _v._ Campbell, § 240, p. 306 note 1
Hellfeld _v._ Russian Government, § 115, p. 169 note 4
Huascar, the, § 273, p. 342
Huus _v._ New York and Porto Rico Steamship Co., § 579, p. 609 note 1
Indian Chief, the, § 434, p. 494 note 1
Ionian Ships, § 93, p. 146 note 1
Isabella, Queen of Spain, § 351, p. 432
Jacquin, § 335, p. 416
Jager. _See_ De Jager
Jassy, the, § 450, p. 507 note 1
Johann Friederich, the, § 265, p. 335 note 2; § 271, p. 339 note 1
Kalkstein, § 390, p. 464
Keiley, § 375, p. 450
Koszta, Martin, § 313, p. 388 note 1
Lebanon, the. _See_ Vaderland
L'Aubespine. _See_ Aubespine
McLeod, § 133, p. 187 note 2; § 446, p. 501
Macartney _v._ Garbutt, § 375, p. 450 note 2; § 394, p. 467 note 1
Magdalena Steam Navigation Co. _v._ Martin, § 391, p. 465 note 2
Maori King, the, § 261, p. 331 note 1
Mendoza, § 387, p. 459
Meunier, _In re_, § 334, p. 415 note 4; § 338, p. 418 note 3
Monaldeschi, § 348, p. 431 note 1
Montagnini, § 106, p. 160 note 1; § 386, p. 458 note 1; § 411, p. 478
note 2
Montezuma, the, § 273, p. 343 note 1
Monti, Marquis de, § 400, p. 472
Moray Firth, § 191, p. 263 note 3. _See also_ Mortensen _v._ Peters
Mortensen _v._ Peters, § 22, p. 28 note 1; § 192, p. 264 note 2
Muscat Dhows, the, § 295, p. 372 note 2; § 476, p. 521
Musgrove _v._ Chun Teeong Toy, § 141, p. 200 note 1
Nereide, the, § 21, p. 26 note 2
Nikitschenkow, § 390, p. 463
Nillins, § 330, p. 407
North Atlantic Coast Fisheries, § 191, p. 262 note 1; § 205, p. 276
note 2; § 458, p. 513 note 1; § 476, p. 522
Norway _v._ Sweden, § 476, p. 522
Orinoco Steamship Co., § 476, p. 522
Paladini, § 330, p. 408
_Panther_, the, § 163, p. 219
Paquette Habana, the, § 21, p. 26 note 2
Parkinson _v._ Potter, § 394, p. 467 note 1
Parlement Belge, the, § 450, p. 507 note
Platen-Hallermund, § 240, p. 306
Porteña, the, § 273, p. 343 note 1
Pouble, Cirilo, § 147, p. 205 note 1
Prioleau _v._ United States, § 82, p. 129 note 1; § 115, p. 169 note 3
Reg. _v._ Cunningham, § 194, p. 266 note 2
Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., §
272, p. 341 note 1
Republic of Mexico _v._ Francisco de Arrangoiz, § 115, p. 169 note 1
Ripperda, Duke of, § 390, p. 461
Ross, Bishop, § 362, p. 443 note 1
Sà, Don Pantaleon, § 404, p. 475
Sackville, Lord, § 383, p. 455 note 1
Santa Lucia, § 247, p. 313
Sapphire, the, § 115, p. 169 note 1
Savarkar, § 332, p. 410; § 476, p. 522
Schnaebélé, § 456, p. 511
Scotia, the, § 21, p. 26 note 2
Shenandoah, the, § 273, p. 343
Soulé, § 398, p. 470
Springer, § 390, p. 461
Strathclyde, the. _See_ Franconia, the
Sully, § 396, p. 468
Sun Yat Sen, § 390, p. 464
Taylor _v._ Best, § 391, p. 465 note 2
Tourville, § 330, p. 407
United States _v._ Repentigny, § 240, p. 306 note 1
United States _v._ Prioleau, § 82, p. 129 note 1; § 115, p. 169 note 3
United States _v._ Smith, § 21, p. 26 note 2
United States _v._ Venezuela, § 476, p. 522
United States _v._ Wagner, § 115, p. 169 note 1
Vaderland, the, § 287_b_, p. 357
Vavasseur _v._ Krupp, § 115, p. 169 note 2
Vexaincourt, § 163, p. 219
Virginius, the, § 133, p. 187 note 2
Waddington, Carlo, § 404, p. 475
Washburne, § 399, p. 471
West Rand Central Mining Co. _v._ The King, § 21, p. 26 note 2; § 82, p.
129 note 4
William, King of Holland, § 350, p. 432
Whitney _v._ Robertson, § 546, p. 578 note 2; § 580, p. 611 note 1
Wrech, Baron de, § 391, p. 465
CONTENTS
OF
THE FIRST VOLUME
INTRODUCTION
CHAPTER I--FOUNDATION OF THE LAW OF NATIONS
I. _The Law of Nations as Law_
SECT. PAGE
1. Conception of the Law of Nations 3
2. Legal Force of the Law of Nations contested 4
3. Characteristics of Rules of Law 6
4. Law-giving authority not essential for the existence of
Law 6
5. Definition and Three Essential Conditions of Law 8
6. Law not to be identified with Municipal Law 9
7. The "Family of Nations" a Community 9
8. The "Family of Nations" a Community with Rules of Conduct 11
9. External Power for the enforcement of Rules of
International Conduct 13
10. Practice recognises Law of Nations as Law 14
II. _Basis of the Law of Nations_
11. Common Consent the Basis of Law 15
12. Common Consent of the Family of Nations the Basis of
International Law 16
13. States the Subjects of the Law of Nations 19
14. Equality an Inference from the Basis of International Law 20
III. _Sources of the Law of Nations_
15. Source in Contradistinction to Cause 20
16. The Two Sources of International Law 21
17. Custom in Contradistinction to Usage 22
18. Treaties as Source of International Law 23
19. Factors influencing the Growth of International Law 24
IV. _Relations between International and Municipal Law_
20. Essential Difference between International and Municipal
Law 25
21. Law of Nations never per se Municipal Law 26
22. Certain Rules of Municipal Law necessitated or
interdicted 27
23. Presumption against conflicts between International and
Municipal Law 28
24. Presumption of Existence of certain necessary
Municipal Rules 28
25. Presumption of the Existence of certain Municipal Rules in
Conformity with Rights granted by the Law of Nations 28
V. _Dominion of the Law of Nations_
26. Range of Dominion of International Law controversial 30
27. Three Conditions of Membership of the Family of Nations 31
28. Present Range of Dominion of the Law of Nations 32
29. Treatment of States outside the Family of Nations 34
VI. _Codification of the Law of Nations_
30. Movement in Favour of Codification 35
31. Work of the First Hague Peace Conference 37
32. Work of the Second Hague Peace Conference and the Naval
Conference of London 38
33. Value of Codification of International Law contested 40
34. Merits of Codification in general 40
35. Merits of Codification of International Law 42
36. How Codification could be realised 44
CHAPTER II--DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I. _Development of the Law of Nations before Grotius_
37. No Law of Nations in Antiquity 45
38. The Jews 46
39. The Greeks 49
40. The Romans 50
41. No need for a Law of Nations during the Middle Ages 53
42. The Fifteenth and Sixteenth Centuries 54
II. _Development of the Law of Nations after Grotius_
43. The time of Grotius 59
44. The period 1648-1721 61
45. The period 1721-1789 64
46. The period 1789-1815 64
47. The period 1815-1856 66
48. The period 1856-1874 69
49. The period 1874-1899 71
50. The Twentieth Century 74
51. Six Lessons of the History of the Law of Nations 80
III. _The Science of the Law of Nations_
52. Forerunners of Grotius 83
53. Grotius 85
54. Zouche 88
55. The Naturalists 89
56. The Positivists 90
57. The Grotians 92
58. Treatises of the Nineteenth and Twentieth Centuries 94
59. The Science of the Law of Nations in the Nineteenth and
Twentieth Centuries, as represented by Treatises 98
60. Collection of Treatises 102
61. Bibliographies 103
62. Periodicals 103
PART I--_THE SUBJECTS OF THE LAW OF NATIONS_
CHAPTER I--INTERNATIONAL PERSONS
I. _Sovereign States as International Persons_
63. Real and apparent International Persons 107
64. Conception of the State 108
65. Not-full Sovereign States 109
66. Divisibility of Sovereignty contested 110
67. Meaning of Sovereignty in the Sixteenth and
Seventeenth Centuries 111
68. Meaning of Sovereignty in the Eighteenth Century 112
69. Meaning of Sovereignty in the Nineteenth Century 113
70. Result of the Controversy regarding Sovereignty 115
II. _Recognition of States as International Persons_
71. Recognition a condition of Membership of the Family of
Nations 116
72. Mode of Recognition 117
73. Recognition under Conditions 118
74. Recognition Timely and Precipitate 119
75. State Recognition in contradistinction to other
Recognitions 120
III. _Changes in the Condition of International Persons_
76. Important in contradistinction to Indifferent Changes 121
77. Changes not affecting States as International Persons 122
78. Changes affecting States as International Persons 123
79. Extinction of International Persons 124
IV. _Succession of International Persons_
80. Common Doctrine regarding Succession of International
Persons 125
81. How far Succession actually takes place 127
82. Succession in consequence of Absorption 127
83. Succession in consequence of Dismemberment 130
84. Succession in case of Separation or Cession 131
V. _Composite International Persons_
85. Real and apparent Composite International Persons 132
86. States in Personal Union 133
87. States in Real Union 134
88. Confederated States (Staatenbund) 135
89. Federal States (Bundesstaaten) 136
VI. _Vassal States_
90. The Union between Suzerain and Vassal State 140
91. International position of Vassal States 141
VII. _States under Protectorate_
92. Conception of Protectorate 144
93. International position of States under Protectorate 145
94. Protectorates outside the Family of Nations 146
VIII. _Neutralised States_
95. Conception of Neutralised States 147
96. Act and Condition of Neutralisation 148
97. International position of Neutralised States 149
98. Switzerland 151
99. Belgium 152
100. Luxemburg 152
101. The former Congo Free State 153
IX. _Non-Christian States_
102. No essential difference between Christian and other
States 154
103. International position of non-Christian States except
Turkey and Japan 155
X. _The Holy See_
104. The former Papal States 157
105. The Italian Law of Guaranty 158
106. International position of the Holy See and the Pope 159
107. Violation of the Holy See and the Pope 161
XI. _International Persons of the Present Day_
108. European States 162
109. American States 163
110. African States 164
111. Asiatic States 164
CHAPTER II--POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS
I. _International Personality_
112. The so-called Fundamental Rights 165
113. International Personality a Body of Qualities 166
114. Other Characteristics of the position of the States
within the Family of Nations 167
II. _Equality, Rank, and Titles_
115. Legal Equality of States 168
116. Political Hegemony of Great Powers 170
117. Rank of States 171
118. The Alternat 173
119. Titles of States 173
III. _Dignity_
120. Dignity a Quality 174
121. Consequences of the Dignity of States 175
122. Maritime Ceremonials 176
IV. _Independence and Territorial and Personal Supremacy_
123. Independence and Territorial as well as Personal
Supremacy as Aspects of Sovereignty 177
124. Consequences of Independence and Territorial and Personal
Supremacy 178
125. Violations of Independence and Territorial and Personal
Supremacy 179
126. Restrictions upon Independence 180
127. Restrictions upon Territorial Supremacy 182
128. Restrictions upon Personal Supremacy 183
V. _Self-preservation_
129. Self-preservation an excuse for violations 184
130. What acts of self-preservation are excused 185
131. Case of the Danish Fleet (1807) 186
132. Case of Amelia Island 186
133. Case of the _Caroline_ 187
VI. _Intervention_
134. Conception and Character of Intervention 188
135. Intervention by Right 189
136. Admissibility of Intervention in default of Right 193
137. Intervention in the interest of Humanity 194
138. Intervention _de facto_ a Matter of Policy 195
139. The Monroe Doctrine 196
140. Merits of the Monroe Doctrine 198
VII. _Intercourse_
141. Intercourse a presupposition of International
Personality 199
142. Consequences of Intercourse as a presupposition of
International Personality 200
VIII. _Jurisdiction_
143. Jurisdiction important for the position of the States
within the Family of Nations 201
144. Restrictions upon Territorial Jurisdiction 202
145. Jurisdiction over Citizens abroad 202
146. Jurisdiction on the Open Sea 203
147. Criminal Jurisdiction over Foreigners in Foreign States 203
CHAPTER III--RESPONSIBILITY OF STATES
I. _On State Responsibility in General_
148. Nature of State Responsibility 206
149. Original and Vicarious State Responsibility 207
150. Essential Difference between Original and Vicarious
Responsibility 208
II. _State Responsibility for International Delinquencies_
151. Conception of International Delinquencies 209
152. Subjects of International Delinquencies 210
153. State Organs able to commit International Delinquencies 211
154. No International Delinquency without Malice or culpable
Negligence 212
155. Objects of International Delinquencies 212
156. Legal consequences of International Delinquencies 213
III. _State Responsibility for Acts of State Organs_
157. Responsibility varies with Organs concerned 214
158. Internationally injurious Acts of Heads of States 214
159. Internationally injurious Acts of Members of Governments 215
160. Internationally injurious Acts of Diplomatic Envoys 215
161. Internationally injurious Attitudes of Parliaments 216
162. Internationally injurious Acts of Judicial Functionaries 216
163. Internationally injurious Acts of administrative
Officials and Military and Naval Forces 218
IV. _State Responsibility for Acts of Private Persons_
164. Vicarious in contradistinction to Original State
Responsibility for Acts of Private Persons 221
165. Vicarious responsibility for Acts of Private Persons
relative only 222
166. Municipal Law for Offences against Foreign States 222
167. Responsibility for Acts of Insurgents and Rioters 222
PART II--_THE OBJECTS OF THE LAW OF NATIONS_
CHAPTER I--STATE TERRITORY
I. _On State Territory in General_
168. Conception of State Territory 229
169. Different kinds of Territory 230
170. Importance of State Territory 231
171. One Territory, one State 231
II. _The different Parts of State Territory_
172. Real and Fictional Parts of Territory 235
173. Territorial Subsoil 235
174. Territorial Atmosphere 236
175. Inalienability of Parts of Territory 238
III. _Rivers_
176. Rivers State Property of Riparian States 239
177. Navigation on National, Boundary, and not-National
Rivers 240
178. Navigation on International Rivers 241
178_a_. Utilisation of the Flow of Rivers 243
IV. _Lakes and Land-locked Seas_
179. Lakes and Land-locked Seas State Property of Riparian
States 245
180. So-called International Lakes and Land-locked Seas 246
181. The Black Sea 247
V. _Canals_
182. Canals State Property of Riparian States 248
183. The Suez Canal 249
184. The Panama Canal 251
VI. _Maritime Belt_
185. State Property of Maritime Belt contested 255
186. Breadth of Maritime Belt 256
187. Fisheries, Cabotage, Police, and Maritime Ceremonials
within the Belt 257
188. Navigation within the Belt 258
189. Jurisdiction within the Belt 260
190. Zone for Revenue and Sanitary Laws 261
VII. _Gulfs and Bays_
191. Territorial Gulfs and Bays 262
192. Non-territorial Gulfs and Bays 263
193. Navigation and Fishery in Territorial Gulfs and Bays 265
VIII. _Straits_
194. What Straits are Territorial 265
195. Navigation, Fishery, and Jurisdiction in Straits 266
196. The former Sound Dues 267
197. The Bosphorus and Dardanelles 268
IX. _Boundaries of State Territory_
198. Natural and Artificial Boundaries 270
199. Boundary Waters 270
200. Boundary Mountains 272
201. Boundary Disputes 272
202. Natural Boundaries _sensu politico_ 273
X. _State Servitudes_
203. Conception of State Servitudes 273
204. Subjects of State Servitudes 276
205. Object of State Servitudes 276
206. Different kinds of State Servitudes 278
207. Validity of State Servitudes 279
208. Extinction of State Servitudes 280
XI. _Modes of acquiring State Territory_
209. Who can acquire State Territory? 281
210. Former Doctrine concerning Acquisition of Territory 282
211. What Modes of Acquisition of Territory there are 283
212. Original and derivative Modes of Acquisition 284
XII. _Cession_
213. Conception of Cession of State Territory 285
214. Subjects of Cession 285
215. Object of Cession 286
216. Form of Cession 286
217. Tradition of the ceded Territory 288
218. Veto of third Powers 289
219. Plebiscite and Option 289
XIII. _Occupation_
220. Conception of Occupation 291
221. Object of Occupation 292
222. Occupation how effected 292
223. Inchoate Title of Discovery 294
224. Notification of Occupation to other Powers 294
225. Extent of Occupation 295
226. Protectorate as Precursor of Occupation 296
227. Spheres of influence 297
228. Consequences of Occupation 298
XIV. _Accretion_
229. Conception of Accretion 299
230. Different kinds of Accretion 299
231. Artificial formations 299
232. Alluvions 300
233. Deltas 300
234. New-born Islands 301
235. Abandoned River-beds 302
XV. _Subjugation_
236. Conception of Conquest and of Subjugation 302
237. Subjugation in Contradistinction to Occupation 303
238. Justification of Subjugation as a Mode of Acquisition 304
239. Subjugation of the whole or of a part of Enemy Territory 304
240. Consequences of Subjugation 305
241. Veto of third Powers 307
XVI. _Prescription_
242. Conception of Prescription 308
243. Prescription how effected 309
XVII. _Loss of State Territory_
244. Six modes of losing State Territory 311
245. Operation of Nature 312
246. Revolt 312
247. Dereliction 313
CHAPTER II--THE OPEN SEA
I. _Rise of the Freedom of the Open Sea_
248. Former Claims to Control over the Sea 315
249. Practical Expression of claims to Maritime Sovereignty 317
250. Grotius's Attack on Maritime Sovereignty 318
251. Gradual recognition of the Freedom of the Open Sea 319
II. _Conception of the Open Sea_
252. Discrimination between Open Sea and Territorial Waters 321
253. Clear Instances of Parts of the Open Sea 322
III. _The Freedom of the Open Sea_
254. Meaning of the Term "Freedom of the Open Sea" 323
255. Legal Provisions for the Open Sea 324
256. Freedom of the Open Sea and War 325
257. Navigation and ceremonials on the Open Sea 326
258. Claim of States to Maritime Flag 326
259. Rationale for the Freedom of the Open Sea 327
IV. _Jurisdiction on the Open Sea_
260. Jurisdiction on the Open Sea mainly connected with Flag 329
261. Claim of Vessels to sail under a certain Flag 329
262. Ship Papers 331
263. Names of Vessels 332
264. Territorial Quality of Vessels on the Open Sea 332
265. Safety of Traffic on the Open Sea 333
266. Powers of Men-of-war over Merchantmen of all Nations 335
267. How Verification of Flag is effected 337
268. How Visit is effected 337
269. How Search is effected 338
270. How Arrest is effected 338
271. Shipwreck and Distress on the Open Sea 339
V. _Piracy_
272. Conception of Piracy 340
273. Private Ships as Subjects of Piracy 341
274. Mutinous Crew and Passengers as Subjects of Piracy 343
275. Object of Piracy 344
276. Piracy, how effected 344
277. Where Piracy can be committed 345
278. Jurisdiction over Pirates and their Punishment 345
279. _Pirata non mutat dominium_ 346
280. Piracy according to Municipal Law 347
VI. _Fisheries in the Open Sea_
281. Fisheries in the Open Sea free to all Nations 348
282. Fisheries in the North Sea 349
283. Bumboats in the North Sea 351
284. Seal Fisheries in Behring Sea 351
285. Fisheries around the Faröe Islands and Iceland 353
VII. _Telegraph Cables in the Open Sea_
286. Telegraph Cables in the Open Sea admitted 353
287. International Protection of Submarine Telegraph Cables 354
VIII. _Wireless Telegraphy on the Open Sea_
287_a_. Radiotelegraphy between Ships and the Shore 355
287_b_. Radiotelegraphy between Ships at Sea 356
IX. _The Subsoil beneath the Sea Bed_
287_c_. Five Rules concerning the Subsoil beneath the Sea Bed 357
287_d_. The Proposed Channel Tunnel 359
CHAPTER III--INDIVIDUALS
I. _Position of Individuals in International Law_
288. Importance of Individuals to the Law of Nations 362
289. Individuals never Subjects of the Law of Nations 362
290. Individuals Objects of the Law of Nations 365
291. Nationality the Link between Individuals and the Law of
Nations 366
292. The Law of Nations and the Rights of Mankind 367
II. _Nationality_
293. Conception of Nationality 369
294. Function of Nationality 370
295. So-called _Protégés_ and _de facto_ Subjects 371
296. Nationality and Emigration 373
III. _Modes of Acquiring and Losing Nationality_
297. Five Modes of Acquisition of Nationality 374
298. Acquisition of Nationality by Birth 375
299. Acquisition of Nationality through Naturalisation 375
300. Acquisition of Nationality through Redintegration 376
301. Acquisition of Nationality through Subjugation and
Cession 377
302. Seven Modes of losing Nationality 377
IV. _Naturalisation in Especial_
303. Conception and Importance of Naturalisation 379
304. Object of Naturalisation 380
305. Conditions of Naturalisation 380
306. Effect of Naturalisation upon previous Citizenship 381
307. Naturalisation in Great Britain 382
V. _Double and Absent Nationality_
308. Possibility of Double and Absent Nationality 383
309. How Double Nationality occurs 384
310. Position of Individuals with Double Nationality 385
311. How Absent Nationality occurs 387
312. Position of Individuals destitute of Nationality 387
313. Redress against Difficulties arising from Double and
Absent Nationality 388
VI. _Reception of Aliens and Right of Asylum_
314. No Obligation to admit Aliens 390
315. Reception of Aliens under conditions 392
316. So-called Right of Asylum 392
VII. _Position of Aliens after Reception_
317. Aliens subjected to Territorial Supremacy 393
318. Aliens in Eastern Countries 395
319. Aliens under the Protection of their Home State 395
320. Protection to be afforded to Aliens' Persons and
Property 397
321. How far Aliens can be treated according to Discretion 397
322. Departure from the Foreign Country 398
VIII. _Expulsion of Aliens_
323. Competence to expel Aliens 399
324. Just Causes of Expulsion of Aliens 400
325. Expulsion how effected 402
326. Reconduction in Contradistinction to Expulsion 402
IX. _Extradition_
327. Extradition no legal duty 403
328. Extradition Treaties how arisen 404
329. Municipal Extradition Laws 405
330. Object of Extradition 407
331. Extraditable Crimes 408
332. Effectuation and Condition of Extradition 409
X. _Principle of Non-Extradition of Political Criminals_
333. How Non-extradition of Political Criminals became the
Rule 411
334. Difficulty concerning the Conception of Political Crime 414
335. The so-called Belgian _Attentat_ Clause 416
336. The Russian Project of 1881 416
337. The Swiss Solution of the Problem in 1892 417
338. Rationale for the Principle of Non-extradition of
Political Criminals 418
339. How to avoid Misapplication of the Principle of
Non-extradition of Political Criminals 420
340. Reactionary Extradition Treaties 422
PART III--_ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS_
CHAPTER I--HEADS OF STATES AND FOREIGN OFFICES
I. _Position of Heads of States according to International Law_
341. Necessity of a Head for every State 425
342. Recognition of Heads of States 425
343. Competence of Heads of States 426
344. Heads of States Objects of the Law of Nations 427
345. Honours and Privileges of Heads of States 428
II. _Monarchs_
346. Sovereignty of Monarchs 428
347. Consideration due to Monarchs at home 429
348. Consideration due to Monarchs abroad 429
349. The Retinue of Monarchs abroad 431
350. Monarchs travelling incognito 431
351. Deposed and Abdicated Monarchs 432
352. Regents 432
353. Monarchs in the service or subjects of Foreign Powers 432
III. _Presidents of Republics_
354. Presidents not Sovereigns 433
355. Position of Presidents in general 434
356. Position of Presidents abroad 434
IV. _Foreign Offices_
357. Position of the Secretary for Foreign Affairs 435
CHAPTER II--DIPLOMATIC ENVOYS
I. _The Institution of Legation_
358. Development of Legations 437
359. Diplomacy 438
II. _Right of Legation_
360. Conception of Right of Legation 440
361. What States possess the Right of Legation 441
362. Right of Legation by whom exercised 442
III. _Kinds and Classes of Diplomatic Envoys_
363. Envoys Ceremonial and Political 443
364. Classes of Diplomatic Envoys 443
365. Ambassadors 444
366. Ministers Plenipotentiary and Envoys Extraordinary 445
367. Ministers Resident 445
368. Chargés d'Affaires 445
369. The Diplomatic Corps 446
IV. _Appointment of Diplomatic Envoys_
370. Person and Qualification of the Envoy 446
371. Letter of Credence, Full Powers, Passports 447
372. Combined Legations 448
373. Appointment of several Envoys 448
V. _Reception of Diplomatic Envoys_
374. Duty to receive Diplomatic Envoys 449
375. Refusal to receive a certain Individual 450
376. Mode and Solemnity of Reception 451
377. Reception of Envoys to Congresses and Conferences 452
VI. _Functions of Diplomatic Envoys_
378. On Diplomatic Functions in general 453
379. Negotiation 453
380. Observation 454
381. Protection 454
382. Miscellaneous Functions 454
383. Envoys not to interfere in Internal Politics 455
VII. _Position of Diplomatic Envoys_
384. Diplomatic Envoys objects of International Law 455
385. Privileges due to Diplomatic Envoys 456
VIII. _Inviolability of Diplomatic Envoys_
386. Protection due to Diplomatic Envoys 457
387. Exemption from Criminal Jurisdiction 458
388. Limitation of Inviolability 459
IX. _Exterritoriality of Diplomatic Envoys_
389. Reason and Fictional Character of Exterritoriality 460
390. Immunity of Domicile 461
391. Exemption from Criminal and Civil Jurisdiction 464
392. Exemption from Subpoena as witness 465
393. Exemption from Police 466
394. Exemption from Taxes and the like 467
395. Right of Chapel 467
396. Self-jurisdiction 468
X. _Position of Diplomatic Envoys as regards Third States_
397. Possible Cases 469
398. Envoy travelling through Territory of third State 469
399. Envoy found by Belligerent on occupied Enemy Territory 471
400. Envoy interfering with affairs of a third State 472
XI. _The Retinue of Diplomatic Envoys_
401. Different Classes of Members of Retinue 472
402. Privileges of Members of Legation 473
403. Privileges of Private Servants 474
404. Privileges of Family of Envoy 474
405. Privileges of Couriers of Envoy 475
XII. _Termination of Diplomatic Mission_
406. Termination in contradistinction to Suspension 476
407. Accomplishment of Object of Mission 476
408. Expiration of Letter of Credence 477
409. Recall 477
410. Promotion to a higher Class 478
411. Delivery of Passports 478
412. Request for Passports 478
413. Outbreak of War 479
414. Constitutional Changes 479
415. Revolutionary Changes of Government 479
416. Extinction of sending or receiving State 480
417. Death of Envoy 480
CHAPTER III--CONSULS
I. _The Institution of Consuls_
418. Development of the Institution of Consuls 482
419. General Character of Consuls 484
II. _Consular Organisation_
420. Different kinds of Consuls 485
421. Consular Districts 485
422. Different classes of Consuls 486
423. Consuls subordinate to Diplomatic Envoys 487
III. _Appointment of Consuls_
424. Qualification of Candidates 487
425. No State obliged to admit Consuls 488
426. What kind of States can appoint Consuls 488
427. Mode of Appointment and of Admittance 489
428. Appointment of Consuls includes Recognition 489
IV. _Functions of Consuls_
429. On Consular Functions in general 490
430. Fosterage of Commerce and Industry 491
431. Supervision of Navigation 491
432. Protection 492
433. Notarial Functions 492
V. _Position and Privileges of Consuls_
434. Position 493
435. Consular Privileges 494
VI. _Termination of Consular Office_
436. Undoubted Causes of Termination 496
437. Doubtful Causes of Termination 496
438. Change in the Headship of States no cause of Termination 496
VII. _Consuls in non-Christian States_
439. Position of Consuls in non-Christian States 497
440. Consular Jurisdiction in non-Christian States 498
441. International Courts in Egypt 498
442. Exceptional Character of Consuls in non-Christian States 499
CHAPTER IV--MISCELLANEOUS AGENCIES
I. _Armed Forces on Foreign Territory_
443. Armed Forces State Organs 500
444. Occasions for Armed Forces abroad 500
445. Position of Armed Forces abroad 501
446. Case of McLeod 501
446_a_. The Casa Blanca incident 502
II. _Men-of-war in Foreign Waters_
447. Men-of-war State Organs 504
448. Proof of Character as Men-of-war 505
449. Occasions for Men-of-war abroad 505
450. Position of Men-of-war in foreign waters 506
451. Position of Crew when on Land abroad 508
III. _Agents without Diplomatic or Consular Character_
452. Agents lacking diplomatic or consular character 509
453. Public Political Agents 509
454. Secret Political Agents 510
455. Spies 510
456. Commissaries 511
457. Bearers of Despatches 511
IV. _International Commissions_
458. Permanent in Contradistinction to Temporary
Commissions 512
459. Commissions in the interest of Navigation 513
460. Commissions in the interest of Sanitation 515
461. Commissions in the interest of Foreign Creditors 515
462. Permanent Commission concerning Sugar 515
V. _International Offices_
463. Character of International Offices 515
464. International Telegraph Offices 516
465. International Post Office 516
466. International Office of Weights and Measures 516
467. International Office for the Protection of Works of
Literature and Art and of Industrial Property 516
467_a_. The Pan-American Union 517
468. Maritime Office at Zanzibar and Bureau Spécial at
Brussels 517
469. International Office of Customs Tariffs 517
470. Central Office of International Transports 517
471. Permanent Office of the Sugar Convention 517
471_a_. Agricultural Institute 518
471_b_. International Health Office 518
VI. _The International Court of Arbitration_
472. Organisation of Court in General 518
473. The Permanent Council 518
474. The International Bureau 519
475. The Court of Arbitration 519
476. The Deciding Tribunal 520
VII. _The International Prize Court and the proposed International
Court of Justice_
476_a_. The International Prize Court 522
476_b_. The proposed International Court of Justice 524
PART IV--_INTERNATIONAL TRANSACTIONS_
CHAPTER I--ON INTERNATIONAL TRANSACTIONS IN GENERAL
I. _Negotiation_
477. Conception of Negotiation 529
478. Parties to Negotiation 529
479. Purpose of Negotiation 530
480. Negotiations by whom conducted 531
481. Form of Negotiation 531
482. End and Effect of Negotiation 532
II. _Congresses and Conferences_
483. Conception of Congresses and Conferences 533
484. Parties to Congresses and Conferences 534
485. Procedure at Congresses and Conferences 535
III. _Transactions besides Negotiation_
486. Different kinds of Transaction 536
487. Declaration 536
488. Notification 537
489. Protest 538
490. Renunciation 539
CHAPTER II--TREATIES
I. _Character and Function of Treaties_
491. Conception of Treaties 540
492. Different kinds of Treaties 540
493. Binding Force of Treaties 541
II. _Parties to Treaties_
494. The Treaty-making Power 543
495. Treaty-making Power exercised by Heads of States 544
496. Minor Functionaries exercising Treaty-making Power 545
497. Constitutional Restrictions 545
498. Mutual Consent of the Contracting Parties 546
499. Freedom of Action of Consenting Representatives 547
500. Delusion and Error in Contracting Parties 547
III. _Objects of Treaties_
501. Objects in general of Treaties 548
502. Obligations of Contracting Parties only can be Object 548
503. An Obligation inconsistent with other Obligations cannot
be an Object 549
504. Object must be physically possible 549
505. Immoral Obligations 549
506. Illegal Obligations 550
IV. _Form and Parts of Treaties_
507. No necessary Form of Treaties 550
508. Acts, Conventions, Declarations 551
509. Parts of Treaties 552
V. _Ratification of Treaties_
510. Conception and Function of Ratification 553
511. Rationale for the Institution of Ratification 554
512. Ratification regularly, but not absolutely, necessary 554
513. Length of Time for Ratification 555
514. Refusal of Ratification 556
515. Form of Ratification 557
516. Ratification by whom effected 558
517. Ratification cannot be partial and conditional 559
518. Effect of Ratification 561
VI. _Effect of Treaties_
519. Effect of Treaties upon Contracting Parties 561
520. Effect of Treaties upon the Subjects of the Parties 562
521. Effect of Changes in Government upon Treaties 562
522. Effect of Treaties upon Third States 563
VII. _Means of Securing Performance of Treaties_
523. What means have been in use 565
524. Oaths 565
525. Hostages 566
526. Pledge 566
527. Occupation of Territory 566
528. Guarantee 567
VIII. _Participation of Third States in Treaties_
529. Interest and Participation to be distinguished 567
530. Good Offices and Mediation 568
531. Intervention 568
532. Accession 568
533. Adhesion 569
IX. _Expiration and Dissolution of Treaties_
534. Expiration and Dissolution in Contradistinction to
Fulfilment 570
535. Expiration through Expiration of Time 570
536. Expiration through Resolutive Condition 571
537. Mutual Consent 571
538. Withdrawal by Notice 571
539. Vital Change of Circumstances 572
X. _Voidance of Treaties_
540. Grounds of Voidance 576
541. Extinction of one of the two Contracting Parties 576
542. Impossibility of Execution 577
543. Realisation of Purpose of Treaty other than by
Fulfilment 577
544. Extinction of such Object as was concerned in a Treaty 577
XI. _Cancellation of Treaties_
545. Grounds of Cancellation 578
546. Inconsistency with subsequent International Law 578
547. Violation by one of the Contracting Parties 579
548. Subsequent Change of Status of one of the Contracting
Parties 579
549. War 580
XII. _Renewal, Reconfirmation, and Redintegration of Treaties_
550. Renewal of Treaties 580
551. Reconfirmation 581
552. Redintegration 581
XIII. _Interpretation of Treaties_
553. Authentic Interpretation, and the Compromise Clause 582
554. Rules of Interpretation which recommend themselves 583
CHAPTER III--IMPORTANT GROUPS OF TREATIES
I. _Important Law-making Treaties_
555. Important Law-making Treaties a product of the
Nineteenth Century 587
556. Final Act of the Vienna Congress 588
557. Protocol of the Congress of Aix-la-Chapelle 588
558. Treaty of London of 1831 588
559. Declaration of Paris 588
560. Geneva Convention 589
561. Treaty of London of 1867 589
562. Declaration of St. Petersburg 590
563. Treaty of Berlin of 1878 590
564. General Act of the Congo Conference 590
565. Treaty of Constantinople of 1888 591
566. General Act of the Brussels Anti-Slavery Conference 591
567. Two Declarations of the First Hague Peace Conference 591
568. Treaty of Washington of 1901 592
568_a_. Conventions and Declaration of the Second Hague Peace
Conference 592
568_b_. The Declaration of London 595
II. _Alliances_
569. Conception of Alliances 595
570. Parties to Alliances 597
571. Different kinds of Alliances 597
572. Conditions of Alliances 598
573. _Casus Foederis_ 599
III. _Treaties of Guarantee and of Protection_
574. Conception and Objects of Guarantee Treaties 599
575. Effect of Treaties of Guarantee 600
576. Effect of Collective Guarantee 601
576_a_. Pseudo-Guarantees 602
577. Treaties of Protection 604
IV. _Commercial Treaties_
578. Commercial Treaties in General 605
579. Meaning of Coasting-trade in Commercial Treaties 606
580. Meaning of Most-favoured-nation Clause 610
V. _Unions Concerning Common Non-Political Interests_
581. Object of the Unions 612
582. Post and Telegraphs 613
583. Transport and Communication 614
584. Copyright 615
585. Commerce and Industry 616
586. Agriculture 617
587. Welfare of Working Classes 618
588. Weights, Measures, Coinage 619
589. Official Publications 620
590. Sanitation 620
591. Pharmacopoeia 622
592. Humanity 622
593. Preservation of Animal World 623
594. Private International Law 623
595. American Republics 624
596. Science 625
INDEX 627
INTRODUCTION
FOUNDATION AND DEVELOPMENT OF THE LAW OF NATIONS
CHAPTER I
FOUNDATION OF THE LAW OF NATIONS
I
THE LAW OF NATIONS AS LAW
Hall, pp. 14-16--Maine, pp. 50-53--Lawrence, §§ 1-3, and Essays,
pp. 1-36--Phillimore, I. §§ 1-12--Twiss, I. §§ 104-5--Taylor, §
2--Moore, I. §§ 1-2--Westlake, I. pp. 1-13--Walker, History, I. §§
1-8--Halleck, I. pp. 46-55--Ullmann, §§ 2-4--Heffter, §§
1-5--Holtzendorff in Holtzendorff, I. pp. 19-26--Nys, I. pp.
133-43--Rivier, I. § 1--Bonfils, Nos. 26-31--Pradier-Fodéré, I.
Nos. 1-24--Mérignhac, I. pp. 5-28--Martens, I. §§ 1-5--Fiore, I.
Nos. 186-208, and Code, Nos. 1-26--Higgins, "The Binding Force of
International Law" (1910)--Pollock in _The Law Quarterly Review_,
XVIII. (1902), pp. 418-428--Scott in A.J. I. (1907), pp.
831-865--Willoughby and Root in A.J. II. (1908), pp. 357-365 and
451-457.
[Sidenote: Conception of the Law of Nations.]
§ 1. Law of Nations or International Law (_Droit des gens_,
_Völkerrecht_) is the name for the body of customary and conventional
rules which are considered legally[1] binding by civilised States in
their intercourse with each other. Such part of these rules as is
binding upon all the civilised States without exception is called
_universal_ International Law,[2] in contradistinction to _particular_
International Law, which is binding on two or a few States only. But it
is also necessary to distinguish _general_ International Law. This name
must be given to the body of such rules as are binding upon a great many
States, including leading Powers. General International Law, as, for
instance, the Declaration of Paris of 1856, has a tendency to become
universal International Law.
[Footnote 1: In contradistinction to mere usages and to rules of
so-called International Comity, see below §§ 9 and 19.]
[Footnote 2: The best example of universal International Law is the law
connected with legation.]
International Law in the meaning of the term as used in modern times did
not exist during antiquity and the first part of the Middle Ages. It is
in its origin essentially a product of Christian civilisation, and began
gradually to grow from the second half of the Middle Ages. But it owes
its existence as a systematised body of rules to the Dutch jurist and
statesman Hugo Grotius, whose work, "De Jure Belli ac Pacis libri III.,"
appeared in 1625 and became the foundation of all later development.
The Law of Nations is a law for the intercourse of States with one
another, not a law for individuals. As, however, there cannot be a
sovereign authority above the several sovereign States, the Law of
Nations is a law _between_, not above, the several States, and is,
therefore, since Bentham, also called "International Law."
Since the distinction of Bentham between International Law public and
private has been generally accepted, it is necessary to emphasise that
only the so-called public International Law, which is identical with the
Law of Nations, is International Law, whereas the so-called private
International Law is not. The latter concerns such matters as fall at
the same time under the jurisdiction of two or more different States.
And as the Municipal Laws of different States are frequently in conflict
with each other respecting such matters, jurists belonging to different
countries endeavour to find a body of principles according to which such
conflicts can be avoided.
[Sidenote: Legal Force of the Law of Nations contested.]
§ 2. Almost from the beginning of the science of the Law of Nations the
question has been discussed whether the rules of International Law are
_legally_ binding. Hobbes[3] already and Pufendorf[4] had answered the
question in the negative. And during the nineteenth century Austin[5]
and his followers take up the same attitude. They define law as a body
of rules for human conduct set and enforced by a sovereign political
authority. If indeed this definition of law be correct, the Law of
Nations cannot be called law. For International Law is a body of rules
governing the relations of Sovereign States between one another. And
there is not and cannot be a sovereign political authority above the
Sovereign States which could enforce such rules. However, this
definition of law is not correct. It covers only the written or statute
law within a State, that part of the Municipal Law which is expressly
made by statutes of Parliament in a constitutional State or by some
other sovereign authority in a non-constitutional State. It does not
cover that part of Municipal Law which is termed unwritten or customary
law. There is, in fact, no community and no State in the world which
could exist with written law only. Everywhere there is customary law in
existence besides the written law. This customary law was never
expressly enacted by any law-giving body, or it would not be merely
customary law. Those who define law as rules set and enforced by a
sovereign political authority do not deny the existence of customary
law. But they maintain that the customary law has the character of law
only through the indirect recognition on the part of the State which is
to be found in the fact that courts of justice apply the customary in
the same way as the written law, and that the State does not prevent
them from doing so. This is, however, nothing else than a fiction.
Courts of justice having no law-giving power could not recognise
unwritten rules as law if these rules were not law before that
recognition, and States recognise unwritten rules as law only because
courts of justice do so.
[Footnote 3: De Cive, XIV. 4.]
[Footnote 4: De Jure Naturæ et Gentium, II. c. iii. § 22.]
[Footnote 5: Lectures on Jurisprudence, VI.]
[Sidenote: Characteristics of Rules of Law.]
§ 3. For the purpose of finding a correct definition of law it is
indispensable to compare morality and law with each other, for both lay
down rules, and to a great extent the same rules, for human conduct. Now
the characteristic of rules of morality is that they apply to
conscience, and to conscience only. An act loses all value before the
tribunal of morality, if it was not done out of free will and
conscientiousness, but was enforced by some external power or was done
out of some consideration which lies without the boundaries of
conscience. Thus, a man who gives money to the hospitals in order that
his name shall come before the public does not act morally, and his deed
is not a moral one, though it appears to be one outwardly. On the other
hand, the characteristic of rules of law is that they shall eventually
be enforced by external power.[6] Rules of law apply, of course, to
conscience quite as much as rules of morality. But the latter require to
be enforced by the internal power of conscience only, whereas the former
require to be enforced by some external power. When, to give an
illustrative example, morality commands you to pay your debts, it hopes
that your conscience will make you pay them. On the other hand, if the
law gives the same command, it hopes that, if the conscience has not
sufficient power to make you pay your debts, the fact that, if you will
not pay, the bailiff will come into your house, will do so.
[Footnote 6: Westlake, Chapters, p. 12, seems to make the same
distinction between rules of law and of morality, and Twiss, I. § 105,
adopts it _expressis verbis_.]
[Sidenote: Law-giving Authority not essential for the Existence of Law.]
§ 4. If these are the characteristic signs of morality and of law, we
are justified in stating the principle: A rule is a rule of morality, if
by common consent of the community it applies to conscience and to
conscience only; whereas, on the other hand, a rule is a rule of law, if
by common consent of the community it shall eventually be enforced by
external power. Without some kind both of morality and law, no
community has ever existed or could possibly exist. But there need not
be, at least not among primitive communities, a law-giving authority
within a community. Just as the rules of morality are growing through
the influence of many different factors, so the law can grow without
being expressly laid down and set by a law-giving authority. Wherever we
have an opportunity of observing a primitive community, we find that
some of its rules for human conduct apply to conscience only, whereas
others shall by common consent of the community be enforced; the former
are rules of morality only, whereas the latter are rules of law. For the
existence of law neither a law-giving authority nor courts of justice
are essential. Whenever a question of law arises in a primitive
community, it is the community itself and not a court which decides it.
Of course, when a community is growing out of the primitive condition of
its existence and becomes gradually so enlarged that it turns into a
State in the sense proper of the term, the necessities of life and
altered circumstances of existence do not allow the community itself any
longer to do anything and everything. And the law can now no longer be
left entirely in the hands of the different factors which make it grow
gradually from case to case. A law-giving authority is now just as much
wanted as a governing authority. It is for this reason that we find in
every State a Legislature, which makes laws, and courts of justice,
which administer them.
However, if we ask whence does the power of the legislature to make laws
come, there is no other answer than this: From the common consent of the
community. Thus, in Great Britain, Parliament is the law-making body by
common consent. An Act of Parliament is law, because the common consent
of Great Britain is behind it. That Parliament has law-making authority
is law itself, but unwritten and customary law. _Thus the very important
fact comes to light that all statute or written law is based on
unwritten law in so far as the power of Parliament to make Statute Law
is given to Parliament by unwritten law._ It is the common consent of
the British people that Parliament shall have the power of making rules
which shall be enforced by external power. But besides the statute laws
made by Parliament there exist and are constantly growing other laws,
unwritten or customary, which are day by day recognised through courts
of justice.
[Sidenote: Definition and three Essential Conditions of Law.]
§ 5. On the basis of the results of these previous investigations we are
now able to give a definition of law. We may say that _law is a body of
rules for human conduct within a community which by common consent of
this community shall be enforced by external power_.
The essential conditions of the existence of law are, therefore,
threefold. There must, first, be a community. There must, secondly, be a
body of rules for human conduct within that community. And there must,
thirdly, be a common consent of that community that these rules shall be
enforced by external power. It is not an essential condition either that
such rules of conduct must be written rules, or that there should be a
law-making authority or a law-administering court within the community
concerned. And it is evident that, if we find this definition of law
correct, and accept these three essential conditions of law, the
existence of law is not limited to the State community only, but is to
be found everywhere where there is a community. The best example of the
existence of law outside the State is the law of the Roman Catholic
Church, the so-called Canon Law. This Church is an organised community
whose members are dispersed over the whole surface of the earth. They
consider themselves bound by the rules of the Canon Law, although there
is no sovereign political authority that sets and enforces those rules,
the Pope and the bishops and priests being a religious authority only.
But there is an external power through which the rules of the Canon Law
are enforced--namely, the punishments of the Canon Law, such as
excommunication, refusal of sacraments, and the like. And the rules of
the Canon Law are in this way enforced by common consent of the whole
Roman Catholic community.
[Sidenote: Law not to be identified with Municipal Law.]
§ 6. But it must be emphasised that, if there is law to be found in
every community, law in this meaning must not be identified with the law
of States, the so-called Municipal Law,[7] just as the conception of
State must not be identified with the conception of community. The
conception of community is a wider one than the conception of State. A
State is a community, but not every community is a State. Likewise the
conception of law pure and simple is a wider one than that of Municipal
Law. Municipal Law is law, but not every law is Municipal Law, as, for
instance, the Canon Law is not. Municipal Law is a narrower conception
than law pure and simple. The body of rules which is called the Law of
Nations might, therefore, be law in the strict sense of the term,
although it might not possess the characteristics of Municipal Law. To
make sure whether the Law of Nations is or is not law, we have to
inquire whether the three essential conditions of the existence of law
are to be found in the Law of Nations.
[Footnote 7: Throughout this work the term "Municipal Law" is made use
of in the sense of national or State law in contradistinction to
International Law.]
[Sidenote: The "Family of Nations" a Community.]
§ 7. As the first condition is the existence of a community, the
question arises, whether an international community exists whose law
could be the Law of Nations. Before this question can be answered, the
conception of community must be defined. A community may be said to be
the body of a number of individuals more or less bound together through
such common interests as create a constant and manifold intercourse
between the single individuals. This definition of community covers not
only a community of individual men, but also a community of individual
communities such as individual States. A Confederation of States is a
community of States. But is there a universal international community of
all individual States in existence? This question is decidedly to be
answered in the affirmative as far as the States of the civilised world
are concerned. Innumerable are the interests which knit all the
individual civilised States together and which create constant
intercourse between these States as well as between their subjects. As
the civilised States are, with only a few exceptions, Christian States,
there are already religious ideas which wind a band around them. There
are, further, science and art, which are by their nature to a great
extent international, and which create a constant exchange of ideas and
opinions between the subjects of the several States. Of the greatest
importance are, however, agriculture, industry, and trade. It is totally
impossible even for the largest empire to produce everything its
subjects want. Therefore, the productions of agriculture and industry
must be exchanged by the several States, and it is for this reason that
international trade is an unequalled factor for the welfare of every
civilised State. Even in antiquity, when every State tried to be a world
in itself, States did not and could not exist without some sort of
international trade. It is international trade which has created
navigation on the high seas and on the rivers flowing through different
States. It is, again, international trade which has called into
existence the nets of railways which cover the continents, the
international postal and telegraphic arrangements, and the Transatlantic
telegraphic cables.[8]
[Footnote 8: See Fried, "Das internationale Leben der Gegenwart" (1908),
where the innumerable interests are grouped and discussed which knit the
civilised world together.]
The manifold interests which knit all the civilised States together and
create a constant intercourse between one another, have long since
brought about the necessity that these States should have one or more
official representatives living abroad. Thus we find everywhere foreign
envoys and consuls. They are the agents who make possible the current
stream of transactions between the Governments of the different States.
A number of International Offices, International Bureaux, International
Commissions have been permanently appointed for the administration of
international business, a permanent Court of Arbitration has been, and
an International Prize Court will soon be, established at the Hague. And
from time to time special international conferences and congresses of
delegates of the different States are convoked for discussing and
settling matters international. Though the individual States are
sovereign and independent of each other, though there is no
international Government above the national ones, though there is no
central political authority to which the different States are subjected,
yet there is something mightier than all the powerful separating
factors: namely, the common interests. And these common interests and
the necessary intercourse which serves these interests, unite the
separate States into an indivisible community. For many hundreds of
years this community has been called "Family of Nations" or "Society of
Nations."
[Sidenote: The "Family of Nations" a Community with Rules of Conduct.]
§ 8. Thus the first essential condition for the existence of law is a
reality. The single States make altogether a body of States, a community
of individual States. But the second condition cannot be denied either.
For hundreds of years more and more rules have grown up for the conduct
of the States between each other. These rules are to a great extent
customary rules. But side by side with these customary and unwritten
rules more and more written rules are daily created by international
agreements, such as the Declaration of Paris of 1856, the Hague Rules
concerning land warfare of 1899 and 1907, and the like. The so-called
Law of Nations is nothing else than a body of customary and conventional
rules regulating the conduct of the individual States with each other.
Just as out of tribal communities which were in no way connected with
each other arose the State, so the Family of Nations arose out of the
different States which were in no way connected with each other. But
whereas the State is a settled institution, firmly established and
completely organised, the Family of Nations is still in the beginning of
its development. A settled institution and firmly established it
certainly is, but it entirely lacks at present any organisation
whatever. Such an organisation is, however, gradually growing into
existence before our eyes. The permanent Court of Arbitration created by
the First Hague Peace Conference, and the International Prize Court
proposed by the Second Hague Peace Conference, are the first small
traces of a future organisation. The next step forward will be that the
Hague Peace Conferences will meet automatically within certain periods
of time, without being summoned by one of the Powers. A second step
forward will be the agreement on the part of the Powers upon fixed rules
of procedure for the future Hague Peace Conferences. As soon as these
two steps forward are really made, the nucleus of an organisation of the
Family of Nations will be in existence, and out of this nucleus will
grow in time a more powerful organisation, the ultimate characteristic
features of which cannot at present be foreseen.[9]
[Footnote 9: See Oppenheim, "Die Zukunft des Völkerrechts" (1911),
_passim_.]
[Sidenote: External Power for the Enforcement of Rules of International
Conduct.]
§ 9. But how do matters stand concerning the third essential condition
for the existence of law? Is there a common consent of the community of
States that the rules of international conduct shall be enforced by
external power? There cannot be the slightest doubt that this question
must be affirmatively answered, although there is no central authority
to enforce those rules. The heads of the civilised States, their
Governments, their Parliaments, and public opinion of the whole of
civilised humanity, agree and consent that the body of rules of
international conduct which is called the Law of Nations shall be
enforced by external power, in contradistinction to rules of
international morality and courtesy, which are left to the consideration
of the conscience of nations. And in the necessary absence of a central
authority for the enforcement of the rules of the Law of Nations, the
States have to take the law into their own hands. Self-help and
intervention on the part of other States which sympathise with the
wronged one are the means by which the rules of the Law of Nations can
be[10] and actually are enforced. It is true that these means have many
disadvantages, but they are means which have the character of external
power. Compared with Municipal Law and the means at disposal for its
enforcement, the Law of Nations is certainly the weaker of the two. A
law is the stronger, the more guarantees are given that it can and will
be enforced. Thus, the law of a State which is governed by an uncorrupt
Government and the courts of which are not venal is stronger than the
law of a State which has a corrupt Government and venal judges. It is
inevitable that the Law of Nations must be a weaker law than Municipal
Law, as there is not and cannot be an international Government above the
national ones which could enforce the rules of International Law in the
same way as a national Government enforces the rules of its Municipal
Law. But a weak law is nevertheless still law, and the Law of Nations is
by no means so weak a law as it sometimes seems to be.[11]
[Footnote 10: See below, § 135, concerning intervention by right.]
[Footnote 11: Those who deny to International Law the character of law
because they identify the conception of law in general with that of
Municipal Law and because they cannot see any law outside the State,
confound cause and effect. Originally law was not a product of the
State, but the State was a product of law. The right of the State to
make law is based upon the rule of law that the State is competent to
make law.]
[Sidenote: Practice recognises Law of Nations as Law.]
§ 10. The fact is that theorists only are divided concerning the
character of the Law of Nations as real law. In practice International
Law is constantly recognised as law. The Governments and Parliaments of
the different States are of opinion that they are legally, not morally
only, bound by the Law of Nations, although they cannot be forced to go
before a court in case they are accused of having violated it. Likewise,
public opinion of all civilised States considers every State legally
bound to comply with the rules of the Law of Nations, not taking notice
of the opinion of those theorists who maintain that the Law of Nations
does not bear the character of real law. And the several States not only
recognise the rules of International Law as legally binding in
innumerable treaties, but emphasise every day the fact that there is a
law between themselves. They moreover recognise this law by their
Municipal Laws ordering their officials, their civil and criminal
courts, and their subjects to take up such an attitude as is in
conformity with the duties imposed upon their Sovereign by the Law of
Nations. If a violation of the Law of Nations occurs on the part of an
individual State, public opinion of the civilised world, as well as the
Governments of other States, stigmatise such violation as a violation of
law pure and simple. And countless treaties concerning trade,
navigation, post, telegraph, copyright, extradition, and many other
objects exist between civilised States, which treaties, resting entirely
on the existence of a law between the States, presuppose such a law, and
contribute by their very existence to its development and growth.
Violations of this law are certainly frequent. But the offenders always
try to prove that their acts do not contain a violation, and that they
have a right to act as they do according to the Law of Nations, or at
least that no rule of the Law of Nations is against their acts. Has a
State ever confessed that it was going to break the Law of Nations or
that it ever did so? The fact is that States, in breaking the Law of
Nations, never deny its existence, but recognise its existence through
the endeavour to interpret the Law of Nations in a way favourable to
their act. And there is an ever-growing tendency to bring disputed
questions of International Law as well as international differences in
general before international courts. The permanent Court of Arbitration
at the Hague established in 1899, and the International Prize Court
proposed at the Hague according to a convention of 1907, are the first
promising fruits of this tendency.
II
BASIS OF THE LAW OF NATIONS
[Sidenote: Common Consent the Basis of Law.]
§ 11. If law is, as defined above (§ 5), a body of rules for human
conduct within a community which by common consent of this community
shall be enforced through external power, common consent is the basis of
all law. What, now, does the term "common consent" mean? If it meant
that all the individuals who are members of a community must at every
moment of their existence expressly consent to every point of law, such
common consent would never be a fact. The individuals, who are the
members of a community, are successively born into it, grow into it
together with the growth of their intellect during adolescence, and die
away successively to make room for others. The community remains
unaltered, although a constant change takes place in its members.
"Common consent" can therefore only mean the express or tacit consent of
such an overwhelming majority of the members that those who dissent are
of no importance whatever, and disappear totally from the view of one
who looks for the will of the community as an entity in
contradistinction to the wills of its single members. The question as to
whether there be such a common consent in a special case, is not a
question of theory, but of fact only. It is a matter of observation and
appreciation, and not of logical and mathematical decision, just as is
the well-known question, how many grains make a heap? Those legal rules
which come down from ancestors to their descendants remain law so long
only as they are supported by common consent of these descendants. New
rules can only become law if they find common consent on the part of
those who constitute the community at the time. It is for that reason
that custom is at the background of all law, whether written or
unwritten.
[Sidenote: Common Consent of the Family of Nations the Basis of
International Law.]
§ 12. What has been stated with regard to law pure and simple applies
also to the Law of Nations. However, the community for which this Law of
Nations is authoritative consists not of individual human beings, but of
individual States. And whereas in communities consisting of individual
human beings there is a constant and gradual change of the members
through birth, death, emigration, and immigration, the Family of
Nations is a community within which no such constant change takes place,
although now and then a member disappears and a new member steps in. The
members of the Family of Nations are therefore not born into that
community and they do not grow into it. New members are simply received
into it through express or tacit recognition. It is therefore necessary
to scrutinise more closely the common consent of the States which is the
basis of the Law of Nations.
The customary rules of this law have grown up by common consent of the
States--that is, the different States have acted in such a manner as
includes their tacit consent to these rules. As far as the process of
the growth of a usage and its turning into a custom can be traced back,
customary rules of the Law of Nations came into existence in the
following way. The intercourse of States with each other necessitated
some rules of international conduct. Single usages, therefore, gradually
grew up, the different States acting in the same or in a similar way
when an occasion arose. As some rules of international conduct were from
the end of the Middle Ages urgently wanted, the theory of the Law of
Nations prepared the ground for their growth by constructing certain
rules on the basis of religious, moral, rational, and historical
reflections. Hugo Grotius's work, "De Jure Belli ac Pacis libri III."
(1625), offered a systematised body of rules, which recommended
themselves so much to the needs and wants of the time that they became
the basis of the development following. Without the conviction of the
Governments and of public opinion of the civilised States that there
ought to be legally binding rules for international conduct, on the one
hand, and, on the other hand, without the pressure exercised upon the
States by their interests and the necessity for the growth of such
rules, the latter would never have grown up. When afterwards,
especially in the nineteenth century, it became apparent that customs
and usages alone were not sufficient or not sufficiently clear, new
rules were created through law-making treaties being concluded which
laid down rules for future international conduct. Thus conventional
rules gradually grew up side by side with customary rules.
New States which came into existence and were through express or tacit
recognition admitted into the Family of Nations thereby consented to the
body of rules for international conduct in force at the time of their
admittance. It is therefore not necessary to prove for every single rule
of International Law that every single member of the Family of Nations
consented to it. No single State can say on its admittance into the
Family of Nations that it desires to be subjected to such and such a
rule of International Law, and not to others. The admittance includes
the duty to submit to all the rules in force, with the sole exception of
those which, such as the rules of the Geneva Convention for instance,
are specially stipulated for such States only as have concluded, or
later on acceded to, a certain international treaty creating the rules
concerned.
On the other hand, no State which is a member of the Family of Nations
can at some time or another declare that it will in future no longer
submit to a certain recognised rule of the Law of Nations. The body of
the rules of this law can be altered by common consent only, not by a
unilateral declaration on the part of one State. This applies not only
to customary rules, but also to such conventional rules as have been
called into existence through a law-making treaty for the purpose of
creating a permanent mode of future international conduct without a
right of the signatory powers to give notice of withdrawal. It would,
for instance, be a violation of International Law on the part of a
signatory Power of the Declaration of Paris of 1856 to declare that it
would cease to be a party. But it must be emphasised that this does not
apply to such conventional rules as are stipulated by a law-making
treaty which expressly reserves the right to the signatory Powers to
give notice.
[Sidenote: States the Subjects of the Law of Nations.]
§ 13. Since the Law of Nations is based on the common consent of
individual States, and not of individual human beings, States solely and
exclusively are the subjects of International Law. This means that the
Law of Nations is a law for the international conduct of States, and not
of their citizens. Subjects of the rights and duties arising from the
Law of Nations are States solely and exclusively. An individual human
being, such as a king or an ambassador for example, is never directly a
subject of International Law. Therefore, all rights which might
necessarily have to be granted to an individual human being according to
the Law of Nations are not international rights, but rights granted by
Municipal Law in accordance with a duty imposed upon the respective
State by International Law. Likewise, all duties which might necessarily
have to be imposed upon individual human beings according to the Law of
Nations are not international duties, but duties imposed by Municipal
Law in accordance with a right granted to or a duty imposed upon the
respective State by International Law. Thus the privileges of an
ambassador are granted to him by the Municipal Law of the State to which
he is accredited, but such State has the duty to grant these privileges
according to International Law. Thus, further, the duties incumbent upon
officials and subjects of neutral States in time of war are imposed upon
them by the Municipal Law of their home States, but these States have,
according to International Law, the duty of imposing the respective
duties upon their officials and citizens.[12]
[Footnote 12: The importance of the fact that subjects of the Law of
Nations are States exclusively is so great that I consider it necessary
to emphasise it again and again throughout this work. See, for instance,
below, §§ 289, 344, 384. It should, however, already be mentioned here
that this assertion is even nowadays still sometimes contradicted; see,
for instance, Kaufmann, "Die Rechtskraft des Internationalen Rechts"
(1899), _passim_; Rehm in Z.V. I. (1907), p. 53; and Diena in R.G. XVI.
pp. 57-76.]
[Sidenote: Equality an Inference from the Basis of International Law.]
§ 14. Since the Law of Nations is based on the common consent of States
as sovereign communities, the member States of the Family of Nations are
equal to each other as subjects of International Law. States are by
their nature certainly not equal as regards power, extent, constitution,
and the like. But as members of the community of nations they are
equals, whatever differences between them may otherwise exist. This is a
consequence of their sovereignty and of the fact that the Law of Nations
is a law between, not above, the States.[13]
[Footnote 13: See below, §§ 115-116, where the legal equality of States
in contradistinction to their political inequality is discussed, and
where it will also be shown that not-full Sovereign States are not
equals of full-Sovereign States.]
III
SOURCES OF THE LAW OF NATIONS
Hall, pp. 5-14--Maine, pp. 1-25--Lawrence, §§ 61-66--Phillimore,
I. §§ 17-33--Twiss, I. §§ 82-103--Taylor, §§ 30-36--Westlake, I.
pp. 14-19--Wheaton, § 15--Halleck, I. pp. 55-64--Ullmann, §§
8-9--Heffter, § 3--Holtzendorff in Holtzendorff, I. pp.
79-158--Rivier, I. § 2--Nys, I. pp. 144-165--Bonfils, Nos.
45-63--Despagnet, Nos. 58-63--Pradier-Fodéré, I. Nos.
24-35--Mérignhac, I. pp. 79-113--Martens, I. § 43--Fiore, I. Nos.
224-238--Calvo, I. §§ 27-38--Bergbohm, "Staatsverträge und Gesetze
als Quellen des Völkerrechts" (1877)--Jellinek, "Die rechtliche
Natur der Staatsverträge" (1880)--Cavaglieri, "La consuetudine
giuridica internazionale" (1907).
[Sidenote: Source in Contradistinction to Cause.]
§ 15. The different writers on the Law of Nations disagree widely with
regard to kinds and numbers of sources of this law. The fact is that the
term "source of law" is made use of in different meanings by the
different writers on International Law, as on law in general. It seems
to me that most writers confound the conception of "source" with that of
"cause," and through this mistake come to a standpoint from which
certain factors which influence the growth of International Law appear
as sources of rules of the Law of Nations. This mistake can be avoided
by going back to the meaning of the term "source" in general. Source
means a spring or well, and has to be defined as the rising from the
ground of a stream of water. When we see a stream of water and want to
know whence it comes, we follow the stream upwards until we come to the
spot where it rises naturally from the ground. On that spot, we say, is
the source of the stream of water. We know very well that this source is
not the cause of the existence of the stream of water. Source signifies
only the natural rising of water from a certain spot of the ground,
whatever natural causes there may be for that rising. If we apply the
conception of source in this meaning to the term "source of law," the
confusion of source with cause cannot arise. Just as we see streams of
water running over the surface of the earth, so we see, as it were,
streams of rules running over the area of law. And if we want to know
whence these rules come, we have to follow these streams upwards until
we come to their beginning. Where we find that such rules rise into
existence, there is the source of them. Of course, rules of law do not
rise from a spot on the ground as water does; they rise from facts in
the historical development of a community. Thus in Great Britain a good
many rules of law rise every year from Acts of Parliament. "Source of
Law" is therefore the name for an historical fact out of which rules of
conduct rise into existence and legal force.
[Sidenote: The two Sources of International Law.]
§ 16. As the basis of the Law of Nations is the common consent of the
member States of the Family of Nations, it is evident that there must
exist, and can only exist, as many sources of International Law as there
are facts through which such common consent can possibly come into
existence. Of such facts there are only two. A State, just as an
individual, may give its consent either directly by an express
declaration or tacitly by conduct which it would not follow in case it
did not consent. The sources of International Law are therefore
twofold--namely: (1) _express_ consent, which is given when States
conclude a treaty stipulating certain rules for the future international
conduct of the parties; (2) _tacit_ consent, which is given through
States having adopted the custom of submitting to certain rules of
international conduct. Treaties and custom are, therefore, exclusively
the sources of the Law of Nations.
[Sidenote: Custom in Contradistinction to Usage.]
§ 17. Custom is the older and the original source of International Law
in particular as well as of law in general. Custom must not be
confounded with usage. In everyday life and language both terms are used
synonymously, but in the language of the jurist they have two distinctly
different meanings. Jurists speak of a custom, when a clear and
continuous habit of doing certain actions has grown up under the ægis of
the conviction that these actions are legally necessary or legally
right. On the other hand, jurists speak of a usage, when a habit of
doing certain actions has grown up without there being the conviction of
their legal character. Thus the term "custom" is in juristic language a
narrower conception than the term "usage," as a given course of conduct
may be usual without being customary. Certain conduct of States
concerning their international relations may therefore be usual without
being the outcome of customary International Law.
As usages have a tendency to become custom, the question presents
itself, at what time a usage turns into a custom. This question is one
of fact, not of theory. All that theory can point out is this: Wherever
and as soon as a frequently adopted international conduct of States is
considered legally necessary or legally right, the rule which may be
abstracted from such conduct, is a rule of customary International Law.
[Sidenote: Treaties as Source of International Law.]
§ 18. Treaties are the second source of International Law, and a source
which has of late become of the greatest importance. As treaties may be
concluded for innumerable purposes,[14] it is necessary to emphasise
that such treaties only are a source of International Law as either
stipulate new rules for future international conduct or confirm, define,
or abolish existing customary or conventional rules. Such treaties must
be called _law-making treaties_. Since the Family of Nations is not a
State-like community, there is no central authority which could make law
for it in a similar way as Parliaments make law by statutes within the
States. The only way in which International Law can be made by a
deliberate act, in contradistinction to custom, is that the members of
the Family of Nations conclude treaties in which certain rules for their
future conduct are stipulated. Of course, such law-making treaties
create law for the contracting parties solely. Their law is _universal_
International Law then only, when all the members of the Family of
Nations are parties to them. Many law-making treaties are concluded by a
few States only, so that the law which they create is _particular_
International Law. On the other hand, there have been many law-making
treaties concluded which contain _general_ International Law, because
the majority of States, including leading Powers, are parties to them.
General International Law has a tendency to become universal because
such States as hitherto did not consent to it will in future either
expressly give their consent or recognise the respective rules tacitly
through custom.[15] But it must be emphasised that, whereas custom is
the original source of International Law, treaties are a source the
power of which derives from custom. For the fact that treaties can
stipulate rules of international conduct at all is based on the
customary rule of the Law of Nations, that treaties are binding upon the
contracting parties.[16]
[Footnote 14: See below, § 492.]
[Footnote 15: Law-making treaties of world-wide importance are
enumerated below, §§ 556-568b.]
[Footnote 16: See below, § 493.]
[Sidenote: Factors influencing the Growth of International Law.]
§ 19. Thus custom and treaties are the two exclusive sources of the Law
of Nations. When writers on International Law frequently enumerate other
sources besides custom and treaties, they confound the term "source"
with that of "cause" by calling sources of International Law such
factors as influence the gradual growth of new rules of International
Law without, however, being the historical facts from which these rules
receive their legal force. Important factors of this kind are: Opinions
of famous writers[17] on International Law, decisions of prize courts,
arbitral awards,[18] instructions issued by the different States for the
guidance of their diplomatic and other organs, State Papers concerning
foreign politics, certain Municipal Laws, decisions of Municipal
Courts.[19] All these and other factors may influence the growth of
International Law either by creating usages which gradually turn into
custom, or by inducing the members of the Family of Nations to conclude
such treaties as stipulate legal rules for future international conduct.
[Footnote 17: See Oppenheim in A.J. II. (1908), pp. 344-348.]
[Footnote 18: See Oppenheim in A.J. II. (1908), pp. 341-344.]
[Footnote 19: See Oppenheim in A.J. II. (1908), pp. 336-341.]
A factor of a special kind which also influences the growth of
International Law is the so-called _Comity_ (_Comitas Gentium_,
_Convenance et Courtoisie Internationale_, _Staatengunst_). In their
intercourse with one another, States do observe not only legally binding
rules and such rules as have the character of usages, but also rules of
politeness, convenience, and goodwill. Such rules of international
conduct are not rules of law, but of comity. The Comity of Nations is
certainly not a source of International Law, as it is distinctly the
contrast to the Law of Nations. But there can be no doubt that many a
rule which formerly was a rule of International Comity only is nowadays
a rule of International Law. And it is certainly to be expected that
this development will go on in future also, and that thereby many a rule
of present International Comity will in future become one of
International Law.[20]
[Footnote 20: The matter is ably discussed in Stoerk, "Völkerrecht und
Völkercourtoisie" (1908).]
Not to be confounded with the rules of Comity are the rules of morality
which ought to apply to the intercourse of States as much as to the
intercourse of individuals.
IV
RELATIONS BETWEEN INTERNATIONAL AND MUNICIPAL LAW
Holtzendorff in Holtzendorff, I. pp. 49-53, 117-120--Nys, I. pp.
185-189--Taylor, § 103--Holland, Studies, pp. 176-200--Kaufmann,
"Die Rechtskraft des internationalen Rechts" (1899)--Triepel,
"Völkerrecht und Landesrecht" (1899)--Anzilotti, "Il diritto
internazionale nei giudizi interni" (1905)--Kohler in Z.V. II.
(1908), pp. 209-230.
[Sidenote: Essential Difference between International and Municipal
Law.]
§ 20. The Law of Nations and the Municipal Law of the single States are
essentially different from each other. They differ, first, as regards
their sources. Sources of Municipal Law are custom grown up within the
boundaries of the respective State and statutes enacted by the
law-giving authority. Sources of International Law are custom grown up
within the Family of Nations and law-making treaties concluded by the
members of that family.
The Law of Nations and Municipal Law differ, secondly, regarding the
relations they regulate. Municipal Law regulates relations between the
individuals under the sway of the respective State and the relations
between this State and the respective individuals. International Law, on
the other hand, regulates relations between the member States of the
Family of Nations.
The Law of Nations and Municipal Law differ, thirdly, with regard to the
substance of their law: whereas Municipal Law is a law of a Sovereign
over individuals subjected to his sway, the Law of Nations is a law not
above, but between Sovereign States, and therefore a weaker law.[21]
[Footnote 21: See above, § 9.]
[Sidenote: Law of Nations never _per se_ Municipal Law.]
§ 21. If the Law of Nations and Municipal Law differ as demonstrated,
the Law of Nations can neither as a body nor in parts be _per se_ a part
of Municipal Law. Just as Municipal Law lacks the power of altering or
creating rules of International Law, so the latter lacks absolutely the
power of altering or creating rules of Municipal Law. If, according to
the Municipal Law of an individual State, the Law of Nations as a body
or in parts is considered the law of the land, this can only be so
either by municipal custom or by statute, and then the respective rules
of the Law of Nations have by adoption[22] become at the same time rules
of Municipal Law. Wherever and whenever such total or partial adoption
has not taken place, municipal courts cannot be considered to be bound
by International Law, because it has, _per se_, no power over municipal
courts.[23] And if it happens that a rule of Municipal Law is in
indubitable conflict with a rule of the Law of Nations, municipal courts
must apply the former. If, on the other hand, a rule of the Law of
Nations regulates a fact without conflicting with, but without expressly
or tacitly having been adopted by Municipal Law, municipal courts cannot
apply such rule of the Law of Nations.
[Footnote 22: This has been done by the United States. See The Nereide,
9 Cranch, 388; United States _v._ Smith, 5 Wheaton, 153; The Scotia, 14
Wallace, 170; The Paquette Habana, 175 United States, 677. See also
Taylor, § 103, and Scott in A.J. I. (1908), pp. 852-865. As regards Great
Britain, see Blackstone, IV. ch. 5, and Westlake in _The Law Quarterly
Review_, XXII. (1906), pp. 14-26; see also the case of the West Rand
Central Mining Co. _v._ The King (1905), 2 K. B. 391.]
[Footnote 23: This ought to be generally recognised, but, in fact, is
not; says, for instance, Kohler in Z.V. II.(1908), p. 210:--"_... das
Völkerrecht ist ein überstaatliches Recht, das der Gesetzgebung des
einzelnen Staates nicht unterworfen ist und von den Richtern ohne
weiteres respectirt werden muss: das Völkerrecht steht über dem
staatlichen Recht_."]
[Sidenote: Certain Rules of Municipal Law necessitated or interdicted.]
§ 22. If Municipal Courts cannot apply unadopted rules of the Law of
Nations, and must apply even such rules of Municipal Law as conflict
with the Law of Nations, it is evident that the several States, in order
to fulfil their international obligations, are compelled to possess
certain rules, and are prevented from having certain other rules as part
of their Municipal Law. It is not necessary to enumerate all the rules
of Municipal Law which a State must possess, and all those rules it is
prevented from having. It suffices to give some illustrative examples.
Thus, on the one hand, the Municipal Law of every State, for instance,
is compelled to possess rules granting the necessary privileges to
foreign diplomatic envoys, protecting the life and liberty of foreign
citizens residing on its territory, threatening punishment for certain
acts committed on its territory in violation of a foreign State. On the
other hand, the Municipal Law of every State is prevented by the Law of
Nations from having rules, for instance, conflicting with the freedom of
the high seas, or prohibiting the innocent passage of foreign
merchantmen through its maritime belt, or refusing justice to foreign
residents with regard to injuries committed on its territory to their
lives, liberty, and property by its own citizens. If a State does
nevertheless possess such rules of Municipal Law as it is prevented from
having by the Law of Nations, or if it does not possess such Municipal
rules as it is compelled to have by the Law of Nations, it violates an
international legal duty, but its courts[24] cannot by themselves alter
the Municipal Law to meet the requirements of the Law of Nations.
[Footnote 24: This became quite apparent in the Moray Firth case
(Mortensen _v._ Peters)--see below, § 192--in which the Court had to
apply British Municipal Law.]
[Sidenote: Presumption against conflicts between International and
Municipal Law.]
§ 23. However, although Municipal Courts must apply Municipal Law even
if conflicting with the Law of Nations, there is a presumption against
the existence of such a conflict. As the Law of Nations is based upon
the common consent of the different States, it is improbable that a
civilised State would intentionally enact a rule conflicting with the
Law of Nations. A part of Municipal Law, which ostensibly seems to
conflict with the Law of Nations, must, therefore, if possible, always
be so interpreted as essentially not containing such conflict.
[Sidenote: Presumption of Existence of certain necessary Municipal
Rules.]
§ 24. In case of a gap in the statutes of a civilised State regarding
certain rules necessitated by the Law of Nations, such rules ought to be
presumed by the Courts to have been tacitly adopted by such Municipal
Law. It may be taken for granted that a State which is a member of the
Family of Nations does not intentionally want its Municipal Law to be
deficient in such rules. If, for instance, the Municipal Law of a State
does not by a statute grant the necessary privileges to diplomatic
envoys, the courts ought to presume that such privileges are tacitly
granted.
[Sidenote: Presumption of the Existence of certain Municipal Rules in
Conformity with Rights granted by the Law of Nations.]
§ 25. There is no doubt that a State need not make use of all the rights
it has by the Law of Nations, and that, consequently, every State can by
its laws expressly renounce the whole or partial use of such rights,
provided always it is ready to fulfil such duties, if any, as are
connected with these rights. However, when no such renunciation has
taken place, Municipal Courts ought, in case the interests of justice
demand it, to presume that their Sovereign has tacitly consented to make
use of such rights. If, for instance, the Municipal Law of a State does
not by a statute extend its jurisdiction over its maritime belt, its
courts ought to presume that, since by the Law of Nations the
jurisdiction of a State does extend over its maritime belt, their
Sovereign has tacitly consented to that wider range of its jurisdiction.
A remarkable case illustrating this happened in this country in 1876.
The German vessel _Franconia_, while passing through the British
maritime belt within three miles of Dover, negligently ran into the
British vessel _Strathclyde_, and sank her. As a passenger on board the
latter was thereby drowned, the commander of the _Franconia_, the German
Keyn, was indicted at the Central Criminal Court and found guilty of
manslaughter. The Court for Crown Cases Reserved, however, to which the
Central Criminal Court referred the question of jurisdiction, held by a
majority of one judge that, according to the law of the land, English
courts had no jurisdiction over crimes committed in the English maritime
belt. Keyn was therefore not punished.[25] To provide for future cases
of like kind, Parliament passed, in 1878, the "Territorial Waters
Jurisdiction Act."[26]
[Footnote 25: L.R. 2 Ex. Div. 63. See Phillimore, I. § 198 B; Maine, pp.
39-45. See also below, § 189, where the controversy is discussed whether
a littoral State has jurisdiction over foreign vessels that merely pass
through its maritime belt.]
[Footnote 26: 41 and 42 Vict. c. 73.]
V
DOMINION OF THE LAW OF NATIONS
Lawrence, § 44--Phillimore, I. §§ 27-33--Twiss, I. § 62--Taylor,
§§ 61-64--Westlake, I. p. 40--Bluntschli, §§ 1-16--Heffter, §
7--Holtzendorff in Holtzendorff, I. pp. 13-18--Nys, I. pp.
116-132--Rivier, I. § 1--Bonfils, Nos. 40-45--Despagnet, Nos.
51-53--Martens, I. § 41--Fiore, Code, Nos. 38-43--Ullmann, §
10--Nippold in Z.V. II. (1908), pp. 441-443--Cavaglieri in R.G.
XVIII. (1911), pp. 259-292.
[Sidenote: Range of Dominion of International Law controversial.]
§ 26. Dominion of the Law of Nations is the name given to the area
within which International Law is applicable--that is, those States
between which International Law finds validity. The range of the
dominion of the Law of Nations is controversial, two extreme opinions
concerning this dominion being opposed. Some publicists[27] maintain
that the dominion of the Law of Nations extends as far as humanity
itself, that every State, whether Christian or non-Christian, civilised
or uncivilised, is a subject of International Law. On the other hand,
several jurists[28] teach that the dominion of the Law of Nations
extends only as far as Christian civilisation, and that Christian States
only are subjects of International Law. Neither of these opinions would
seem to be in conformity with the facts of the present international
life and the basis of the Law of Nations. There is no doubt that the Law
of Nations is a product of Christian civilisation. It originally arose
between the States of Christendom only, and for hundreds of years was
confined to these States. Between Christian and Mohammedan nations a
condition of perpetual enmity prevailed in former centuries. And no
constant intercourse existed in former times between Christian and
Buddhistic States. But from about the beginning of the nineteenth
century matters gradually changed. A condition of perpetual enmity
between whole groups of nations exists no longer either in theory or in
practice. And although there is still a broad and deep gulf between
Christian civilisation and others, many interests, which knit Christian
States together, knit likewise some non-Christian and Christian States.
[Footnote 27: See, for instance, Bluntschli, § 8, and Fiore, Code, No.
38.]
[Footnote 28: See, for instance, Martens, § 41.]
[Sidenote: Three Conditions of Membership of the Family of Nations.]
§ 27. Thus the membership of the Family of Nations has of late
necessarily been increased, and the range of the dominion of the Law of
Nations has extended beyond its original limits. This extension has
taken place in conformity with the basis of the Law of Nations. As this
basis is the common consent of the civilised States, there are three
conditions for the admission of new members into the circle of the
Family of Nations. A State to be admitted must, first, be a civilised
State which is in constant intercourse with members of the Family of
Nations. Such State must, secondly, expressly or tacitly consent to be
bound for its future international conduct by the rules of International
Law. And, thirdly, those States which have hitherto formed the Family of
Nations must expressly or tacitly consent to the reception of the new
member.
The last two conditions are so obvious that they need no comment.
Regarding the first condition, however, it must be emphasised that not
particularly Christian civilisation, but civilisation of such kind only
is conditioned as to enable the State concerned and its subjects to
understand and to act in conformity with the principles of the Law of
Nations. These principles cannot be applied to a State which is not able
to apply them on its own part to other States. On the other hand, they
can well be applied to a State which is able and willing to apply them
to other States, provided a constant intercourse has grown up between it
and other States. The fact is that the Christian States have been of
late compelled by pressing circumstances to receive several
non-Christian States into the community of States which are subjects of
International Law.
[Sidenote: Present range of Dominion of the Law of Nations.]
§ 28. The present range of the dominion of International Law is a
product of historical development within which epochs are
distinguishable marked by successive entrances of various States into
the Family of Nations.
(1) The old Christian States of Western Europe are the original members
of the Family of Nations, because the Law of Nations grew up gradually
between them through custom and treaties. Whenever afterwards a new
Christian State made its appearance in Europe, it was received into the
charmed circle by the old members of the Family of Nations. It is for
this reason that this law was in former times frequently called
"European Law of Nations." But this name has nowadays historical value
only, as it has been changed into "Law of Nations," or "International
Law" pure and simple.
(2) The next group of States which entered into the Family of Nations is
the body of Christian States which grew up outside Europe. All the
American[29] States which arose out of colonies of European States
belong to this group. And it must be emphasised that the United States
of America have largely contributed to the growth of the rules of
International Law. The two Christian Negro Republics of Liberia in West
Africa and of Haiti on the island of San Domingo belong to this group.
[Footnote 29: But it ought not to be maintained that there is--in
contradistinction to the European--an American International Law in
existence; see, however, Alvarez, "Le Droit International Américain"
(1910), and again Alvarez in A.J. III. (1909), pp. 269-353.]
(3) With the reception of the Turkish Empire into the Family of Nations
International Law ceased to be a law between Christian States solely.
This reception has expressly taken place through Article 7 of the Peace
Treaty of Paris of 1856, in which the five Great European Powers of the
time, namely, France, Austria, England, Prussia, and Russia, and besides
those Sardinia, the nucleus of the future Great Power Italy, expressly
"déclarent la Sublime Porte admise à participer aux avantages du droit
public et du concert européens." Since that time Turkey has on the whole
endeavoured in time of peace and war to act in conformity with the rules
of International Law, and she has, on the other hand, been treated[30]
accordingly by the Christian States. No general congress has taken place
since 1856 to which Turkey has not been invited to send her delegates.
[Footnote 30: There is no doubt that Turkey, in spite of having been
received into the Family of Nations, has nevertheless hitherto been in
an anomalous position as a member of that family, owing to the fact that
her civilisation has not yet reached the level of that of the Western
States. It is for this reason that the so-called Capitulations are still
in force and that other anomalies still prevail, but their disappearance
is only a question of time.]
(4) Another non-Christian member of the Family of Nations is Japan. A
generation ago one might have doubted whether Japan was a real and full
member of that family, but since the end of the nineteenth century no
doubt is any longer justified. Through marvellous efforts, Japan has
become not only a modern State, but an influential Power. Since her war
with China in 1895, she must be considered one of the Great Powers that
lead the Family of Nations.
(5) The position of such States as Persia, Siam, China, Morocco,
Abyssinia, and the like, is doubtful. These States are certainly
civilised States, and Abyssinia is even a Christian State. However,
their civilisation has not yet reached that condition which is necessary
to enable their Governments and their population in every respect to
understand and to carry out the command of the rules of International
Law. On the other hand, international intercourse has widely arisen
between these States and the States of the so-called Western
civilisation. Many treaties have been concluded with them, and there is
full diplomatic intercourse between them and the Western States. China,
Persia, and Siam have even taken part in the Hague Peace Conferences.
All of them make efforts to educate their populations, to introduce
modern institutions, and thereby to raise their civilisation to the
level of that of the Western. They will certainly succeed in this
respect in the near future. But as yet they have not accomplished this
task, and consequently they are not yet able to be received into the
Family of Nations as full members. Although they are, as will be shown
below (§ 103), for some parts within the circle of the Family of
Nations, they remain for other parts outside. But the example of Japan
can show them that it depends entirely upon their own efforts to be
received as full members into that family.
(6) It must be mentioned that a State of quite a unique character, the
former Congo Free State,[31] was, since the Berlin Conference of
1884-1885, a member of the Family of Nations. But it lost its membership
in 1908 when it merged in Belgium by cession.
[Footnote 31: See below, § 101.]
[Sidenote: Treatment of States outside the Family of Nations.]
§ 29. The Law of Nations as a law between States based on the common
consent of the members of the Family of Nations naturally does not
contain any rules concerning the intercourse with and treatment of such
States as are outside that circle. That this intercourse and treatment
ought to be regulated by the principles of Christian morality is
obvious. But actually a practice frequently prevails which is not only
contrary to Christian morality, but arbitrary and barbarous. Be that as
it may, it is discretion, and not International Law, according to which
the members of the Family of Nations deal with such States as still
remain outside that family. But the United States of America apply, as
far as possible, the rules of International Law to their relations with
the Red Indians.
VI
CODIFICATION OF THE LAW OF NATIONS
Holtzendorff in Holtzendorff, I. pp. 136-152--Ullmann, §
11--Despagnet, Nos. 67-68--Bonfils, Nos. 1713-1727--Mérignhac, I.
pp. 26-28--Nys, I. pp. 166-183--Rivier, I. § 2--Fiore, I. Nos.
124-127--Martens, I. § 44--Holland, Studies, pp. 78-95--Bergbohm,
"Staatsverträge und Gesetze als Quellen des Völkerrechts" (1877),
pp. 44-77--Bulmerincq, "Praxis, Theorie, und Codification des
Völkerrechts" (1874), pp. 167-192--Roszkowski in R.I. XXI. (1889),
p. 520--Proceedings of the American Society of International Law,
IV. (1910), pp. 208-227.
[Sidenote: Movement in Favour of Codification.]
§ 30. The lack of precision which is natural to a large number of the
rules of the Law of Nations on account of its slow and gradual growth
has created a movement for its codification. The idea of a codification
of the Law of Nations in its totality arose at the end of the eighteenth
century. It was Bentham who first suggested such a codification. He did
not, however, propose codification of the existing positive Law of
Nations, but thought of a utopian International Law which could be the
basis of an everlasting peace between the civilised States.[32]
[Footnote 32: See Bentham's Works, ed. Bowring, VIII. p. 537; Nys, in
_The Law Quarterly Review_, XI. (1885), pp. 226-231.]
Another utopian project is due to the French Convention, which resolved
in 1792 to create a Declaration of the Rights of Nations as a pendant to
the Declaration of the Rights of Mankind of 1789. For this purpose the
Abbé Grégoire was charged with the drafting of such a declaration. In
1795, Abbé Grégoire produced a draft of twenty-one articles, which,
however, was rejected by the Convention, and the matter dropped.[33]
[Footnote 33: See Rivier, I. p. 40, where the full text of these
twenty-one articles is given. They did not contain a real code, but
certain principles only.]
It was not until 1861 that a real attempt was made to show the
possibility of a codification. This was done by an Austrian jurist,
Alfons von Domin-Petrushevecz, who published in that year at Leipzig a
"Précis d'un Code de Droit International."
In 1862, the Russian Professor Katschenowsky brought an essay before the
Juridical Society of London (Papers II. 1863) arguing the necessity of a
codification of International Law.
In 1863, Professor Francis Lieber, of the Columbia College, New York,
drafted the Laws of War in a body of rules which the United States
published during the Civil War for the guidance of her army.[34]
[Footnote 34: See below, vol. II. § 68.]
In 1868, Bluntschli, the celebrated Swiss interpreter of the Law of
Nations, published "Das moderne Völkerrecht der civilisirten Staaten als
Rechtsbuch dargestellt." This draft code has been translated into the
French, Greek, Spanish, and Russian languages, and the Chinese
Government produced an official Chinese translation as a guide for
Chinese officials.
In 1872, the great Italian politician and jurist Mancini raised his
voice in favour of codification of the Law of Nations in his able essay
"Vocazione del nostro secolo per la riforma e codificazione del diritto
delle genti."
Likewise in 1872 appeared at New York David Dudley Field's "Draft
Outlines of an International Code."
In 1873 the Institute of International Law was founded at Ghent in
Belgium. This association of jurists of all nations meets periodically,
and has produced a number of drafts concerning various parts of
International Law, and in especial a Draft Code of the Law of War on
Land (1880).
Likewise in 1873 was founded the Association for the Reform and
Codification of the Law of Nations, which also meets periodically and
which styles itself now the International Law Association.
In 1874 the Emperor Alexander II. of Russia took the initiative in
assembling an international conference at Brussels for the purpose of
discussing a draft code of the Law of Nations concerning land warfare.
At this conference jurists, diplomatists, and military men were united
as delegates of the invited States, and they agreed upon a body of sixty
articles which goes under the name of The Declaration of Brussels. But
the Powers have never ratified these articles.
In 1880 the Institute of International Law published its "Manuel des
Lois de la Guerre sur Terre."
In 1887 Leone Levi published his "International Law with Materials for a
Code of International Law."
In 1890 the Italian jurist Fiore published his "Il diritto
internazionale codificato e sua sanzione giuridica," of which a fourth
edition appeared in 1911.
In 1906 E. Duplessix published his "La loi des Nations. Projet
d'institution d'une autorité nationale, législative, administrative,
judiciaire. Projet de Code de Droit international public."
In 1911 Jerome Internoscia published his "New Code of International Law"
in English, French, and Italian.
[Sidenote: Work of the first Hague Peace Conference.]
§ 31. At the end of the nineteenth century, in 1899, the so-called Peace
Conference at the Hague, convened on the personal initiative of the
Emperor Nicholas II. of Russia, has shown the possibility that parts of
the Law of Nations may well be codified. Apart from three Declarations
of minor value and of the convention concerning the adaptation of the
Geneva Convention to naval warfare, this conference has succeeded in
producing two important conventions which may well be called
codes--namely, first, the "Convention for the Pacific Settlement of
International Disputes," and, secondly, the "Convention with respect to
the Laws and Customs of War on Land." The great practical importance of
the first-named convention is now being realised, as the Permanent Court
of Arbitration has in a number of cases already successfully given its
award. Nor can the great practical value of the second-named convention
be denied. Although the latter contains, even in the amended form given
to it by the second Hague Peace Conference of 1907, many gaps, which
must be filled up by the customary Law of Nations, and although it is
not a masterpiece of codification, it represents a model, the very
existence of which teaches that codification of parts of the Law of
Nations is practicable, provided the Powers are inclined to come to an
understanding. The first Hague Peace Conference has therefore made an
epoch in the history of International Law.
[Sidenote: Work of the second Hague Peace Conference and the Naval
Conference of London.]
§ 32. Shortly after the Hague Peace Conference of 1899, the United
States of America took a step with regard to sea warfare similar to that
taken by her in 1863 with regard to land warfare. She published on June
27, 1900, a body of rules for the use of her navy under the title "The
Laws and Usages of War at Sea"--the so-called "United States Naval War
Code"--which was drafted by Captain Charles H. Stockton, of the United
States Navy.
Although, on February 4, 1904, this code was by authority of the
President of the United States withdrawn it provided the starting-point
of a movement for codification of maritime International Law. No
complete Naval War Code agreed upon by the Powers has as yet made its
appearance, but the second Hague Peace Conference of 1907 and the Naval
Conference of London of 1908-9 have produced a number of law-making
treaties which represent codifications of several parts of maritime
International Law.
The second Hague Peace Conference met in 1907 and produced not less than
thirteen conventions and one declaration. This declaration prohibits the
discharge of projectiles and explosives from balloons and takes the
place of a corresponding declaration of the first Hague Peace
Conference. And three of the thirteen conventions, namely that for the
pacific settlement of international disputes, that concerning the laws
and customs of war on land, and that concerning the adaptation of the
principles of the Geneva Convention to maritime war, likewise take the
place of three corresponding conventions of the first Hague Peace
Conference. But the other ten conventions are entirely new and concern:
the limitation of the employment of force for the recovery of contract
debts, the opening of hostilities, the rights and duties of neutral
Powers and persons in war on land, the status of enemy merchant ships at
the outbreak of hostilities, the conversion of merchant ships into war
ships, the laying of automatic submarine contact mines, bombardments by
naval forces in time of war, restrictions on the exercise of the right
of capture in maritime war, the establishment of a Prize Court, the
rights and duties of neutral Powers in maritime war.
The Naval Conference of London which met in November 1908, and sat till
February 1909, produced the Declaration of London, the most important
law-making treaty as yet concluded. Its nine chapters deal with:
blockade, contraband, unneutral service, destruction of neutral prizes,
transfer to a neutral flag, enemy character, convoy, resistance to
search, compensation. The Declaration of London, when ratified, will
make the establishment of an International Prize Court possible.
[Sidenote: Value of Codification of International Law contested.]
§ 33. In spite of the movement in favour of codification of the Law of
Nations, there are many eminent jurists who oppose such codification.
They argue that codification would never be possible on account of
differences of languages and of technical juridical terms. They assert
that codification would cut off the organic growth and future
development of International Law. They postulate the existence of a
permanent International Court with power of executing its verdicts as an
indispensable condition, since without such a court no uniform
interpretation of controversial parts of a code could be possible.
Lastly, they maintain that the Law of Nations is not yet at present, and
will not be for a long time to come, ripe for codification. Those
jurists, on the other hand, who are in favour of codification argue that
the customary Law of Nations to a great extent lacks precision and
certainty, that writers on International Law differ in many points
regarding its rules, and that, consequently, there is no broad and
certain basis for the practice of the States to stand upon.
[Sidenote: Merits of Codification in general.]
§ 34. I am decidedly not a blind and enthusiastic admirer of
codification in general. It cannot be maintained that codification is
everywhere, at all times, and under all circumstances opportune.
Codification certainly interferes with the so-called organic growth of
the law through usage into custom. It is true that a law, once codified,
cannot so easily adapt itself to the individual merits of particular
cases which come under it. It is further a fact, which cannot be denied,
that together with codification there frequently enters into courts of
justice and into the area of juridical literature a hair-splitting
tendency and an interpretation of the law which often clings more to the
letter and the word of the law than to its spirit and its principles.
And it is not at all a fact that codification does away with
controversies altogether. Codification certainly clears up many
questions of law which have been hitherto debatable, but it creates at
the same time new controversies. And, lastly, all jurists know very well
that the art of legislation is still in its infancy and not at all
highly developed. The hands of legislators are very often clumsy, and
legislation often does more harm than good. Yet, on the other hand, the
fact must be recognised that history has given its verdict in favour of
codification. There is no civilised State in existence whose Municipal
Law is not to a greater or lesser extent codified. The growth of the law
through custom goes on very slowly and gradually, very often too slowly
to be able to meet the demands of the interests at stake. New interests
and new inventions very often spring up with which customary law cannot
deal. Circumstances and conditions frequently change so suddenly that
the ends of justice are not met by the existing customary law of a
State. Thus, legislation, which is, of course, always partial
codification, becomes often a necessity in the face of which all
hesitation and scruple must vanish. Whatever may be the disadvantages of
codification, there comes a time in the development of every civilised
State when it can no longer be avoided. And great are the advantages of
codification, especially of a codification that embraces a large part of
the law. Many controversies are done away with. The science of Law
receives a fresh stimulus. A more uniform spirit enters into the law of
the country. New conditions and circumstances of life become legally
recognised. Mortifying principles and branches are cut off with one
stroke. A great deal of fresh and healthy blood is brought into the
arteries of the body of the law in its totality. If codification is
carefully planned and prepared, if it is imbued with true and healthy
conservatism, many disadvantages can be avoided. And interpretation on
the part of good judges can deal with many a fault that codification has
made. If the worst comes to the worst, there is always a Parliament or
another law-giving authority of the land to mend through further
legislation the faults of previous codification.
[Sidenote: Merits of Codification of International Law.]
§ 35. But do these arguments in favour of codification in general also
apply to codification of the Law of Nations? I have no doubt that they
do more or less. If some of these arguments have no force in view of the
special circumstances of the existence of International Law and of the
peculiarities of the Family of Nations, there are other arguments which
take their place.
When opponents maintain that codification would never be practicable on
account of differences of language and of technical juridical terms, I
answer that this difficulty is only as great an obstacle in the way of
codification as it is in the way of contracting international treaties.
The fact that such treaties are concluded every day shows that
difficulties which arise out of differences of language and of technical
juridical terms are not at all insuperable.
Of more weight than this is the next argument of opponents, that
codification of the Law of Nations would cut off its organic growth and
future development. It cannot be denied that codification always
interferes with the growth of customary law, although the assertion is
not justified that codification does _cut off_ such growth. But this
disadvantage can be met by periodical revisions of the code and by its
gradual increase and improvement through enactment of additional and
amending rules according to the wants and needs of the days to come.
When opponents postulate an international court with power of executing
its verdicts as an indispensable condition of codification, I answer
that the non-existence of such a court is quite as much or as little an
argument against codification as against the very existence of
International Law. If there is a Law of Nations in existence in spite of
the non-existence of an international court to guarantee its
realisation, I cannot see why the non-existence of such a court should
be an obstacle to codifying the very same Law of Nations. It may indeed
be maintained that codification is all the more necessary as such an
international court does not exist. For codification of the Law of
Nations and the solemn recognition of a code by a universal law-making
international treaty would give more precision, certainty, and weight to
the rules of the Law of Nations than they have now in their unwritten
condition. And a uniform interpretation of a code is now, since the
first Hague Peace Conference has instituted a Permanent Court of
Arbitration, and since the second Peace Conference has resolved upon the
establishment of an International Prize Court, much more realisable than
in former times, although these courts will never have the power of
executing their verdicts.
But is the Law of Nations ripe for codification? I readily admit that
there are certain parts of that law which would offer the greatest
difficulty, and which therefore had better remain untouched for the
present. But there are other parts, and I think that they constitute the
greater portion of the Law of Nations, which are certainly ripe for
codification. There can be no doubt that, whatever can be said against
codification of the whole of the Law of Nations, partial codification is
possible and comparatively easy. The work done by the Institute of
International Law, and published in the "Annuaire de l'Institut de Droit
International," gives evidence of it. And the number and importance of
the law-making treaties produced by the Hague Peace Conferences and the
Maritime Conference of London, 1908-9, should leave no doubt as to the
feasibility of such partial codification.
[Sidenote: How Codification could be realised.]
§ 36. However, although possible, codification could hardly be realised
at once. The difficulties, though not insuperable, are so great that it
would take the work of perhaps a generation of able jurists to prepare
draft codes for those parts of International Law which may be considered
ripe for codification. The only way in which such draft codes could be
prepared consists in the appointment on the part of the Powers of an
international committee composed of a sufficient number of able jurists,
whose task would be the preparation of the drafts. Public opinion of the
whole civilised world would, I am sure, watch the work of these men with
the greatest interest, and the Parliaments of the civilised States would
gladly vote the comparatively small sums of money necessary for the
costs of the work. But in proposing codification it is necessary to
emphasise that it does not necessarily involve a reconstruction of the
present international order and a recasting of the whole system of
International Law as it at present stands. Naturally, a codification
would in many points mean not only an addition to the rules at present
recognised, but also the repeal, alteration, and reconstruction of some
of these rules. Yet, however this may be, I do not believe that a
codification ought to be or could be undertaken which would
revolutionise the present international order and put the whole system
of International Law on a new basis. The codification which I have in
view is one that would embody the existing rules of International Law
together with such modifications and additions as are necessitated by
the conditions of the age and the very fact of codification being taken
in hand. If International Law, as at present recognised, is once
codified, nothing prevents reformers from making proposals which could
be realised by successive codification.
CHAPTER II
DEVELOPMENT AND SCIENCE OF THE LAW OF NATIONS
I
DEVELOPMENT OF THE LAW OF NATIONS BEFORE GROTIUS
Lawrence, §§ 20-29--Manning, pp. 8-20--Halleck, I. pp.
1-11--Walker, History, I. pp. 30-137--Taylor, §§ 6-29--Ullmann, §§
12-14--Holtzendorff in Holtzendorff, I, pp. 159-386--Nys, I. pp.
1-18--Martens, I. §§ 8-20--Fiore, I. Nos. 3-31--Calvo, I. pp.
1-32--Bonfils, Nos. 71-86--Despagnet, Nos. 1-19--Mérignhac, I. pp.
38-43--Laurent, "Histoire du Droit des Gens," &c., 14 vols. (2nd
ed. 1861-1868)--Ward, "Enquiry into the Foundation and History of
the Law of Nations," 2 vols. (1795)--Osenbrüggen, "De Jure Belli
ac Pacis Romanorum" (1876)--Müller-Jochmus, "Geschichte des
Völkerrechts im Alterthum" (1848)--Hosack, "Rise and Growth of the
Law of Nations" (1883), pp. 1-226--Nys, "Le Droit de la Guerre et
les Précurseurs de Grotius" (1882) and "Les Origines du Droit
International" (1894)--Hill, "History of Diplomacy in the
International Development of Europe," vol. I. (1905) and vol. II.
(1906)--Cybichowski, "Das antike Völkerrecht" (1907)--Phillipson,
"The International Law and Custom of Ancient Greece and Rome," 2
vols. (1910)--Strupp, "Urkunden zur Geschichte des Völkerrechts,"
2 vols. (1911).
[Sidenote: No Law of Nations in antiquity.]
§ 37. International Law as a law between Sovereign and equal States
based on the common consent of these States is a product of modern
Christian civilisation, and may be said to be hardly four hundred years
old. However, the roots of this law go very far back into history. Such
roots are to be found in the rules and usages which were observed by the
different nations of antiquity with regard to their external relations.
But it is well known that the conception of a Family of Nations did not
arise in the mental horizon of the ancient world. Each nation had its
own religion and gods, its own language, law, and morality.
International interests of sufficient vigour to wind a band around all
the civilised States, bring them nearer to each other, and knit them
together into a community of nations, did not spring up in antiquity. On
the other hand, however, no nation could avoid coming into contact with
other nations. War was waged and peace concluded. Treaties were agreed
upon. Occasionally ambassadors were sent and received. International
trade sprang up. Political partisans whose cause was lost often fled
their country and took refuge in another. And, just as in our days,
criminals often fled their country for the purpose of escaping
punishment.
Such more or less frequent and constant contact of different nations
with one another could not exist without giving rise to certain fairly
congruent rules and usages to be observed with regard to external
relations. These rules and usages were considered under the protection
of the gods; their violation called for religious expiation. It will be
of interest to throw a glance at the respective rules and usages of the
Jews, Greeks, and Romans.
[Sidenote: The Jews.]
§ 38. Although they were monotheists and the standard of their ethics
was consequently much higher than that of their heathen neighbours, the
Jews did not in fact raise the standard of the international relations
of their time except so far as they afforded foreigners living on Jewish
territory equality before the law. Proud of their monotheism and
despising all other nations on account of their polytheism, they found
it totally impossible to recognise other nations as equals. If we
compare the different parts of the Bible concerning the relations of the
Jews with other nations, we are struck by the fact that the Jews were
sworn enemies of some foreign nations, as the Amalekites, for example,
with whom they declined to have any relations whatever in peace. When
they went to war with those nations, their practice was extremely
cruel. They killed not only the warriors on the battlefield, but also
the aged, the women, and the children in their homes. Read, for example,
the short description of the war of the Jews against the Amalekites in 1
Samuel xv., where we are told that Samuel instructed King Saul as
follows: (3) "Now go and smite Amalek, and utterly destroy all that they
have, and spare them not; but slay both man and woman, infant and
suckling, ox and sheep, camel and ass." King Saul obeyed the injunction,
save that he spared the life of Agag, the Amalekite king, and some of
the finest animals. Then we are told that the prophet Samuel rebuked
Saul and "hewed Agag in pieces with his own hand." Or again, in 2 Samuel
xii. 31, we find that King David, "the man after God's own heart," after
the conquest of the town of Rabbah, belonging to the Ammonites, "brought
forth the people that were therein and put them under saws, and under
harrows of iron, and made them pass through the brick-kiln...."
With those nations, however, of which they were not sworn enemies the
Jews used to have international relations. And when they went to war
with those nations, their practice was in no way exceptionally cruel, if
looked upon from the standpoint of their time and surroundings. Thus we
find in Deuteronomy xx. 10-14 the following rules:--
(10) "When thou comest nigh unto a city to fight against it, then
proclaim peace unto it.
(11) "And it shall be, if it make thee answer of peace and open unto
thee, that all the people that is found therein shall be tributaries
unto thee, and they shall serve thee.
(12) "And if it will make no peace with thee, but will make war against
thee, then thou shalt besiege it.
(13) "And when the Lord thy God hath delivered it into thine hands,
thou shalt smite every male thereof with the edge of the sword.
(14) "But the women, and the little ones, and the cattle, and all that
is in the city, even all the spoil thereof, shalt thou take unto
thyself; and thou shalt eat the spoil of thine enemies, which the Lord
thy God hath given thee."
Comparatively mild, like these rules for warfare, were the Jewish rules
regarding their foreign slaves. Such slaves were not without legal
protection. The master who killed a slave was punished (Exodus ii. 20);
if the master struck his slave so severely that he lost an eye or a
tooth, the slave became a free man (Exodus ii. 26 and 27). The Jews,
further, allowed foreigners to live among them under the full protection
of their laws. "Love ... the stranger, for ye were strangers in the land
of Egypt," says Deuteronomy x. 19, and in Leviticus xxiv. 22 there is
the command: "You shall have one manner of law, as well for the stranger
as for one of your own country."
Of the greatest importance, however, for the International Law of the
future, are the Messianic ideals and hopes of the Jews, as these
Messianic ideals and hopes are not national only, but fully
_inter_national. The following are the beautiful words in which the
prophet Isaiah (ii. 2-4) foretells the state of mankind when the Messiah
shall have appeared:
(2) "And it shall come to pass in the last days, that the mountain of
the Lord's house shall be established in the top of the mountains, and
shall be exalted above the hills; and all nations shall flow unto it.
(3) "And many people shall go and say, Come ye, and let us go up to the
mountain of the Lord, to the house of the God of Jacob, and he will
teach us of his ways, and we will walk in his paths; for out of Zion
shall go forth the law, and the word of the Lord from Jerusalem.
(4) "And he shall judge among the nations, and shall rebuke many people:
and they shall beat their swords into plowshares, and their spears into
pruning-hooks: nation shall not lift up sword against nation, neither
shall they learn war any more."
Thus we see that the Jews, at least at the time of Isaiah, had a
foreboding and presentiment of a future when all the nations of the
world should be united in peace. And the Jews have given this ideal to
the Christian world. It is the same ideal which has in bygone times
inspired all those eminent men who have laboured to build up an
International Law. And it is again the same ideal which nowadays
inspires all lovers of international peace. Although the Jewish State
and the Jews as a nation have practically done nothing to realise that
ideal, yet it sprang up among them and has never disappeared.
[Sidenote: The Greeks.]
§ 39. Totally different from this Jewish contribution to a future
International Law is that of the Greeks. The broad and deep gulf between
their civilisation and that of their neighbours necessarily made them
look down upon those neighbours as barbarians, and thus prevented them
from raising the standard of their relations with neighbouring nations
above the average level of antiquity. But the Greeks before the
Macedonian conquest were never united into one powerful national State.
They lived in numerous more or less small city States, which were
totally independent of one another. It is this very fact which, as time
went on, called into existence a kind of International Law between these
independent States. They could never forget that their inhabitants were
of the same race. The same blood, the same religion, and the same
civilisation of their citizens united these independent and--as we
should say nowadays--Sovereign States into a community of States which
in time of peace and war held themselves bound to observe certain rules
as regards the relations between one another. The consequence was that
the practice of the Greeks in their wars among themselves was a very
mild one. It was a rule that war should never be commenced without a
declaration of war. Heralds were inviolable. Warriors who died on the
battlefield were entitled to burial. If a city was captured, the lives
of all those who took refuge in a temple had to be spared. War prisoners
could be exchanged or ransomed; their lot was, at the utmost, slavery.
Certain places, as, for example, the temple of the god Apollo at Delphi,
were permanently inviolable. Even certain persons in the armies of the
belligerents were considered inviolable, as, for instance, the priests,
who carried the holy fire, and the seers.
Thus the Greeks left to history the example that independent and
Sovereign States can live, and are in reality compelled to live, in a
community which provides a law for the international relations of the
member-States, provided that there exist some common interests and aims
which bind these States together. It is very often maintained that this
kind of International Law of the Greek States could in no way be
compared with our modern International Law, as the Greeks did not
consider their international rules as legally, but as religiously
binding only. We must, however, not forget that the Greeks never made
the same distinction between law, religion, and morality which the
modern world makes. The fact itself remains unshaken that the Greek
States set an example to the future that independent States can live in
a community in which their international regulations are governed by
certain rules and customs based on the common consent of the members of
that community.
[Sidenote: The Romans.]
§ 40. Totally different again from the Greek contribution to a future
International Law is that of the Romans. As far back as their history
goes, the Romans had a special set of twenty priests, the so-called
_fetiales_, for the management of functions regarding their relations
with foreign nations. In fulfilling their functions the _fetiales_ did
not apply a purely secular but a divine and holy law, a _jus sacrale_,
the so-called _jus fetiale_. The _fetiales_ were employed when war was
declared or peace was made, when treaties of friendship or of alliance
were concluded, when the Romans had an international claim before a
foreign State, or _vice versa_.
According to Roman Law the relations of the Romans with a foreign State
depended upon the fact whether or not there existed a treaty of
friendship between Rome and the respective State. In case no such treaty
was in existence, persons or goods coming from the foreign land into the
land of the Romans, and likewise persons and goods going from the land
of the Romans into the foreign land, enjoyed no legal protection
whatever. Such persons could be made slaves, and such goods could be
seized, and became the property of the captor. Should such an enslaved
person ever come back to his country, he was at once considered a free
man again according to the so-called _jus postliminii_. An exception was
made as regards ambassadors. They were always considered inviolable, and
whoever violated them was handed over to the home State of those
ambassadors to be punished according to discretion.
Different were the relations when a treaty of friendship existed.
Persons and goods coming from one country into the other stood then
under legal protection. So many foreigners came in the process of time
to Rome that a whole system of law sprang up regarding these foreigners
and their relations with Roman citizens, the so-called _jus gentium_ in
contradistinction to the _jus civile_. And a special magistrate, the
_praetor peregrinus_, was nominated for the administration of that
law. Of such treaties with foreign nations there were three different
kinds, namely, of _friendship_ (_amicitia_), of _hospitality_
(_hospitium_), or of _alliance_ (_foedus_). I do not propose to go into
details about them. It suffices to remark that, although the treaties
were concluded without any such provision, notice of termination could
be given. Very often these treaties used to contain a provision
according to which future controversies could be settled by arbitration
of the so-called _recuperatores_.
Very precise legal rules existed as regards war and peace. Roman law
considered war a legal institution. There were four different just
reasons for war, namely: (1) Violation of the Roman dominion; (2)
violation of ambassadors; (3) violation of treaties; (4) support given
during war to an opponent by a hitherto friendly State. But even in such
cases war was only justified if satisfaction was not given by the
foreign State. Four _fetiales_ used to be sent as ambassadors to the
foreign State from which satisfaction was asked. If such satisfaction
was refused, war was formally declared by one of the _fetiales_ throwing
a lance from the Roman frontier into the foreign land. For warfare
itself no legal rules existed, but discretion only, and there are
examples enough of great cruelty on the part of the Romans. Legal rules
existed, however, for the end of war. War could be ended, first, through
a treaty of peace, which was then always a treaty of friendship. War
could, secondly, be ended by surrender (_deditio_). Such surrender
spared the enemy their lives and property. War could, thirdly and
lastly, be ended through conquest of the enemy's country (_occupatio_).
It was in this case that the Romans could act according to discretion
with the lives and the property of the enemy.
From this sketch of their rules concerning external relations, it
becomes apparent that the Romans gave to the future the example of a
State with _legal_ rules for its foreign relations. As the legal people
_par excellence_, the Romans could not leave their international
relations without legal treatment. And though this legal treatment can
in no way be compared to modern International Law, yet it constitutes a
contribution to the Law of Nations of the future, in so far as its
example furnished many arguments to those to whose efforts we owe the
very existence of our modern Law of Nations.
[Sidenote: No need for a Law of Nations during the Middle Ages.]
§ 41. The Roman Empire gradually absorbed nearly the whole civilised
ancient world, so far as it was known to the Romans. They hardly knew of
any independent civilised States outside the borders of their empire.
There was, therefore, neither room nor need for an International Law as
long as this empire existed. It is true that at the borders of this
world-empire there were always wars, but these wars gave opportunity for
the practice of a few rules and usages only. And matters did not change
when under Constantine the Great (313-337) the Christian faith became
the religion of the empire and Byzantium its capital instead of Rome,
and, further, when in 395 the Roman Empire was divided into the Eastern
and the Western Empire. This Western Empire disappeared in 476, when
Romulus Augustus, the last emperor, was deposed by Odoacer, the leader
of the Germanic soldiers, who made himself ruler in Italy. The land of
the extinct Western Roman Empire came into the hands of different
peoples, chiefly of Germanic extraction. In Gallia the kingdom of the
Franks springs up in 486 under Chlodovech the Merovingian. In Italy, the
kingdom of the Ostrogoths under Theoderich the Great, who defeated
Odoacer, rises in 493. In Spain the kingdom of the Visigoths appears in
507. The Vandals had, as early as in 429, erected a kingdom in Africa,
with Carthage as its capital. The Saxons had already gained a footing in
Britannia in 449.
All these peoples were barbarians in the strict sense of the term.
Although they had adopted Christianity, it took hundreds of years to
raise them to the standard of a more advanced civilisation. And,
likewise, hundreds of years passed before different nations came to
light out of the amalgamation of the various peoples that had conquered
the old Roman Empire with the residuum of the population of that empire.
It was in the eighth century that matters became more settled.
Charlemagne built up his vast Frankish Empire, and was, in 800, crowned
Roman Emperor by Pope Leo III. Again the whole world seemed to be one
empire, headed by the Emperor as its temporal, and by the Pope as its
spiritual, master, and for an International Law there was therefore no
room and no need. But the Frankish Empire did not last long. According
to the Treaty of Verdun, it was, in 843, divided into three parts, and
with that division the process of development set in, which led
gradually to the rise of the several States of Europe.
In theory the Emperor of the Germans remained for hundreds of years to
come the master of the world, but in practice he was not even master at
home, as the German Princes step by step succeeded in establishing their
independence. And although theoretically the world was well looked after
by the Emperor as its temporal and the Pope as its spiritual head, there
were constantly treachery, quarrelling, and fighting going on. War
practice was the most cruel possible. It is true that the Pope and the
Bishops succeeded sometimes in mitigating such practice, but as a rule
there was no influence of the Christian teaching visible.
[Sidenote: The Fifteenth and Sixteenth Centuries.]
§ 42. The necessity for a Law of Nations did not arise until a
multitude of States absolutely independent of one another had
successfully established themselves. The process of development,
starting from the Treaty of Verdun of 843, reached that climax with the
reign of Frederic III., Emperor of the Germans from 1440 to 1493. He was
the last of the emperors crowned in Rome by the hands of the Popes. At
that time Europe was, in fact, divided up into a great number of
independent States, and thenceforth a law was needed to deal with the
international relations of these Sovereign States. Seven factors of
importance prepared the ground for the growth of principles of a future
International Law.
(1) There were, first, the Civilians and the Canonists. Roman Law was in
the beginning of the twelfth century brought back to the West through
Irnerius, who taught this law at Bologna. He and the other _glossatores_
and _post-glossatores_ considered Roman Law the _ratio scripta_, the law
_par excellence_. These Civilians maintained that Roman Law was the law
of the civilised world _ipso facto_ through the emperors of the Germans
being the successors of the emperors of Rome. Their commentaries to the
_Corpus Juris Civilis_ touch upon many questions of the future
International Law which they discuss from the basis of Roman Law.
The Canonists, on the other hand, whose influence was unshaken till the
time of the Reformation, treated from a moral and ecclesiastical point
of view many questions of the future International Law concerning
war.[35]
[Footnote 35: See Holland, Studies, pp. 40-58; Walker, History, I. pp.
204-212.]
(2) There were, secondly, collections of Maritime Law of great
importance which made their appearance in connection with international
trade. From the eighth century the world trade, which had totally
disappeared in consequence of the downfall of the Roman Empire and the
destruction of the old civilisation during the period of the Migration
of the Peoples, began slowly to develop again. The sea trade specially
flourished and fostered the growth of rules and customs of Maritime Law,
which were collected into codes and gained some kind of international
recognition. The more important of these collections are the following:
The _Consolato del Mare_, a private collection made at Barcelona in
Spain in the middle of the fourteenth century; the _Laws of Oléron_, a
collection, made in the twelfth century, of decisions given by the
maritime court of Oléron in France; the _Rhodian Laws_, a very old
collection of maritime laws which probably was put together between the
sixth and the eighth centuries;[36] the _Tabula Amalfitana_, the
maritime laws of the town of Amalfi in Italy, which date at latest from
the tenth century; the _Leges Wisbuenses_, a collection of maritime laws
of Wisby on the island of Gothland, in Sweden, dating from the
fourteenth century.
[Footnote 36: See Ashburner, "The Rhodian Sea Law" (1909), Introduction,
p. cxii.]
The growth of international trade caused also the rise of the
controversy regarding the freedom of the high seas (see below, § 248),
which indirectly influenced the growth of an International Law (see
below, §§ 248-250).
(3) A third factor was the numerous leagues of trading towns for the
protection of their trade and trading citizens. The most celebrated of
these leagues is the Hanseatic, formed in the thirteenth century. These
leagues stipulated for arbitration on controversies between their member
towns. They acquired trading privileges in foreign States. They even
waged war, when necessary, for the protection of their interests.
(4) A fourth factor was the growing custom on the part of the States of
sending and receiving permanent legations. In the Middle Ages the Pope
alone had a permanent legation at the court of the Frankish kings.
Later, the Italian Republics, as Venice and Florence for instance, were
the first States to send out ambassadors, who took up their residence
for several years in the capitals of the States to which they were sent.
At last, from the end of the fifteenth century, it became a universal
custom for the kings of the different States to keep permanent legations
at one another's capital. The consequence was that an uninterrupted
opportunity was given for discussing and deliberating common
international interests. And since the position of ambassadors in
foreign countries had to be taken into consideration, international
rules concerning inviolability and exterritoriality of foreign envoys
gradually grew up.
(5) A fifth factor was the custom of the great States of keeping
standing armies, a custom which also dates from the fifteenth century.
The uniform and stern discipline in these armies favoured the rise of
more universal rules and practices of warfare.
(6) A sixth factor was the Renaissance and the Reformation. The
Renaissance of science and art in the fifteenth century, together with
the resurrection of the knowledge of antiquity, revived the
philosophical and aesthetical ideals of Greek life and transferred them
to modern life. Through their influence the spirit of the Christian
religion took precedence of its letter. The conviction awoke everywhere
that the principles of Christianity ought to unite the Christian world
more than they had done hitherto, and that these principles ought to be
observed in matters international as much as in matters national. The
Reformation, on the other hand, put an end to the spiritual mastership
of the Pope over the civilised world. Protestant States could not
recognise the claim of the Pope to arbitrate as of right in their
conflicts either between one another or between themselves and Catholic
States.
(7) A seventh factor made its appearance in connection with the schemes
for the establishment of eternal peace which arose from the beginning of
the fourteenth century. Although these schemes were utopian, they
nevertheless must have had great influence by impressing upon the
Princes and the nations of Christendom the necessity for some kind of
organisation of the numerous independent States into a community. The
first of these schemes was that of the French lawyer, Pierre Dubois,
who, as early as 1306, in "De Recuperatione Terre Sancte" proposed an
alliance between all Christian Powers for the purpose of the maintenance
of peace and the establishment of a Permanent Court of Arbitration for
the settlement of differences between the members of the alliance.[37]
Another project arose in 1461, when Podiebrad, King of Bohemia from
1420-1471, adopted the scheme of his Chancellor, Antoine Marini, and
negotiated with foreign courts the foundation of a Federal State to
consist of all the existing Christian States with a permanent Congress,
seated at Basle, of ambassadors of all the member States as the highest
organ of the Federation.[38] A third plan was that of Sully, adopted by
Henri IV. of France, which proposed the division of Europe into fifteen
States and the linking together of these into a federation with a
General Council as its highest organ, consisting of Commissioners
deputed by the member States.[39] A fourth project was that of Émeric
Crucée, who, in 1623, proposed the establishment of a Union consisting
not only of the Christian States but of all States then existing in the
whole of the world, with a General Council as its highest organ, seated
at Venice, and consisting of ambassadors of all the member States of the
Union.[40]
[Footnote 37: See Meyer, "Die staats- und völkerrechtlichen Ideen von
Pierre Dubois" (1909); Schücking, "Die Organisation der Welt" (1909),
pp. 28-30; Vesnitch, "Deux Précurseurs Français du Pacifism, etc."
(1911), pp. 1-29.]
[Footnote 38: See Schwitzky, "Der Europaeische Fürstenbund Georg's von
Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909),
pp. 32-36.]
[Footnote 39: See Nys, "Études de Droit International et de Droit
Politique" (1896), pp. 301-306, and Darby, "International Arbitration"
(4th ed. 1904), pp. 10-21.]
[Footnote 40: See Balch, "Le Nouveau Cynée de Émeric Crucée" (1909);
Darby, "International Arbitration" (4th ed. 1904), pp. 22-33; Vesnitch,
"Deux Précurseurs Français du Pacifism, etc." (1911), pp. 29-54.
The schemes enumerated in the text are those which were advanced before
the appearance of Grotius's work "De Jure Belli ac Pacis" (1625). The
numerous plans which made their appearance afterwards--that of the
Landgrave of Hesse-Rheinfels, 1666; of Charles, Duke of Lorraine, 1688;
of William Penn, 1693; of John Bellers, 1710; of the Abbé de St. Pierre
(1658-1743); of Kant, 1795; and of others--are all discussed in
Schücking, "Die Organisation der Welt" (1909), and Darby, "International
Arbitration" (4th ed. 1904). They are as utopian as the pre-Grotian
schemes, but they are nevertheless of great importance. They preached
again and again the gospel of the organisation of the Family of Nations,
and although their ideal has not been and can never be realised, they
drew the attention of public opinion to the fact that the international
relations of States should not be based on arbitrariness and anarchy,
but on rules of law and comity. And thereby they have indirectly
influenced the gradual growth of rules of law for these international
relations.]
II
DEVELOPMENT OF THE LAW OF NATIONS AFTER GROTIUS
Lawrence, §§ 29-53, and Essays, pp. 147-190--Halleck, I. pp.
12-45--Walker, History, I. pp. 138-202--Taylor, §§ 65-95--Nys, I.
pp. 19-46--Martens, I. §§ 21-33--Fiore, I. Nos. 32-52--Calvo, I.
pp. 32-101--Bonfils, Nos. 87-146--Despagnet, Nos.
20-27--Mérignhac, I. pp. 43-78--Ullmann, §§ 15-17--Laurent,
"Histoire du Droit des Gens, &c.," 14 vols. (2nd ed.
1861-1868)--Wheaton, "Histoire des Progrès du Droit des Gens en
Europe" (1841)--Bulmerincq, "Die Systematik des Völkerrechts"
(1858)--Pierantoni, "Storia del diritto internazionale nel secolo
XIX." (1876)--Hosack, "Rise and Growth of the Law of Nations"
(1883), pp. 227-320--Brie, "Die Fortschritte des Völkerrechts seit
dem Wiener Congress" (1890)--Gareis, "Die Fortschritte des
internationalen Rechts im letzten Menschenalter" (1905)--Dupuis,
"Le Principe d'Équilibre et le Concert Européen de la Paix de
Westphalie à l'Acte d'Algésiras" (1909)--Strupp, "Urkunden zur
Geschichte des Völkerrechts," 2 vols. (1911).
[Sidenote: The time of Grotius.]
§ 43. The seventeenth century found a multitude of independent States
established and crowded on the comparatively small continent of Europe.
Many interests and aims knitted these States together into a community
of States. International lawlessness was henceforth an impossibility.
This was the reason for the fact that Grotius's work "De Jure Belli ac
Pacis libri III.," which appeared in 1625, won the ear of the different
States, their rulers, and their writers on matters international. Since
a Law of Nations was now a necessity, since many principles of such a
law were already more or less recognised and appeared again among the
doctrines of Grotius, since the system of Grotius supplied a legal basis
to most of those international relations which were at the time
considered as wanting such basis, the book of Grotius obtained such a
world-wide influence that he is correctly styled the "Father of the Law
of Nations." It would be very misleading and in no way congruent with
the facts of history to believe that Grotius's doctrines were as a body
at once universally accepted. No such thing happened, nor could have
happened. What did soon take place was that, whenever an international
question of legal importance arose, Grotius's book was consulted, and
its authority was so overwhelming that in many cases its rules were
considered right. How those rules of Grotius, which have more or less
quickly been recognised by the common consent of the writers on
International Law, have gradually received similar acceptance at the
hands of the Family of Nations is a process of development which in each
single phase cannot be ascertained. It can only be stated that at the
end of the seventeenth century the civilised States considered
themselves bound by a Law of Nations the rules of which were to a great
extent the rules of Grotius. This does not mean that these rules have
from the end of that century never been broken. On the contrary, they
have frequently been broken. But whenever this occurred, the States
concerned maintained either that they did not intend to break these
rules, or that their acts were in harmony with them, or that they were
justified by just causes and circumstances in breaking them. And the
development of the Law of Nations did not come to a standstill with the
reception of the bulk of the rules of Grotius. More and more rules were
gradually required and therefore gradually grew. All the historically
important events and facts of international life from the time of
Grotius down to our own have, on the one hand, given occasion to the
manifestation of the existence of a Law of Nations, and, on the other
hand, in their turn made the Law of Nations constantly and gradually
develop into a more perfect and more complete system of legal rules.
It serves the purpose to divide the history of the development of the
Law of Nations from the time of Grotius into seven periods--namely,
1648-1721, 1721-1789, 1789-1815, 1815-1856, 1856-1874, 1874-1899,
1899-1911.
[Sidenote: The period 1648-1721.]
§ 44. The ending of the Thirty Years' War through the Westphalian Peace
of 1648 is the first event of great importance after the death of
Grotius in 1645. What makes remarkable the meetings of Osnaburg, where
the Protestant Powers met, and Münster, where the Catholic Powers met,
is the fact that there was for the first time in history a European
Congress assembled for the purpose of settling matters international by
common consent of the Powers. With the exception of England, Russia, and
Poland, all the important Christian States were represented at this
congress, as were also the majority of the minor Powers. The
arrangements made by this congress show what a great change had taken
place in the condition of matters international. The Swiss Confederation
and the Netherlands were recognised as independent States. The 355
different States which belonged to the German Empire were practically,
although not theoretically, recognised as independent States which
formed a Confederation under the Emperor as its head. Of these 355
States, 150 were secular States governed by hereditary monarchs
(Electors, Dukes, Landgraves, and the like), 62 were free-city States,
and 123 were ecclesiastical States governed by archbishops and other
Church dignitaries. The theory of the unity of the civilised world under
the German Emperor and the Pope as its temporal and spiritual heads
respectively was buried for ever. A multitude of recognised independent
States formed a community on the basis of equality of all its members.
The conception of the European equilibrium[41] made its appearance and
became an implicit principle as a guaranty of the independence of the
members of the Family of Nations. Protestant States took up their
position within this family along with Catholic States, as did republics
along with monarchies.
[Footnote 41: See below, pp. 64, 65, 80, 193, 307.]
In the second half of the seventeenth century the policy of conquest
initiated by Louis XIV. of France led to numerous wars. But Louis XIV.
always pleaded a just cause when he made war, and even the establishment
of the ill-famed so-called Chambers of Reunion (1680-1683) was done
under the pretext of law. There was no later period in history in which
the principles of International Law were more frivolously violated, but
the violation was always cloaked by some excuse. Five treaties of peace
between France and other Powers during the reign of Louis XIV. are of
great importance. (1) The Peace of the Pyrenees, which ended in 1659 the
war between France and Spain, who had not come to terms at the
Westphalian Peace. (2) The Peace of Aix-la-Chapelle, which ended in 1668
another war between France and Spain, commenced in 1667 because France
claimed the Spanish Netherlands from Spain. This peace was forced upon
Louis XIV. through the triple alliance between England, Holland, and
Sweden. (3) The Peace of Nymeguen, which ended in 1678 the war
originally commenced by Louis XIV. in 1672 against Holland, into which
many other European Powers were drawn. (4) The Peace of Ryswick, which
ended in 1697 the war that had existed since 1688 between France on one
side, and, on the other, England, Holland, Denmark, Germany, Spain, and
Savoy. (5) The Peace of Utrecht, 1713, and the Peace of Rastadt and
Baden, 1714, which ended the war of the Spanish Succession that had
lasted since 1701 between France and Spain on the one side, and, on the
other, England, Holland, Portugal, Germany, and Savoy.
But wars were not only waged between France and other Powers during this
period. The following treaties of peace must therefore be
mentioned:--(1) The Peaces of Roeskild (1658), Oliva (1660), Copenhagen
(also 1660), and Kardis (1661). The contracting Powers were Sweden,
Denmark, Poland, Prussia, and Russia. (2) The Peace of Carlowitz, 1699,
between Turkey, Austria, Poland, and Venice. (3) The Peace of Nystaedt,
1721, between Sweden and Russia under Peter the Great.
The year 1721 is epoch-making because with the Peace of Nystaedt Russia
enters as a member into the Family of Nations, in which she at once held
the position of a Great Power. The period ended by the year 1721 shows
in many points progressive tendencies regarding the Law of Nations. Thus
the right of visit and search on the part of belligerents over neutral
vessels becomes recognised. The rule "free ships, free goods," rises as
a postulate, although it was not universally recognised till 1856. The
effectiveness of blockades, which were first made use of in war by the
Netherlands at the end of the sixteenth century, rose as a postulate and
became recognised in treaties between Holland and Sweden (1667) and
Holland and England (1674), although its universal recognition was not
realised until the nineteenth century. The freedom of the high seas,
claimed by Grotius and others, began gradually to obtain recognition in
practice, although it did likewise not meet with universal acceptance
till the nineteenth century. The balance of power is solemnly recognised
by the Peace of Utrecht as a principle of the Law of Nations.
[Sidenote: The period 1721-1789.]
§ 45. Before the end of the first half of the eighteenth century peace
in Europe was again disturbed. The rivalry between Austria and Prussia,
which had become a kingdom in 1701 and the throne of which Frederick II.
had ascended in 1740, led to several wars in which England, France,
Spain, Bavaria, Saxony, and Holland took part. Several treaties of peace
were successively concluded which tried to keep up or re-establish the
balance of power in Europe. The most important of these treaties are:
(1) The Peace of Aix-la-Chapelle of 1748 between France, England,
Holland, Austria, Prussia, Sardinia, Spain, and Genoa. (2) The Peace of
Hubertsburg and the Peace of Paris, both of 1763, the former between
Prussia, Austria, and Saxony, the latter between England, France, and
Spain. (3) The Peace of Versailles of 1783 between England, the United
States of America, France, and Spain.
These wars gave occasion to disputes as to the right of neutrals and
belligerents regarding trade in time of war. Prussia became a Great
Power. The so-called First Armed Neutrality[42] made its appearance in
1780 with claims of great importance, which were not generally
recognised till 1856. The United States of America succeeded in
establishing her independence and became a member of the Family of
Nations, whose future attitude fostered the growth of several rules of
International Law.
[Footnote 42: See below, Vol. II. §§ 289 and 290, where details
concerning the First and Second Armed Neutrality are given.]
[Sidenote: The period 1789-1815.]
§ 46. All progress, however, was endangered, and indeed the Law of
Nations seemed partly non-existent, during the time of the French
Revolution and the Napoleonic wars. Although the French Convention
resolved in 1792 (as stated above, § 30) to create a "Declaration of the
Rights of Nations," the Revolutionary Government and afterwards Napoleon
I. very often showed no respect for the rules of the Law of Nations. The
whole order of Europe, which had been built up by the Westphalian and
subsequent treaties of peace for the purpose of maintaining a balance of
power, was overthrown. Napoleon I. was for some time the master of
Europe, Russia and England excepted. He arbitrarily created States and
suppressed them again. He divided existing States into portions and
united separate States. The kings depended upon his goodwill, and they
had to follow orders when he commanded. Especially as regards maritime
International Law, a condition of partial lawlessness arose during this
period. Already in 1793 England and Russia interdicted all navigation
with the ports of France, with the intention of subduing her by famine.
The French Convention answered with an order to the French fleet to
capture all neutral ships carrying provisions to the ports of the enemy
or carrying enemy goods. Again Napoleon, who wanted to ruin England by
destroying her commerce, announced in 1806 in his Berlin Decrees the
boycott of all English goods. England answered with the blockade of all
French ports and all ports of the allies of France, and ordered her
fleet to capture all ships destined to any such port.
When at last the whole of Europe was mobilised against Napoleon and he
was finally defeated, the whole face of Europe was changed, and the
former order of things could not possibly be restored. It was the task
of the European Congress of Vienna in 1814 and 1815 to create a new
order and a fresh balance of power. This new order comprised chiefly the
following arrangements:--The Prussian and the Austrian monarchies were
re-established, as was also the Germanic Confederation, which consisted
henceforth of thirty-nine member States. A kingdom of the Netherlands
was created out of Holland and Belgium. Norway and Sweden became a Real
Union. The old dynasties were restored in Spain, in Sardinia, in
Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen
cantons of the Swiss Confederation were added those of Geneva, Valais,
and Neuchâtel, and this Confederation was neutralised for all the
future.
But the Vienna Congress did not only establish a new political order in
Europe, it also settled some questions of International Law. Thus, free
navigation was agreed to on so-called international rivers, which are
rivers navigable from the Open Sea and running through the land of
different States. It was further arranged that henceforth diplomatic
agents should be divided into three classes (Ambassadors, Ministers,
Chargés d'Affaires). Lastly, a universal prohibition of the trade in
negro slaves was agreed upon.
[Sidenote: The period 1815-1856.]
§ 47. The period after the Vienna Congress begins with the so-called
Holy Alliance. Already on September 26, 1815, before the second Peace of
Paris, the Emperors of Russia and Austria and the King of Prussia called
this alliance into existence, the object of which was to make it a duty
upon its members to apply the principles of Christian morality in the
administration of the home affairs of their States as well as in the
conduct of their international relations. After the Vienna Congress the
sovereigns of almost all the European States had joined that alliance
with the exception of England. George IV., at that time prince-regent
only, did not join, because the Holy Alliance was an alliance not of the
States, but of sovereigns, and therefore was concluded without the
signatures of the respective responsible Ministers, whereas according
to the English Constitution the signature of such a responsible Minister
would have been necessary.
The Holy Alliance had not as such any importance for International Law,
for it was a religious, moral, and political, but scarcely a legal
alliance. But at the Congress of Aix-la-Chapelle in 1818, which the
Emperors of Russia and Austria and the King of Prussia attended in
person, and where it might be said that the principles of the Holy
Alliance were practically applied, the Great Powers signed a
Declaration,[43] in which they solemnly recognised the Law of Nations as
the basis of all international relations, and in which they pledged
themselves for all the future to act according to its rules. The leading
principle of their politics was that of legitimacy,[44] as they
endeavoured to preserve everywhere the old dynasties and to protect the
sovereigns of the different countries against revolutionary movements of
their subjects. This led, in fact, to a dangerous neglect of the
principles of International Law regarding intervention. The Great
Powers, with the exception of England, intervened constantly with the
domestic affairs of the minor States in the interest of the legitimate
dynasties and of an anti-liberal legislation. The Congresses at Troppau,
1820, Laibach, 1821, Verona, 1822, occupied themselves with a
deliberation on such interventions.
[Footnote 43: See Martens, N.R. IV. p. 560.]
[Footnote 44: See Brockhaus, "Das Legitimitätsprincip" (1868).]
The famous Monroe Doctrine (see below, § 139) owes its origin to that
dangerous policy of the European Powers as regards intervention,
although this doctrine embraces other points besides intervention. As
from 1810 onwards the Spanish colonies in South America were falling off
from the mother country and declaring their independence, and as Spain
was, after the Vienna Congress, thinking of reconquering these States
with the help of other Powers who upheld the principle of legitimacy,
President Monroe delivered his message on December 2, 1823, which
pointed out amongst other things, that the United States could not allow
the interference of a European Power with the States of the American
continent.
Different from the intervention of the Powers of the Holy Alliance in
the interest of legitimacy were the two interventions in the interest of
Greece and Belgium. England, France, and Russia intervened in 1827 in
the struggle of Turkey with the Greeks, an intervention which led
finally in 1830 to the independence of Greece. And the Great Powers of
the time, namely, England, Austria, France, Prussia, and Russia, invited
by the provisional Belgian Government, intervened in 1830 in the
struggle of the Dutch with the Belgians and secured the formation of a
separate Kingdom of Belgium.
It may be maintained that the establishment of Greece and Belgium
inferred the breakdown of the Holy Alliance. But it was not till the
year 1848 that this alliance was totally swept away through the
disappearance of absolutism and the victory of the constitutional system
in most States of Europe. Shortly afterwards, in 1852, Napoleon III.,
who adopted the principle of nationality,[45] became Emperor of France.
Since he exercised preponderant influence in Europe, one may say that
this principle of nationality superseded in European politics the
principle of legitimacy.
[Footnote 45: See Bulmerincq, "Praxis, Theorie und Codification des
Völkerrechts" (1874), pp. 53-70.]
The last event of this period is the Crimean War, which led to the Peace
as well as to the Declaration of Paris in 1856. This war broke out in
1853 between Russia and Turkey. In 1854, England, France, and Sardinia
joined Turkey, but the war continued nevertheless for another two
years. Finally, however, Russia was defeated, a Congress assembled at
Paris, where England, France, Austria, Russia, Sardinia, Turkey, and
eventually Prussia, were represented, and peace was concluded in March
1856. In the Peace Treaty, Turkey is expressly received as a member into
the Family of Nations. Of greater importance, however, is the celebrated
Declaration of Paris regarding maritime International Law which was
signed on April 16, 1856, by the delegates of the Powers that had taken
part in the Congress. This declaration abolished privateering,
recognised the rules that enemy goods on neutral vessels and that
neutral goods on enemy vessels cannot be confiscated, and stipulated
that a blockade in order to be binding must be effective. Together with
the fact that at the end of the first quarter of the nineteenth century
the principle of the freedom of the high seas[46] became universally
recognised, the Declaration of Paris is a prominent landmark in the
progress of the Law of Nations. The Powers that had not been represented
at the Congress of Paris were invited to sign the Declaration
afterwards, and the majority of the members of the Family of Nations did
sign it before the end of the year 1856. The few States, such as the
United States of America, Spain, Mexico, and others, which did not then
sign,[47] have in practice since 1856 not acted in opposition to the
Declaration, and one may therefore, perhaps, maintain that the
Declaration of Paris has already become or will soon become universal
International Law through custom. Spain and Mexico, however, signed the
Declaration in 1907, as Japan had already done in 1886.
[Footnote 46: See below, § 251.]
[Footnote 47: It should be mentioned that the United States did not sign
the Declaration of Paris because it did not go far enough, and did not
interdict capture of private enemy vessels.]
[Sidenote: The period 1856-1874.]
§ 48. The next period, the time from 1856 to 1874, is of prominent
importance for the development of the Law of Nations. Under the aegis of
the principle of nationality, Austria turns in 1867 into the dual
monarchy of Austria-Hungary, and Italy as well as Germany becomes
united. The unity of Italy rises out of the war of France and Sardinia
against Austria in 1859, and Italy ranges henceforth among the Great
Powers of Europe. The unity of Germany is the combined result of three
wars: that of Austria and Prussia in 1864 against Denmark on account of
Schleswig-Holstein, that of Prussia and Italy against Austria in 1866,
and that of Prussia and the allied South German States against France in
1870. The defeat of France in 1870 had the consequence that Italy took
possession of the Papal States, whereby the Pope disappeared from the
number of governing sovereigns.
The United States of America rise through the successful termination of
the Civil War in 1865 to the position of a Great Power. Several rules of
maritime International Law owe their further development to this war.
And the instructions concerning warfare on land, published in 1863 by
the Government of the United States, represent the first step towards
codification of the Laws of War. In 1864, the Geneva Convention for the
amelioration of the condition of soldiers wounded in armies in the field
is, on the initiation of Switzerland, concluded by nine States, and in
time almost all civilised States became parties to it. In 1868, the
Declaration of St. Petersburg, interdicting the employment in war of
explosive balls below a certain weight, is signed by many States. Since
Russia in 1870 had arbitrarily shaken off the restrictions of Article 11
of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the
Conference of London, which met in 1871 and was attended by the
representatives of the Powers which were parties to the Peace of Paris
of 1856, solemnly proclaimed "that it is an essential principle of the
Law of Nations that no Power can liberate itself from the engagements of
a treaty, or modify the stipulations thereof, unless with the consent of
the contracting Powers by means of an amicable arrangement." The last
event in this period is the Conference of Brussels of 1874 for the
codification of the rules and usages of war on land. Although the signed
code was never ratified, the Brussels Conference was nevertheless
epoch-making, since it showed the readiness of the Powers to come to an
understanding regarding such a code.
[Sidenote: The period 1874-1899.]
§ 49. After 1874 the principle of nationality continues to exercise its
influence as before. Under its aegis takes place the partial decay of
the Ottoman Empire. The refusal of Turkey to introduce reforms regarding
the Balkan population led in 1877 to war between Turkey and Russia,
which was ended in 1878 by the peace of San Stefano. As the conditions
of this treaty would practically have done away with Turkey in Europe,
England intervened and a European Congress assembled at Berlin in June
1878 which modified materially the conditions of the Peace of San
Stefano. The chief results of the Berlin Congress are:--(1) Servia,
Roumania, Montenegro become independent and Sovereign States; (2)
Bulgaria becomes an independent principality under Turkish suzerainty;
(3) the Turkish provinces of Bosnia and Herzegovina come under the
administration of Austria-Hungary; (4) a new province under the name of
Eastern Rumelia is created in Turkey and is to enjoy great local
autonomy (according to an arrangement of the Conference of
Constantinople in 1885-1886 a bond is created between Eastern Rumelia
and Bulgaria by the appointment of the Prince of Bulgaria as governor of
Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates
to its mouth in the Black Sea is proclaimed.
In 1889 Brazil becomes a Republic and a Federal State (the United States
of Brazil). In the same year the first Pan-American Congress meets at
Washington.
In 1897 Crete revolts against Turkey, war breaks out between Greece and
Turkey, the Powers interfere, and peace is concluded at Constantinople.
Crete becomes an autonomous half-Sovereign State under Turkish
suzerainty with Prince George of Greece as governor, who, however,
retires in 1906.
In the Far East war breaks out in 1894 between China and Japan, on
account of Korea. China is defeated, and peace is concluded in 1895 at
Shimonoseki.[48] Japan henceforth ranks as a Great Power. That she must
now be considered a full member of the Family of Nations becomes
apparent from the treaties concluded soon afterwards by her with other
Powers for the purpose of abolishing their consular jurisdiction within
the boundaries of Japan.
[Footnote 48: See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.]
In America the United States intervene in 1898 in the revolt of Cuba
against the motherland, whereby war breaks out between Spain and the
United States. The defeat of Spain secures the independence of Cuba
through the Peace of Paris[49] of 1898. The United States acquires Porto
Rico and other Spanish West Indian Islands, and, further, the Philippine
Islands, whereby she becomes a colonial Power.
[Footnote 49: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 74.]
An event of great importance during this period is the Congo Conference
of Berlin, which took place in 1884-1885, and at which England, Germany,
Austria-Hungary, Belgium, Denmark, Spain, the United States of America,
France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were
represented. This conference stipulated freedom of commerce,
interdiction of slave-trade, and neutralisation of the territories in
the Congo district, and secured freedom of navigation on the rivers
Congo and Niger. The so-called Congo Free State was recognised as a
member of the Family of Nations.
A second fact of great importance during this period is the movement
towards the conclusion of international agreements concerning matters of
international administration. This movement finds expression in the
establishment of numerous International Unions with special
International Offices. Thus a Universal Telegraphic Union is established
in 1875, a Universal Postal Union in 1878, a Union for the Protection of
Industrial Property in 1883, a Union for the Protection of Works of
Literature and Art in 1886, a Union for the Publication of Custom
Tariffs in 1890. There were also concluded conventions concerning:--(1)
Private International Law (1900 and 1902); (2) railway transports and
freights (1890); (3) the metric system (1875); (4) phylloxera epidemics
(1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6)
Monetary Unions (1865, 1878, 1885, 1892, 1893).
A third fact of great importance is that in this period a tendency
arises to settle international conflicts more frequently than in former
times by arbitration. Numerous arbitrations are actually taking place,
and several treaties are concluded between different States stipulating
the settlement by arbitration of all conflicts which might arise in
future between the contracting parties.
The last fact of great importance which is epoch-making for this period
is the Peace Conference of the Hague of 1899. This Conference produces,
apart from three Declarations of minor importance, a Convention for the
Pacific Settlement of International Conflicts, a Convention regarding
the Laws and Customs of War on Land, and a Convention for the Adaptation
to Maritime Warfare of the Principles of the Geneva Convention. It also
formulates, among others, the three wishes (1) that a conference should
in the near future regulate the rights and duties of neutrals, (2) that
a future conference should contemplate the declaration of the
inviolability of private property in naval warfare, (3) that a future
conference should settle the question of the bombardment of ports,
towns, and villages by naval forces.
[Sidenote: The Twentieth Century.]
§ 50. Soon after the Hague Peace Conference, in October 1899, war breaks
out in South Africa between Great Britain and the two Boer Republics,
which leads to the latter's subjugation at the end of 1901. The
assassination on June 10, 1900, of the German Minister and the general
attack on the foreign legations at Peking necessitate united action of
the Powers against China for the purpose of vindicating this violation
of the fundamental rules of the Laws of Nations. Friendly relations are,
however, re-established with China on her submitting to the conditions
enumerated in the Final Protocol of Peking,[50] signed on September 7,
1901. In December 1902 Great Britain, Germany, and Italy institute a
blockade of the coast of Venezuela for the purpose of making her comply
with their demands for the indemnification of their subjects wronged
during civil wars in Venezuela, and the latter consents to pay
indemnities to be settled by a mixed commission of diplomatists.[51] As,
however, Powers other than those blockading likewise claim indemnities,
the matter is referred to the Permanent Court of Arbitration at the
Hague, which in 1904 gives its award[52] in favour of the blockading
Powers. In February 1904 war breaks out between Japan and Russia on
account of Manchuria and Korea. Russia is defeated, and peace is
concluded through the mediation of the United States of America, on
September 5, 1905, at Portsmouth.[53] Korea, now freed from the
influence of Russia, places herself by the Treaty of Seoul[54] of
November 17, 1905, under the protectorate of Japan. Five years later,
however, by the Treaty of Seoul[55] of August 22, 1910, she merges
entirely into Japan.
[Footnote 50: See Martens, N.R.G. 2nd Ser. XXXII. p. 94.]
[Footnote 51: See Martens, N.R.G. 3rd Ser. I. p. 46.]
[Footnote 52: See Martens, N.R.G. 3rd Ser. I. p. 57.]
[Footnote 53: See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.]
[Footnote 54: See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.]
[Footnote 55: See Martens, N.R.G. 3rd Ser. IV. p. 24.]
The Real Union between Norway and Sweden, which was established by the
Vienna Congress in 1815, is peacefully dissolved by the Treaty of
Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom
under Prince Charles of Denmark, who takes the name of Haakon VIII., and
Great Britain, Germany, Russia, and France guarantee by the Treaty of
Christiania[57] of November 2, 1907, the integrity of Norway on
condition that she would not cede any part of her territory to any
foreign Power.
[Footnote 56: See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.]
[Footnote 57: See Martens, N.R.G. 3rd Ser. II. p. 9, and below, § 574.]
The rivalry between France and Germany--the latter protesting against
the position conceded to France in Morocco by the Anglo-French agreement
signed at London on April 8, 1904--leads in January 1906 to the
Conference of Algeciras, in which Great Britain, France, Germany,
Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden,
Spain, and the United States of America take part, and where on April 7,
1906, the General Act of the International Conference of Algeciras[58]
is signed. This Act, which recognises, on the one hand, the independence
and integrity of Morocco, and, on the other, equal commercial facilities
for all nations in that country, contains:--(1) A declaration concerning
the organisation of the Moroccan police; (2) regulations concerning the
detection and suppression of the illicit trade in arms; (3) an Act of
concession for a Moorish State Bank; (4) a declaration concerning an
improved yield of the taxes and the creation of new sources of revenue;
(5) regulations respecting customs and the suppression of fraud and
smuggling; (6) a declaration concerning the public services and public
works. But it would seem that this Act has not produced a condition of
affairs of any permanency. Since, in 1911, internal disturbances in
Morocco led to military action on the part of France and Spain, Germany,
in July of the same year, sent a man-of-war to the port of Agadir. Thus
the Moroccan question has been reopened, and fresh negotiations for its
settlement are taking place between the Powers.[59]
[Footnote 58: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.]
[Footnote 59: It should be mentioned that by the Treaty of London of
December 13, 1906, Great Britain, France, and Italy agree to co-operate
in maintaining the independence and integrity of Abyssinia; see Martens,
N.R.G. 2nd Ser. XXXV. p. 556.]
Two events of importance occur in 1908. The first is the merging of the
Congo Free State[60] into Belgium, which annexation is not as yet
recognised by all the Powers. The other is the crisis in the Near East
caused by the ascendency of the so-called Young Turks and the
introduction of a constitution in Turkey. Simultaneously on October 5,
1908, Bulgaria declares herself independent, and Austria-Hungary
proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish
provinces had been under her administration since 1878. This violation
of the Treaty of Berlin considerably endangers the peace of the world,
and an international conference is proposed for the purpose of
reconsidering the settlement of the Near Eastern question.
Austria-Hungary, however, does not consent to this, but prefers to
negotiate with Turkey alone in the matter, and a Protocol is signed by
the two Powers on February 26, 1909, according to which Turkey receives
a substantial indemnity in money and other concessions. Austria-Hungary
negotiates likewise with Montenegro alone, and consents to the
modifications in Article 29 of the Treaty of Berlin concerning the
harbour of Antivary, which is to be freed from Austria-Hungarian control
and is henceforth to be open to warships of all nations. Whereupon the
demand for an international conference is abandoned and the Powers
notify on April 7, 1909, their consent to the abolition of Article 25
and the amendment of Article 29 of the Treaty of Berlin.[61]
[Footnote 60: See Martens, N.R.G. 3rd Ser. II. p. 101.]
[Footnote 61: See Martens, N.R.G. 3rd Ser. II. p. 606.]
In 1910 Portugal becomes a Republic; but the Powers, although they enter
provisionally into communication with the _de facto_ government, do not
recognise the Republic until September 1911, after the National Assembly
adopted the republican form of government.
In September 1911 war breaks out between Italy and Turkey, on account of
the alleged maltreatment of Italian subjects in Tripoli.
International Law as a body of rules for the international conduct of
States makes steady progress during this period. This is evidenced by
congresses, conferences, and law-making treaties. Of conferences and
congresses must be mentioned the second, third, and fourth Pan-American
Congresses,[62] which take place at Mexico in 1901, at Rio in 1906, and
at Buenos Ayres in 1910. Although the law-making treaties of these
congresses have not found ratification, their importance cannot be
denied. Further, in 1906 a conference assembles in Geneva for the
purpose of revising the Geneva Convention of 1864 concerning the wounded
in land warfare, and on July 6, 1906, the new Geneva[63] Convention is
signed. Of the greatest importance, however, are the second Hague Peace
Conference of 1907 and the Naval Conference of London of 1898-9.
[Footnote 62: See Moore, VI. § 969; Fried, "Pan-America" (1910);
Barrett, "The Pan-American Union" (1911).]
[Footnote 63: See Martens, N.R.G. 3rd Ser. II. p. 323.]
The second Peace Conference assembles at the Hague on June 15, 1907.
Whereas at the first there were only 26 States represented, 44 are
represented at the second Peace Conference. The result of this
Conference is contained in its Final Act,[64] which is signed on October
18, 1907, and embodies no fewer than thirteen law-making Conventions
besides a declaration of minor importance. Of these Conventions, 1, 4,
and 10 are mere revisions of Conventions agreed upon at the first Peace
Conference of 1899, but the others are new and concern:--The employment
of force for the recovery of contract debts (2); the commencement of
hostilities (3); the rights and duties of neutrals in land warfare (5);
the status of enemy merchant-ships at the outbreak of hostilities (6);
the conversion of merchantmen into men-of-war (7); the laying of
submarine mines (8); the bombardment by naval forces (9); restrictions
of the right of capture in maritime war (11); the establishment of an
International Prize Court (12); the rights and duties of neutrals in
maritime war (13).
[Footnote 64: See Martens, N.R.G. 3rd Ser. III. p. 323.]
The Naval Conference of London assembles on December 4, 1908, for the
purpose of discussing the possibility of creating a code of prize law
without which the International Prize Court, agreed upon at the second
Hague Peace Conference, could not be established, and produces the
Declaration of London, signed on February 26, 1909. This Declaration
contains 71 articles, and settles in nine chapters the law
concerning:--(1) Blockade; (2) contraband; (3) un-neutral service; (4)
destruction of neutral prizes; (5) transfer to a neutral flag; (6) enemy
character; (7) convoy; (8) resistance to search; and (9) compensation.
The Declaration is accompanied by a General Report on its stipulations
which is intended to serve as an official commentary.
The movement which began in the last half of the nineteenth century
towards the conclusion of international agreements concerning matters of
international administration, develops favourably during this period.
The following conventions are the outcome of this movement:--(1)
Concerning the preservation of wild animals, birds, and fish in Africa
(1900); (2) concerning international hydrographic and biological
investigations in the North Sea (1901); (3) concerning protection of
birds useful for agriculture (1902); (4) concerning the production of
sugar (1902); (5) concerning the White Slave traffic (1904); (6)
concerning the establishment of an International Agricultural Institute
at Rome (1905); (7) concerning unification of the Pharmacopoeial
Formulas (1906); (8) concerning the prohibition of the use of white
phosphorus (1906); (9) concerning the prohibition of night work for
women (1906); (10) concerning the international circulation of motor
vehicles (1909).
It is, lastly, of the greatest importance to mention that the so-called
peace movement,[65] which aims at the settlement of all international
disputes by arbitration or judicial decision of an International Court,
gains considerable influence over the Governments and public opinion
everywhere since the first Hague Peace Conference. A great number of
arbitration treaties are agreed upon, and the Permanent Court of
Arbitration established at the Hague gives its first award[66] in a case
in 1902 and its ninth in 1911. The influence of these decisions upon the
peaceful settlement of international differences generally is enormous,
and it may confidently be expected that the third Hague Peace Conference
will make arbitration obligatory for some of the matters which do not
concern the vital interests, the honour, and the independence of the
States. It is a hopeful sign that, whereas most of the existing
arbitration treaties exempt conflicts which concern the vital
interests, the honour, and the independence, Argentina and Chili in
1902, Denmark and Holland in 1903, Denmark and Italy in 1905, Denmark
and Portugal in 1907, Argentina and Italy in 1907, the Central American
Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San
Salvador in 1907, Italy and Holland in 1907, entered into general
arbitration treaties according to which all differences, without any
exception, shall be settled by arbitration.[67]
[Footnote 65: See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2
vols. (1911).]
[Footnote 66: See below, § 476.]
[Footnote 67: The general arbitration treaties concluded in August 1911
by the United States with Great Britain and France have not yet been
ratified, as the consent of the American Senate is previously required.]
[Sidenote: Six Lessons of the History of the Law of Nations.]
§ 51. It is the task of history, not only to show how things have grown
in the past, but also to extract a moral for the future out of the
events of the past. Six morals can be said to be deduced from the
history of the development of the Law of Nations:
(1) The first and principal moral is that a Law of Nations can exist
only if there be an equilibrium, a balance of power, between the members
of the Family of Nations. If the Powers cannot keep one another in
check, no rules of law will have any force, since an over-powerful State
will naturally try to act according to discretion and disobey the law.
As there is not and never can be a central political authority above the
Sovereign States that could enforce the rules of the Law of Nations, a
balance of power must prevent any member of the Family of Nations from
becoming omnipotent. The history of the times of Louis XIV. and Napoleon
I. shows clearly the soundness of this principle.[68]
[Footnote 68: Attention ought to be drawn to the fact that, although the
necessity of a balance of power is generally recognised, there are some
writers of great authority who vigorously oppose this principle, as, for
instance, Bulmerincq, "Praxis, Theorie und Codification des
Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu,
"Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe
d'Équilibre et de Concert Européen" (1909).]
(2) The second moral is that International Law can develop progressively
only when international politics, especially intervention, are made on
the basis of real State interests. Dynastic wars belong to the past, as
do interventions in favour of legitimacy. It is neither to be feared,
nor to be hoped, that they should occur again in the future. But if they
did, they would hamper the development of the Law of Nations in the
future as they have done in the past.
(3) The third moral is that the principle of nationality is of such
force that it is fruitless to try to stop its victory. Wherever a
community of many millions of individuals, who are bound together by the
same blood, language, and interests, become so powerful that they think
it necessary to have a State of their own, in which they can live
according to their own ideals and can build up a national civilisation,
they will certainly get that State sooner or later. What international
politics can, and should, do is to enforce the rule that minorities of
individuals of another race shall not be outside the law, but shall be
treated on equal terms with the majority. States embracing a population
of several nationalities can exist and will always exist, as many
examples show.
(4) The fourth moral is that every progress in the development of
International Law wants due time to ripen. Although one must hope that
the time will come when war will entirely disappear, there is no
possibility of seeing this hope realised in our time. The first
necessities of an eternal peace are that the surface of the earth should
be shared between States of the same standard of civilisation, and that
the moral ideas of the governing classes in all the States of the world
should undergo such an alteration and progressive development as would
create the conviction that arbitral awards and decisions of courts of
justice are alone adequate means for the settlement of international
differences. Eternal peace is an ideal, and in the very term "ideal" is
involved the conviction of the impossibility of its realisation in the
present, although it is a duty to aim constantly at such realisation.
The Permanent Court of Arbitration at the Hague, now established by the
Hague Peace Conference of 1899, is an institution that can bring us
nearer to such realisation than ever could have been hoped. And
codification of parts of the Law of Nations, following the codification
of the rules regarding land warfare and the codification comprised in
the Declaration of London, will in due time arrive, and will make the
legal basis of international intercourse firmer, broader, and more
manifest than before.[69]
[Footnote 69: See Oppenheim, "Die Zukunft des Völkerrechts" (1911) where
some progressive steps are discussed which the future may realise.]
(5) The fifth moral is that the progress of International Law depends to
a great extent upon whether the legal school of International Jurists
prevails over the diplomatic school.[70] The legal school desires
International Law to develop more or less on the lines of Municipal Law,
aiming at the codification of firm, decisive, and unequivocal rules of
International Law, and working for the establishment of international
Courts for the purpose of the administration of international justice.
The diplomatic school, on the other hand, considers International Law to
be, and prefers it to remain, rather a body of elastic principles than
of firm and precise rules. The diplomatic school opposes the
establishment of international Courts because it considers diplomatic
settlement of international disputes, and failing this arbitration,
preferable to international administration of justice by international
Courts composed of permanently appointed judges. There is, however, no
doubt that international Courts are urgently needed, and that the rules
of International Law require now such an authoritative interpretation
and administration as only an international Court can supply.
[Footnote 70: I name these schools "diplomatic" and "legal" for want of
better denomination. They must, however, not be confounded with the
three schools of the "Naturalists," "Positivists," and "Grotians,"
details concerning which will be given below, §§ 55-57.]
(6) The sixth, and last, moral is that the progressive development of
International Law depends chiefly upon the standard of public morality
on the one hand, and, on the other, upon economic interests. The higher
the standard of public morality rises, the more will International Law
progress. And the more important international economic interests grow,
the more International Law will grow. For, looked upon from a certain
stand-point, International Law is, just like Municipal Law, a product of
moral and of economic factors, and at the same time the basis for a
favourable development of moral and economic interests. This being an
indisputable fact, it may, therefore, fearlessly be maintained that an
immeasurable progress is guaranteed to International Law, since there
are eternal moral and economic factors working in its favour.
III
THE SCIENCE OF THE LAW OF NATIONS
Phillimore, I., Preface to the first edition--Lawrence, §§
31-36--Manning, pp. 21-65--Halleck, I. pp. 12, 15, 18, 22, 25, 29,
34, 42--Walker, History, I. pp. 203-337, and "The Science of
International Law" (1893), _passim_--Taylor, §§ 37-48--Wheaton, §§
4-13--Rivier in Holtzendorff, I. pp. 337-475--Nys, I. pp.
213-328--Martens, I. §§ 34-38--Fiore, I. Nos. 53-88, 164-185,
240-272--Calvo, I. pp. 27-34, 44-46, 51-55, 61-63, 70-73,
101-137--Bonfils, Nos. 147-153--Despagnet, Nos. 28-35--Ullmann, §
18--Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)--Holland,
Studies, pp. 1-58, 168-175--Westlake, Chapters, pp. 23-77--Ward,
"Enquiry into the Foundation and History of the Law of Nations," 2
vols. (1795)--Nys, "Le droit de la guerre et les précurseurs de
Grotius" (1882), "Notes pour servir à l'histoire ... du droit
international en Angleterre" (1888), "Les origines du droit
international" (1894)--Wheaton, "Histoire des progrès du droit des
gens en Europe" (1841)--Oppenheim in A.J. I. (1908), pp.
313-356--Pollock in the Cambridge Modern History, vol. XII.
(1910), pp. 703-729--See also the bibliographies enumerated below
in § 61.
[Sidenote: Forerunners of Grotius.]
§ 52. The science of the modern Law of Nations commences from Grotius's
work, "De Jure Belli ac Pacis libri III.," because in it a fairly
complete system of International Law was for the first time built up as
an independent branch of the science of law. But there were many writers
before Grotius who wrote on special parts of the Law of Nations. They
are therefore commonly called "Forerunners of Grotius." The most
important of these forerunners are the following: (1) Legnano, Professor
of Law in the University of Bologna, who wrote in 1360 his book "De
bello, de represaliis, et de duello," which was, however, not printed
before 1477; (2) Belli, an Italian jurist and statesman, who published
in 1563 his book, "De re militari et de bello"; (3) Brunus, a German
jurist, who published in 1548 his book, "De legationibus"; (4) Victoria,
Professor in the University of Salamanca, who published in 1557 his
"Relectiones theologicae,"[71] which partly deals with the Law of War;
(5) Ayala, of Spanish descent but born in Antwerp, a military judge in
the army of Alexandro Farnese, the Prince of Parma. He published in 1582
his book, "De jure et officiis bellicis et disciplina militari"; (6)
Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 1612
his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8)
for the first time the attempt is made to found a law between the States
on the fact that they form a community of States; (7) Gentilis
(1552-1608), an Italian jurist, who became Professor of Civil Law in
Oxford. He published in 1585 his work, "De legationibus," in 1588 and
1589 his "Commentationes de jure belli," and in 1598 an enlarged work on
the same matter under the title "De jure belli libri tres."[72] His
"Advocatio Hispanica" was edited, after his death, in 1613 by his
brother Scipio. Gentilis's book "De jure belli" supplies, as Professor
Holland shows, the model and the framework of the first and third book
of Grotius's "De Jure Belli ac Pacis." "The first step"--Holland rightly
says--"towards making International Law what it is was taken, not by
Grotius, but by Gentilis."
[Footnote 71: See details in Holland, Studies, pp. 51-52.]
[Footnote 72: Re-edited in 1877 by Professor Holland. On Gentilis, see
Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker,
History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung
für das Völkerrecht" (1896); Phillipson in _The Journal of the Society
of Comparative Legislation_, New Series, XII. (1912), pp. 52-80; Balch
in A.J. V. (1911), pp. 665-679.]
[Sidenote: Grotius.]
§ 53. Although Grotius owes much to Gentilis, he is nevertheless the
greater of the two and bears by right the title of "Father of the Law of
Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from
his earliest childhood known as a "wondrous child" on account of his
marvellous intellectual gifts and talents. He began to study law at
Leyden when only eleven years old, and at the age of fifteen he took the
degree of Doctor of Laws at Orleans in France. He acquired a reputation,
not only as a jurist, but also as a Latin poet and a philologist. He
first practised as a lawyer, but afterwards took to politics and became
involved in political and religious quarrels which led to his arrest in
1618 and condemnation to prison for life. In 1621, however, he succeeded
in escaping from prison and went to live for ten years in France. In
1634 he entered into the service of Sweden and became Swedish Minister
in Paris. He died in 1645 at Rostock in Germany on his way home from
Sweden, whither he had gone to tender his resignation.
Even before he had the intention of writing a book on the Law of Nations
Grotius took an interest in matters international. For in 1609, when
only twenty-four years old, he published--anonymously at first--a short
treatise under the title "Mare liberum," in which he contended that the
open sea could not be the property of any State, whereas the contrary
opinion was generally prevalent.[73] But it was not until fourteen
years later that Grotius began, during his exile in France, to write
his "De Jure Belli ac Pacis libri III.," which was published, after a
further two years, in 1625, and of which it has rightly been maintained
that no other book, with the single exception of the Bible, has ever
exercised a similar influence upon human minds and matters. The whole
development of the modern Law of Nations itself, as well as that of the
science of the Law of Nations, takes root from this for ever famous
book. Grotius's intention was originally to write a treatise on the Law
of War, since the cruelties and lawlessness of warfare of his time
incited him to the work. But thorough investigation into the matter led
him further, and thus he produced a system of the Law of Nature and
Nations. In the introduction he speaks of many of the authors before
him, and he especially quotes Ayala and Gentilis. Yet, although he
recognises their influence upon his work, he is nevertheless aware that
his system is fundamentally different from those of his forerunners.
There was in truth nothing original in Grotius's start from the Law of
Nature for the purpose of deducing therefrom rules of a Law of Nations.
Other writers before his time, and in especial Gentilis, had founded
their works upon it. But nobody before him had done it in such a
masterly way and with such a felicitous hand. And it is on this account
that Grotius bears not only, as already mentioned, the title of "Father
of the Law of Nations," but also that of "Father of the Law of Nature."
[Footnote 73: See details with regard to the controversy concerning the
freedom of the open sea below, §§ 248-250. Grotius's treatise "Mare
liberum" is--as we know now--the twelfth chapter of the work "De jure
praedae," written in 1604 but never published by Grotius; it was not
printed till 1868. See below, § 250.]
Grotius, as a child of his time, could not help starting from the Law of
Nature, since his intention was to find such rules of a Law of Nations
as were eternal, unchangeable, and independent of the special consent of
the single States. Long before Grotius, the opinion was generally
prevalent that above the positive law, which had grown up by custom or
by legislation of a State, there was in existence another law which had
its roots in human reason and which could therefore be discovered
without any knowledge of positive law. This law of reason was called Law
of Nature or Natural Law. But the system of the Law of Nature which
Grotius built up and from which he started when he commenced to build up
the Law of Nations, became the most important and gained the greatest
influence, so that Grotius appeared to posterity as the Father of the
Law of Nature as well as that of the Law of Nations.
Whatever we may nowadays think of this Law of Nature, the fact remains
unshaken that for more than two hundred years after Grotius jurists,
philosophers, and theologians firmly believed in it. And there is no
doubt that, but for the systems of the Law of Nature and the doctrines
of its prophets, the modern Constitutional Law and the modern Law of
Nations would not be what they actually are. The Law of Nature supplied
the crutches with whose help history has taught mankind to walk out of
the institutions of the Middle Ages into those of modern times. The
modern Law of Nations in especial owes its very existence[74] to the
theory of the Law of Nature. Grotius did not deny that there existed in
his time already a good many customary rules for the international
conduct of the States, but he expressly kept them apart from those rules
which he considered the outcome of the Law of Nature. He distinguishes,
therefore, between the _natural_ Law of Nations on the one hand, and, on
the other hand, the _customary_ Law of Nations, which he calls the
_voluntary_ Law of Nations. The bulk of Grotius's interest is
concentrated upon the natural Law of Nations, since he considered the
voluntary of minor importance. But nevertheless he does not quite
neglect the voluntary Law of Nations. Although he mainly and chiefly
lays down the rules of the natural Law of Nations, he always mentions
also voluntary rules concerning the different matters.
[Footnote 74: See Pollock in _The Journal of the Society of Comparative
Legislation_, New Series, III. (1901), p. 206.]
Grotius's influence was soon enormous and reached over the whole of
Europe. His book[75] went through more than forty-five editions, and
many translations have been published.
[Footnote 75: See Rivier in Holtzendorff, I. p. 412. The last English
translation is that of 1854 by William Whewell.]
[Sidenote: Zouche.]
§ 54. But the modern Law of Nations has another, though minor, founder
besides Grotius, and this is an Englishman, Richard Zouche[76]
(1590-1660), Professor of Civil Law at Oxford and a Judge of the
Admiralty Court. A prolific writer, the book through which he acquired
the title of "Second founder of the Law of Nations," appeared in 1650
and bears the title: "Juris et judicii fecialis, sive juris inter
gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum
inter diversos principes aut populos spectant, ex praecipuis historico
jure peritis exhibentur." This little book has rightly been called the
first manual of the _positive_ Law of Nations. The standpoint of Zouche
is totally different from that of Grotius in so far as, according to
him, the customary Law of Nations is the most important part of that
law, although, as a child of his time, he does not at all deny the
existence of a natural Law of Nations. It must be specially mentioned
that Zouche is the first who used the term _jus inter gentes_ for that
new branch of law. Grotius knew very well and says that the Law of
Nations is a law _between_ the States, but he called it _jus gentium_,
and it is due to his influence that until Bentham nobody called the Law
of Nations _Inter_national Law.
[Footnote 76: See Phillipson in _The Journal of the Society of
Comparative Legislation_, New Series, IX. (1908), pp. 281-304.]
The distinction between the natural Law of Nations, chiefly treated by
Grotius, and the customary or voluntary Law of Nations, chiefly treated
by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to
three different schools[78] of writers on the Law of Nations--namely,
the "Naturalists," the "Positivists," and the "Grotians."
[Footnote 77: It should be mentioned that already before Zouche, another
Englishman, John Selden, in his "De jure naturali et gentium secundum
disciplinam ebraeorum" (1640), recognised the importance of the positive
Law of Nations. The successor of Zouche as a Judge of the Admiralty
Court, Sir Leoline Jenkins (1625-1684), ought also to be mentioned. His
opinions concerning questions of maritime law, and in especial prize
law, were of the greatest importance for the development of maritime
international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols.
(1740).]
[Footnote 78: These three schools of writers must not be confounded with
the division of the present international jurists into the diplomatic
and legal schools; see above, § 51, No. 5.]
[Sidenote: The Naturalists.]
§ 55. "Naturalists," or "Deniers of the Law of Nations," is the
appellation of those writers who deny that there is any positive Law of
Nations whatever as the outcome of custom or treaties, and who maintain
that all Law of Nations is only a part of the Law of Nature. The leader
of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the
first chair which was founded for the Law of Nature and Nations at a
University--namely, that at Heidelberg. Among the many books written by
Pufendorf, three are of importance for the science of International
Law:--(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure
naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem
naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV.
4, that Natural Law is to be divided into Natural Law of individuals and
of States, and that the latter is the Law of Nations, Pufendorf[79] adds
that outside this Natural Law of Nations no voluntary or positive Law of
Nations exists which has the force of real law (_quod quidem legis
proprie dictae vim habeat, quae gentes tamquam a superiore profecta
stringat_).
[Footnote 79: De jure naturae et gentium, II. c. 3, § 22.]
The most celebrated follower of Pufendorf is the German philosopher,
Christian Thomasius (1655-1728), who published in 1688 his
"Institutiones jurisprudentiae divinae," and in 1705 his "Fundamenta
juris naturae et gentium." Of English Naturalists may be mentioned
Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas
Rutherford ("Institutes of Natural Law; being the Substance of a Course
of Lectures on Grotius read in St. John's College, Cambridge," 2 vols.
1754-1756). Jean Barbeyrac (1674-1744), the learned French translator
and commentator of the works of Grotius, Pufendorf, and others, and,
further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who
wrote the "Principes du droit de la nature et des gens," ought likewise
to be mentioned.
[Sidenote: The Positivists.]
§ 56. The "Positivists" are the antipodes of the Naturalists. They
include all those writers who, in contradistinction to Hobbes and
Pufendorf, not only defend the existence of a positive Law of Nations as
the outcome of custom or international treaties, but consider it more
important than the natural Law of Nations, the very existence of which
some of the Positivists deny, thus going beyond Zouche. The positive
writers had not much influence in the seventeenth century, during which
the Naturalists and the Grotians carried the day, but their time came in
the eighteenth century.
Of seventeenth-century writers, the Germans Rachel and Textor must be
mentioned. Rachel published in 1676 his two dissertations, "De jure
naturae et gentium," in which he defines the Law of Nations as the law
to which a plurality of free States are subjected, and which comes into
existence through tacit or express consent of these States (_Jus plurium
liberalium gentium pacto sive placito expressim aut tacite initum, quo
utilitatis gratia sibi in vicem obligantur_). Textor published in 1680
his "Synopsis juris gentium."
In the eighteenth century the leading Positivists, Bynkershoek, Moser,
and Martens, gained an enormous influence.
Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist,
never wrote a treatise on the Law of Nations, but gained fame through
three books dealing with different parts of this Law. He published in
1702 "De dominio maris," in 1721 "De foro legatorum," in 1737
"Quaestionum juris publici libri II." According to Bynkershoek the basis
of the Law of Nations is the common consent of the nations which finds
its expression either in international custom or in international
treaties.
[Footnote 80: See Phillipson in _The Journal of the Society of
Comparative Legislation_, New Series, IX. (1908), pp. 27-49.]
Johann Jakob Moser (1701-1785), a German Professor of Law, published
many books concerning the Law of Nations, of which three must be
mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in
Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts
in Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen
Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books
are magazines of an enormous number of facts which are of the greatest
value for the positive Law of Nations. Moser never fights against the
Naturalists, but he is totally indifferent towards the natural Law of
Nations, since to him the Law of Nations is positive law only and based
on international custom and treaties.
Georg Friedrich von Martens (1756-1821), Professor of Law in the
University of Göttingen, also published many books concerning the Law of
Nations. The most important is his "Précis du droit des gens moderne de
l'Europe," published in 1789, of which William Cobbett published in
1795 at Philadelphia an English translation, and of which as late as
1864 appeared a new edition at Paris with notes by Charles Vergé.
Martens began the celebrated collection of treaties which goes under the
title "Martens, Recueil des Traités," and is continued to our days.[81]
The influence of Martens was great, and even at the present time is
considerable. He is not an exclusive Positivist, since he does not deny
the existence of natural Law of Nations, and since he sometimes refers
to the latter in case he finds a gap in the positive Law of Nations. But
his interest is in the positive Law of Nations, which he builds up
historically on international custom and treaties.
[Footnote 81: Georg Friedrich von Martens is not to be confounded with
his nephew Charles de Martens, the author of the "Causes célèbres de
droit des gens" and of the "Guide diplomatique."]
[Sidenote: The Grotians.]
§ 57. The "Grotians" stand midway between the Naturalists and the
Positivists. They keep up the distinction of Grotius between the natural
and the voluntary Law of Nations, but, in contradistinction to Grotius,
they consider the positive or voluntary of equal importance to the
natural, and they devote, therefore, their interest to both alike.
Grotius's influence was so enormous that the majority of the authors of
the seventeenth and eighteenth centuries were Grotians, but only two of
them have acquired a European reputation--namely, Wolff and Vattel.
Christian Wolff (1679-1754), a German philosopher who was first
Professor of Mathematics and Philosophy in the Universities of Halle and
Marburg and afterwards returned to Halle as Professor of the Law of
Nature and Nations, was seventy years of age when, in 1749, he published
his "Jus gentium methodo scientifica pertractatum." In 1750 followed his
"Institutiones juris naturae et gentium." Wolff's conception of the Law
of Nations is influenced by his conception of the _civitas gentium
maxima_. The fact that there is a Family of Nations in existence is
strained by Wolff into the doctrine that the totality of the States
forms a world-State above the component member States, the so-called
_civitas gentium maxima_. He distinguishes four different kinds of Law
of Nations--namely, the natural, the voluntary, the customary, and that
which is expressly created by treaties. The latter two kinds are
alterable, and have force only between those single States between which
custom and treaties have created them. But the natural and the voluntary
Law of Nations are both eternal, unchangeable, and universally binding
upon all the States. In contradistinction to Grotius, who calls the
customary Law of Nations "voluntary," Wolff names "voluntary" those
rules of the Law of Nations which are, according to his opinion, tacitly
imposed by the _civitas gentium maxima_, the world-State, upon the
member States.
Emerich de Vattel[82] (1714-1767), a Swiss from Neuchâtel, who entered
into the service of Saxony and became her Minister at Berne, did not in
the main intend any original work, but undertook the task of introducing
Wolff's teachings concerning the Law of Nations into the courts of
Europe and to the diplomatists. He published in 1758 his book, "Le droit
des gens, ou principes de la loi naturelle appliqués à la conduite et
aux affaires des Nations et des Souverains." But it must be specially
mentioned that Vattel expressly rejects Wolff's conception of the
_civitas gentium maxima_ in the preface to his book. Numerous editions
of Vattel's book have appeared, and as late as 1863 Pradier-Fodéré
re-edited it at Paris. An English translation by Chitty appeared in 1834
and went through several editions. His influence was very great, and in
diplomatic circles his book still enjoys an unshaken authority.
[Footnote 82: See Montmorency in _The Journal of the Society of
Comparative Legislation_, New Series, X. (1909), pp. 17-39.]
[Sidenote: Treatises of the Nineteenth and Twentieth Centuries.]
§ 58. Some details concerning the three schools of the Naturalists,
Positivists, and Grotians were necessary, because these schools are
still in existence. I do not, however, intend to give a list of writers
on special subjects, and the following list of treatises comprises the
more important ones only.
(1) BRITISH TREATISES
_William Oke Manning_: Commentaries on the Law of Nations, 1839;
new ed. by Sheldon Amos, 1875.
_Archer Polson_: Principles of the Law of Nations, 1848; 2nd ed.
1853.
_Richard Wildman_: Institutes of International Law, 2 vols.
1849-1850.
_Sir Robert Phillimore_: Commentaries upon International Law, 4
vols. 1854-1861; 3rd ed. 1879-1888.
_Sir Travers Twiss_: The Law of Nations, etc., 2 vols. 1861-1863;
2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French
translation, 1887-1889.
_Sheldon Amos_: Lectures on International Law, 1874.
_Sir Edward Shepherd Creasy_: First Platform of International Law,
1876.
_William Edward Hall_: Treatise on International Law, 1880; 6th
ed. 1909 (by Atlay).
_Sir Henry Sumner Maine_: International Law, 1883; 2nd ed. 1894
(Whewell Lectures, not a treatise).
_James Lorimer_: The Institutes of International Law, 2 vols.
1883-1884; French translation by Nys, 1885.
_Leone Levi_: International Law, 1888.
_T. J. Lawrence_: The Principles of International Law, 1895; 4th
ed. 1910.
_Thomas Alfred Walker_: A Manual of Public International Law,
1895.
_Sir Sherston Baker_: First Steps in International Law, 1899.
_F. E. Smith_: International Law, 1900; 4th ed. 1911 (by Wylie).
_John Westlake_: International Law, vol. I. (Peace) 1904, vol. II.
(War) 1907; 2nd ed. vol. I. 1910.
(2) NORTH AMERICAN TREATISES
_James Kent_: Commentary on International Law, 1826; English
edition by Abdy, Cambridge, 1888.
_Henry Wheaton_: Elements of International Law, 1836; 8th American
ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed.
by Atlay, 1904.
_Theodore D. Woolsey_: Introduction to the Study of International
Law, 1860; 6th ed. by Th. S. Woolsey, 1891.
_Henry W. Halleck_: International Law, 2 vols. 1861; 4th English
ed. by Sir Sherston Baker, 1907.
_Francis Wharton_: A Digest of the International Law of the United
States, 3 vols. 1886.
_George B. Davis_: The Elements of International Law, 1887; 3rd
ed. 1908.
_Hannis Taylor_: A Treatise on International Public Law, 1901.
_George Grafton Wilson and George Fox Tucker_: International Law,
1901; 5th ed. 1910.
_Edwin Maxey_: International Law, with illustrative cases, 1906.
_John Basset Moore_: A Digest of International Law, 8 vols. 1906.
_George Grafton Wilson_: Handbook of International Law, 1910.
(3) FRENCH TREATISES
_Funck-Brentano et Albert Sorel_: Précis du Droit des Gens, 1877;
2nd ed. 1894.
_P. Pradier-Fodéré_: Traité de Droit International Public, 8 vols.
1885-1906.
_Henry Bonfils_: Manuel de Droit International Public, 1894; 5th
ed. by Fauchille, 1908.
_Georges Bry_: Précis élémentaire de Droit International Public;
5th ed. 1906.
_Frantz Despagnet_: Cours de Droit International Public, 1894; 4th
ed. by De Boeck, 1910.
_Robert Piédelièvre_: Précis de Droit International Public, 2
vols. 1894-1895.
_A. Mérignhac_: Traité de Droit Public International, vol. I.
1905; vol. II. 1907.
(4) GERMAN TREATISES
_Theodor Schmalz_: Europäisches Völkerrecht, 1816.
_Johann Ludwig Klüber_: Droit des Gens moderne, 1819; German ed.
under the title of Europäisches Völkerrecht in 1821; last German
ed. by Morstadt in 1851, and last French ed. by Ott in 1874.
_Karl Heinrich Ludwig Poelitz_: Practisches (europäisches)
Völkerrecht, 1828.
_Friedrich Saalfeld_: Handbuch des positiven Völkerrechts, 1833.
_August Wilhelm Heffter_: Das europäische Völkerrecht der
Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by
Bergson in 1851 and Geffcken in 1883.
_Heinrich Bernhard Oppenheim_: System des Völkerrechts, 1845; 2nd
ed. 1866.
_Johann Caspar Bluntschli_: Das moderne Völkerrecht der
civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed.
1878; French translation by Lardy, 5th ed. 1895.
_Adolf Hartmann_: Institutionen des praktischen Völkerrechts in
Friedenszeiten, 1874; 2nd ed. 1878.
_Franz von Holtzendorff_: Handbuch des Völkerrechts, 4 vols.
1885-1889. Holtzendorff is the editor and a contributor, but there
are many other contributors.
_August von Bulmerincq_: Das Völkerrecht, 1887.
_Karl Gareis_: Institutionen des Völkerrechts, 1888; 2nd. ed.
1901.
_E. Ullmann_: Völkerrecht, 1898; 2nd ed. 1908.
_Franz von Liszt_: Das Völkerrecht, 1898; 6th ed. 1910.
(5) ITALIAN TREATISES
_Luigi Casanova_: Lezioni di diritto internazionale, published
after the death of the author by Cabella, 1853; 3rd. ed. by Brusa,
1876.
_Pasquale Fiore_: Trattato di diritto internazionale publico,
1865; 4th ed. in 3 vols. 1904; French translation of the 2nd ed.
by Antoine, 1885.
_Giuseppe Carnazza-Amari_: Trattato di diritto internazionale di
pace, 2 vols. 1867-1875; French translation by Montanari-Pevest,
1881.
_Antonio del Bon_: Institutioni del diritto publico
internazionale, 1868.
_Giuseppe Sandona_: Trattato di diritto internazionale moderno, 2
vols. 1870.
_Gian Battista Pertille_: Elementi di diritto internazionale, 2
vols. 1877.
_Augusto Pierantoni_: Trattato di diritto internazionale, vol. I.
1881. (No further volume has appeared.)
_Giovanni Lomonaco_: Trattato di diritto internazionale publico,
1905.
_Giulio Diena_: Principî di diritto internazionale, Parte Prima,
Diritto internaziole publico, 1908.
(6) SPANISH AND SPANISH-AMERICAN TREATISES
_Andrés Bello_: Principios de derecho de gentes (internacional),
1832; last ed. in 2 vols. by Silva, 1883.
_José Maria de Pando_: Elementos del derecho internacional,
published after the death of the author, 1843-1844.
_Antonio Riquelme_: Elementos de derecho público internacional,
etc.; 2 vols. 1849.
_Carlos Calvo_: Le Droit International, etc. (first edition in
Spanish, following editions in French), 1868; 5th ed. in 6 vols.
1896.
_Amancio Alcorta_: Curso de derecho internacional público, vol. I.
1886; French translation by Lehr, 1887.
_Marquis de Olivart_: Trattato y notas de derecho internacional
público, 4 vols. 1887; 4th ed. 1903-1904.
_Luis Gesteso y Acosta_: Curso de derecho internacional público,
1894.
_Miguel Cruchaga_: Nociones de derecho internacional, 1899; 2nd
ed. 1902.
_Manuel Torres Campos_: Elementos de derecho internacional
público; 2nd. ed. 1904.
(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES
_Frederick Kristian Bornemann_: Forelæsninger over den positive
Folkeret, 1866.
_Friedrich von Martens_: Völkerrecht, 2 vols. 1883; a German
translation by Berghohm of the Russian original. A French
translation by Léo in 3 vols. appeared in the same year. The
Russian original went through its 5th ed. in 1905.
_Jan Helenus Ferguson_: Manual of International Law, etc., 2 vols.
1884. The author is Dutch, but the work is written in English.
_Alphonse Rivier_: Lehrbuch des Völkerrechts, 1894; 2nd ed. 1899,
and the larger work in two vols. under the title: Principes du
Droit des Gens, 1896. The author of these two excellent books was
a Swiss who taught International Law at the University of
Brussels.
_H. Matzen_: Forelæsninger over den positive Folkeret, 1900.
_Ernest Nys_: Le droit international, 3 vols. 1904-1906. The
author of this exhaustive treatise is a Belgian jurist whose
researches in the history of the science of the Law of Nations
have gained him far-reaching reputation.[83]
[Footnote 83: The first volume of Nys contains in its pp. 251-328
an exhaustive enumeration of all the more important works on
International Law, treatises as well as monographs, and I have
much pleasure in referring my readers to this learned work.]
_J. De Louter_: Het Stellig Volkenrecht, 2 vols. 1910.
[Sidenote: The Science of the Law of Nations in the Nineteenth and
Twentieth Centuries as represented by treatises.]
§ 59. The Science of the Law of Nations, as left by the French
Revolution, developed progressively during the nineteenth century under
the influence of three factors. The first factor is the endeavour, on
the whole sincere, of the Powers since the Congress of Vienna to submit
to the rules of the Law of Nations. The second factor is the many
law-making treaties which arose during this century. And the last, but
not indeed the least factor, is the downfall of the theory of the Law of
Nature, which after many hundreds of years has at last been shaken off
during the second half of this century.
When the nineteenth century opens, the three schools of the Naturalists,
the Positivists, and the Grotians are still in the field, but
Positivism[84] gains slowly and gradually the upper hand, until at the
end it may be said to be victorious, without, however, being omnipotent.
The most important writer[85] up to 1836 is Klüber, who may be called a
Positivist in the same sense as Martens, for he also applies the natural
Law of Nations to fill up the gaps of the positive. Wheaton appears in
1836 with his "Elements," and, although an American, at once attracts
the attention of the whole of Europe. He may be called a Grotian. And
the same may be maintained of Manning, whose treatise appeared in 1839,
and is the first that attempts a survey of British practice regarding
sea warfare based on the judgments of Sir William Scott (Lord Stowell).
Heffter, whose book appeared in 1844, is certainly a Positivist,
although he does not absolutely deny the Law of Nature. In exact
application of the juristic method, Heffter's book excels all former
ones, and all the following authors are in a sense standing on his
shoulders. In Phillimore, Great Britain sends in 1854 a powerful author
into the arena, who may, on the whole, be called a Positivist of the
same kind as Martens and Klüber. Generations to come will consult
Phillimore's volumes on account of the vast amount of material they
contain and the sound judgment they exhibit. And the same is valid with
regard to Sir Travers Twiss, whose first volume appeared in 1861.
Halleck's work, which appeared in the same year, is of special
importance as regards war, because the author, who was a General in the
service of the United States, gave to this part his special attention.
The next prominent author, the Italian Fiore, who published his system
in 1865 and may be called a Grotian, is certainly the most prominent
Italian author, and the new edition of his work will for a long time to
come be consulted. Bluntschli, the celebrated Swiss-German author,
published his book in 1867; it must, in spite of the world-wide fame of
its author, be consulted with caution, because it contains many rules
which are not yet recognised rules of the Law of Nations. Calvo's work,
which first appeared in 1868, contains an invaluable store of facts and
opinions, but its juristic basis is not very exact.
[Footnote 84: Austin and his followers who hold that the rules of
International Law are rules of "positive morality" must be considered
Positivists, although they do not agree to International Law being real
law.]
[Footnote 85: I do not intend to discuss the merits of writers on
special subjects, and I mention only the authors of the most important
treatises which are written in, or translated into, English, French, or
German.]
From the seventies of the nineteenth century the influence of the
downfall of the theory of the Law of Nature becomes visible in the
treatises on the Law of Nations, and therefore real positivistic
treatises make their appearance. For the Positivism of Zouche,
Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real
Positivism, since these authors recognised a natural Law of Nations,
although they did not make much use of it. Real Positivism must entirely
avoid a natural Law of Nations. We know nowadays that a Law of Nature
does not exist. Just as the so-called Natural Philosophy had to give way
to real natural science, so the Law of Nature had to give way to
jurisprudence, or the philosophy of the positive law. Only a positive
Law of Nations can be a branch of the science of law.
The first real positive treatise known to me is Hartmann's
"Institutionen des praktischen Völkerrechts in Friedenszeiten," which
appeared in 1874, but is hardly known outside Germany. In 1880 Hall's
treatise appeared, and at once won the attention of the whole world; it
is one of the best books on the Law of Nations that have ever been
written. Lorimer, whose two volumes appeared in 1883 and 1884, is a
Naturalist pure and simple, but his work is nevertheless of value. The
Russian Martens, whose two volumes appeared in German and French
translations in 1883 and at once put their author in the forefront of
the authorities, certainly intends to be a real Positivist, but traces
of Natural Law are nevertheless now and then to be found in his book. A
work of a special kind is that of Holtzendorff, the first volume of
which appeared in 1885. Holtzendorff himself is the editor and at the
same time a contributor to the work, but there are many other
contributors, each of them dealing exhaustively with a different part of
the Law of Nations. The copious work of Pradier-Fodéré, which also began
to appear in 1885, is far from being positive, although it has its
merits. Wharton's three volumes, which appeared in 1886, are not a
treatise, but contain the international practice of the United States.
Bulmerincq's book, which appeared in 1887, gives a good survey of
International Law from the positive point of view. In 1894 three French
jurists, Bonfils, Despagnet, and Piédelievre, step into the arena; their
treatises are comprehensive and valuable, but not absolutely positive.
On the other hand, the English authors Lawrence and Walker, whose
excellent manuals appeared in 1895, are real Positivists. Of the
greatest value are the two volumes of Rivier which appeared in 1896;
they are full of sound judgment, and will influence the theory and
practice of International Law for a long time to come. Liszt's short
manual, which in its first edition made its appearance in 1898, is
positive throughout, well written, and suggestive. Ullmann's work, which
likewise appeared in its first edition in 1898, is an excellent and
comprehensive treatise which thoroughly discusses all the more important
problems and points from the positive standpoint. Hannis Taylor's
comprehensive treatise, which appeared in 1901, is likewise thoroughly
positive, and so are the serviceable manuals of Wilson and Maxey. Of
great value are the two volumes of Westlake which appeared in 1904 and
1907; they represent rather a collection of thorough monographs than a
treatise, and will have great and lasting influence. A work of
particular importance is the "Digest" of John Basset Moore, which
appeared in 1906, comprises eight volumes, and contains the
international practice of the United States in a much more exhaustive
form than the work of Wharton; it is an invaluable work which must be
consulted on every subject. The same is valid with regard to the three
volumes of Nys, who may be characterised as a Grotian, and whose work is
full of information on the historical and literary side of the
problems.[86]
[Footnote 86: On the task and method of the science of International Law
from the positive standpoint, see Oppenheim in A.J. II. (1908), pp.
313-356.]
§ 60. COLLECTIONS OF TREATIES
(1) GENERAL COLLECTIONS
_Leibnitz_: Codex iuris gentium diplomaticus (1693); Mantissa
codicis iuris gentium diplomatici (1700).
_Bernard_: Recueil des traités, etc. 4 vols. (1700).
_Rymer_: Foedera etc. inter reges angliae et alios quosvis
imperatores ... ab anno 1101 ad nostra usque tempora habita et
tradata, 20 vols. 1704-1718 (Contains documents from 1101-1654).
_Dumont_: Corps universel diplomatique, etc., 8 vols. (1726-1731).
_Rousset_: Supplément au corps universel diplomatique de Dumont, 5
vols. (1739).
_Schmauss_: Corpus iuris gentium academicum (1730).
_Wenck_: Codex iuris gentium recentissimi, 3 vols. (1781, 1786,
1795).
_Martens_: Recueil de Traités d'Alliance, etc., 8 vols.
(1791-1808); Nouveau Recueil de Traités d'Alliance, etc., 16 vols.
(1817-1842); Nouveaux Suppléments au Recueil de Traités et
d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau
Recueil Général de Traités, Conventions et autres Actes
remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil Général
de Traités et autres Actes relatifs aux Rapports de droit
international, Deuxième Série, 35 vols. (1876-1908); Nouveau
Recueil Général de Traités et autres Actes relatifs aux Rapports
de droit international, Troisième Série, vol. I. 1908, continued
up to date. Present editor, Heinrich Triepel, professor in the
University of Kiel in Germany.
_Ghillany_: Diplomatisches Handbuch, 3 vols. (1855-1868).
_Martens et Cussy_: Recueil manuel, etc., 7 vols. (1846-1857);
continuation by Geffcken, 3 vols. (1857-1885).
_British and Foreign State Papers_: Vol. I. 1814, continued up to
date, one volume yearly.
_Das Staatsarchiv_: Sammlung der officiellen Actenstücke zur
Geschichte der Gegenwart, vol. I. 1861, continued up to date, one
volume yearly.
_Archives diplomatiques_: Recueil mensuel de diplomatie,
d'histoire, et de droit international, first and second series,
1861-1900, third series from 1901 continued up to date (4 vols.
yearly).
_Recueil International des Traités du XXe Siècle_: Edited by
Descamps and Renault since 1901.
_Strupp_: Urkunden zur Geschichte des Völkerrechts, 2 vols.
(1911).
(2) COLLECTIONS OF ENGLISH TREATIES ONLY
_Jenkinson_: Collection of all the Treaties, etc., between Great
Britain and other Powers from 1648 to 1783, 3 vols. (1785).
_Chalmers_: A Collection of Maritime Treaties of Great Britain and
other Powers, 2 vols. (1790).
_Hertslet_: Collection of Treaties and Conventions between Great
Britain and other Powers (vol. I. 1820, continued to date).
_Treaty Series_: Vol. I. 1892, and a volume every year.
§ 61. BIBLIOGRAPHIES
_Ompteda_: Litteratur des gesammten Völkerrechts, 2 vols. (1785).
_Kamptz_: Neue Litteratur des Völkerrechts seit 1784 (1817).
_Klüber_: Droit des gens moderne de l'Europe (Appendix) (1819).
_Miruss_: Das Europäische Gesandschaftsrecht, vol. II. (1847).
_Mohl_: Geschichte und Litteratur des Staatswissenschaften, vol.
I. pp. 337-475 (1855).
_Woolsey_: Introduction to the Study of International Law (6th ed.
1891), Appendix I.
_Rivier_: pp. 393-523 of vol. I. of Holtzendorff's Handbuch des
Völkerrechts (1885).
_Stoerk_: Die Litteratur des internationalen Rechts von 1884-1894
(1896).
_Olivart_: Catalogue d'une bibliothèque de droit international
(1899).
_Nys_: Le droit international, vol. I. (1904), pp. 213-328.
§ 62. PERIODICALS
Revue de droit international et de législation comparée. It has
appeared in Brussels since 1869, one volume yearly. Present
editor, Edouard Rolin.
Revue générale de droit international public. It has appeared in
Paris since 1894, one volume yearly. Founder and present editor,
Paul Fauchille.
Zeitschrift für internationales Recht. It has appeared in Leipzig
since 1891, one volume yearly. Present editor, Theodor Niemeyer.
Annuaire de l'Institut de Droit International, vol. I. 1877. A
volume appears after each meeting of the Institute.
Kokusaiho-Zasshi, the Japanese International Law Review. It has
appeared in Tokio since 1903.
Revista de Derecho Internacional y politica exterior. It has
appeared in Madrid since 1905, one volume yearly. Editor, Marquis
de Olivart.
Rivista di Diritto Internazionale. It has appeared in Rome since
1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti,
and L. A. Senigallia.
Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared
in Breslau since 1906, one volume yearly. Editors, Joseph Kohler,
L. Oppenheim, and F. Holldack.
The American Journal of International Law. It has appeared in
Washington since 1907, one volume yearly. Editor, James Brown
Scott.
Essays and Notes concerning International Law frequently appear
also in the Journal du droit international privé et de la
Jurisprudence comparée (Clunet), the Archiv für öffentliches
Recht, The Law Quarterly Review, The Law Magazine and Review, The
Juridical Review, The Journal of the Society of Comparative
Legislation, The American Law Review, the Annalen des deutschen
Reiches, the Zeitschrift für das privat- und öffentliche Recht der
Gegenwart (Grünhut), the Revue de droit public et de la science
politique (Larnaude), the Annales des sciences politiques, the
Archivio giuridico, the Jahrbuch des öffentlichen Rechts, and many
others.
PART I
THE SUBJECTS OF THE LAW OF NATIONS
CHAPTER I
INTERNATIONAL PERSONS
I
SOVEREIGN STATES AS INTERNATIONAL PERSONS
Vattel, I. §§ 1-12--Hall, § 1--Lawrence, § 42--Phillimore, I. §§
61-69--Twiss, I. §§ 1-11--Taylor, § 117--Walker, § 1--Westlake, I.
pp. 1-5, 20-21--Wheaton, §§ 16-21--Ullmann, § 19--Heffter, §
15--Holtzendorff in Holtzendorff, II. pp. 5-11--Bonfils, Nos.
160-164--Despagnet, Nos. 69-74--Pradier-Fodéré, I. Nos.
43-81--Nys, I. pp. 329-356--Rivier, I. § 3--Calvo, I. §§
39-41--Fiore, I. Nos. 305-309, and Code, Nos. 51-77--Martens, I.
§§ 53-54--Mérignhac, I. pp. 114-231, and II. pp. 5,
154-221--Moore, I. § 3.
[Sidenote: Real and apparent International Persons.]
§ 63. The conception of International Persons is derived from the
conception of the Law of Nations. As this law is the body of rules which
the civilised States consider legally binding in their intercourse,
every State which belongs to the civilised States, and is, therefore, a
member of the Family of Nations, is an International Person. Sovereign
States exclusively are International Persons--_i.e._ subjects of
International Law. There are, however, as will be seen, full and
not-full Sovereign States. Full Sovereign States are perfect, not-full
Sovereign States are imperfect International Persons, for not-full
Sovereign States are for some parts only subjects of International Law.
In contradistinction to Sovereign States which are real, there are also
apparent, but not real, International Persons--namely, Confederations of
States, insurgents recognised as a belligerent Power in a civil war, and
the Holy See. All these are not, as will be seen,[87] real subjects of
International Law, but in some points are treated as though they were
International Persons, without thereby becoming members of the Family of
Nations.
[Footnote 87: See below, § 88 (Confederations of States), § 106 (Holy
See), and vol. II. §§ 59 and 76 (Insurgents).]
It must be specially mentioned that the character of a subject of the
Law of Nations and of an International Person can be attributed neither
to monarchs, diplomatic envoys, private individuals, or churches, nor to
chartered companies, nations, or races after the loss of their State
(as, for instance, the Jews or the Poles), and organised wandering
tribes.[88]
[Footnote 88: Most jurists agree with this opinion, but there are some
who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the
character of subjects of the Law of Nations; Lawrence (§ 42) claims that
character for corporations; and Westlake, Chapters, p. 2, and Fiore,
Code, Nos. 51, 61-64, claim it for individuals. The matter will be
discussed below in §§ 288, 290, 344, 384.]
[Sidenote: Conception of the State.]
§ 64. A State proper--in contradistinction to so-called Colonial
States--is in existence when a people is settled in a country under its
own Sovereign Government. The conditions which must obtain for the
existence of a State are therefore four:
There must, first, be a _people_. A people is an aggregate of
individuals of both sexes who live together as a community in spite of
the fact that they may belong to different races or creeds, or be of
different colour.
There must, secondly, be a _country_ in which the people has settled
down. A wandering people, such as the Jews were whilst in the desert for
forty years before their conquest of the Holy Land, is not a State. But
it matters not whether the country is small or large; it may consist, as
with City States, of one town only.
There must, thirdly, be a _Government_--that is, one or more persons who
are the representatives of the people and rule according to the law of
the land. An anarchistic community is not a State.
There must, fourthly and lastly, be a _Sovereign_ Government.
Sovereignty is supreme authority, an authority which is independent of
any other earthly authority. Sovereignty in the strict and narrowest
sense of the term includes, therefore, independence all round, within
and without the borders of the country.
[Sidenote: Not-full Sovereign States.]
§ 65. A State in its normal appearance does possess independence all
round and therefore full sovereignty. Yet there are States in existence
which certainly do not possess full sovereignty, and are therefore named
not-full Sovereign States. All States which are under the suzerainty or
under the protectorate of another State or are member States of a
so-called Federal State, belong to this group. All of them possess
supreme authority and independence with regard to a part of the tasks of
a State, whereas with regard to another part they are under the
authority of another State. Hence it is that the question is disputed
whether such not-full Sovereign States can be International Persons and
subjects of the Law of Nations at all.[89]
[Footnote 89: The question will be discussed again below, §§ 89, 91, 93,
with regard to each kind of not-full Sovereign States. The object of
discussion here is the question whether such States can be considered as
International Persons at all. Westlake, I. p. 21, answers it
affirmatively by stating: "It is not necessary for a State to be
independent in order to be a State of International Law."]
That they cannot be full, perfect, and normal subjects of International
Law there is no doubt. But it is wrong to maintain that they can have no
international position whatever and can never be members of the Family
of Nations at all. If we look at the matter as it really stands, we
observe that they actually often enjoy in many points the rights and
fulfil in other points the duties of International Persons. They often
send and receive diplomatic envoys or at least consuls. They often
conclude commercial or other international treaties. Their monarchs
enjoy the privileges which according to the Law of Nations the Municipal
Laws of the different States must grant to the monarchs of foreign
States. No other explanation of these and similar facts can be given
except that these not-full Sovereign States are in some way or another
International Persons and subjects of International Law. Such imperfect
International Personality is, of course, an anomaly; but the very
existence of States without full sovereignty is an anomaly in itself.
And history teaches that States without full sovereignty have no
durability, since they either gain in time full sovereignty or disappear
totally as separate States and become mere provinces of other States. So
anomalous are these not-full Sovereign States that no hard-and-fast
general rule can be laid down with regard to their position within the
Family of Nations, since everything depends upon the special case. What
may be said in general concerning all the States without full
sovereignty is that their position within the Family of Nations, if any,
is always more or less overshadowed by other States. But their partial
character of International Persons comes clearly to light when they are
compared with so-called Colonial States, such as the Dominion of Canada
or the Commonwealth of Australia. Colonial States have no international
position[90] whatever; they are, from the standpoint of the Law of
Nations, nothing else than colonial portions of the mother-country,
although they enjoy perfect self-government, and may therefore in a
sense be called States. The deciding factor is that their Governor, who
has a veto, is appointed by the mother-country, and that the Parliament
of the mother-country could withdraw self-government from its Colonial
States and legislate directly for them.
[Footnote 90: Therefore treaties concluded by Canada with foreign States
are not Canadian treaties, but treaties concluded by Great Britain for
Canada. Should Colonial States ever acquire the right to conclude
treaties directly with foreign States without the consent of the
mother-country, they would become internationally part-sovereign and
thereby obtain a certain international position.]
[Sidenote: Divisibility of Sovereignty contested.]
§ 66. The distinction between States full Sovereign and not-full
Sovereign is based upon the opinion that sovereignty is divisible, so
that the powers connected with sovereignty need not necessarily be
united in one hand. But many jurists deny the divisibility of
sovereignty and maintain that a State is either sovereign or not. They
deny that sovereignty is a characteristic of every State and of the
membership of the Family of Nations. It is therefore necessary to face
the conception of sovereignty more closely. And it will be seen that
there exists perhaps no conception the meaning of which is more
controversial than that of sovereignty. It is an indisputable fact that
this conception, from the moment when it was introduced into political
science until the present day, has never had a meaning which was
universally agreed upon.[91]
[Footnote 91: The literature upon sovereignty is extensive. The
following authors give a survey of the opinions of the different
writers:--Dock, "Der Souveränitäts-begriff von Bodin bis zu Friedrich
dem Grossen," 1897; Merriam, "History of the Theory of Sovereignty since
Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, §§ 10-16. See
also Maine, "Early Institutions," pp. 342-400.]
[Sidenote: Meaning of Sovereignty in the Sixteenth and Seventeenth
Centuries.]
§ 67. The term Sovereignty was introduced into political science by
Bodin in his celebrated work, "De la république," which appeared in
1577. Before Bodin, at the end of the Middle Ages, the word
_souverain_[92] was used in France for an authority, political or other,
which had no other authority above itself. Thus the highest courts were
called _Cours Souverains_. Bodin, however, gave quite a new meaning to
the old conception. Being under the influence and in favour of the
policy of centralisation initiated by Louis XI. of France (1461-1483),
the founder of French absolutism, he defined sovereignty as "the
absolute and perpetual power within a State." Such power is the supreme
power within a State without any restriction whatever except the
Commandments of God and the Law of Nature. No constitution can limit
sovereignty, which is an attribute of the king in a monarchy and of the
people in a democracy. A Sovereign is above positive law. A contract
only is binding upon the Sovereign, because the Law of Nature commands
that a contract shall be binding.[93]
[Footnote 92: _Souverain_ is derived either from the Latin _superanus_
or from _suprema potestas_.]
[Footnote 93: See Bodin, "De la république," I. c. 8.]
The conception of sovereignty thus introduced was at once accepted by
writers on politics of the sixteenth century, but the majority of these
writers taught that sovereignty could be restricted by a constitution
and by positive law. Thus at once a somewhat weaker conception of
sovereignty than that of Bodin made its appearance. On the other hand,
in the seventeenth century, Hobbes went even beyond Bodin,
maintaining[94] that a Sovereign was not bound by anything and had a
right over everything, even over religion. Whereas a good many
publicists followed Hobbes, others, especially Pufendorf, denied, in
contradistinction to Hobbes, that sovereignty includes omnipotence.
According to Pufendorf, sovereignty is the supreme power in a State, but
not absolute power, and sovereignty may well be constitutionally
restricted.[95] Yet in spite of all the differences in defining
sovereignty, all authors of the sixteenth and seventeenth centuries
agree that sovereignty is indivisible and contains the centralisation of
all power in the hands of the Sovereign, whether a monarch or the people
itself in a republic. Yet the way for another conception of sovereignty
is prepared by Locke, whose "Two Treatises on Government" appeared in
1689, and paved the way for the doctrine that the State itself is the
original Sovereign, and that all supreme powers of the Government are
derived from this sovereignty of the State.
[Footnote 94: See Hobbes, "De cive," c. 6, §§ 12-15.]
[Footnote 95: See Pufendorf, "De jure naturae et gentium," VII. c. 6, §§
1-13.]
[Sidenote: Meaning of Sovereignty in the Eighteenth Century.]
§ 68. In the eighteenth century matters changed again. The fact that the
several hundred reigning princes of the member-States of the German
Empire had practically, although not theoretically, become more or less
independent since the Westphalian Peace enforced the necessity upon
publicists to recognise a distinction between an absolute, perfect, full
sovereignty, on the one hand, and, on the other, a relative, imperfect,
not-full or half-sovereignty. Absolute and full sovereignty was
attributed to those monarchs who enjoyed an unqualified independence
within and without their States. Relative and not-full sovereignty, or
half-sovereignty, was attributed to those monarchs who were, in various
points of internal or foreign affairs of State, more or less dependent
upon other monarchs. By this distinction the divisibility of sovereignty
was recognised. And when in 1787 the United States of America turned
from a Confederation of States into a Federal State, the division of
sovereignty between the Sovereign Federal State and the Sovereign
member-States appeared. But it cannot be maintained that divisibility of
sovereignty was universally recognised in the eighteenth century. It
suffices to mention Rousseau, whose "Contrat Social" appeared in 1762
and defended again the indivisibility of sovereignty. Rousseau's
conception of sovereignty is essentially that of Hobbes, since it
contains absolute supreme power, but he differs from Hobbes in so far
as, according to Rousseau, sovereignty belongs to the people only and
exclusively, is inalienable, and therefore cannot be transferred from
the people to any organ of the State.
[Sidenote: Meaning of Sovereignty in the Nineteenth Century.]
§ 69. During the nineteenth century three different factors of great
practical importance have exercised their influence on the history of
the conception of sovereignty.
The first factor is that, with the exception of Russia, all civilised
Christian monarchies during this period turned into constitutional
monarchies. Thus identification of sovereignty with absolutism belongs
practically to the past, and the fact was during the nineteenth century
generally recognised that a sovereign monarch may well be restricted in
the exercise of his powers by a Constitution and positive law.
The second factor is, that the example of a Federal State set by the
United States has been followed by Switzerland, Germany, and others. The
Constitution of Switzerland as well as that of Germany declares
decidedly that the member-States of the Federal State remain Sovereign
States, thus indirectly recognising the divisibility of sovereignty
between the member-States and the Federal State according to different
matters.
The third and most important factor is, that the science of politics has
learned to distinguish between sovereignty of the State and sovereignty
of the organ which exercises the powers of the State. The majority of
publicists teach henceforth that neither the monarch, nor Parliament,
nor the people is originally Sovereign in a State, but the State itself.
Sovereignty, we say nowadays, is a natural attribute of every State as a
State. But a State, as a Juristic Person, wants organs to exercise its
powers. The organ or organs which exercise for the State powers
connected with sovereignty are said to be sovereign themselves, yet it
is obvious that this sovereignty of the organ is derived from the
sovereignty of the State. And it is likewise obvious that the
sovereignty of a State may be exercised by the combined action of
several organs, as, for instance, in Great Britain, King and Parliament
are the joint administrators of the sovereignty of the State. And it is,
thirdly, obvious that a State can, as regards certain matters, have its
sovereignty exercised by one organ and as regards other matters by
another organ.
In spite of this condition of things, the old controversy regarding
divisibility of sovereignty has by no means died out. It acquired a
fresh stimulus, on the one hand, through Switzerland and Germany turning
into Federal States, and, on the other, through the conflict between the
United States of America and her Southern member-States. The theory of
the concurrent sovereignty of the Federal State and its member-States,
as defended by "The Federalist" (Alexander Hamilton, James Madison, and
John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous
publicists followed. The theory of the indivisibility of sovereignty was
defended by Calhoun,[97] and many European publicists followed him in
time.
[Footnote 96: Politik, 1862.]
[Footnote 97: A Disquisition on Government, 1851.]
[Sidenote: Result of the Controversy regarding Sovereignty.]
§ 70. From the foregoing sketch of the history of the conception of
sovereignty it becomes apparent that there is not and never was
unanimity regarding this conception. It is therefore no wonder that the
endeavour has been made to eliminate the conception of sovereignty from
the science of politics altogether, and likewise to eliminate
sovereignty as a necessary characteristic of statehood, so that States
with and without sovereignty would in consequence be distinguishable. It
is a fact that sovereignty is a term used without any well-recognised
meaning except that of supreme authority. Under these circumstances
those who do not want to interfere in a mere scholastic controversy must
cling to the facts of life and the practical, though abnormal and
illogical, condition of affairs. As there can be no doubt about the fact
that there are semi-independent States in existence, it may well be
maintained that sovereignty is divisible.
II
RECOGNITION OF STATES AS INTERNATIONAL PERSONS
Hall, §§ 2 and 26--Lawrence, §§ 44-47--Phillimore, II. §§
10-23--Taylor, §§ 153-160--Walker, § 1--Westlake, I. pp.
49-58--Wheaton, § 27--Moore, §§ 27-75--Bluntschli, §§
28-38--Hartmann, § 11--Heffter, § 23--Holtzendorff in
Holtzendorff, II. pp. 18-33--Liszt, § 5--Ullmann, §§
29-30--Bonfils, Nos. 195-213--Despagnet, Nos.
79-85--Pradier-Fodéré, I. Nos. 136-145--Nys, I. pp.
69-115--Mérignhac, I. pp. 320-329--Rivier, I. § 3--Calvo, I. §§
87-98--Fiore, I. Nos. 311-320, and Code, Nos. 160-177--Martens, I.
§§ 63-64--Le Normand, "La reconnaissance internationale et ses
diverses applications" (1899).
[Sidenote: Recognition a condition of Membership of the Family of
Nations.]
§ 71. As the basis of the Law of Nations is the common consent of the
civilised States, statehood alone does not include membership of the
Family of Nations. There are States in existence, although their number
decreases gradually, which are not, or not fully, members of that
family, because their civilisation, if any, does not enable them and
their subjects to act in conformity with the principles of International
Law. Those States which are members are either original members because
the Law of Nations grew up gradually between them through custom and
treaties, or they are members which have been recognised by the body of
members already in existence when they were born.[98] For every State
that is not already, but wants to be, a member, recognition is therefore
necessary. A State is and becomes an International Person through
recognition only and exclusively.
[Footnote 98: See above, §§ 27 and 28.]
Many writers do not agree with this opinion. They maintain that, if a
new civilised State comes into existence either by breaking off from an
existing recognised State, as Belgium did in 1831, or otherwise, such
new State enters of right into the Family of Nations and becomes of
right an International Person.[99] They do not deny that practically
such recognition is necessary to enable every new State to enter into
official intercourse with other States. Yet they assert that
theoretically every new State becomes a member of the Family of Nations
_ipso facto_ by its rising into existence, and that recognition supplies
only the necessary evidence for this fact.
[Footnote 99: See, for instance, Hall, §§ 2 and 26; Ullmann, § 29;
Gareis, p. 64; Rivier, I. p. 57.]
If the real facts of international life are taken into consideration,
this opinion cannot stand. It is a rule of International Law that no new
State has a right towards other States to be recognised by them, and
that no State has the duty to recognise a new State. It is generally
agreed that a new State before its recognition cannot claim any right
which a member of the Family of Nations has towards other members. It
can, therefore, not be seen what the function of recognition could be if
a State entered at its birth really of right into the membership of the
Family of Nations. There is no doubt that statehood itself is
independent of recognition. International Law does not say that a State
is not in existence as long as it is not recognised, but it takes no
notice of it before its recognition. Through recognition only and
exclusively a State becomes an International Person and a subject of
International Law.
[Sidenote: Mode of Recognition.]
§ 72. Recognition is the act through which it becomes apparent that an
old State is ready to deal with a new State as an International Person
and a member of the Family of Nations. Recognition is given either
expressly or tacitly. If a new State asks formally for recognition and
receives it in a formal declaration of any kind, it receives express
recognition. On the other hand, recognition is tacitly and indirectly
given when an old State enters officially into intercourse with the new,
be it by sending or receiving a diplomatic envoy,[100] or by concluding
a treaty, or by any other act through which it becomes apparent that the
new State is actually treated as an International Person.
[Footnote 100: Whether the sending of a consul includes recognition is
discussed below, § 428.]
But no new State has by International Law a right to demand recognition,
although practically such recognition cannot in the long run be
withheld, because without it there is no possibility of entering into
intercourse with the new State. The interests of the old States must
suffer quite as much as those of the new State, if recognition is for
any length of time refused, and practically these interests in time
enforce either express or tacit recognition. History nevertheless
records many cases of deferred recognition,[101] and, apart from other
proof, it becomes thereby apparent that the granting or the denial of
recognition is not a matter of International Law but of international
policy.
[Footnote 101: See the cases enumerated by Rivier, I. p. 58.]
It must be specially mentioned that recognition by one State is not at
all binding upon other States, so that they must follow suit. But in
practice such an example, if set by one or more Great Powers and at a
time when the new State is really established on a sound basis, will
make many other States at a later period give their recognition too.
[Sidenote: Recognition under Conditions.]
§ 73. Recognition will as a rule be given without any conditions
whatever, provided the new State is safely and permanently established.
Since, however, the granting of recognition is a matter of policy, and
not of law, nothing prevents an old State from making the recognition of
a new State dependent upon the latter fulfilling certain conditions.
Thus the Powers assembled at the Berlin Congress in 1878 recognised
Bulgaria, Montenegro, Servia, and Roumania under the condition only that
these States did not[102] impose any religious disabilities on any of
their subjects.[103] The meaning of such conditional recognition is not
that recognition can be withdrawn in case the condition is not complied
with. The nature of the thing makes recognition, if once given,
incapable of withdrawal. But conditional recognition, if accepted by the
new State, imposes the internationally legal duty upon such State of
complying with the condition; failing which a right of intervention is
given to the other party for the purpose of making the recognised State
comply with the imposed condition.
[Footnote 102: This condition contains a restriction on the personal
supremacy of the respective States. See below, § 128.]
[Footnote 103: See arts. 5, 25, 35, and 44 of the Treaty of Berlin of
1878, in Martens, N.R.G. 2nd Ser. III. p. 449.]
[Sidenote: Recognition timely and precipitate.]
§ 74. Recognition is of special importance in those cases where a new
State tries to establish itself by breaking off from an existing State
in the course of a revolution. And here the question is material whether
a new State has really already safely and permanently established itself
or only makes efforts to this end without having already succeeded. That
in every case of civil war a foreign State can recognise the insurgents
as a belligerent Power if they succeed in keeping a part of the country
in their hands and set up a Government of their own, there is no doubt.
But between this recognition as a belligerent Power and the recognition
of these insurgents and their part of the country as a new State, there
is a broad and deep gulf. And the question is precisely at what exact
time recognition of a new State may be given instead of the recognition
as a belligerent Power. For an untimely and precipitate recognition as a
new State is a violation of the dignity[104] of the mother-State, to
which the latter need not patiently submit.
[Footnote 104: It is frequently maintained that such untimely
recognition contains an intervention. But this is not correct, since
intervention is (see below, § 134) _dictatorial_ interference in the
affairs of another State. The question of recognition of the
belligerency of insurgents is exhaustively treated by Westlake, I. pp.
50-57.]
In spite of the importance of the question, no hard-and-fast rule can
be laid down as regards the time when it can be said that a State
created by revolution has established itself safely and permanently. The
characteristic of such safe and permanent establishment may be found
either in the fact that the revolutionary State has utterly defeated the
mother-State, or that the mother-State has ceased to make efforts to
subdue the revolutionary State, or even that the mother-State, in spite
of its efforts, is apparently incapable of bringing the revolutionary
back under its sway.[105] Of course, as soon as the mother-State itself
recognises the new State, there is no reason for other States to
withhold any longer their recognition, although they have even then no
legal obligation to grant it.
[Footnote 105: When, in 1903, Panama fell away from Colombia, the United
States immediately recognised the new Republic as an independent State.
For the motives of this quick action, see Moore, I. § 344, pp. 46 and
following.]
The breaking off of the American States from their European
mother-States furnishes many illustrative examples. Thus the recognition
of the United States by France in 1778 was precipitate. But when in 1782
England herself recognised the independence of the United States, other
States could accord recognition too without giving offence to England.
Again, when the South American colonies of Spain declared their
independence in 1810, no Power recognised the new States for many years.
When, however, it became apparent that Spain, although she still kept up
her claims, was not able to restore her sway, the United States
recognised the new States in 1822, and England followed the example in
1824 and 1825.[106]
[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of
the North American and South American States" (1863), and Moore, I. §§
28-36.]
[Sidenote: State Recognition in contradistinction to other
Recognitions.]
§ 75. Recognition of a new State must not be confounded with other
recognitions. Recognition of insurgents as a belligerent Power has
already been mentioned. Besides this, recognition of a change in the
form of the government or of change in the title of an old State is a
matter of importance. But the granting or refusing of these recognitions
has nothing to do with recognition of the State itself. If a foreign
State refuses the recognition of a change in the form of the government
of an old State, the latter does not thereby lose its recognition as an
International Person, although no official intercourse is henceforth
possible between the two States as long as recognition is not given
either expressly or tacitly. And if recognition of a new title[107] of
an old State is refused, the only consequence is that such State cannot
claim any privileges connected with the new title.
[Footnote 107: See below, § 119.]
III
CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS
Grotius, II. c. 9, §§ 5-13--Pufendorf, VIII. c. 12--Vattel, I. §
11--Hall, § 2--Halleck, I. pp. 89-92--Phillimore, I. §§
124-137--Taylor, § 163--Westlake, I. pp. 58-66--Wheaton, §§
28-32--Moore, I. §§ 76-79--Bluntschli, §§ 39-53--Hartmann, §§
12-13--Heffter, § 24--Holtzendorff in Holtzendorff, II. pp.
21-23--Liszt, § 5--Ullmann, §§ 31 and 35--Bonfils, Nos.
214-215--Despagnet, Nos. 86-89--Pradier-Fodéré, I. Nos.
146-157--Nys, I. pp. 399-401--Rivier, I. § 3--Calvo, I. §§
81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens,
I. §§ 65-69.
[Sidenote: Important in contradistinction to Indifferent Changes.]
§ 76. The existence of International Persons is exposed to the flow of
things and times. There is a constant and gradual change in their
citizens through deaths and births, emigration, and immigration. There
is a frequent change in those individuals who are at the head of the
States, and there is sometimes a change in the form of their
governments, or in their dynasties if they are monarchies. There are
sometimes changes in their territories through loss or increase of parts
thereof, and there are sometimes changes regarding their independence
through partial or total loss of the same. Several of these and other
changes in the condition and appearance of International Persons are
indifferent to International Law, although they may be of great
importance for the inner development of the States concerned and
directly or indirectly for international policy. Those changes, on the
other hand, which are, or may be, of importance to International Law
must be divided into three groups according to their influence upon the
character of the State concerned as an International Person. For some of
these changes affect a State as an International Person, others do not;
again, others extinguish a State as an International Person altogether.
[Sidenote: Changes not affecting States as International Persons.]
§ 77. A State remains one and the same International Person in spite of
changes in its headship, in its dynasty, in its form, in its rank and
title, and in its territory. These changes cannot be said to be
indifferent to International Law. Although strictly no notification to
and recognition by foreign Powers are necessary, according to the Law of
Nations, in case of a change in the headship of a State or in its entire
dynasty, or if a monarchy becomes a republic or _vice versa_, no
official intercourse is possible between the Powers refusing recognition
and the State concerned. Although, further, a State can assume any title
it likes, it cannot claim the privileges of rank connected with a title
if foreign States refuse recognition. And although, thirdly, a State can
dispose according to discretion of parts of its territory and acquire as
much territory as it likes, foreign Powers may intervene for the purpose
of maintaining a balance of power or on account of other vital
interests.
But whatever may be the importance of such changes, they neither affect
a State as an International Person, nor affect the personal identity of
the States concerned. France, for instance, has retained her personal
identity from the time the Law of Nations came into existence until the
present day, although she acquired and lost parts of her territory,
changed her dynasty, was a kingdom, a republic, an empire, again a
kingdom, again a republic, again an empire, and is now, finally as it
seems, a republic. All her international rights and duties as an
International Person remained the very same throughout the centuries in
spite of these important changes in her condition and appearance. Even
such loss of territory as occasions the reduction of a Great Power to a
small Power, or such increase of territory and strength as turns a small
State into a Great Power, does not affect a State as an International
Person. Thus, although through the events of the years 1859-1861
Sardinia acquired the whole territory of the Italian Peninsula and
turned into the Great Power of Italy, she remained one and the same
International Person.
[Sidenote: Changes affecting States as International Persons.]
§ 78. Changes which affect States as International Persons are of
different character.
(1) As in a Real Union the member-States of the union, although fully
independent, make one International Person,[108] two States which
hitherto were separate International Persons are affected in that
character by entering into a Real Union. For through that change they
appear henceforth together as one and the same International Person. And
should this union be dissolved, the member-States are again affected,
for they now become again separate International Persons.
[Footnote 108: See below, § 87, where the character of the Real Union is
fully discussed.]
(2) Other changes affecting States as International Persons are such
changes as involve a partial loss of independence on the part of the
States concerned. Many restrictions may be imposed upon States without
interfering with their independence proper,[109] but certain
restrictions involve inevitably a partial loss of independence. Thus if
a hitherto independent State comes under the suzerainty of another State
and becomes thereby a half-Sovereign State, its character as an
International Person is affected. The same is valid with regard to a
hitherto independent State which comes under the protectorate of another
State. Again, if several hitherto independent States enter into a
Federal State, they transfer a part of their sovereignty to the Federal
State and become thereby part-Sovereign States. On the other hand, if a
vassal State or a State under protectorate is freed from the suzerainty
or protectorate, it is thereby affected as an International Person,
because it turns now into a full Sovereign State. And the same is valid
with regard to a member-State of a Federal State which leaves the union
and gains the condition of a full Sovereign State.
[Footnote 109: See below, §§ 126-127, where the different kinds of these
restrictions are discussed.]
(3) States which become permanently neutralised are thereby also
affected in their character as International Persons, although their
independence remains untouched. But permanent neutralisation alters the
condition of a State so much that it thereby becomes an International
Person of a particular kind.
[Sidenote: Extinction of International Persons.]
§ 79. A State ceases to be an International Person when it ceases to
exist. Theoretically such extinction of International Persons is
possible through emigration or the perishing of the whole population of
a State, or through a permanent anarchy within a State. But it is
evident that such cases will hardly ever occur in fact. Practical cases
of extinction of States are: Merger of one State into another,
annexation after conquest in war, breaking up of a State into several
States, and breaking up of a State into parts which are annexed by
surrounding States.
By voluntarily merging into another State, a State loses all its
independence and becomes a mere part of another. In this way the Duchy
of Courland merged in 1795 into Russia, the two Principalities of
Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into
Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910
into Japan. And the same is the case if a State is subjugated by
another. In this way the Orange Free State and the South African
Republic were absorbed by Great Britain in 1901. An example of the
breaking up of a State into different States is the division of the
Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an
example of the breaking up of a State into parts which are annexed by
surrounding States is the absorption of Poland by Russia, Austria, and
Prussia in 1795.
IV
SUCCESSION OF INTERNATIONAL PERSONS[110]
Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, §§
27-29--Phillimore, I. § 137--Lawrence, § 49--Halleck, I. pp.
89-92--Taylor, §§ 164-168--Westlake, I. pp. 68-83--Wharton, I. §
5--Moore, I. §§ 92-99--Wheaton, §§ 28-32--Bluntschli, §§
47-50--Hartmann, § 12--Heffter, § 25--Holtzendorff in
Holtzendorff, II. pp. 33-47--Liszt, § 23--Ullmann, § 32--Bonfils,
Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodéré, I. Nos.
156-163--Nys, I. pp. 399-401--Rivier, I. § 3, pp. 69-75 and p.
438--Calvo, I. §§ 99-103--Fiore, I. Nos. 349-366--Martens, I. §
67--Appleton, "Des effets des annexions sur les dettes de l'état
démembré ou annexé" (1895)--Huber, "Die Staatensuccession"
(1898)--Keith, "The Theory of State Succession, with special
reference to English and Colonial Law" (1907)--Cavaglieri, "La
dottrina della successione di stato a stato, &c." (1910)--Richards
in _The Law Magazine and Review_, XXVIII. (1903), pp.
129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J.
V. (1911), pp. 285-297.
[Footnote 110: The following text treats only of the broad outlines of
the subject, as the practice of the States has hardly settled more than
general principles. Details must be studied in Huber, "Die
Staatensuccession" (1898), and Keith, "The Theory of State Succession,
&c." (1907); the latter writer's analysis of cases in Z.V. III. (1909),
pp. 618-648, is likewise very important.]
[Sidenote: Common Doctrine regarding Succession of International
Persons.]
§ 80. Although there is no unanimity among the writers on International
Law with regard to the so-called succession of International Persons,
nevertheless the following common doctrine can be stated to exist.
A succession of International Persons occurs when one or more
International Persons take the place of another International Person, in
consequence of certain changes in the latter's condition.
Universal succession takes place when one International Person is
absorbed by another, either through subjugation or through voluntary
merger. And universal succession further takes place when a State breaks
up into parts which either become separate International Persons of
their own or are annexed by surrounding International Persons.
Partial succession takes place, first, when a part of the territory of
an International Person breaks off in a revolt and by winning its
independence becomes itself an International Person; secondly, when one
International Person acquires a part of the territory of another through
cession; thirdly, when a hitherto full Sovereign State loses part of its
independence through entering into a Federal State, or coming under
suzerainty or under a protectorate, or when a hitherto not-full
Sovereign State becomes full Sovereign; fourthly, when an International
Person becomes a member of a Real Union or _vice versa_.
Nobody ever maintained that on the successor devolve all the rights and
duties of his predecessor. But after stating that a succession takes
place, the respective writers try to educe the consequences and to make
out what rights and duties do, and what do not, devolve.
Several writers,[111] however, contest the common doctrine and maintain
that a succession of International Persons never takes place. Their
argument is that the rights and duties of an International Person
disappear with the extinguished Person or become modified according to
the modifications an International Person undergoes through losing part
of its sovereignty.
[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with
great clearness, and Liszt, § 23.]
[Sidenote: How far Succession actually takes place.]
§ 81. If the real facts of life are taken into consideration, the common
doctrine cannot be upheld. To say that succession takes place in such
and such cases and to make out afterwards what rights and duties
devolve, shows a wrong method of dealing with the problem. It is certain
that no _general_ succession takes place according to the Law of
Nations. With the extinction of an International Person disappear its
rights and duties as a person. But it is equally wrong to maintain that
no succession whatever occurs. For nobody doubts that certain rights and
duties actually and really devolve upon an International Person from its
predecessor. And since this devolution takes place through the very fact
of one International Person following another in the possession of State
territory, there is no doubt that, as far as these devolving rights and
duties are concerned, a succession of one International Person to the
rights and duties of another really does take place. But no general rule
can be laid down concerning all the cases in which a succession takes
place. These cases must be discussed singly.
[Sidenote: Succession in consequence of Absorption.]
§ 82. When a State merges voluntarily into another State--as, for
instance, Korea in 1910 did into Japan--or when a State is subjugated by
another State, the latter remains one and the same International Person
and the former becomes totally extinct as an International Person. No
succession takes place, therefore, with regard to rights and duties of
the extinct State arising either from the character of the latter as an
International Person or from its purely political treaties. Thus
treaties of alliance or of arbitration or of neutrality or of any other
political nature fall to the ground with the extinction of the State
which concluded them. They are personal treaties, and they naturally,
legally, and necessarily presuppose the existence of the contracting
State. But it is controversial whether treaties of commerce,
extradition, and the like, of the extinct State remain valid and
therefore a succession takes place. The majority of writers correctly, I
think, answer the question in the negative, because such treaties,
although they are non-political in a sense, possess some prominent
political traits.[112]
[Footnote 112: On the whole question concerning the extinction of
treaties in consequence of the absorption of a State by another, see
Moore, V. § 773, and below, § 548. When, in 1910, Korea merged into
Japan, the latter published a Declaration--see Martens, N.R.G. 3rd Ser.
IV. p. 26--containing the following articles with regard to the treaty
obligations of the extinct State of Korea:--
1. Treaties hitherto concluded by Korea with foreign Powers ceasing to
be operative, Japan's existing treaties will, so far as practicable, be
applied to Korea. Foreigners resident in Korea will, so far as
conditions permit, enjoy the same rights and immunities as in Japan
proper, and the protection of their legally acquired rights subject in
all cases to the jurisdiction of Japan. The Imperial Government of Japan
is ready to consent that the jurisdiction in respect of the cases
actually pending in any foreign Consular Court in Korea at the time the
Treaty of Annexation takes effect shall remain in such Court until final
decision.
2. Independently of any conventional engagements formerly existing on
the subject, the Imperial Government of Japan will for a period of ten
years levy upon goods imported into Korea from foreign countries or
exported from Korea to foreign countries and upon foreign vessels
entering any of the open ports of Korea the same import or export duties
and the same tonnage dues as under the existing schedules. The same
import or export duties and tonnage dues as those to be levied upon the
aforesaid goods and vessels will also for a period of ten years be
applied in respect of goods imported into Korea from Japan or exported
from Korea to Japan and Japanese vessels entering any of the open ports
of Korea.
3. The Imperial Government of Japan will also permit for a period of ten
years vessels under flags of the Powers having treaties with Japan to
engage in the coasting trade between the open ports of Korea and between
those ports and any open port of Japan.
4. The existing open ports of Korea, with the exemption of Masampo, will
be continued as open ports, and in addition Shiwiju will be newly opened
so that vessels, foreign as well as Japanese, will there be admitted and
goods may be imported into and exported from these ports.]
A real succession takes place, however, first, with regard to such
international rights and duties of the extinct State as are locally
connected with its land, rivers, main roads, railways, and the like.
According to the principle _res transit cum suo onere_, treaties of the
extinct State concerning boundary lines, repairing of main roads,
navigation on rivers, and the like, remain valid, and all rights and
duties arising from such treaties of the extinct State devolve on the
absorbing State.
A real succession, secondly, takes place with regard to the fiscal
property and the fiscal funds of the extinct State. They both accrue to
the absorbing State _ipso facto_ by the absorption of the extinct
State.[113] But the debts[114] of the extinct State must, on the other
hand, also be taken over by the absorbing State.[115] The private
creditor of an extinct State certainly acquires no right[116] by
International Law against the absorbing State, since the Law of Nations
is a law between States only and exclusively. But if he is a foreigner,
the right of protection due to his home State enables the latter to
exercise pressure upon the absorbing State for the purpose of making it
fulfil its international duty to take over the debts of the extinct
State. Some jurists[117] go so far as to maintain that the succeeding
State must take over the debts of the extinct State, even when they are
higher than the value of the accrued fiscal property and fiscal funds.
But I doubt whether in such cases the practice of the States would
follow that opinion. On the other hand, a State which has subjugated
another would be compelled[118] to take over even such obligations as
have been incurred by the annexed State for the immediate purpose of the
war which led to its subjugation.[119]
[Footnote 113: This was recognised by the High Court of Justice in 1866
in the case of the United States _v._ Prioleau. See Scott, "Cases on
International Law" (1902), p. 85.]
[Footnote 114: See Moore, I. § 97, and Appleton, "Des effets des
annexions de territoires sur les dettes, &c." (1895).]
[Footnote 115: This is almost generally recognised by writers on
International Law and the practice of the States. (See Huber, op. cit.
pp. 156 and 282, note 449.) The Report of the Transvaal Concessions
Commission (see British State Papers, South Africa, 1901, Cd. 623),
although it declares (p. 7) that "it is clear that a State which has
annexed another is not legally bound by any contracts made by the State
which has ceased to exist," nevertheless agrees that "the modern usage
of nations has tended in the acknowledgment of such contracts." It may,
however, safely be maintained that not a usage, but a real rule of
International Law, based on custom, is in existence with regard to this
point. (See Hall, § 29, and Westlake in _The Law Quarterly Review_,
XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I.
pp. 74-82.)]
[Footnote 116: This is the real portent of the judgment in the case of
Cook _v._ Sprigg, L.R. (1899), A.C. 572, and in the case of the West
Rand Central Gold Mining Co. _v._ The King (1905), 2 K.B. 391. In so far
as the latter judgment denies the existence of a rule of International
Law that compels a subjugator to pay the debts of the subjugated State,
its arguments are in no wise decisive. An International Court would
recognise such a rule.]
[Footnote 117: See Martens, I. § 67; Heffter, § 25; Huber, op. cit. p.
158.]
[Footnote 118: See the Report of the Transvaal Concession Commission, p.
9, which maintains the contrary. Westlake (I. p. 78) adopts the
reasoning of this report, but his arguments are not decisive. The
lending of money to a belligerent under ordinary mercantile
conditions--see Barclay in _The Law Quarterly Review_, XXI. (1905), p.
307--is not prohibited by International Law, although the carriage of
such funds in cash on neutral vessels to the enemy falls under the
category of carriage of contraband, and can be punished by the
belligerents. (See below, Vol. II. § 352.)]
[Footnote 119: The question how far concessions granted by a subjugated
State to a private individual or to a company must be upheld by the
subjugating State, is difficult to answer in its generality. The merits
of each case would seem to have to be taken into consideration. See
Westlake, I. p. 82; Moore, I. § 98; Gidel, "Des effets de l'annexion sur
les concessions" (1904).]
The case of a Federal State arising--like the German Empire in
1871--above a number of several hitherto full Sovereign States also
presents, with regard to many points, a case of State succession.[120]
However, no hard-and-fast rules can be laid down concerning it, since
everything depends upon the question whether the Federal State is one
which--like all those of America--totally absorbs all international
relations of the member-States, or whether it absorbs--like the German
Empire and Switzerland--these relations to a greater extent only.[121]
[Footnote 120: See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp.
92-98.]
[Footnote 121: See below, § 89.]
[Sidenote: Succession in consequence of Dismemberment.]
§ 83. When a State breaks up into fragments which themselves become
States and International Persons, or which are annexed by surrounding
States, it becomes extinct as an International Person, and the same
rules are valid as regards the case of absorption of one State by
another. A difficulty is, however, created when the territory of the
extinct State is absorbed by several States. Succession actually takes
place here too, first, with regard to the international rights and
duties locally connected with those parts of the territory which the
respective States have absorbed. Succession takes place, secondly, with
regard to the fiscal property and the fiscal funds which each of the
several absorbing States finds on the part of the territory it absorbs.
And the debts of the extinct State must be taken over. But the case is
complicated through the fact that there are several successors to the
fiscal property and funds, and the only rule which can be laid down is
that proportionate parts of the debts must be taken over by the
different successors.
When--as in the case of Sweden-Norway in 1905--a Real Union[122] is
dissolved and the members become International Persons of their own, a
succession likewise takes place. All treaties concluded by the Union
devolve upon the former members, except those which were concluded by
the Union for one member only--_e.g._ by Sweden-Norway for Norway--and
which, therefore, devolve upon such former member only, and, further,
except those which concerned the very Union and lose all meaning by its
dissolution.
[Footnote 122: See below, § 87.]
[Sidenote: Succession in case of Separation or Cession.]
§ 84. When in consequence of war or otherwise one State cedes a part of
its territory to another, or when a part of the territory of a State
breaks off and becomes a State and an International Person of its own,
succession takes place with regard to such international rights and
duties of the predecessor as are locally connected with the part of the
territory ceded or broken off, and with regard to the fiscal property
found on that part of the territory. It would only be just, if the
successor had to take over a corresponding part of the debt of its
predecessor, but no rule of International Law concerning this point can
be said to exist, although many treaties have stipulated a devolution of
a part of the debt of the predecessor upon the successor.[123] Thus, for
instance, arts. 9, 33, 42 of the Treaty of Berlin[124] of 1878 stipulate
that Bulgaria, Montenegro, and Servia should take over a part of the
Turkish debt. On the other hand, the United States refused, after the
cession of Cuba in 1898, to take over from Spain the so-called Cuban
debt--that is, the debt which was settled by Spain on Cuba before the
war.[125] Spain argued that it was not intended to transfer to the
United States a proportional part of the debt of Spain, but only such
debt as attached individually to the island of Cuba. The United States,
however, met this argument by the correct assertion that the debt
concerned was not one incurred by Cuba, but by Spain, and settled by her
on Cuba.
[Footnote 123: Many writers, however, maintain that there is such a rule
of International Law. See Huber, op. cit. Nos. 125-135 and 205, where
the respective treaties are enumerated.]
[Footnote 124: See Martens, N.R.G. 2nd Ser. III. p. 449.]
[Footnote 125: See Moore, III. § 97, pp. 351-385.]
V
COMPOSITE INTERNATIONAL PERSONS
Pufendorf, VII. c. 5--Hall, § 4--Westlake, I. pp.
31-37--Phillimore, I. §§ 71-74, 102-105--Twiss, I. §§
37-60--Halleck, I. pp. 70-74--Taylor, §§ 120-130--Wheaton, §§
39-51--Moore, I. §§ 6-11--Hartmann, § 70--Heffter, §§
20-21--Holtzendorff in Holtzendorff, II. pp. 118-141--Liszt, §
6--Ullmann, §§ 20-24--Bonfils, Nos. 165-174--Despagnet, Nos.
109-126--Pradier-Fodéré, I. Nos. 117-123--Mérignhac, II. pp.
6-42--Nys, I. pp. 367-378--Rivier, I. §§ 5-6--Calvo, I. §§
44-61--Fiore, I. Nos. 335-339, and Code, Nos. 96-104--Martens, I.
§§ 56-59--Pufendorf, "De systematibus civitatum" (1675)--Jellinek,
"Die Lehre von den Staatenverbindungen" (1882)--Borel, "Etude sur
la souveraineté de l'Etat fédératif" (1886)--Brie, "Theorie der
Staatenverbindungen" (1886)--Hart, "Introduction to the Study of
Federal Government" in "Harvard Historical Monographs," 1891
(includes an excellent bibliography)--Le Fur, "Etat fédéral et
confédération d'Etats" (1896)--Moll, "Der Bundesstaatsbegriff in
den Vereinigten Staaten von America" (1905)--Ebers, "Die Lehre vom
Staatenbunde" (1910).
[Sidenote: Real and apparent Composite International Persons.]
§ 85. International Persons are as a rule single Sovereign States. In
such single States there is one central political authority as
Government which represents the State, within its borders as well as
without in the international intercourse with other International
Persons. Such single States may be called _simple_ International
Persons. And a State remains a simple International Person, although it
may grant so much internal independence to outlying parts of its
territory that these parts become in a sense States themselves. Great
Britain is a simple International Person, although the Dominion of
Canada, Newfoundland, the Commonwealth of Australia, New Zealand, and
the Union of South Africa, are now States of their own, because Great
Britain is alone Sovereign and represents exclusively the British Empire
within the Family of Nations.
Historical events, however, have created, in addition to the simple
International Persons, _composite_ International Persons. A composite
International Person is in existence when two or more Sovereign States
are linked together in such a way that they take up their position
within the Family of Nations either exclusively or at least to a great
extent as one single International Person. History has produced two
different kinds of such composite International Persons--namely, Real
Unions and Federal States. In contradistinction to Real Unions and
Federal States, a so-called Personal Union and the union of so-called
Confederated States are not International Persons.[126]
[Footnote 126: I cannot agree with Westlake (I. p. 37) that "the space
which some writers devote to the distinctions between the different
kinds of union between States" is "disproportioned ... to their
international importance." Very important questions are connected with
these distinctions. The question, for instance, whether a diplomatic
envoy sent by Bavaria to this country must be granted the privileges due
to a foreign diplomatic envoy depends upon the question whether Bavaria
is an International Person in spite of her being a member-State of the
German Empire.]
[Sidenote: States in Personal Union.]
§ 86. A Personal Union is in existence when two Sovereign States and
separate International Persons are linked together through the
accidental fact that they have the same individual as monarch. Thus a
Personal Union existed from 1714 to 1837 between Great Britain and
Hanover, from 1815 to 1890 between the Netherlands and Luxemburg, and
from 1885 to 1908 between Belgium and the former Congo Free State. At
present there is no Personal Union in existence. A Personal Union is
not, and is in no point treated as though it were, an International
Person, and its two Sovereign member-States remain separate
International Persons. Theoretically it is even possible that they make
war against each other, although practically this will never occur. If,
as sometimes happens, they are represented by one and the same
individual as diplomatic envoy, such individual is the envoy of both
States at the same time, but not the envoy of the Personal Union.
[Sidenote: States in Real Union.]
§ 87. A Real Union[127] is in existence when two Sovereign States are by
an international treaty, recognised by other Powers, linked together for
ever under the same monarch, so that they make one and the same
International Person. A Real Union is not itself a State, but merely a
union of two full Sovereign States which together make one single but
composite International Person. They form a compound Power, and are by
the treaty of union prevented from making war against each other. On the
other hand, they cannot make war separately against a foreign Power, nor
can war be made against one of them separately. They can enter into
separate treaties of commerce, extradition, and the like, but it is
always the Union which concludes such treaties for the separate States,
as they separately are not International Persons. It is, for instance,
Austria-Hungary which concludes an international treaty of extradition
between Hungary and a foreign Power. The only Real Union at present in
existence outside the German Empire[128] is that of Austria-Hungary,
that of Sweden-Norway having been dissolved in 1905.
[Footnote 127: See Blüthgen in Z.V. I. (1906), pp. 237-263.]
[Footnote 128: There is a Real Union between Saxe-Coburg and Saxe-Gotha
within the German Empire.]
Austria-Hungary became a Real Union in 1723. In 1849, Hungary was
united with Austria, but in 1867 Hungary became again a separate
Sovereign State and the Real Union was re-established. Their army, navy,
and foreign ministry are united. The Emperor-King declares war, makes
peace, concludes alliances and other treaties, and sends and receives
the same diplomatic envoys for both States.
Sweden-Norway became a Real Union[129] in 1814. The King could declare
war, make peace, conclude alliances and other treaties, and send and
receive the same diplomatic envoys for both States. The Foreign
Secretary of Sweden managed at the same time the foreign affairs of
Norway. Both States had, however, in spite of the fact that they made
one and the same International Person, different commercial and naval
flags. The Union was peacefully dissolved by the Treaty of Karlstad of
October 26, 1905. Norway became a separate kingdom, the independence and
integrity of which is guaranteed by Great Britain, France, Germany, and
Russia by the Treaty of Christiania of November 2, 1907.[130]
[Footnote 129: This is not universally recognised. Phillimore, I. § 74,
maintains that there was a Personal Union between Sweden and Norway, and
Twiss, I. § 40, calls it a Federal Union.]
[Footnote 130: See above, § 50, p. 75.]
[Sidenote: Confederated States (Staatenbund).]
§ 88. Confederated States (Staatenbund) are a number of full Sovereign
States linked together for the maintenance of their external and
internal independence by a recognised international treaty into a union
with organs of its own, which are vested with a certain power over the
member-States, but not over the citizens of these States. Such a union
of Confederated States is not any more itself a State than a Real Union
is; it is merely an International Confederation of States, a society of
international character, since the member-States remain full Sovereign
States and separate International Persons. Consequently, the union of
Confederated States is not an International Person, although it is for
some parts so treated on account of its representing the compound power
of the full Sovereign member-States. The chief and sometimes the only
organ of the union is a Diet, where the member-States are represented by
diplomatic envoys. The power vested in the Diet is an International
Power which does not in the least affect the full sovereignty of the
member-States. That power is essentially nothing else than the right of
the body of the members to make war against such a member as will not
submit to those commandments of the Diet which are in accordance with
the Treaty of Confederation, war between the member-States being
prohibited in all other cases.
History has shown that Confederated States represent an organisation
which in the long run gives very little satisfaction. It is for that
reason that the three important unions of Confederated States of modern
times--namely, the United States of America, the German, and the Swiss
Confederation--have turned into unions of Federal States. Notable
historic Confederations are those of the Netherlands from 1580 to 1795,
the United States of America from 1778 to 1787, Germany from 1815 to
1866, Switzerland from 1291 to 1798 and from 1815 to 1848, and the
Confederation of the Rhine (Rheinbund) from 1806 to 1813. At present
there is no union of Confederated States. The last in existence, the
major Republic of Central America,[131] which comprised the three full
Sovereign States of Honduras, Nicaragua, and San Salvador, and was
established in 1895, came to an end in 1898.
[Footnote 131: See N.R.G. 2nd Ser. XXXII. pp. 276-292.]
[Sidenote: Federal States (Bundesstaaten).]
§ 89. A Federal State[132] is a perpetual union of several Sovereign
States which has organs of its own and is invested with power, not only
over the member-States, but also over their citizens. The union is
based, first, on an international treaty of the member-States, and,
secondly, on a subsequently accepted constitution of the Federal State.
A Federal State is said to be a real State side by side with its
member-States because its organs have a direct power over the citizens
of those member-States. This power was established by American[133]
jurists of the eighteenth century as a characteristic distinction of a
Federal State from Confederated States, and Kent as well as Story, the
two later authorities on the Constitutional Law of the United States,
adopted this distinction, which is indeed kept up until to-day by the
majority of writers on politics. Now if a Federal State is recognised as
a State of its own, side by side with its member-States, it is evident
that sovereignty must be divided between the Federal State on the one
hand, and, on the other, the member-States. This division is made in
this way, that the competence over one part of the objects for which a
State is in existence is handed over to the Federal State, whereas the
competence over the other part remains with the member-States. Within
its competence the Federal State can make laws which bind the citizens
of the member-States directly without any interference of these
member-States. On the other hand, the member-States are totally
independent as far as _their_ competence reaches.
[Footnote 132: The distinction between Confederated States and a Federal
State is not at all universally recognised, and the terminology is
consequently not at all the same with all writers on International Law.]
[Footnote 133: When in 1787 the draft of the new Constitution of the
United States, which had hitherto been Confederated States only, was
under consideration by the Congress at Philadelphia, three members of
the Congress--namely, Alexander Hamilton, James Madison, and John
Jay--made up their minds to write newspaper articles on the draft
Constitution with the intention of enlightening the nation which had to
vote for the draft. For this purpose they divided the different points
among themselves and treated them separately. All these articles, which
were not signed with the names of their authors, appeared under the
common title "The Federalist." They were later on collected into
book-form and have been edited several times. It is especially Nos. 15
and 16 of "The Federalist" which establish the difference between
Confederated States and a Federal State in the way mentioned in the text
above.]
For International Law this division of competence is only of interest in
so far as it concerns competence in _international_ matters. Since it is
always the Federal State which is competent to declare war, make peace,
conclude treaties of alliance and other political treaties, and send and
receive diplomatic envoys, whereas no member-State can of itself declare
war against a foreign State, make peace, conclude alliances and other
political treaties, the Federal State, if recognised, is certainly an
International Person of its own, with all the rights and duties of a
sovereign member of the Family of Nations. On the other hand, the
international position of the member-States is not so clear. It is
frequently maintained that they have totally lost their position within
the Family of Nations. But this opinion cannot stand if compared with
the actual facts. Thus, the member-States of the Federal State of
Germany have retained their competence to send and receive diplomatic
envoys, not only in intercourse with one another, but also with foreign
States. Further, the reigning monarchs of these member-States are still
treated by the practice of the States as heads of Sovereign States, a
fact without legal basis if these States were no longer International
Persons. Thirdly, the member-States of Germany as well as of Switzerland
have retained their competence to conclude international treaties
between themselves without the consent of the Federal State, and they
have also retained the competence to conclude international treaties
with foreign States as regards matters of minor interest. If these
facts[134] are taken into consideration, one is obliged to acknowledge
that the member-States of a Federal State can be International Persons
in a degree. Full subjects of International Law, International Persons
with all the rights and duties regularly connected with the membership
of the Family of Nations, they certainly cannot be. Their position, if
any, within this circle is overshadowed by their Federal State, they are
part-Sovereign States, and they are, consequently, International Persons
for some parts only.
[Footnote 134: See Riess, "Auswärtige Hoheitsrechte der deutschen
Einzelstaaten" (1905).]
But it happens frequently that a Federal State assumes _in every way_
the external representation of its member-States, so that, so far as
international relations are concerned, the member-States do not make an
appearance at all. This is the case with the United States of America
and all those other American Federal States whose Constitution is formed
according to the model of that of the United States. Here the
member-States are sovereign too, but only with regard to _internal_[135]
affairs. All their external sovereignty being absorbed by the Federal
State, it is certainly a fact that they are not International Persons at
all so long as this condition of things lasts.
[Footnote 135: The Courts of the United States of America have always
upheld the theory that the United States are sovereign as to all powers
of government actually surrendered, whereas each member-State is
sovereign as to all powers reserved. See Merriam, "History of the Theory
of Sovereignty since Rousseau" (1900), p. 163.]
This being so, two classes of Federal States must be distinguished[136]
according to whether their member-States are or are not International
Persons, although Federal States are in any case composite International
Persons. And whenever a Federal State comes into existence which leaves
the member-States for some parts International Persons, the recognition
granted to it by foreign States must include their readiness to
recognise for the future, on the one hand, the body of the
member-States, the Federal State, as one composite International Person
regarding all important matters, and, on the other hand, the single
member-States as International Persons with regard to less important
matters and side by side with the Federal State. That such a condition
of things is abnormal and illogical cannot be denied, but the very
existence of a Federal State side by side the member-States is quite as
abnormal and illogical.
[Footnote 136: This distinction is of the greatest importance and ought
to be accepted by the writers on the science of politics.]
The Federal States in existence are the following:--The United States of
America since 1787, Switzerland since 1848, Germany since 1871, Mexico
since 1857, Argentina since 1860, Brazil since 1891, Venezuela since
1893.
VI
VASSAL STATES
Hall, § 4--Westlake, I. pp. 25-27--Lawrence, § 39--Phillimore, I.
§§ 85-99--Twiss, I. §§ 22-36, 61-73--Taylor, §§ 140-144--Wheaton,
§ 37--Moore, I. § 13--Bluntschli, §§ 76-77--Hartmann, §
16--Heffter, §§ 19 and 22--Holtzendorff in Holtzendorff, II. pp.
98-117--Liszt, § 6--Ullmann, § 25--Gareis, § 15--Bonfils, Nos.
188-190--Despagnet, Nos. 127-129--Mérignhac, I. pp.
201-218--Pradier-Fodéré, I. Nos. 109-112--Nys, I. pp.
357-364--Rivier, I. § 4--Calvo, I. §§ 66-72--Fiore, I. No. 341,
and Code, Nos. 105-110--Martens, I. §§ 60-61--Stubbs, "Suzerainty"
(1884)--Baty, "International Law in South Africa" (1900), pp.
48-68--Boghitchévitch, "Halbsouveränität" (1903).
[Sidenote: The Union between Suzerain and Vassal State.]
§ 90. The union and the relations between a Suzerain and its Vassal
State create much difficulty in the science of the Law of Nations. As
both are separate States, a union of States they certainly make, but it
would be wrong to say that the Suzerain State is, like the Real Union of
States or the Federal State, a composite International Person. And it
would be equally wrong to maintain either that a Vassal State cannot be
in any way a separate International Person of its own, or that it is an
International Person of the same kind as any other State. What makes the
matter so complicated, is the fact that a general rule regarding the
relation between the suzerain and vassal, and, further, regarding the
position, if any, of the vassal within the Family of Nations, cannot be
laid down, as everything depends upon the special case. What can and
must be said is that there are some States in existence which, although
they are independent of another State as regards their internal affairs,
are as regards their international affairs either absolutely or for the
most part dependent upon another State. They are called
half-Sovereign[137] States because they are sovereign within their
borders but not without. The full Sovereign State upon which such
half-Sovereign States are either absolutely or for the most part
internationally dependent, is called the Suzerain State.
[Footnote 137: In contradistinction to the States which are under
suzerainty or protectorate, and which are commonly called
_half_-Sovereign States, I call member-States of a Federal State
_part_-Sovereign States.]
Suzerainty is a term which originally was used for the relation between
the feudal lord and his vassal; the lord was said to be the suzerain of
the vassal, and at that time suzerainty was a term of Constitutional Law
only. With the disappearance of the feudal system, suzerainty of this
kind likewise disappeared. Modern suzerainty contains only a few rights
of the Suzerain State over the Vassal State which can be called
constitutional rights. The rights of the Suzerain State over the Vassal
are principally international rights, of whatever they may consist.
Suzerainty is by no means sovereignty. If it were, the Vassal State
could not be Sovereign in its domestic affairs and could never have any
international relations whatever of its own. And why should suzerainty
be distinguished from sovereignty if it be a term synonymous with
sovereignty? One may correctly maintain that _suzerainty is a kind of
international guardianship_, since the Vassal State is either absolutely
or mainly represented internationally by the Suzerain State.
[Sidenote: International Position of Vassal States.]
§ 91. The fact that the relation between the suzerain and the vassal
always depends upon the special case, excludes the possibility of laying
down a general rule as regards the position of Vassal States within the
Family of Nations. It is certain that a Vassal State as such need not
have any position whatever within the Family of Nations. In every case
in which a Vassal State has absolutely no relations whatever with other
States, since the suzerain absorbs these relations entirely, such vassal
remains nevertheless a half-Sovereign State on account of its internal
independence, but it has no position whatever within the Family of
Nations, and consequently is for no part whatever an International
Person and a subject of International Law. This is the position of the
Indian Vassal States of Great Britain, which have no international
relations whatever either between themselves or with foreign
States.[138] Yet instances can be given which demonstrate that Vassal
States can have some small and subordinate position within that family,
and that they must in consequence thereof in some few points be
considered as International Persons. Thus Egypt can conclude commercial
and postal treaties with foreign States without the consent of suzerain
Turkey, and Bulgaria could, while she was under Turkish Suzerainty,
conclude treaties regarding railways, post, and the like. Thus, further,
Egypt can send and receive consuls as diplomatic agents, and so could
Bulgaria while she was a Turkish Vassal State. Thus, thirdly, the former
South African Republic, although in the opinion of Great Britain under
her suzerainty, could conclude all kinds of treaties with other States,
provided Great Britain did not interpose a _veto_ within six months
after receiving a copy of the draft treaty, and was absolutely
independent in concluding treaties with the neighbouring Orange Free
State. Again, Egypt possesses, since 1898, together with Great Britain
_condominium_[139] over the Soudan, which means that they exercise
conjointly sovereignty over this territory. Although Vassal States have
not the right to make war independently of their suzerain, Bulgaria, at
the time a Vassal State, nevertheless fought a war against the
full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly
with Great Britain in 1898.
[Footnote 138: See Westlake, Chapters, pp. 211-219; Westlake, I. pp.
41-43, and again Westlake in _The Law Quarterly Review_, XXVI. (1910),
pp. 312-319.--See also Lee-Warner, "The Native States of India" (1910),
pp. 254-279.]
[Footnote 139: See below, § 171.]
How could all these and other facts be explained, if Vassal States could
never for some small part be International Persons?
Side by side with these facts stand, of course, other facts which show
that for the most part the Vassal State, even if it has some small
position of its own within the Family of Nations, is considered a mere
portion of the Suzerain State. Thus all international treaties concluded
by the Suzerain State are _ipso facto_ concluded for the vassal, if an
exception is not expressly mentioned or self-evident. Thus, again, war
of the suzerain is _ipso facto_ war of the vassal. Thus, thirdly, the
suzerain bears within certain limits a responsibility for actions of the
Vassal State.
Under these circumstances it is generally admitted that the conception
of suzerainty lacks juridical precision, and experience teaches that
Vassal States do not remain half-Sovereign for long. They either shake
off suzerainty, as Roumania, Servia, and Montenegro did in 1878, and
Bulgaria[140] did in 1908, or they lose their half-Sovereignty through
annexation, as in the case of the South African Republic in 1901, or
through merger, as when the half-Sovereign Seignory of Kniephausen in
Germany merged in 1854 into its suzerain Oldenburg.
[Footnote 140: As regards the position of Bulgaria while she was a
Vassal State under Turkish suzerainty, see Holland, "The European
Concert in the Eastern Question" (1885), pp. 277-307, and Nédjmidin,
"Völkerrechtliche Entwicklung Bulgariens" (1908).]
Vassal States of importance which are for some parts International
Persons are, at present, Egypt,[141] and Crete.[142] They are both
under Turkish suzerainty, although Egypt is actually under the
administration of Great Britain. Samos,[143] which some writers consider
a Vassal State under Turkish suzerainty, is not half-Sovereign, but
enjoys autonomy to a vast degree.
[Footnote 141: See Holland, "The European Concert in the Eastern
Question" (1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche
Stellung Aegyptens" (1903); Cocheris, "Situation internationale de
l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905);
Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp.
36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59,
the Court refused to acknowledge the half-sovereignty of Egypt; see
Phillimore, I. § 99.]
[Footnote 142: See Streit in R.G. X. (1903), pp. 399-417.]
[Footnote 143: See Albrecht in Z.V. I. (1907), pp. 56-112.]
VII
STATES UNDER PROTECTORATE
Hall, §§ 4 and 38*--Westlake, I. pp. 22-24--Lawrence, §
39--Phillimore, I. 75-82--Twiss, I. §§ 22-36--Taylor, §§
134-139--Wheaton, §§ 34-36--Moore, I. § 14--Bluntschli, §
78--Hartmann, § 9--Heffter, §§ 19 and 22--Holtzendorff in
Holtzendorff, II. pp. 98-117--Gareis, § 15--Liszt, § 6--Ullmann, §
26--Bonfils, Nos. 176-187--Despagnet, Nos. 130-136--Mérignhac, II.
pp. 180-220--Pradier-Fodéré, I. Nos. 94-108--Nys, I. pp.
364-366--Rivier, I. § 4--Calvo, I. §§ 62-65--Fiore, I. § 341, and
Code, Nos. 111-118--Martens, I. §§ 60-61--Pillet in R.G. II.
(1895), pp. 583-608--Heilborn, "Das völkerrechtliche Protectorat"
(1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le
protectorat international" (1896)--Despagnet, "Essai sur les
protectorats" (1896)--Boghitchévitch, "Halbsouveränität" (1903).
[Sidenote: Conception of Protectorate.]
§ 92. Legally and materially different from suzerainty is the relation
of protectorate between two States. It happens that a weak State
surrenders itself by treaty into the protection of a strong and mighty
State in such a way that it transfers the management[144] of all its
more important[145] international affairs to the protecting State.
Through such treaty an international union is called into existence
between the two States, and the relation between them is called
protectorate. The protecting State is internationally the superior of
the protected State, the latter has with the loss of the management of
its more important international affairs lost its full sovereignty and
is henceforth only a half-Sovereign State. Protectorate is, however, a
conception which, just like suzerainty, lacks exact juristic
precision,[146] as its real meaning depends very much upon the special
case. Generally speaking, protectorate may, again like suzerainty, be
called _a kind of international guardianship_.
[Footnote 144: A treaty of protectorate must not be confounded with a
treaty of protection in which one or more strong States promise to
protect a weak State without absorbing the international relations of
the latter.]
[Footnote 145: That the admittance of Consuls belongs to these affairs
became apparent in 1906, when Russia, after some hesitation, finally
agreed upon Japan, and not Korea, granting the _exequatur_ to the
Consul-general appointed by Russia for Korea, which was then a State
under Japanese protectorate. See below, § 427.]
[Footnote 146: It is therefore of great importance that the parties
should make quite clear the meaning of a clause which is supposed to
stipulate a protectorate. Thus art. 17 of the Treaty of Friendship and
Commerce between Italy and Abyssinia, signed at Uccialli on May 2,
1889--see Martens, N.R.G. 2nd Ser. XVIII. p. 697--was interpreted by
Italy as establishing a protectorate over Abyssinia, but the latter
refused to recognise it.]
[Sidenote: International position of States under Protectorate.]
§ 93. The position of a State under protectorate within the Family of
Nations cannot be defined by a general rule, since it is the treaty of
protectorate which indirectly specialises it by enumerating the
reciprocal rights and duties of the protecting and the protected State.
Each case must therefore be treated according to its own merits. Thus
the question whether the protected State can conclude certain
international treaties and can send and receive diplomatic envoys, as
well as other questions, must be decided according to the terms of the
individual treaty of protectorate. In any case, recognition of the
protectorate on the part of third States is necessary to enable the
superior State to represent the protected State internationally. But it
is characteristic of the protectorate, in contradistinction to
suzerainty, that the protected State always has and retains for some
parts a position of its own within the Family of Nations, and that it is
always for some parts an International Person and a subject of
International Law. It is never in any respect considered a mere portion
of the superior State. It is, therefore, not necessarily a party in a
war[147] of the superior State against a third, and treaties concluded
by the superior State are not _ipso facto_ concluded for the protected
State. And, lastly, it can at the same time be under the protectorate of
two different States, which, of course, must exercise the protectorate
conjointly.
[Footnote 147: This was recognised by the English Prize Courts during
the Crimean War with regard to the Ionian Islands, which were then still
under British protectorate; see the case of the Ionian Ships, 2 Spinks
212, and Phillimore, I. § 77.]
In Europe there are at present only two very small States under
protectorate--namely, the republic of Andorra, under the joint
protectorate of France and Spain,[148] and the republic of San Marino,
an enclosure of Italy, which was formerly under the protectorate of the
Papal States and is now under that of Italy. The Principality of Monaco,
which was under the protectorate, first of Spain until 1693, afterwards
of France until 1815, and then of Sardinia, has now, through custom,
become a full-Sovereign State, since Italy has never[149] exercised the
protectorate. The Ionian Islands, which were under British protectorate
from 1815, merged into the Kingdom of Greece in 1863.
[Footnote 148: This protectorate is exercised for Spain by the Bishop of
Urgel. As regards the international position of Andorra, see Vilar,
"L'Andorre" (1905).]
[Footnote 149: This is a clear case of _desuetudo_.]
[Sidenote: Protectorates outside the Family of Nations.]
§ 94. Outside Europe there are numerous States under the protectorate of
European States, but all of them are non-Christian States of such a
civilisation as would not admit them to full membership of the Family of
Nations, apart from the protectorate under which they are now. And it
may therefore be questioned whether they have any real position within
the Family of Nations at all. As the protectorate over them is
recognised by third States, the latter are legally prevented from
exercising any political influence in these protected States, and,
failing special treaty rights, they have no right to interfere if the
protecting State annexes the protected State and makes it a mere colony
of its own, as, for instance, France did with Madagascar in 1896.
Protectorates of this kind are actually nothing else than the first step
to annexation.[150] Since they are based on treaties with real States,
they cannot in every way be compared with the so-called protectorates
over African tribes which European States acquire through a treaty with
the chiefs of these tribes, and by which the respective territory is
preserved for future occupation on the part of the so-called
protector.[151] But actually they always lead to annexation, if the
protected State does not succeed in shaking off by force the
protectorate, as Abyssinia did in 1896 when she shook off the pretended
Italian protectorate.
[Footnote 150: Examples of such non-Christian States under protectorate
are Zanzibar under Great Britain and Tunis under France.]
[Footnote 151: See below, § 226, and Perrinjaquet in R.G. XVI. (1909),
pp. 316-367.]
VIII
NEUTRALISED STATES
Westlake, I. pp. 27-30--Lawrence, §§ 43 and 225--Taylor, §
133--Moore, I. § 12--Bluntschli, § 745--Heffter, §
145--Holtzendorff in Holtzendorff, II. pp. 643-646--Gareis, §
15--Liszt, § 6--Ullmann, § 27--Bonfils, Nos. 348-369--Despagnet,
Nos. 137-146--Mérignhac, II. pp. 56-65--Pradier-Fodéré, II. Nos.
1001-1015--Nys, I. pp. 379-398--Rivier, I. § 7--Calvo, IV. §§
2596-2610--Piccioni's "Essai sur la neutralité perpétuelle" (2nd
ed. 1902)--Regnault, "Des effets de la neutralité perpétuelle"
(1898)--Tswettcoff, "De la situation juridique des états
neutralisés" (1895)--Morand in R.G. I. (1894), pp.
522-537--Hagerup in R.G. XII. (1909), pp. 577-602--Nys in R.I. 2nd
Ser. II. (1900), pp. 468-583, III. (1901), p. 15--Westlake in R.I.
2nd Ser. III. (1901), pp. 389-397--Winslow in A.J. II. (1908), pp.
366-386--Wicker in A.J. V. (1911), pp. 639-654.
[Sidenote: Conception of Neutralised States.]
§ 95. A neutralised State is a State whose independence and integrity
are for all the future guaranteed by an international convention of the
Powers, under the condition that such State binds itself never to take
up arms against any other State except for defence against attack, and
never to enter into such international obligations as could indirectly
drag it into war. The reason why a State asks or consents to become
neutralised is that it is a weak State and does not want an active part
in international politics, being exclusively devoted to peaceable
developments of welfare. The reason why the Powers neutralise a weak
State may be a different one in different cases. The chief reasons have
been hitherto the balance of power in Europe and the interest in keeping
up a weak State as a so-called Buffer-State between the territories of
Great Powers.
Not to be confounded with neutralisation of States is neutralisation of
parts of States,[152] of rivers, canals, and the like, which has the
effect that war cannot there be made and prepared.
[Footnote 152: See below, Vol. II. § 72.]
[Sidenote: Act and Condition of Neutralisation.]
§ 96. Without thereby becoming a neutralised State, every State can
conclude a treaty with another State and undertake the obligation to
remain neutral if such other State enters upon war. The act through
which a State becomes a neutralised State for all the future is always
an international treaty of the Powers between themselves and between the
State concerned, by which treaty the Powers guarantee collectively the
independence and integrity of the latter State. If all the Great Powers
do not take part in the treaty, those which do not take part in it must
at least give their tacit consent by taking up an attitude which shows
that they agree to the neutralisation, although they do not guarantee
it. In guaranteeing the permanent neutrality of a State the contracting
Powers enter into the obligation not to violate on their part the
independence of the neutral State and to prevent other States from such
violation. But the neutral State becomes, apart from the guaranty, in
no way dependent upon the guarantors, and the latter gain no influence
whatever over the neutral State in matters which have nothing to do with
the guaranty.
The condition of the neutralisation is that the neutralised State
abstains from any hostile action, and further from any international
engagement which could indirectly[153] drag it into hostilities against
any other State. And it follows from the neutralisation that the
neutralised State can, apart from frontier regulations, neither cede a
part of its territory nor acquire new parts of territory without the
consent of the Powers.[154]
[Footnote 153: It was, therefore, impossible for Belgium, which was a
party to the treaty that neutralised Luxemburg in 1867, to take part in
the guarantee of this neutralisation. See article 2 of the Treaty of
London of May 11, 1867: "sous la sanction de la garantie collective des
puissances signataires, à l'exception de la Belgique, qui est elle-même
un état neutre."]
[Footnote 154: This is a much discussed and very controverted point. See
Descamps, "La Neutralité de la Belgique" (1902), pp. 508-527; Fauchille
in R.G. II. (1895), pp. 400-439; Westlake in R.I. 2nd Ser. III. (1901),
p. 396; Graux in R.I. 2nd Ser. VII. (1905), pp. 33-52; Rivier, I. p.
172. See also below, § 215.]
[Sidenote: International position of Neutralised States.]
§ 97. Since a neutralised State is under the obligation not to make war
against any other State, except when attacked, and not to conclude
treaties of alliance, guaranty, and the like, it is frequently
maintained that neutralised States are part-Sovereign only and not
International Persons of the same position within the Family of Nations
as other States. This opinion has, however, no basis if the real facts
and conditions of the neutralisation are taken into consideration. If
sovereignty is nothing else than supreme authority, a neutralised State
is as fully Sovereign as any not neutralised State. It is entirely
independent outside as well as inside its borders, since independence
does not at all mean boundless liberty of action.[155] Nobody maintains
that the guaranteed protection of the independence and integrity of the
neutralised State places this State under the protectorate or any other
kind of authority of the guarantors. And the condition of the
neutralisation to abstain from war, treaties of alliance, and the like,
contains restrictions which do in no way destroy the full sovereignty of
the neutralised State. Such condition has the consequence only that the
neutralised State exposes itself to an intervention by right, and loses
the guaranteed protection in case it commits hostilities against another
State, enters into a treaty of alliance, and the like. Just as a
not-neutralised State which has concluded treaties of arbitration with
other States to settle all conflicts between one another by arbitration
has not lost part of its sovereignty because it has thereby to abstain
from arms, so a neutralised State has not lost part of its sovereignty
through entering into the obligation to abstain from hostilities and
treaties of alliance. This becomes quite apparent when it is taken into
consideration that a neutralised State not only can conclude treaties of
all kinds, except treaties of alliance, guarantee, and the like, but can
also have an army and navy[156] and can build fortresses, as long as
this is done with the purpose of preparing defence only. Neutralisation
does not even exercise an influence upon the rank of a State. Belgium,
Switzerland, and Luxemburg are States with royal honours and do not rank
behind Great Britain or any other of the guarantors of their
neutralisation. Nor is it denied that neutralised States, in spite of
their weakness and comparative unimportance, can nevertheless play an
important part within the Family of Nations. Although she has no voice
where history is made by the sword, Switzerland has exercised great
influence with regard to several points of progress in International
Law. Thus the Geneva Convention owes its existence to the initiative of
Switzerland. The fact that a permanently neutralised State is in many
questions a disinterested party makes such State fit to take the
initiative where action by a Great Power would create suspicion and
reservedness on the part of other Powers.
[Footnote 155: See below, § 126.]
[Footnote 156: The case of Luxemburg, which became neutralised under the
condition not to keep an armed force with the exception of a police, is
an anomaly.]
But neutralised States are and must always be an exception. The Family
and the Law of Nations could not be what they are if ever the number of
neutralised States should be much increased. It is neither in the
interest of the Law of Nations, nor in that of humanity, that all the
small States should become neutralised, as thereby the political
influence of the few Great Powers would become still greater than it
already is. The neutralised States still in existence--namely,
Switzerland, Belgium, and Luxemburg--are a product of the nineteenth
century only, and it remains to be seen whether neutralisation can stand
the test of history.[157]
[Footnote 157: The fate of the Republic of Cracow, which was created an
independent State under the joint protection of Austria, Prussia, and
Russia by the Vienna Congress in 1815, and permanently neutralised, but
which was annexed by Austria in 1846 (see Nys, I. pp. 383-385), cannot
be quoted as an example that neutralised States have no durability. This
annexation was only the last act in the drama of the absorption of
Poland by her neighbours. As regards the former Congo Free State, see
below, § 101.]
[Sidenote: Switzerland.]
§ 98. The Swiss Confederation,[158] which was recognised by the
Westphalian Peace of 1648, has pursued a traditional policy of
neutrality since that time. During the French Revolution and the
Napoleonic Wars, however, she did not succeed in keeping up her
neutrality. French intervention brought about in 1803 a new
Constitution, according to which the single cantons ceased to be
independent States and Switzerland turned from a Confederation of States
into the simple State of the Helvetic Republic, which was, moreover,
through a treaty of alliance linked to France. It was not till 1813 that
Switzerland became again a Confederation of States, and not till 1815
that she succeeded in becoming permanently neutralised. On March 20,
1815, at the Congress at Vienna, Great Britain, Austria, France,
Portugal, Prussia, Spain, and Russia signed the declaration in which the
permanent neutrality of Switzerland was recognised and collectively
guaranteed, and on May 27, 1815, Switzerland acceded to this
declaration. Article 84 of the Act of the Vienna Congress confirmed this
declaration, and an Act, dated November 20, 1815, of the Powers
assembled at Paris after the final defeat of Napoleon recognised it
again.[159] Since that time Switzerland has always succeeded in keeping
up her neutrality. She has built fortresses and organised a strong army
for that purpose, and in January 1871, during the Franco-German War, she
disarmed a French army of more than 80,000 men who had taken refuge on
her territory, and guarded them till after the war.
[Footnote 158: See Schweizer, "Geschichte der schweizerischen
Neutralität," 2 vols. (1895).]
[Footnote 159: See Martens, N.R. II. pp. 157, 173, 419, 740.]
[Sidenote: Belgium.]
§ 99. Belgium[160] became neutralised from the moment she was recognised
as an independent State in 1831. The Treaty of London, signed on
November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia,
and Russia, stipulates in its article 7 at the same time the
independence and the permanent neutrality of Belgium, and in its article
25 the guaranty of the signatory five Great Powers.[161] And the
guaranty was renewed in article 1 of the Treaty of London of April 19,
1839,[162] to which the same Powers are parties, and which is the final
treaty concerning the separation of Belgium from the Netherlands.
[Footnote 160: See Descamps, "La Neutralité de la Belgique" (1902).]
[Footnote 161: See Martens, N.R. XI. pp. 394 and 404.]
[Footnote 162: See Martens, N.R. XVI. p. 790.]
Belgium has, just like Switzerland, also succeeded in keeping up her
neutrality. She, too, has built fortresses and possesses a strong army.
[Sidenote: Luxemburg.]
§ 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal
union with the Netherlands, but at the same time a member of the
Germanic Confederation, and Prussia had since 1856 the right to keep
troops in the fortress of Luxemburg. In 1866 the Germanic Confederation
came to an end, and Napoleon III. made efforts to acquire Luxemburg by
purchase from the King of Holland, who was at the same time Grand Duke
of Luxemburg. As Prussia objected to this, it seemed advisable to the
Powers to neutralise Luxemburg. A Conference met in London, at which
Great Britain, Austria, Belgium, France, Holland and Luxemburg, Italy,
Prussia, and Russia were represented, and on May 11, 1867, a treaty was
signed for the purpose of the neutralisation, which is stipulated and
collectively guaranteed by all the signatory Powers, Belgium as a
neutralised State herself excepted, by article 2.[164]
[Footnote 163: See Wompach, "Le Luxembourg neutre" (1900).]
[Footnote 164: See Martens, N.R.G. XVIII. p. 448.]
The neutralisation took place, however, under the abnormal condition
that Luxemburg is not allowed to keep any armed force, with the
exception of a police for the maintenance of safety and order, nor to
possess any fortresses. Under these circumstances Luxemburg herself can
do nothing for the defence of her neutrality, as Belgium and Switzerland
can.
[Sidenote: The former Congo Free State.]
§ 101. The former Congo Free State,[165] which was recognised as an
independent State by the Berlin Congo Conference[166] of 1884-1885, was
a permanently neutralised State from 1885-1908, but its neutralisation
was imperfect in so far as it was not guaranteed by the Powers. This
fact is explained by the circumstances under which the Congo Free State
attained its neutralisation. Article 10 of the General Act of the Congo
Conference of Berlin stipulates that the signatory Powers shall respect
the neutrality of any territory within the Congo district, provided the
Power then or hereafter in possession of the territory proclaims its
neutrality. Accordingly, when the Congo Free State was recognised by the
Congress of Berlin, the King of the Belgians, as the sovereign of the
Congo State, declared[167] it permanently neutral, and this declaration
was notified to and recognised by the Powers. Since the Congo Conference
did not guarantee the neutrality of the territories within the Congo
district, the neutralisation of the Congo Free State was not guaranteed
either. In 1908[168] the Congo Free State merged by cession into
Belgium.
[Footnote 165: Moynier, "La fondation de l'État indépendant du Congo"
(1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur
l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III.
(1909), pp. 99-118.]
[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd
Ser. X. p. 353.]
[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.]
[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and
Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is
doubtful, whether the guarantee of the neutrality of Belgium extends now
to territory of the former Congo Free State _ipso facto_ by its merger
into Belgium.]
IX
NON-CHRISTIAN STATES
Westlake, I. p. 40--Phillimore, I. §§ 27-33--Bluntschli, §§
1-16--Heffter, § 7--Gareis, § 10--Rivier, I. pp. 13-18--Bonfils,
No. 40--Martens, § 41--Nys, I. pp. 122-125--Westlake, Chapters,
pp. 114-143.
[Sidenote: No essential difference between Christian and other States.]
§ 102. It will be remembered from the previous discussion of the
dominion[169] of the Law of Nations that this dominion extends beyond
the Christian and includes now the Mahometan State of Turkey and the
Buddhistic State of Japan. As all full-Sovereign International Persons
are equal to one another, no essential difference exists within the
Family of Nations between Christian and non-Christian States. That
foreigners residing in Turkey are still under the exclusive jurisdiction
of their consuls, is an anomaly based on a restriction on territorial
supremacy arising partly from custom and partly from treaties. If Turkey
could ever succeed, as Japan did, in introducing such reforms as would
create confidence in the impartiality of her Courts of Justice, this
restriction would certainly be abolished.
[Footnote 169: See above, § 28.]
[Sidenote: International position of non-Christian States except Turkey
and Japan.]
§ 103. Doubtful is the position of all non-Christian States except
Turkey and Japan, such as China, Morocco, Siam, Persia, and further
Abyssinia, although the latter is a Christian State, and although China,
Persia, and Siam took part in the Hague Peace Conferences of 1899 and
1907. Their civilisation is essentially so different from that of the
Christian States that international intercourse with them of the same
kind as between Christian States has been hitherto impossible. And
neither their governments nor their populations are at present able to
fully understand the Law of Nations and to take up an attitude which is
in conformity with all the rules of this law. There should be no doubt
that these States are not International Persons of the same kind and the
same position within the Family of Nations as Christian States. But it
is equally wrong to maintain that they are absolutely outside the Family
of Nations, and are for no part International Persons. Since they send
and receive diplomatic envoys and conclude international treaties, the
opinion is justified that such States are International Persons only in
some respects--namely, those in which they have expressly or tacitly
been received into the Family of Nations. When Christian States begin
such intercourse with these non-Christian States as to send diplomatic
envoys to them and receive their diplomatic envoys, and when they enter
into treaty obligations with them, they indirectly declare that they are
ready to recognise them for these parts as International Persons and
subjects of the Law of Nations. But for other parts such non-Christian
States remain as yet outside the circle of the Family of Nations,
especially with regard to war, and they are for those parts treated by
the Christian Powers according to discretion. This condition of things
will, however, not last very long. It may be expected that with the
progress of civilisation these States will become sooner or later
International Persons in the full sense of the term. They are at present
in a state of transition, and some of them are the subjects of
international arrangements of great political importance. Thus by the
Treaty of London of December 13, 1906, Great Britain, France, and Italy
agree to co-operate in maintaining the independence and integrity of
Abyssinia,[170] and the General Act of the Conference of Algeciras of
April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary,
Belgium, Spain, the United States of America, France, Italy, Holland,
Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress
anarchy in Morocco and to introduce reforms in its internal
administration. This Act,[172] which recognises, on the one hand, the
independence and integrity of Morocco, and, on the other, equal
commercial facilities in that country for all nations, contains:--(1) A
Declaration concerning the organisation of the Moroccan police; (2)
Regulations concerning the detection and suppression of the illicit
trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A
Declaration concerning an improved yield of the taxes and the creation
of new sources of revenue; (5) Regulations respecting customs and the
suppression of fraud and smuggling; (6) A Declaration concerning the
public services and public works.
[Footnote 170: See Martens, N.R.G. 2nd Ser. XXXV. p. 556.]
[Footnote 171: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.]
[Footnote 172: It has been mentioned above, p. 76, that the Moroccan
question has been reopened, and that fresh negotiations are taking place
for its settlement.]
X
THE HOLY SEE
Hall, § 98--Westlake, I. pp. 37-39--Phillimore, I. §§
278-440--Twiss, I. §§ 206-207--Taylor, §§ 277, 278, 282--Wharton,
I. § 70, p. 546--Moore, I. § 18--Bluntschli, § 172--Heffter, §§
40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, §
13--Liszt, § 5--Ullmann, § 28--Bonfils, Nos. 370-396--Despagnet,
Nos. 147-164--Mérignhac, II. pp. 119-153--Nys, II. pp.
297-324--Rivier, I. § 8--Fiore, I. Nos. 520, 521--Martens, I. §
84--Fiore, "Della condizione giuridica internazionale della chiesa
e del Papa" (1887)--Bombard, "Le Pape et le droit des gens"
(1888)--Imbart-Latour, "La papauté en droit international"
(1893)--Olivart, "Le Pape, les états de l'église et l'Italie"
(1897)--Chrétien in R.G. VI. (1899) pp. 281-291--Bompart in R.G.
VII. (1900), pp. 369-387--Higgins in _The Journal of the Society
for Comparative Legislation_, New Series, IX. (1907), pp. 252-264.
[Sidenote: The former Papal States.]
§ 104. When the Law of Nations began to grow up among the States of
Christendom, the Pope was the monarch of one of those States--namely,
the so-called Papal States. This State owed its existence to
Pepin-le-Bref and his son Charlemagne, who established it in gratitude
to the Popes Stephen III. and Adrian I., who crowned them as Kings of
the Franks. It remained in the hands of the Popes till 1798, when it
became a republic for about three years. In 1801 the former order of
things was re-established, but in 1809 it became a part of the
Napoleonic Empire. In 1814 it was re-established, and remained in
existence till 1870, when it was annexed to the Kingdom of Italy.
Throughout the existence of the Papal States, the Popes were monarchs
and, as such, equals of all other monarchs. Their position was, however,
even then anomalous, as their influence and the privileges granted to
them by the different States were due, not alone to their being monarchs
of a State, but to their being the head of the Roman Catholic Church.
But this anomaly did not create any real difficulty, since the
privileges granted to the Popes existed within the province of
precedence only.
[Sidenote: The Italian Law of Guaranty.]
§ 105. When, in 1870, Italy annexed the Papal States and made Rome her
capital, she had to undertake the task of creating a position for the
Holy See and the Pope which was consonant with the importance of the
latter to the Roman Catholic Church. It seemed impossible that the Pope
should become an ordinary Italian subject and that the Holy See should
be an institution under the territorial supremacy of Italy. For many
reasons no alteration was desirable in the administration by the Holy
See of the affairs of the Roman Catholic Church or in the position of
the Pope as the inviolable head of that Church. To meet the case the
Italian Parliament passed an Act regarding the guaranties granted to the
Pope and the Holy See, which is commonly called the "Law of Guaranty."
According to this the position of the Pope and the Holy See is in Italy
as follows:--
The person of the Pope is sacred and inviolable (article 1), although he
is subjected to the Civil Courts of Italy.[173] An offence against his
person is to be punished in the same way as an offence against the King
of Italy (article 2). He enjoys all the honours of a sovereign, retains
the privileges of precedence conceded to him by Roman Catholic monarchs,
has the right to keep an armed body-guard of the same strength as before
the annexation for the safety of his person and of his palaces (article
3), and receives an allowance of 3,225,000 francs (article 4). The
Vatican, the seat of the Holy See, and the palaces where a conclave for
the election of a new Pope or where an Oecumenical Council meets, are
inviolable, and no Italian official is allowed to enter them without
consent of the Holy See (articles 5-8). The Pope is absolutely free in
performing all the functions connected with his mission as head of the
Roman Catholic Church, and so are his officials (articles 9 and 10).
The Pope has the right to send and to receive envoys, who enjoy all the
privileges of the diplomatic envoys sent and received by Italy (article
11). The freedom of communication between the Pope and the entire Roman
Catholic world is recognised, and the Pope has therefore the right to a
post and telegraph office of his own in the Vatican or any other place
of residence and to appoint his own post-office clerks (article 12).
And, lastly, the colleges and other institutions of the Pope for the
education of priests in Rome and the environments remain under his
exclusive supervision, without any interference on the part of the
Italian authorities.
[Footnote 173: See Bonfils, No. 379.]
No Pope has as yet recognised this Italian Law of Guaranty, nor had
foreign States an opportunity of giving their express consent to the
position of the Pope in Italy created by that law. But practically
foreign States as well as the Popes themselves, although the latter have
never ceased to protest against the condition of things created by the
annexation of the Papal States, have made use of the provisions[174] of
that law. Several foreign States send side by side with their diplomatic
envoys accredited to Italy special envoys to the Pope, and the latter
sends envoys to several foreign States.
[Footnote 174: But the Popes have hitherto never accepted the allowance
provided by the Law of Guaranty.]
[Sidenote: International position of the Holy See and the Pope.]
§ 106. The Law of Guaranty is not International but Italian Municipal
Law, and the members of the Family of Nations have hitherto not made any
special arrangements with regard to the International position of the
Holy See and the Pope. And, further, there can be no doubt that since
the extinction of the Papal States the Pope is no longer a monarch whose
sovereignty is derived from his position as the head of a State. For
these reasons many writers[175] maintain that the Holy See and the Pope
have no longer any international position whatever according to the Law
of Nations, since States only and exclusively are International Persons.
But if the facts of international life and the actual condition of
things in every-day practice are taken into consideration, this opinion
has no basis to stand upon. Although the Holy See is not a State, the
envoys sent by her to foreign States are treated by the latter on the
same footing with diplomatic envoys as regards exterritoriality,
inviolability, and ceremonial privileges, and those foreign States which
send envoys to the Holy See claim for them from Italy all the privileges
and the position of diplomatic envoys. Further, although the Pope is no
longer the head of a State, the privileges due to the head of a
monarchical State are still granted to him by foreign States. Of course,
through this treatment the Holy See does not acquire the character of an
International Person, nor does the Pope thereby acquire the character of
a head of a monarchical State. But for some points the Holy See is
actually treated as though she were an International Person, and the
Pope is treated actually in every point as though he were the head of a
monarchical State. It must therefore be maintained that by custom, by
tacit consent of the members of the Family of Nations, the Holy See has
a _quasi_ international position. This position allows her to claim
against all the States treatment on some points as though she were an
International Person, and further to claim treatment of the Pope in
every point as though he were the head of a monarchical State. But it
must be emphasised that, although the envoys sent and received by the
Holy See must be treated as diplomatic envoys,[176] they are not such in
fact, for they are not agents for international affairs of States, but
exclusively agents for the affairs of the Roman Catholic Church. And it
must further be emphasised that the Holy See cannot conclude
international treaties or claim a vote at international congresses and
conferences. The so-called Concordats--that is, treaties between the
Holy See and States with regard to matters of the Roman Catholic
Church--are not international treaties, although analogous treatment is
usually given to them. Even formerly, when the Pope was the head of a
State, such Concordats were not concluded with the Papal States, but
with the Holy See and the Pope as representatives of the Roman Catholic
Church.
[Footnote 175: Westlake, I. p. 38, now joins the ranks of these
writers.]
[Footnote 176: The case of Montagnini, which occurred in December 1906,
cannot be quoted against this assertion, for Montagnini was not at the
time a person enjoying diplomatic privileges. Diplomatic relations
between France and the Holy See had come to an end in 1905 by France
recalling her envoy at the Vatican and at the same time sending the
passports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who
remained at the nunciature in Paris, did not possess any diplomatic
character after the departure of the Nuncio. Neither his arrest and his
expulsion in December 1906, nor the seizure of his papers at the
nunciature amounted therefore to an international delinquency on the
part of the French Government. The papers left by the former Papal
Nuncio Lorenzelli were not touched and remained in the archives of the
former nunciature until the Austrian ambassador in Paris, in February
1907, asked the French Foreign Office to transfer them to him for the
purpose of handing them on to the Holy See. It must be specially
mentioned that the seizure of his papers and the arrest and expulsion of
Montagnini took place because he conspired against the French Government
by encouraging the clergy to refuse obedience to French laws. And it
must further be mentioned that Lorenzelli, when he left the nunciature,
did not, contrary to all precedent, place the archives of the nunciature
under seals and confide them to the protection of another diplomatic
envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX.
(1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.]
[Sidenote: Violation of the Holy See and the Pope.]
§ 107. Since the Holy See has no power whatever to protect herself and
the person of the Pope against violations, the question as to the
protection of the Holy See and the person of the Pope arises. I believe
that, since the present international position of the Holy See rests on
the tacit consent of the members of the Family of Nations, many a Roman
Catholic Power would raise its voice in case Italy or any other State
should violate the Holy See or the person of the Pope, and an
intervention for the purpose of protecting either of them would have the
character of an intervention by right. Italy herself would certainly
make such a violation by a foreign Power her own affair, although she
has no more than any other Power the legal duty to do so, and although
she is not responsible to other Powers for violations of the Personality
of the latter by the Holy See and the Pope.
XI
INTERNATIONAL PERSONS OF THE PRESENT DAY
[Sidenote: European States.]
§ 108. All the seventy-four European States are, of course, members of
the Family of Nations. They are the following:
Great Powers are:
Austria-Hungary.
France.
Germany.
Great Britain.
Italy.
Russia.
Smaller States are:
Bulgaria.
Denmark.
Greece.
Holland.
Montenegro.
Norway.
Portugal.
Roumania.
Servia.
Spain.
Sweden.
Turkey.
Very small, but nevertheless full-Sovereign, States are:
Monaco and Lichtenstein.
Neutralised States are:
Switzerland, Belgium, and Luxemburg.
Half-Sovereign States are:
Andorra (under the protectorate of France and Spain).
San Marino (under the protectorate of Italy).
Crete (under the suzerainty of Turkey).
Part-Sovereign States are:
(_a_) Member-States of Germany:
Kingdoms: Prussia, Bavaria, Saxony, Würtemberg.
Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin,
Mecklenburg-Strelitz, Oldenburg.
Dukedoms: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha,
Saxe-Meiningen, Saxe-Weimar.
Principalities: Reuss Elder Line, Reuss Younger Line, Lippe,
Schaumburg-Lippe, Schwarzburg-Rudolstadt,
Schwarzburg-Sondershausen Waldeck.
Free Towns are: Bremen, Lübeck, Hamburg.
(_b_) Member-States of Switzerland:
Zurich, Berne, Lucerne, Uri, Schwyz, Unterwalden (ob und nid dem
Wald), Glarus, Zug, Fribourg, Soleure, Basle (Stadt und
Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall,
Grisons, Aargau, Thurgau, Tessin, Vaud, Valais, Neuchâtel, Geneva.
[Sidenote: American States.]
§ 109. In America there are twenty-one States which are members of the
Family of Nations, but it must be emphasised that the member-States of
the five Federal States on the American continent, although they are
part-Sovereign, have no footing within the Family of Nations, because
the American Federal States, in contradistinction to Switzerland and
Germany, absorb all possible international relations of their
member-States.
In North America there are:
The United States of America.
The United States of Mexico.
In Central America there are:
Costa Rica.
Cuba.
San Domingo.
Guatemala.
Hayti.
Honduras.
Nicaragua.
Panama (since 1903).
San Salvador.
In South America there are:
The United States of Argentina.
Bolivia.
The United States of Brazil.
Chili.
Colombia.
Ecuador.
Paraguay.
Peru.
Uruguay.
The United States of Venezuela.
[Sidenote: African States.]
§ 110. In Africa the Negro Republic of Liberia is the only real and full
member of the Family of Nations. Egypt and Tunis are half-Sovereign, the
one under Turkish suzerainty, the other under French protectorate.
Morocco and Abyssinia are both full-Sovereign States, but for some parts
only within the Family of Nations. The Soudan has an exceptional
position; being under the _condominium_ of Great Britain and Egypt, a
footing of its own within the Family of Nations the Soudan certainly has
not.
[Sidenote: Asiatic States.]
§ 111. In Asia only Japan is a full and real member of the Family of
Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts
only within that family.
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).
[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.]
(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.
[Footnote 218: See below, § 319.]
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.
[Footnote 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.]
[Footnote 220: See Scott in A.J. II. (1908), pp. 78-94.]
[Sidenote: 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.
[Footnote 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.]
[Sidenote: 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]
[Footnote 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.]
[Sidenote: 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.
[Sidenote: 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.
[Footnote 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 XIXe 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.
[Footnote 224: See Moore, VI. § 957.]
[Sidenote: 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.
[Sidenote: 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.
[Footnote 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.]
[Sidenote: 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.
[Footnote 226: See below, § 360.]
[Footnote 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.]
[Footnote 228: See below, § 259.]
[Footnote 229: See below, § 188.]
[Footnote 230: See below, § 178.]
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.
[Sidenote: 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.
[Sidenote: 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.
[Footnote 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.]
[Footnote 232: Details below, §§ 385-405.]
[Footnote 233: Details below, §§ 450-451.]
[Footnote 234: Details below, § 445.]
[Footnote 235: Details below, §§ 318 and 440.]
[Sidenote: 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.
[Footnote 236: See below, § 317.]
[Sidenote: 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.
[Footnote 237: See below, § 260.]
[Footnote 238: See below, § 278.]
[Footnote 239: See below, § 265.]
[Footnote 240: See below, §§ 265-266.]
[Sidenote: 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.
[Footnote 241: See Hall, § 62; Westlake, I. pp. 251-253; Lawrence, §
104; Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.]
[Footnote 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.]
[Footnote 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.]
[Footnote 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.]
CHAPTER III
RESPONSIBILITY OF STATES
I
ON STATE RESPONSIBILITY IN GENERAL
Grotius, II. c. 21, § 2--Pufendorf, VIII. c. 6, § 12--Vattel, II.
§§ 63-78--Hall, § 65--Halleck, I. pp. 440-444--Wharton, I. §
21--Moore, VI. §§ 979-1039--Wheaton, § 32--Bluntschli, §
74--Heffter, §§ 101-104--Holtzendorff in Holtzendorff, II. pp.
70-74--Liszt, § 24--Ullmann, § 39--Bonfils, Nos.
324-332--Despagnet, No. 466--Piedelièvre, I. pp.
317-322--Pradier-Fodéré, I. Nos. 196-210--Rivier, I. pp.
40-44--Calvo, III. §§ 1261-1298--Fiore, I. Nos. 659-679, and Code,
Nos. 591-610--Martens, I. § 118--Clunet, "Offenses et actes
hostiles commis par particuliers contre un état étranger"
(1887)--Triepel, "Völkerrecht und Landesrecht" (1899), pp.
324-381--Anzillotti, "Teoria generale della responsabilità dello
stato nel diritto internazionale" (1902)--Wiese, "Le droit
international appliqué aux guerres civiles" (1898), pp.
43-65--Rougier, "Les guerres civiles et le droit des gens" (1903),
pp. 448-474--Baty, "International Law" (1908), pp.
91-242--Anzillotti in R.G. XIII. (1906), pp. 5-29 and
285-309--Foster in A.J. I. (1907), pp. 5-10--Bar in R.I. 2nd Ser.
I. (1899), pp. 464-481.
[Sidenote: Nature of State Responsibility.]
§ 148. It is often maintained that a State, as a sovereign person, can
have no legal responsibility whatever. This is only correct with
reference to certain acts of a State towards its subjects. Since a State
can abolish parts of its Municipal Law and can make new Municipal Law,
it can always avoid legal, although not moral, responsibility by a
change of Municipal Law. Different from this internal autocracy is the
external responsibility of a State to fulfil its international legal
duties. Responsibility for such duties is, as will be remembered,[245] a
quality of every State as an International Person, without which the
Family of Nations could not peaceably exist. Although there is no
International Court of Justice which could establish such
responsibility and pronounce a fine or other punishment against a State
for neglect of its international duties, State responsibility concerning
international duties is nevertheless a _legal_ responsibility. For a
State cannot abolish or create new International Law in the same way as
it can abolish or create new Municipal Law. A State, therefore, cannot
renounce its international duties unilaterally[246] at discretion, but
is and remains legally bound by them. And although there is not and
never will be a central authority above the single States to enforce the
fulfilment of these duties, there is the legalised self-help of the
single States against one another. For every neglect of an international
legal duty constitutes an international delinquency,[247] and the
violated State can through reprisals or even war compel the delinquent
State to comply with its international duties. It is only theorists who
deny the possibility of a legal responsibility of States, the practice
of the States themselves recognises it distinctly, although there may in
a special case be controversy as to whether a responsibility is to be
borne. And State responsibility is now in a general way recognised for
the time of war by article 3 of the Hague Convention of 1907, concerning
the Laws and Customs of War on Land, which stipulates: "A belligerent
party which violates the provisions of the said Regulations shall, if
the case demands, be liable to make compensation. It shall be
responsible for all acts committed by persons forming part of its armed
forces."
[Footnote 245: See above, § 113.]
[Footnote 246: See Annex to Protocol I. of Conference of London, 1871,
where the Signatory Powers proclaim that "it is an essential principle
of the Law of Nations that no Power can liberate itself from the
engagements of a treaty, or modify the stipulations thereof, unless with
the consent of the contracting Powers by means of an amicable
arrangement."]
[Footnote 247: See below, § 151.]
[Sidenote: Original and Vicarious State Responsibility.]
§ 149. Now if we examine the various international duties out of which
responsibility of a State may rise, we find that there is a necessity
for two different kinds of State responsibility to be distinguished.
They may be named "original" in contradistinction to "vicarious"
responsibility. I name as "original" the responsibility borne by a State
for its own--that is, its Government's actions, and for such actions of
the lower agents or private individuals as are performed at the
Government's command or with its authorisation. But States have to bear
another responsibility besides that just mentioned. For States are,
according to the Law of Nations, in a sense responsible for certain acts
other than their own--namely, certain unauthorised injurious acts of
their agents, of their subjects, and even of such aliens as are for the
time living within their territory. This responsibility of States for
acts other than their own I name "vicarious" responsibility. Since the
Law of Nations is a law between States only, and since States are the
sole exclusive subjects of International Law, individuals are mere
objects[248] of International Law, and the latter is unable to confer
directly rights and duties upon individuals. And for this reason the Law
of Nations must make every State in a sense responsible for certain
internationally injurious acts committed by its officials, subjects, and
such aliens as are temporarily resident on its territory.[249]
[Footnote 248: See below, § 290.]
[Footnote 249: The distinction between original and vicarious
responsibility was first made, in 1905, in the first edition of this
treatise and ought therefore to have been discussed by Anzillotti in his
able article in R.G. XIII. (1906), p. 292. The fact that he does not
appreciate this distinction is prejudicial to the results of his
researches concerning the responsibility of States.]
[Sidenote: Essential Difference between Original and Vicarious
Responsibility.]
§ 150. It is, however, obvious that original and vicarious State
responsibility are essentially different. Whereas the one is
responsibility of a State for a neglect of its own duty, the other is
not. A neglect of international legal duties by a State constitutes an
international delinquency. The responsibility which a State bears for
such delinquency is especially grave, and requires, apart from other
especial consequences, a formal expiatory act, such as an apology at
least, by the delinquent State to repair the wrong done. On the other
hand, the vicarious responsibility which a State bears requires chiefly
compulsion to make those officials or other individuals who have
committed internationally injurious acts repair as far as possible the
wrong done, and punishment, if necessary, of the wrongdoers. In case a
State complies with these requirements, no blame falls upon it on
account of such injurious acts. But of course, in case a State refuses
to comply with these requirements, it commits thereby an international
delinquency, and its hitherto vicarious responsibility turns _ipso
facto_ into original responsibility.
II
STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES
See the literature quoted above at the commencement of § 148.
[Sidenote: Conception of International Delinquencies.]
§ 151. International delinquency is every injury to another State
committed by the head and the Government of a State through violation of
an international legal duty. Equivalent to acts of the head and
Government are acts of officials or other individuals commanded or
authorised by the head or Government.
An international delinquency is not a crime, because the delinquent
State, as a Sovereign, cannot be punished, although compulsion may be
exercised to procure a reparation of the wrong done.
International delinquencies in the technical sense of the term must not
be confounded either with so-called "Crimes against the Law of Nations"
or with so-called "International Crimes." "Crimes against the Law of
Nations" in the wording of many Criminal Codes of the single States are
such acts of individuals against foreign States as are rendered criminal
by these Codes. Of these acts, the gravest are those for which the State
on whose territory they are committed bears a vicarious responsibility
according to the Law of Nations. "International Crimes," on the other
hand, refer to crimes like piracy on the high seas or slave trade, which
either every State can punish on seizure of the criminals, of whatever
nationality they may be, or which every State has by the Law of Nations
a duty to prevent.
An international delinquency must, further, not be confounded with
discourteous and unfriendly acts. Although such acts may be met by
retorsion, they are not illegal and therefore not delinquent acts.
[Sidenote: Subjects of International Delinquencies.]
§ 152. An international delinquency may be committed by every member of
the Family of Nations, be such member a full-Sovereign, half-Sovereign,
or part-Sovereign State. Yet, half- and part-Sovereign States can commit
international delinquencies in so far only as they have a footing within
the Family of Nations, and therefore international duties of their own.
And even then the circumstances of each case decide whether the
delinquent has to account for its neglect of an international duty
directly to the wronged State, or whether it is the full-Sovereign State
(suzerain, federal, or protectorate-exercising State) to which the
delinquent State is attached that must bear a vicarious responsibility
for the delinquency. On the other hand, so-called Colonial States
without any footing whatever within the Family of Nations and, further,
the member-States of the American Federal States, which likewise lack
any footing whatever within the Family of Nations because all their
possible international relations are absorbed by the respective Federal
States, cannot commit an international delinquency. Thus an injurious
act against France committed by the Government of the Commonwealth of
Australia or by the Government of the State of California in the United
States of America, would not be an international delinquency in the
technical sense of the term, but merely an internationally injurious act
for which Great Britain or the United States of America must bear a
vicarious responsibility. An instance of this is to be found in the
conflict[250] which arose in 1906 between Japan and the United States of
America on account of the segregation of Japanese children by the Board
of Education of San Francisco and the demand of Japan that this measure
should be withdrawn. The Government of the United States at once took
the side of Japan, and endeavoured to induce California to comply with
the Japanese demands.
[Footnote 250: See Hyde in "The Green Bag," XIX. (1907), pp. 38-49; Root
in A.J. I. (1907), pp. 273-286; Barthélemy in R.G. XIV. (1907), pp.
636-685.]
[Sidenote: State Organs able to commit International Delinquencies.]
§ 153. Since States are juristic persons, the question arises, Whose
internationally injurious acts are to be considered State acts and
therefore international delinquencies? It is obvious that acts of this
kind are, first, all such acts as are performed by the heads of States
or by the members of Government acting in that capacity, so that their
acts appear as State acts. Acts of such kind are, secondly, all acts of
officials or other individuals which are either commanded or authorised
by Governments. On the other hand, unauthorised acts of corporations,
such as Municipalities, or of officials, such as magistrates or even
ambassadors, or of private individuals, never constitute an
international delinquency. And, further, all acts committed by heads of
States and members of Government outside their official capacity, simply
as individuals who act for themselves and not for the State, are not
international delinquencies either.[251] The States concerned must
certainly bear a vicarious responsibility for all such acts, but for
that very reason these acts do not comprise international delinquencies.
[Footnote 251: See below §§ 157-158.]
[Sidenote: No International Delinquency without Malice or culpable
Negligence.]
§ 154. An act of a State injurious to another State is nevertheless not
an international delinquency if committed neither wilfully and
maliciously nor with culpable negligence. Therefore, an act of a State
committed by right or prompted by self-preservation in necessary
self-defence does not contain an international delinquency, however
injurious it may actually be to another State. And the same is valid in
regard to acts of officials or other individuals committed by command or
with the authorisation of a Government.
[Sidenote: Objects of International Delinquencies.]
§ 155. International delinquencies may be committed against so many
different objects that it is impossible to enumerate them. It suffices
to give some striking examples. Thus a State may be injured--in regard
to its independence through an unjustified intervention; in regard to
its territorial supremacy through a violation of its frontier; in regard
to its dignity through disrespectful treatment of its head or its
diplomatic envoys; in regard to its personal supremacy through forcible
naturalisation of its citizens abroad; in regard to its treaty rights
through an act violating a treaty; in regard to its right of protection
over citizens abroad through any act that violates the body, the honour,
or the property[252] of one of its citizens abroad. A State may also
suffer various injuries in time of war by illegitimate acts of warfare,
or by a violation of neutrality on the part of a neutral State in favour
of the other belligerent. And a neutral may in time of war be injured in
various ways through a belligerent violating neutrality by acts of
warfare within the neutral State's territory; for instance, through a
belligerent man-of-war attacking an enemy vessel in a neutral port or in
neutral territorial waters, or through a belligerent violating
neutrality by acts of warfare committed on the Open Sea against neutral
vessels.
[Footnote 252: That a State which does not pay its public debts due to
foreigners and refuses, on the demand of the home State of the
foreigners concerned, to make satisfactory arrangements commits
international delinquency there is no doubt. On the so-called Drago
doctrine and the Hague Convention concerning the Employment of Force for
the Recovery of Contract Debts, see above, § 135, No. 6.]
[Sidenote: Legal consequences of International Delinquencies.]
§ 156. The nature of the Law of Nations as a law between, not above,
Sovereign States excludes the possibility of punishing a State for an
international delinquency and of considering the latter in the light of
a crime. The only legal consequences of an international delinquency
that are possible under existing circumstances are such as create a
reparation of the moral and material wrong done. The merits and the
conditions of the special cases are, however, so different that it is
impossible for the Law of Nations to prescribe once for all what legal
consequences an international delinquency should have. The only rule
which is unanimously recognised by theory and practice is that out of an
international delinquency arises a right for the wronged State to
request from the delinquent State the performance of such expiatory acts
as are necessary for a reparation of the wrong done. What kind of acts
these are depends upon the special case and the discretion of the
wronged State. It is obvious that there must be a pecuniary reparation
for a material damage. Thus, according to article 3 of the Hague
Convention of 1907, concerning the Laws and Customs of War on Land, a
belligerent party which violates these laws shall, if the case demands,
be liable to make compensation. But at least a formal apology on the
part of the delinquent will in every case be necessary. This apology may
have to take the form of some ceremonial act, such as a salute to the
flag or to the coat of arms of the wronged State, the mission of a
special embassy bearing apologies, and the like. A great difference
would naturally be made between acts of reparation for international
delinquencies deliberately and maliciously committed, on the one hand,
and, on the other, for such as arise merely from culpable negligence.
When the delinquent State refuses reparation of the wrong done, the
wronged State can exercise such means as are necessary to enforce an
adequate reparation. In case of international delinquencies committed in
time of peace, such means are reprisals[253] (including embargo and
pacific blockade) and war as the case may require. On the other hand, in
case of international delinquencies committed in time of war through
illegitimate acts of warfare on the part of a belligerent, such means
are reprisals and the taking of hostages.[254]
[Footnote 253: See below, vol. II. § 34.]
[Footnote 254: See below, vol. II. §§ 248 and 259.]
III
STATE RESPONSIBILITY FOR ACTS OF STATE ORGANS
See the literature quoted above at the commencement of § 148, and
especially Moore, VI. §§ 998-1018.
[Sidenote: Responsibility varies with Organs concerned.]
§ 157. States must bear vicarious responsibility for all internationally
injurious acts of their organs. As, however, these organs are of
different kinds and of different position, the actual responsibility of
a State for acts of its organs varies with the agents concerned. It is
therefore necessary to distinguish between internationally injurious
acts of heads of States, members of Government, diplomatic envoys,
parliaments, judicial functionaries, administrative officials, and
military and naval forces.
[Sidenote: Internationally injurious Acts of Heads of States.]
§ 158. Such international injurious acts as are committed by heads of
States in the exercise of their official functions are not our concern
here, because they constitute international delinquencies which have
been discussed above (§§ 151-156). But a monarch can, just as any other
individual, in his private life commit many internationally injurious
acts, and the question is, whether and in what degree a State must bear
responsibility for such acts of its head. The position of a head of a
State, who is within and without his State neither under the
jurisdiction of a Court of Justice nor under any kind of disciplinary
control, makes it a necessity for the Law of Nations to claim a certain
vicarious responsibility from States for internationally injurious acts
committed by their heads in private life. Thus, for instance, when a
monarch during his stay abroad commits an act injurious to the property
of a foreign subject and refuses adequate reparation, his State may be
requested to pay damages on his behalf.
[Sidenote: Internationally injurious Acts of Members of Government.]
§ 159. As regards internationally injurious acts of members of a
Government, a distinction must be made between such acts as are
committed by the offenders in their official capacity, and other acts.
Acts of the first kind constitute international delinquencies, as stated
above (§ 153). But members of a Government can in their private life
perform as many internationally injurious acts as private individuals,
and we must ascertain therefore what kind of responsibility their State
must bear for such acts. Now, as members of a Government have not the
exceptional position of heads of States, and are, therefore, under the
jurisdiction of the ordinary Courts of Justice, there is no reason why
their State should bear for internationally injurious acts committed by
them in their private life a vicarious responsibility different from
that which it has to bear for acts of private persons.
[Sidenote: Internationally injurious Acts of Diplomatic Envoys.]
§ 160. The position of diplomatic envoys who, as representatives of
their home State, enjoy the privileges of exterritoriality, gives, on
the one hand, a very great importance to internationally injurious acts
committed by them on the territory of the receiving State, and, on the
other hand, excludes the jurisdiction of the receiving State over such
acts. The Law of Nations therefore makes the home State in a sense
responsible for all acts of an envoy injurious to the State or its
subjects in whose territory he resides. But it depends upon the merits
of the special case what measures beyond simple recall must be taken to
satisfy the wronged State. Thus, for instance, a crime committed by the
envoy on the territory of the receiving State must be punished by his
home State, and according to special circumstances and conditions the
home State may be obliged to disown an act of its envoy, to apologise or
express its regret for his behaviour, or to pay damages. It must,
however, be remembered that such injurious acts as an envoy performs at
the command or with the authorisation of the home State, constitute
international delinquencies for which the home State bears original
responsibility and for which the envoy cannot personally be blamed.
[Sidenote: Internationally injurious Attitudes of Parliaments.]
§ 161. As regards internationally injurious attitudes of parliaments, it
must be kept in mind that, most important as may be the part parliaments
play in the political life of a nation, they do not belong to the agents
which represent the States in their international relations with other
States. Therefore, however injurious to a foreign State an attitude of a
parliament may be, it can never constitute an international delinquency.
That, on the other hand, all States must bear vicarious responsibility
for such attitudes of their parliaments, there can be no doubt. But,
although the position of a Government is difficult in such cases,
especially in States that have a representative Government, this does
not concern the wronged State, which has a right to demand satisfaction
and reparation for the wrong done.
[Sidenote: Internationally injurious Acts of Judicial Functionaries.]
§ 162. Internationally injurious acts committed by judicial
functionaries in their private life are in no way different from such
acts committed by other individuals. But these functionaries may in
their official capacity commit such acts, and the question is how far a
State's vicarious responsibility for acts of its judicial functionaries
can reasonably be extended in face of the fact that in modern civilised
States these functionaries are to a great extent independent of their
Government.[255] Undoubtedly, in case of such denial or undue delay of
justice by the Courts as is internationally injurious, a State must find
means to exercise compulsion against such Courts. And the same is valid
with regard to an obvious and malicious act of misapplication of the law
by the Courts which is injurious to another State. But if a Court
observes its own proper forms of justice and nevertheless makes a
materially unjust order or pronounces a materially unjust judgment,
matters become so complicated that there is hardly a peaceable way in
which the injured State can successfully obtain reparation for the wrong
done, unless the other party consents to bring the case before a Court
of Arbitration.
[Footnote 255: Wharton, II. § 230, comprises abundant and instructive
material on this question.]
An illustrative case is that of the _Costa Rica Packet_,[256] which
happened in 1891. Carpenter, the master of this Australian whaling-ship,
was, by order of a Court of Justice, arrested on November 2, 1891, in
the port of Ternate, in the Dutch East Indies, for having committed
three years previously a theft on the sea within Dutch territorial
waters. He was, however, released on November 28, because the Court
found that the alleged crime was not committed within Dutch territorial
waters, but on the High Seas. Great Britain demanded damages for the
arrest of the master of the _Costa Rica Packet_, but Holland maintained
that, since the judicial authorities concerned had ordered the arrest
of Carpenter in strict conformity with the Dutch laws, the British claim
was unjustified. After some correspondence, extending over several
years, Great Britain and Holland agreed, in 1895, upon having the
conflict settled by arbitration and upon appointing the late Professor
de Martens of St. Petersburg as arbitrator. The award, given in 1899,
was in favour of Great Britain, and Holland was condemned to pay damages
to the master, the proprietors, and the crew of the _Costa Rica
Packet_.[257]
[Footnote 256: See Bles in R.I. XXVIII. (1896), pp. 452-468;
Regelsperger in R.G. IV. (1897), pp. 735-745; Valery in R.G. V. (1898),
pp. 57-66; Moore, I. § 148. See also Ullmann, "De la responsabilité de
l'état en matière judiciaire" (1911).]
[Footnote 257: The whole correspondence on the subject and the award are
printed in Martens, N.R.G. 2nd Ser. XXIII. (1898), pp. 48, 715, and
808.]
[Sidenote: Internationally injurious Acts of administrative Officials
and Military and Naval Forces.]
§ 163. Internationally injurious acts committed in the exercise of their
official functions by administrative officials and military and naval
forces of a State without that State's command or authorisation, are not
international delinquencies because they are not State acts. But a State
bears a wide, unlimited, and unrestricted vicarious responsibility for
such acts because its administrative officials and military and naval
forces are under its disciplinary control, and because all acts of such
officials and forces in the exercise of their official functions are
_prima facie_ acts of the respective State.[258] Therefore, a State has,
first of all, to disown and disapprove of such acts by expressing its
regret or even apologising to the Government of the injured State;
secondly, damages must be paid where required; and, lastly, the
offenders must be punished according to the merits of the special case.
[Footnote 258: It is of importance to quote again here art. 3 of the
Hague Convention of 1907, concerning the Laws and Customs of War on
Land, which stipulates that a State is responsible for all acts
committed by its armed forces.]
As regards the question what kind of acts of administrative officials
and military and naval forces are of an internationally injurious
character, the rule may safely be laid down that such acts of these
subjects are internationally injurious as would constitute
international delinquencies when committed by the State itself or with
its authorisation. Three very instructive cases may be quoted as
illustrative examples:
(1) On September 26, 1887, a German soldier on sentry duty at the
frontier near Vexaincourt shot from the German side and killed an
individual who was on French territory. As this act of the sentry
violated French territorial supremacy, Germany disowned and apologised
for it and paid a sum of 50,000 francs to the widow of the deceased as
damages. The sentry, however, escaped punishment because he proved that
he had acted in obedience to orders which he had misunderstood.
(2) On November 26, 1906, Hasmann, a member of the crew of the German
gunboat _Panther_,[259] at that time in the port of Itajahi in Brazil,
failed to return on board his ship. The commander of the _Panther_ sent
a searching party, comprising three officers in plain clothes and a
dozen non-commissioned officers and soldiers in uniform, on shore for
the purpose of finding the whereabouts of Hasmann. This party, during
the following night, penetrated into several houses, and compelled some
of the residents to assist them in their search for the missing Hasmann,
who, however, could not be found. He voluntarily returned on board the
following morning. As this act violated Brazilian territorial supremacy,
Brazil lodged a complaint with Germany, which, after an inquiry,
disowned the act of the commander of the _Panther_, formally apologised
for it, and punished the commander of the _Panther_ by relieving him of
his command.[260]
[Footnote 259: See R.G. XIII. (1906), pp. 200-206.]
[Footnote 260: Another example occurred in 1904, when the Russian Baltic
Fleet, on its way to the Far East during the Russo-Japanese war, fired
upon the Hull Fishing Fleet off the Dogger Bank; see below, vol. II. §
5.]
(3) On July 15, 1911, while the Spanish were in occupation of Alcazar
in Morocco, M. Boisset, the French Consular Agent, who was riding back
to Alcazar from Suk el Arba with his native servants, was stopped at the
gate of the town by a Spanish sentinel. The sentinel refused to allow
him to enter unless he and his servants first delivered up their arms.
As M. Boisset refused, the sentinel barred the way with his fixed
bayonet and called out the guard. M. Boisset's horse reared, and the
sentinel thereupon covered him with his rifle. After parleying to no
purpose with the guard, to whom he explained who he was, the French
Consular Agent was conducted by an armed escort of Spanish soldiers to
the Spanish barracks. A native rabble followed upon the heels of the
procession and cried out: "The French Consular Agent is being arrested
by the Spaniards." Upon arriving at the barracks M. Boisset had an
interview with a Spanish officer, who, without in any way expressing
regret, merely observed that there had been a misunderstanding
(_equivocacione_), and allowed the French Consular Agent to go his way.
It is obvious that, as Consuls in Eastern non-Christian countries, Japan
now excepted, are exterritorial and inviolable, the arrest of M. Boisset
was a great injury to France, which lodged a complaint with Spain. As
promptly as July 19 the Spanish Government tendered a formal apology to
France, and instructed the Spanish Commander at Alcazar to tender a
formal apology to M. Boisset.
But it must be specially emphasised that a State never bears any
responsibility for losses sustained by foreign subjects through
_legitimate_ acts of administrative officials and military and naval
forces. Individuals who enter foreign territory submit themselves to the
law of the land, and their home State has no right to request that they
should be otherwise treated than as the law of the land authorises a
State to treat its own subjects.[261] Therefore, since the Law of
Nations does not prevent a State from expelling aliens, the home State
of an expelled alien cannot request the expelling State to pay damages
for the losses sustained by the expelled through his having to leave the
country. Therefore, further, a State need not make any reparation for
losses sustained by an alien through legitimate measures taken by
administrative officials and military forces in time of war,
insurrection,[262] riot, or public calamity, such as a fire, an epidemic
outbreak of dangerous disease, and the like.
[Footnote 261: Provided, however, such law does not violate essential
principles of justice. See below, § 320.]
[Footnote 262: See below, § 167.]
IV
STATE RESPONSIBILITY FOR ACTS OF PRIVATE PERSONS
See the literature quoted above at the commencement of § 148, and
especially Moore, VI. §§ 1019-1031.
[Sidenote: Vicarious in contradistinction to original State
Responsibility for Acts of Private Persons.]
§ 164. As regards State responsibility for acts of private persons, it
is first of all necessary not to confound the original with the
vicarious responsibility of States for internationally injurious acts of
private persons. International Law imposes the duty upon every State to
prevent as far as possible its own subjects, and such foreign subjects
as live within its territory, from committing injurious acts against
other States. A State which either intentionally and maliciously or
through culpable negligence does not comply with this duty commits an
international delinquency for which it has to bear original
responsibility. But it is practically impossible for a State to prevent
all injurious acts which a private person might commit against a foreign
State. It is for that reason that a State must, according to
International Law, bear vicarious responsibility for such injurious
acts of private individuals as are incapable of prevention.
[Sidenote: Vicarious responsibility for Acts of Private Persons relative
only.]
§ 165. Now, whereas the vicarious responsibility of States for official
acts of administrative officials and military and naval forces is
unlimited and unrestricted, their vicarious responsibility for acts of
private persons is only relative. For their sole duty is to procure
satisfaction and reparation for the wronged State as far as possible by
punishing the offenders and compelling them to pay damages where
required. Beyond this limit a State is not responsible for acts of
private persons; there is in especial no duty of a State itself to pay
damages for such acts if the offenders are not able to do it.
[Sidenote: Municipal Law for Offences against Foreign States.]
§ 166. It is a consequence of the vicarious responsibility of States for
acts of private persons that by the Criminal Law of every civilised
State punishment is severe for certain offences of private persons
against foreign States, such as violation of ambassadors' privileges,
libel on heads of foreign States and on foreign envoys, and other
injurious acts.[263] In every case that arises the offender must be
prosecuted and the law enforced by the Courts of Justice. And it is
further a consequence of the vicarious responsibility of States for acts
of private persons that criminal offences of private persons against
foreign subjects--such offences are indirectly offences against the
respective foreign States because the latter exercise protection over
their subjects abroad--must be punished according to the ordinary law of
the land, and that the Civil Courts of Justice of the land must be
accessible for claims of foreign subjects against individuals living
under the territorial supremacy of such land.
[Footnote 263: As regards the Criminal Law of England concerning such
acts, see Stephen's Digest, articles 96-103.]
[Sidenote: Responsibility for Acts of Insurgents and Rioters.]
§ 167. The vicarious responsibility of States for acts of insurgents and
rioters is the same as for acts of other private individuals. As soon
as peace and order are re-established, such insurgents and rioters as
have committed criminal injuries against foreign States must be punished
according to the law of the land. The point need not be mentioned at all
were it not for the fact that, in several cases of insurrection and
riots, claims have been made by foreign States against the local State
for damages for losses sustained by their subjects through acts of the
insurgents or rioters respectively, and that some writers[264] assert
that such claims are justified by the Law of Nations. The majority of
writers maintain, correctly, I think, that the responsibility of States
does not involve the duty to repair the losses which foreign subjects
have sustained through acts of insurgents and rioters. Individuals who
enter foreign territory must take the risk of an outbreak of
insurrections or riots just as the risk of the outbreak of other
calamities. When they sustain a loss from acts of insurgents or rioters,
they may, if they can, trace their losses to the acts of certain
individuals, and claim damages from the latter before the Courts of
Justice. The responsibility of a State for acts of private persons
injurious to foreign subjects reaches only so far that its Courts must
be accessible to the latter for the purpose of claiming damages from the
offenders, and must punish such of those acts as are criminal. And in
States which, as France for instance, have such Municipal Laws as make
the town or the county where an insurrection or riot has taken place
responsible for the pecuniary loss sustained by individuals during those
events, foreign subjects must be allowed to claim damages from the local
authorities for losses of such kind. But the State itself never has by
International Law a duty to pay such damages.
[Footnote 264: See, for instance, Rivier, II. p. 43; Brusa in Annuaire
XVII. pp. 96-137; Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.]
The practice of the States agrees with this rule laid down by the
majority of writers. Although in some cases several States have paid
damages for losses of such kind, they have done it, not through
compulsion of law, but for political reasons. In most cases in which the
damages have been claimed for such losses, the respective States have
refused to comply with the request.[265] As such claims have during the
second half of the nineteenth century frequently been tendered against
American States which have repeatedly been the scene of insurrections,
several of these States have in commercial and similar treaties which
they concluded with other States expressly stipulated[266] that they are
not responsible for losses sustained by foreign subjects on their
territory through acts of insurgents and rioters.
[Footnote 265: See the cases in Calvo, III. §§ 1283-1290.]
[Footnote 266: See Martens, N.R.G. IX. p. 474 (Germany and Mexico); XV.
p. 840 (France and Mexico); XIX. p. 831 (Germany and Colombia); XXII. p.
308 (Italy and Colombia); and p. 507 (Italy and Paraguay).]
The Institute of International Law has studied the matter and has
proposed[267] the following _Règlement_ concerning it:--
(1) Independently of the case in which indemnities are due to
foreigners by virtue of the general laws of the country,
foreigners have a right to compensation when they are injured as
to their person or as to their property in the course of a riot,
of an insurrection, or of a civil war:
(_a_) When the act from which they have suffered is directed
against foreigners as such in general, or against them as under
the jurisdiction of a certain State, or
(_b_) When the act from which they have suffered consists in
closing a port without due and proper previous notification, or in
retaining foreign ships in a port, or
(_c_) When the injury is the result of an act contrary to the laws
committed by a government official, or
(_d_) When the obligation to compensate is established by virtue
of the general principles of the law of war.
(2) The obligation is equally well established when the injury has
been committed (No. 1, _a_ and _d_) on the territory of an
insurrectionary government, whether by this government itself, or
by one of its functionaries.
On the other hand, certain demands for indemnity may be set aside
when they concern facts which occur after the government of the
State to which the injured person belongs has recognised the
insurrectionary government as a belligerent Power, and when the
injured person has continued to keep his domicile or his
habitation on the territory of the insurrectionary government.
As long as the latter is considered by the government of the
person alleged to be injured as a belligerent Power, the demand
may only be addressed, in the case of paragraph 1 of article 2, to
the insurrectionary government and not to the legitimate
government.
(3) The obligation to compensate disappears when the injured
persons are themselves a cause of the event which has brought the
injury.[268] Notably no obligation exists to indemnify those who
have returned to the country or who wish to give themselves up to
commerce or industry there, when they know, or ought to know, that
troubles have broken out, nor to indemnify those who establish
themselves or sojourn in a country which offers no security on
account of the presence of savage tribes, unless the government of
the country has given express assurance to immigrants.
(4) The government of a Federal State composed of a certain number
of smaller States, which it represents from an international point
of view, may not plead, in order to avoid the responsibility which
falls upon it, the fact that the constitution of the Federal State
does not give it the right to control the member-States, nor the
right to exact from them the discharge of their obligations.
(5) The stipulations mutually exempting States from the duty of
giving their diplomatic protection ought not to comprise the cases
of refusal of justice, or of evident violation of justice or of
International Law.[269]
[Footnote 267: At its meeting at Neuchâtel in 1900; see Annuaire, XVIII.
p. 254.]
[Footnote 268: For example, in the case of conduct which is particularly
provocative to a crowd.]
[Footnote 269: The Institute of International Law has likewise--see
Annuaire, XVIII. pp. 253 and 256--expressed the two following
_voeux_:--
(_a_) The Institute of International Law expresses the wish that the
States should avoid inserting in treaties clauses of reciprocal
irresponsibility. It considers that these clauses are wrong in exempting
States from the fulfilment of their duty of protecting their nationals
abroad and of their duty of protecting foreigners on their territory. It
considers that the States which, on account of extraordinary
circumstances, do not feel themselves at all in a position to assure
protection in a sufficiently efficacious manner to foreigners on their
territory, can only avoid the consequences of this condition of things
by temporarily prohibiting foreigners to enter their territory.
(_b_) Recourse to international commissions of inquiry and to
international tribunals is in general recommended for all differences
which may arise on account of injury to foreigners in the course of a
riot, an insurrection, or of civil war.]
PART II
THE OBJECTS OF THE LAW OF NATIONS
CHAPTER I
STATE TERRITORY
I
ON STATE TERRITORY IN GENERAL
Vattel, II. §§ 79-83--Hall, § 30--Westlake, I. pp.
84-88--Lawrence, §§ 71-72--Phillimore, I. §§ 150-154--Twiss, I. §§
140-144--Halleck, I. pp. 150-156--Taylor, § 217--Wheaton, §§
161-163--Moore, I. § 125--Bluntschli, § 277--Hartmann, §
58--Holtzendorff in Holtzendorff, II. pp. 225-232--Gareis, §
18--Liszt, § 9--Ullmann, § 86--Heffter, §§ 65-68--Bonfils, No.
483--Despagnet, Nos. 374-377--Pradier-Fodéré, II. No.
612--Mérignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I.
pp. 135-142--Calvo, I. §§ 260-262--Fiore, I. Nos.
522-530--Martens, I. § 88--Del Bon, "Proprietà territoriale degli
Stati" (1867)--Fricker, "Vom Staatsgebiet" (1867).
[Sidenote: Conception of State Territory.]
§ 168. State territory is that definite portion of the surface of the
globe which is subjected to the sovereignty of the State. A State
without a territory is not possible, although the necessary territory
may be very small, as in the case of the Free Town of Hamburg, the
Principality of Monaco, the Republic of San Marino, or the Principality
of Lichtenstein. A wandering tribe, although it has a Government and is
otherwise organised, is not a State before it has settled down on a
territory of its own.
State territory is also named territorial property of a State. Yet it
must be borne in mind that territorial property is a term of Public Law
and must not be confounded with private property. The territory of a
State is not the property of the monarch, or of the Government, or even
of the people of a State; it is the country which is subjected to the
territorial supremacy or the _imperium_ of a State. This distinction
has, however, in former centuries not been sharply drawn.[270] In spite
of the _dictum_ of Seneca, "Omnia rex imperio possidet, singuli
dominio," the _imperium_ of the monarch and the State over the State
territory has very often been identified with private property of the
monarch or the State. But with the disappearance of absolutism this
identification has likewise disappeared. It is for this reason that
nowadays, according to the Constitutional Law of most countries, neither
the monarch nor the Government is able to dispose of parts of the State
territory at will and without the consent of Parliament.[271]
[Footnote 270: And some writers refuse to draw it even nowadays, as, for
instance, Lawrence, § 71.]
[Footnote 271: In English Constitutional Law this point is not settled.
The cession of the Island of Heligoland to Germany in 1890 was, however,
made conditional on the approval of Parliament.]
It must, further, be emphasised that the territory of a State is totally
independent of the racial character of the inhabitants of the State. The
territory is the public property of the State, and not of a nation in
the sense of a race. The State community may consist of different
nations, as, for instance, the British or the Swiss or the Austrians.
[Sidenote: Different kinds of Territory.]
§ 169. The territory of a State may consist of one piece of the surface
of the globe only, such as that of Switzerland. Such kind of territory
is named "integrate territory" (_territorium clausum_). But the
territory of a State may also be dismembered and consist of several
pieces, such as that of Great Britain. All States with colonies have a
"dismembered territory."
If a territory or a piece of it is absolutely surrounded by the
territory of another State, it is named an "enclosure." Thus the
Republic of San Marino is an enclosure of Italy, and Birkenfeld, a piece
of the territory of the Grand Duchy of Oldenburg situated on the river
Rhine, is an enclosure of Prussia.
Another distinction is that between motherland and colonies. Colonies
rank as territory of the motherland, although they may enjoy complete
self-government and therefore be called Colonial States. Thus, if viewed
from the standpoint of the Law of Nations, the Dominion of Canada, the
Commonwealth of Australia, New Zealand, and the Union of South Africa
are British territory.
As regards the relation between the Suzerain and the Vassal State, it is
certain that the vassal is not, in the strict sense of the term, a part
of the territory of the suzerain. Crete and Egypt are not Turkish
territory, although under Turkish suzerainty. But no general rule can be
laid down, as everything depends on the merits of the special case, and
as the vassal, even if it has some footing of its own within the Family
of Nations, is internationally for the most part considered a mere
portion of the Suzerain State.[272]
[Footnote 272: See above, § 91.]
[Sidenote: Importance of State Territory.]
§ 170. The importance of State territory lies in the fact that it is the
space within which the State exercises its supreme authority. State
territory is an object of the Law of Nations because the latter
recognises the supreme authority of every State within its territory.
Whatever person or thing is on or enters into that territory, is _ipso
facto_ subjected to the supreme authority of the respective State
according to the old rules, _Quidquid est in territorio, est etiam de
territorio_ and _Qui in territorio meo est, etiam meus subditus est_. No
foreign authority has any power within the boundaries of the home
territory, although foreign Sovereigns and diplomatic envoys enjoy the
so-called privilege of exterritoriality, and although the Law of Nations
does, and international treaties may, restrict[273] the home authority
in many points in the exercise of its sovereignty.
[Footnote 273: See above, §§ 126-128.]
[Sidenote: One Territory, one State.]
§ 171. The supreme authority which a State exercises over its territory
makes it apparent that on one and the same territory can exist one
full-Sovereign State only. Two or more full-Sovereign States on one and
the same territory are an impossibility. The following five cases, of
which the Law of Nations is cognisant, are apparent, but not real,
exceptions to this rule.
(1) There is, first, the case of the so-called _condominium_. It happens
sometimes that a piece of territory consisting of land or water is under
the joint _tenancy_ of two or more States, these several States
exercising sovereignty conjointly over such piece and the individuals
living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till
1866 were under the _condominium_ of Austria and Prussia. Thus, further,
Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the
_condominium_ of these two States[274] because they have not yet come to
an agreement regarding the interpretation of a boundary treaty of 1815
between the Netherlands and Prussia. And since 1898 the Soudan is under
the _condominium_ of Great Britain and Egypt. It is easy to show that in
such cases[275] there are not two States on one and the same territory,
but pieces of territory, the destiny of which is not decided, and which
are kept separate from the territories of the interested States[276]
under a separate administration. Until a final settlement the interested
States do not exercise each an individual sovereignty over these pieces,
but they agree upon a joint administration under their conjoint
sovereignty.
[Footnote 274: See Schröder, "Das grenzstreitige Gebiet von Moresnet"
(1902).]
[Footnote 275: The New Hebrides are materially likewise under a
_condominium_, namely, that of Great Britain and France, although
article 1 of the Convention of October 20, 1906--see Martens, N.R.G. 3rd
Ser. I. (1909), p. 523--speaks only of "a region of joint influence"
with regard to the New Hebrides. See Brunet, "Le Régime International
des Nouvelles-Hebrides" (1908), and Politis in R.G. XIV. (1907), pp.
689-759.]
[Footnote 276: As regards the proposed _condominium_ over Spitzbergen,
see Waultrin in R.G. XV. (1908), pp. 80-105, and Piccioni in R.G. XVI.
(1909), pp. 117-134.]
(2) The second case is that of the administration of a piece of
territory by a foreign Power, with the consent of the owner-State. Thus,
since 1878 the Turkish island of Cyprus has been under British
administration, and the then Turkish provinces of Bosnia and Herzegovina
were from 1878 to 1908 under the administration of Austria-Hungary. In
these cases a cession of pieces of territory has for all practical
purposes taken place, although in law the respective pieces still belong
to the former owner-State. Anyhow, it is certain that only one
sovereignty is exercised over these pieces--namely, the sovereignty of
the State which exercises administration. On the other hand, however,
the fact that in these cases pieces of territory have for all practical
purposes been ceded to another State does not empower the latter
arbitrarily to annex the territory without the consent of the State
owning it in law. Austria-Hungary had therefore no right to annex, in
1908, without the previous consent of Turkey, the provinces of Bosnia
and Herzegovina.[277]
[Footnote 277: See above, § 50.]
(3) The third case is that of a piece of territory leased or pledged by
the owner-State to a foreign Power. Thus, China in 1898 leased[278] the
district of Kiauchau to Germany, Wei-Hai-Wei and the land opposite the
island of Hong-Kong to Great Britain, and Port Arthur to Russia.[279]
Thus, further, in 1803 Sweden pledged the town of Wismar[280] to the
Grand Duchy of Mecklenburg-Schwerin, and the Republic of Genoa in 1768
pledged the island of Corsica to France. All such cases comprise, for
all practical purposes, cessions of pieces of territory, but in strict
law they remain the property of the leasing State. And such property is
not a mere fiction, as some writers[281] maintain, for it is possible
that the lease comes to an end by expiration of time or by rescission.
Thus the lease, granted in 1894 by Great Britain to the former Congo
Free State, of the so-called Lado Enclave, was rescinded[282] in 1906.
However this may be, as long as the lease has not expired it is the
lease-holder who exercises sovereignty over the territory concerned.
[Footnote 278: See below, § 216.]
[Footnote 279: Russia in 1905, by the Peace Treaty of Portsmouth,
transferred her lease to Japan.]
[Footnote 280: This transaction took place for the sum of 1,258,000
thaler, on condition that Sweden, after the lapse of 100 years, should
be entitled to take back the town of Wismar on repayment of the money,
with 3 per cent. interest per annum. Sweden in 1903--see Martens, N.R.G.
2nd Ser. XXXI. (1905), pp. 572 and 574--formally waived her right to
retake the town.]
[Footnote 281: See, for instance, Perrinjaquet in R.G. XVI. (1909), pp.
349-367.]
[Footnote 282: By article 1 of the Treaty of London of May 9, 1906; see
Martens, N.R.G. 2nd Ser. XXXV. (1908), p. 454.]
(4) The fourth case is that of a piece of territory of which the use,
occupation, and control is in perpetuity granted by the owner-State to
another State with the exclusion of the exercise of any sovereign rights
over the territory concerned on the part of the grantor. In this
way[283] the Republic of Panama transferred, in 1903, to the United
States of America a ten-mile wide strip of territory for the purpose of
constructing, administrating, and defending the so-called Panama Canal.
In this case the grantor retains only in name the property of the
territory, the transfer of the land concerned is really cession all but
in name, and it is certain that only the grantee exercises sovereignty
there.
[Footnote 283: See below, § 184, and Boyd in R.G. XVII. (1910), pp.
614-624.]
(5) The fifth case is that of the territory of a Federal State. As a
Federal State is considered[284] a State of its own side by side with
its single member-States, the fact is apparent that the different
territories of the single member-States are at the same time
collectively the territory of the Federal State. But this fact is only
the consequence of the other illogical fact that sovereignty is divided
between a Federal State and its member-States. Two different
sovereignties are here by no means exercised over one and the same
territory, for so far as the Federal State possesses sovereignty the
member-States do not, and _vice versa_.
[Footnote 284: See above, § 89.]
II
THE DIFFERENT PARTS OF STATE TERRITORY
[Sidenote: Real and Fictional parts of Territory.]
§ 172. To the territory of a State belong not only the land within the
State boundaries, but also the so-called territorial waters. They
consist of the rivers, canals, and lakes which water the land, and, in
the case of a State with a seacoast, of the maritime belt and certain
gulfs, bays, and straits of the sea. These different kinds of
territorial waters will be separately discussed below in §§ 176-197. In
contradistinction to these real parts of State territory there are some
things that are either in every point or for some part treated as though
they were territorial parts of a State. They are fictional and in a
sense only parts of the territory. Thus men-of-war and other public
vessels on the high seas as well as in foreign territorial waters are
essentially in every point treated as though they were floating parts of
their home State.[285] And the houses in which foreign diplomatic envoys
have their official residence are in many points treated as though they
were parts of the home States of the respective envoys.[286] Again,
merchantmen on the high seas are for some points treated as though they
were floating parts of the territory of the State under whose flag they
legitimately sail.[287]
[Footnote 285: See below, § 450.]
[Footnote 286: See below, § 390.]
[Footnote 287: See below, § 264.]
[Sidenote: Territorial Subsoil.]
§ 173. The subsoil beneath the territorial land and water[288] is of
importance on account of telegraph and telephone wires and the like, and
further on account of the working of mines and of the building of
tunnels. A special part of territory the territorial subsoil is not,
although this is frequently asserted. But it is a universally recognised
rule of the Law of Nations that the subsoil to an unbounded depth
belongs to the State which owns the territory on the surface.
[Footnote 288: As regards the subsoil of the Open Sea, see below, §§
287_c_ and 287_d_.]
[Sidenote: Territorial Atmosphere.]
§ 174. The space of the territorial atmosphere is no more a special part
of territory than the territorial subsoil, but it is of the greatest
importance on account of wires for telegraphs, telephones, electric
traction, and the like; further on account of wireless telegraphy and of
aviation.
(1) Nothing need be said concerning wires for telegraphs and the like,
except that obviously the territorial State can prevent neighbouring
States from making use of its territorial atmosphere for such wires.
(2) As regards wireless telegraphy,[289] the "International Radiographic
Convention," signed at Berlin on November 3, 1906, represents an
agreement[290] of the signatory Powers concerning the exchange of
radio-telegrams on the part of coast stations and ship stations, but it
contains no stipulation respecting the question in general whether the
territorial State is compelled to allow the passage over its territory
of waves emanating from a foreign wireless telegraphy station. There
ought to be no doubt that no such compulsion exists according to
customary International Law, and that therefore the territorial State
can prevent the passage of such waves[291] over its territory.
[Footnote 289: See Meili, "Die drahtlose Telegraphie, &c." (1908);
Schneeli, "Drahtlose Telegraphie und Völkerrecht" (1908); Landsberg,
"Die drahtlose Telegraphie" (1909); Kausen, "Die drahtlose Telegraphie
im Völkerrecht" (1910); Rolland in R.G. XIII. (1906), pp. 58-92;
Fauchille in Annuaire, XXI. (1906), pp. 76-87; Bonfils, Nos. 531{10} and
531{11}; Despagnet, No. 433 _quater_; Meurer and Boidin in R.G. XVI.
(1909), pp. 76 and 261.]
[Footnote 290: See below, §§ 287_a_, 287_b_, and 582, No. 4.]
[Footnote 291: The Institute of International Law--see Annuaire, XXI.
(1906), p. 328--proposes by art. 3 of its "Régime de la Télégraphie sans
fil" to restrict the power of the territorial State to exclude such
waves from passing over its territory to the case in which the exclusion
is necessary in the interest of its security.]
(3) The space of the territorial atmosphere is of particular importance
with regard to aviation, but no customary or conventional rules of
International Law are as yet in existence which settle the very much
controverted[292] matter. An international conference for the purpose of
agreeing upon an international convention concerning aviation met in
1910 at Paris, but did not produce any result. The fact is that, since
aviation is still in its infancy, practical experience is lacking
concerning many questions which can only be settled when aviation has
been more developed. It is tempting to apply the rules concerning the
maritime belt and the Open Sea analogously to the space of the
atmosphere, and, therefore, to distinguish between a zone of a certain
height, in which the territorial State can exercise sovereignty, and, on
the other hand, the atmosphere beyond that height, which is to be
considered free like the Open Sea. This comparison between the
atmosphere and the sea is, however, faulty for two reasons. Firstly, the
Open Sea is an international highway that connects distant lands between
which, except by sea, no communication would be possible, whereas the
atmosphere is not such an indispensable highway. Secondly, navigation on
the Open Sea comprises no danger whatever to the security of the
different States and the lives and property of their inhabitants,
whereas aviation threatens such danger to a great extent. The chief
question at issue is, therefore, whether the territorial State should or
should not be considered to exercise sovereignty over the space of the
atmosphere to an unbounded height, and to have the power to prevent the
passage of foreign aviators altogether, or to enact stringent rules with
which they have to comply. It would probably be best for the States in
conference to adopt such rules concerning the whole space of the
atmosphere as are similar to those valid by customary International Law
for the maritime belt, that is:--to recognise, on the one hand,
sovereignty of the territorial State over the space of its atmosphere,
but, on the other hand, to give a right to foreign States to demand from
the territorial State that foreign private--but not public!--air-vessels
may pass through its atmosphere, provided they comply with the rules
enacted by the territorial State for the aerial traffic.[293]
[Footnote 292: The literature on aviation is abundant, see Holtzendorff,
II. p. 230; Lawrence, § 73; Bonfils, Nos. 531{1}-531{9}; Despagnet, Nos.
433 _bis_ and 433 _ter_; Mérignhac, II. pp. 398-410; Nys, I. pp.
523-532; Grünwald, "Das Luftschiff, &c." (1908); Meili, "Das Luftschiff,
&c." (1908); Meurer, "Luftschiffahrtsrecht" (1909); Meyer, "Die
Erschliessung des Luftraums und ihre rechtlichen Folgen" (1909);
Magnani, "Il diritto sullo spazio aereo e l'aeronautica" (1909); Leech,
"The Jurisprudence of the Air" (1910), a reprint from the _Journal of
the Royal Artillery_, vol. XXXVII.; Lycklama à Nijeholt, "Air
Sovereignty" (1910); Hazeltine, "The Law of the Air" (1911); Bielenberg,
"Die Freiheit des Luftraums" (1911); Catellani, "Il diritto aereo"
(1911); Sperl, "Die Luftschiffahrt, &c." (1911); Loubeyre, "Les
principes du droit aérien" (1911); Fauchille in Annuaire, XIX. (1902)
pp. 19-114, XXIV. (1911), and in R.G. VIII. (1901), pp. 414-485, XVII.
(1910), pp. 55-62; Zitelmann in the _Zeitschrift für internationales
Privat- und Öffentliches Recht_, XIX. (1909), pp. 458-496; Baldwin and
Kuhm in A.J. IV. (1910), pp. 95-108, 109-132; Baldwin in Z.V. V. (1911),
pp. 394-399.]
[Footnote 293: The Institute of International Law is studying the
question of aviation, and passed, in 1911, at its meeting in Madrid,
some rules concerning the "Régime juridiques des Aéronefs"; see
Annuaire, XXIV. (1911).]
Aviation through the atmosphere above the Open Sea will require special
regulation on account of the dangers to the vessels of all nations
traversing the sea, as will also aviation in general in time of war.
[Sidenote: Inalienability of Parts of Territory.]
§ 175. It should be mentioned that not every part of territory is
alienable by the owner-State. For it is evident that the territorial
waters are as much inseparable appurtenances of the land as are the
territorial subsoil and atmosphere. Only pieces of land together with
the appurtenant territorial waters are alienable parts of
territory.[294] There is, however, one exception to this, since boundary
waters[295] may wholly belong to one of the riparian States, and may
therefore be transferred through cession from one to the other riparian
State without the bank itself. But it is obvious that this is only an
apparent, not a real, exception to the rule that territorial waters are
inseparable appurtenances of the land. For boundary waters that are
ceded to the other riparian State remain an appurtenance of land,
although they are now an appurtenance of the one bank only.
[Footnote 294: See below, § 185.]
[Footnote 295: See below, § 199.]
III
RIVERS
Grotius, II. c. 2, §§ 11-15--Pufendorf, III. c. 3, § 8--Vattel,
II. §§ 117, 128, 129, 134--Hall, § 39--Westlake, I. pp.
142-159--Lawrence, § 92--Phillimore, I. §§ 125-151--Twiss, I. §
145--Halleck, I. pp. 171-177--Taylor, §§ 233-241--Walker, §
16--Wharton, I. § 30--Moore, I. §§ 128-132--Wheaton, §§
192-205--Bluntschli, §§ 314, 315--Hartmann, § 58--Heffter, §
77--Caratheodory in Holtzendorff, II. pp. 279-406--Gareis, §
20--Liszt, §§ 9 and 27--Ullmann, §§ 87 and 105--Bonfils, Nos.
520-531--Despagnet, Nos. 419-421--Mérignhac, II. pp.
605-632--Pradier-Fodéré, II. Nos. 688-755--Nys, I. pp. 438-441,
and II. pp. 109-131--Rivier, I. p. 142 and § 14--Calvo, I. §§
302-340--Fiore, II. Nos. 755-776, and Code, §§ 283-285 and
976-982--Martens, I. § 102, II. § 57--Delavaud, "Navigation ...
sur les fleuves internationaux" (1885)--Engehardt, "Du régime
conventionnel des fleuves internationaux" (1879), and "Histoire du
droit fluvial conventionnel" (1889)--Vernesco, "Des fleuves en
droit international" (1888)--Orban, "Etude sur le droit fluvial
international" (1896)--Berges, "Du régime de navigation des
fleuves internationaux" (1902)--Lopez, "Regimen internacional de
los rios navigables" (1905)--Huber in Z.V. I. (1906), pp. 29 and
159--Hyde in A.J. IV. (1910), pp. 145-155.
[Sidenote: Rivers State property of Riparian States.]
§ 176. Theory and practice agree upon the rule that rivers are part of
the territory of the riparian State. Consequently, if a river lies
wholly, that is, from its source to its mouth, within the boundaries of
one and the same State, such State owns it exclusively. As such rivers
are under the sway of one State only and exclusively, they are named
"national rivers." Thus, all English, Scotch, and Irish rivers are
national, and so are, to give some Continental examples, the Seine,
Loire, and Garonne, which are French; the Tiber, which is Italian; the
Volga, which is Russian. But many rivers do not run through the land of
one and the same State only, whether they are so-called "boundary
rivers," that is, rivers which separate two different States from each
other, or whether they run through several States and are therefore
named "not-national rivers." Such rivers are not owned by one State
alone. Boundary rivers belong to the territory of the States they
separate, the boundary line[296] running either through the middle of
the river or through the middle of the so-called mid-channel of the
river. And rivers which run through several States belong to the
territories of the States concerned; each State owns that part of the
river which runs through its territory.
[Footnote 296: See below, § 199, and Huber in Z.V. I. (1906), pp. 29 and
159.]
There is, however, another group of rivers to be mentioned, which
comprises all such rivers as are navigable from the Open Sea and at the
same time either separate or pass through several States between their
sources and their mouths. Such rivers, too, belong to the territory of
the different States concerned, but they are nevertheless named
"international rivers," because freedom of navigation in time of peace
on all of those rivers in Europe and on many of them outside Europe for
merchantmen of all nations is recognised by International Law.
[Sidenote: Navigation on National, Boundary and not-National Rivers.]
§ 177. There is no rule of the Law of Nations in existence which grants
foreign States the right of admittance of their public or private
vessels to navigation on national rivers. In the absence of commercial
or other treaties granting such a right, every State can exclude foreign
vessels from its national rivers or admit them under certain conditions
only, such as the payment of a due and the like. The teaching of Grotius
(II. c. 2, § 12) that innocent passage through rivers must be granted
has not been recognised by the practice of the States, and Bluntschli's
assertion (§ 314) that such rivers as are navigable from the Open Sea
must in time of peace be open to vessels of all nations, is at best an
anticipation of a future rule of International Law, it does not as yet
exist.
As regards boundary rivers and rivers running through several States,
the riparian States[297] can regulate navigation on such parts of these
rivers as they own, and they can certainly exclude vessels of
non-riparian States altogether unless prevented therefrom by virtue of
special treaties.
[Footnote 297: See below, § 178_a_.]
[Sidenote: Navigation on International Rivers.]
§ 178. Whereas there is certainly no recognised principle of free
navigation on national, boundary, and not-national rivers, a movement
for the recognition of free navigation on international rivers set in at
the beginning of the nineteenth century. Until the French Revolution
towards the end of the eighteenth century, the riparian States of such
rivers as are now called international rivers could, in the absence of
special treaties, exclude foreign vessels altogether from those parts of
the rivers which run through their territory, or admit them under
discretionary conditions. Thus, the river Scheldt was wholly shut up in
favour of the Netherlands according to article 14 of the Peace Treaty of
Munster of 1648 between the Netherlands and Spain. The development of
things in the contrary direction begins with a Decree of the French
Convention, dated November 16, 1792, which opens the rivers Scheldt and
Meuse to the vessels of all riparian States. But it was not until the
Vienna Congress[298] in 1815 that the principle of free navigation on
the international rivers of Europe by merchantmen of not only the
riparian but of all States was proclaimed. The Congress itself realised
theoretically that principle in making arrangements[299] for free
navigation on the rivers Scheldt, Meuse, Rhine, and on the navigable
tributaries of the latter--namely, the rivers Neckar, Maine, and
Moselle--although more than fifty years elapsed before the principle
became realised in practice.
[Footnote 298: Articles 108-117 of the Final Act of the Vienna Congress;
see Martens, N.R. II. p. 427.]
[Footnote 299: "Règlements pour la libre navigation des rivières"; see
Martens, N.R. II. p. 434.]
The next step was taken by the Peace Treaty of Paris of 1856, which by
its article 15[300] stipulated free navigation on the Danube and
expressly declared the principle of the Vienna Congress regarding free
navigation on international rivers for merchantmen of all nations as a
part of "European Public Law." A special international organ for the
regulation of navigation on the Danube was created, the so-called
European Danube Commission.
[Footnote 300: See Martens, N.R.G. XV. p. 776. The documents concerning
navigation on the Danube are collected by Sturdza, "Recueil de documents
relatifs à la liberté de navigation du Danube" (Berlin, 1904).]
A further development took place at the Congo Conference at Berlin in
1884-85, since the General Act[301] of this Conference stipulated free
navigation on the rivers Congo and Niger and their tributaries, and
created the so-called "International Congo Commission" as a special
international organ for the regulation of the navigation of the said
rivers.
[Footnote 301: See Martens, N.R.G. 2nd Ser. X. p. 417.]
Side by side with these general treaties, which recognise free
navigation on international rivers, stand treaties[302] of several South
American States with other States concerning free navigation for
merchantmen of all nations on a number of South American rivers. And the
Arbitration Court in the case of the boundary dispute between Great
Britain and Venezuela decided in 1903 in favour of free navigation for
merchantmen of all nations on the rivers Amakourou and Barima.
[Footnote 302: See Taylor, § 238, and Moore, I. § 131, pp. 639-651.]
Thus the principle of free navigation, which is a settled fact as
regards all European and some African international rivers, becomes more
and more extended over all other international rivers of the world. But
when several writers maintain that free navigation on all international
rivers of the world is already a recognised rule of the Law of Nations,
they are decidedly wrong, although such a universal rule will certainly
be proclaimed in the future. There can be no doubt that as regards the
South American rivers the principle is recognised by treaties between a
small number of Powers only. And there are examples which show that the
principle is not yet universally recognised. Thus by article 4 of the
Treaty of Washington of 1854 between Great Britain and the United States
the former grants to vessels of the latter free navigation on the river
St. Lawrence as a revocable privilege, and article 26 of the Treaty of
Washington of 1871 stipulates for vessels of the United States, but not
for vessels of other nations, free navigation "for ever" on the same
river.[303]
[Footnote 303: See Wharton, pp. 81-83; Moore, I. § 131, p. 631, and
Hall, § 39.]
However this may be, the principle of free navigation embodies the rule
that vessels of all nations must be admitted without payment of any dues
whatever. Yet this principle does not exclude the levy of dues from all
navigating vessels for expenses incurred by the riparian States for such
improvements of the navigability of rivers as embankments, breakwaters,
and the like.[304]
[Footnote 304: As regards the question of levying dues for navigation of
the rivers Rhine and Elbe, see Arndt in Z.V. IV. (1910), pp. 208-229.]
I should mention that the Institute of International Law, at its meeting
at Heidelberg in 1888, adopted a _Projet de Règlement international de
navigation fluviale_,[305] which comprises forty articles.
[Footnote 305: See Annuaire, IX. p. 182.]
[Sidenote: Utilisation of the flow of rivers.]
§ 178_a_. Apart from navigation on rivers, the question of the
utilisation of the flow of rivers is of importance. With regard to
national rivers, the question can not indeed be raised, since the local
State is absolutely unhindered in the utilisation of the flow. But the
flow of not-national, boundary, and international rivers is not within
the arbitrary power of one of the riparian States, for it is a rule of
International Law[306] that no State is 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 this reason a
State is not only forbidden to stop or to divert the flow of a river
which runs from its own to a neighbouring State, but likewise to make
such use of the water of the river as either causes danger to the
neighbouring State or prevents it from making proper use[307] of the
flow of the river on its part. Since, apart from special treaties
between neighbouring countries concerning special cases, neither
customary nor conventional detailed rules of International Law
concerning this subject are in existence, the Institute of International
Law, at its meeting at Madrid[308] in 1911, adopted the following
"_Réglementation internationale des cours d'eau internationaux au point
de vue de leur force motrice et de leur utilisation industrielle ou
agricole_":--
I. When a stream of water forms the frontier of two States,
neither State may, without the consent of the other, and in the
absence of a special and valid legal title, make any changes
prejudicial to the bank of the other State, nor allow such changes
to be made by individuals, societies, &c. Moreover, neither State
may on its own territory utilise the water, or allow it to be
utilised, in such a manner as to cause great damage to its
utilisation by the other State or by the individuals, societies,
&c., of the other.
The foregoing conditions are also applicable when a lake is
situated between territories of more than two States.
II. When a stream of water traverses successively the territories
of two or of several States:--
(1) The point at which this stream of water traverses the
frontiers of the two States, whether natural or from time
immemorial, may not be changed by the establishments of one of the
States without the assent of the other.
(2) It is forbidden to make any alteration injurious to the
water, or to throw in injurious matter (coming from factories,
&c.).
(3) Water may not be withdrawn by the establishments (especially
factories for the working of hydraulic pressure) in such a
quantity as to modify greatly the constitution, or, in other
words, the utilisable character or the essential character, of the
stream of water on its arrival at the territory nearer the mouth
of the river.
The right of navigation by virtue of a title recognised by
International Law cannot be restricted by any usage whatever.
(4) A State farther down the river may not make, or allow to be
made, in its territory any constructions or establishments which
might cause danger of flooding a State farther up the river.
(5) The foregoing rules are applicable in the same way to the case
in which streams of water flow from a lake, which is situated in
one territory, into the territory of another State or the
territories of other States.
(6) It is recommended that the States concerned appoint common
permanent Commissions which may give decisions, or at least may
give their advice, when such new establishments are built, or when
such modifications are made in the existing establishments, as may
influence the flow of the stream of water situated on the
territory of another State.
[Footnote 306: See above, § 127.]
[Footnote 307: See, for instance, the treaty of Washington of January
11, 1909--Martens, N.R.G. 3rd Ser. (1911), p. 208--between Great Britain
and the United States concerning the utilisation of the boundary waters
between the United States and Canada.]
[Footnote 308: See Annuaire, XXIV. (1911). See also Bar in R.G. XVII.
(1910), pp. 281-288.]
IV
LAKES AND LAND-LOCKED SEAS
Vattel, I. § 294--Hall, § 38--Phillimore, I. §§ 205-205A--Twiss,
I. § 181--Halleck, I. p. 170--Moore, I. §§ 135-143--Bluntschli, §
316--Hartmann, § 58--Heffter, § 77--Caratheodory in Holtzendorff,
II. pp. 378-385--Gareis, §§ 20-21--Liszt, § 9--Ullmann, §§ 88 and
106--Bonfils, Nos. 495-505--Despagnet, No. 407--Mérignhac, II.
587-596--Pradier-Fodéré, II. Nos. 640-649--Nys, I. pp.
447-450--Calvo, I. §§ 301, 373, 383--Fiore, II. Nos. 811-813, and
Code, Nos. 279 and 1000--Martens, I. § 100--Rivier, I. pp.
143-145, 230--Mischeff, "La Mer Noire et les détroits de
Constantinople" (1901)--Hunt in A.J. IV. (1910), pp. 285-313.
[Sidenote: Lakes and land-locked seas State Property of Riparian
States.]
§ 179. Theory and practice agree upon the rule that such lakes and
land-locked seas as are entirely enclosed by the land of one and the
same State are part of the territory of this State. Thus the Dead Sea in
Palestine is Turkish, the Sea of Aral is Russian, the Lake of Como is
Italian territory. As regards, however, such lakes and land-locked seas
as are surrounded by the territories of several States, no unanimity
exists. The majority of writers consider these lakes and land-locked
seas parts of the surrounding territories, but several[309] dissent,
asserting that these lakes and seas do not belong to the riparian
States, but are free like the Open Sea. The practice of the States seems
to favour the opinion of the majority of writers, for special treaties
frequently arrange what portions of such lakes and seas belong to the
riparian States.[310] Examples are:--The Lake of Constance,[311] which
is surrounded by the territories of Germany (Baden, Würtemberg,
Bavaria), Austria, and Switzerland (Thurgau and St. Gall); the Lake of
Geneva, which belongs to Switzerland and France; the Lakes of Huron,
Erie, and Ontario, which belong to British Canada and the United States;
the Caspian Sea, which belongs to Persia and Russia.[312]
[Footnote 309: See, for instance, Calvo, I. § 301; Caratheodory in
Holtzendorff, II. p. 378.]
[Footnote 310: As regards the utilisation of the flow of such lakes and
seas, the same is valid as that concerning the utilisation of the flow
of rivers; see above, § 178_a_.]
[Footnote 311: See Stoffel, "Die Fischerei-Verhältnisse des Bodensees
unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte"
(1906).]
[Footnote 312: But the Caspian Sea is almost entirely under Russian
control through the two treaties of Gulistan (1813) and Tourkmantschai
(1828). See Rivier, I. p. 144, and Phillimore, I. § 205.]
[Sidenote: So-called International Lakes and Land-locked Seas.]
§ 180. In analogy with so-called international rivers, such lakes and
land-locked seas as are surrounded by the territories of several States
and are at the same time navigable from the Open Sea, are called
"international lakes and land-locked seas." However, although some
writers[313] dissent, it must be emphasised that hitherto the Law of
Nations has not recognised the principle of free navigation on such
lakes and seas. The only case in which such free navigation is
stipulated is that of the lakes within the Congo district.[314] But
there is no doubt that in a near future this principle will be
recognised, and practically all so-called international lakes and
land-locked seas are actually open to merchantmen of all nations. Good
examples of such international lakes and land-locked seas are the
fore-named lakes of Huron, Erie, and Ontario.
[Footnote 313: See, for instance, Rivier, I. p. 230; Caratheodory in
Holtzendorff, II. p. 378; Calvo, I. § 301.]
[Footnote 314: Article 15 of the General Act of the Congo Conference.
(See Martens, N.R.G. 2nd Ser. X. p. 417.)]
[Sidenote: The Black Sea.]
§ 181. It is of interest to give some details regarding the Black Sea.
This is a land-locked sea which was undoubtedly wholly a part of Turkish
territory as long as the enclosing land was Turkish only, and as long as
the Bosphorus and the Dardanelles, the approach to the Black Sea, which
are exclusively part of Turkish territory, were not open for merchantmen
of all nations. But matters have changed through Russia, Roumania, and
Bulgaria having become littoral States. It would be wrong to maintain
that now the Black Sea belongs to the territories of the four States,
for the Bosphorus and the Dardanelles, although belonging to Turkish
territory, are nevertheless parts of the Mediterranean Sea, and are now
open to merchantmen of all nations. The Black Sea is consequently now
part of the Open Sea[315] and is not the property of any State. Article
11 of the Peace Treaty of Paris,[316] 1856, neutralised the Black Sea,
declared it open to merchantmen of all nations, but interdicted it to
men-of-war of the littoral as well as of other States, admitting only a
few Turkish and Russian public vessels for the service of their coasts.
But although the neutralisation was stipulated "formally and in
perpetuity," it lasted only till 1870. In that year, during the
Franco-German War, Russia shook off the restrictions of the Treaty of
Paris, and the Powers assembled at the Conference of London signed on
March 13, 1871, the Treaty of London,[317] by which the neutralisation
of the Black Sea and the exclusion of men-of-war therefrom were
abolished. But the right of the Porte to forbid foreign men-of-war
passage through the Dardanelles and the Bosphorus[318] was upheld by
that treaty, as was also free navigation for merchantmen of all nations
on the Black Sea.
[Footnote 315: See below, § 252.]
[Footnote 316: See Martens, N.R.G. XV. p. 775.]
[Footnote 317: See Martens, N.R.G. XVIII. p. 303.]
[Footnote 318: See below, § 197.]
V
CANALS
Westlake, I. pp. 320-331--Lawrence, § 90, and Essays, pp.
41-162--Phillimore, I. §§ 399 and 207--Moore, III. §§
336-371--Caratheodory in Holtzendorff, II. pp. 386-405--Liszt, §
27--Ullmann, § 106--Bonfils, Nos. 511-515--Despagnet, No.
418--Mérignhac, II. pp. 597-604--Pradier-Fodéré, II. Nos.
658-660--Nys, I. pp. 475-495--Rivier, I. § 16--Calvo, I. §§
376-380--Fiore, Code, Nos. 983-987--Martens, II. § 59--Sir Travers
Twiss in R.I. VII. (1875), p. 682, XIV. (1882), p. 572, XVII.
(1885), p. 615--Holland, Studies, pp. 270-298--Asser in R.I. XX.
(1888), p. 529--Bustamante in R.I. XXVII. (1895), p.
112--Rossignol, "Le Canal de Suez" (1898)--Camand, "Étude sur le
régime juridique du Canal de Suez" (1899)--Charles-Roux, "L'Isthme
et le canal de Suez" (1901)--Othalom, "Der Suezkanal"
(1905)--Müller-Heymer, "Der Panamakanal in der Politik der
Vereinigten Staaten" (1909)--Arias, "The Panama Canal"
(1911)--Hains, Davis, Knapp, Wambough, Olney, and Kennedy in A.J.
III. (1909), pp. 354 and 885, IV. (1910), p. 314, V. (1911), pp.
298, 615, 620.
[Sidenote: Canals State Property of Riparian States]
§ 182. That canals are parts of the territories of the respective
territorial States is obvious from the fact that they are artificially
constructed waterways. And there ought to be no doubt[319] that all the
rules regarding rivers must analogously be applied to canals. The matter
would need no special mention at all were it not for the interoceanic
canals which have been constructed during the second half of the
nineteenth century or are contemplated in the future. And as regards two
of these, the Emperor William (Kiel or Baltic) Canal, which connects the
Baltic with the North Sea, and the Corinth Canal, which connects the
Gulf of Corinth with the Gulf of Ægina, there is not much to be said.
The former is a canal made mainly for strategic purposes by the German
Empire entirely through German territory. Although Germany keeps it open
for navigation to vessels of all other nations, she exclusively controls
the navigation thereof, and can at any moment exclude foreign vessels at
discretion, or admit them upon any conditions she likes, apart from
special treaty arrangements to the contrary. The Corinth Canal is
entirely within the territory of Greece, and although the canal is kept
open for navigation to vessels of all nations, Greece exclusively
controls the navigation thereof.
[Footnote 319: See, however, Holland, Studies, p. 278.]
[Sidenote: The Suez Canal.]
§ 183. The most important of the interoceanic canals is that of Suez,
which connects the Red Sea with the Mediterranean. Already in 1838
Prince Metternich gave his opinion that such a canal, if ever made,
ought to become neutralised by an international treaty of the Powers.
When, in 1869, the Suez Canal was opened, jurists and diplomatists at
once discussed what means could be found to secure free navigation upon
it for vessels of all kinds and all nations in time of peace as well as
of war. In 1875 Sir Travers Twiss[320] proposed the neutralisation of
the canal, and in 1879 the Institute of International Law gave its
vote[321] in favour of the protection of free navigation on the canal by
an international treaty. In 1883 Great Britain proposed an international
conference to the Powers for the purpose of neutralising the canal, but
it took several years before an agreement was actualised. This was done
by the Convention of Constantinople[322] of October 29, 1888, between
Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Spain,
Russia, and Turkey. This treaty comprises seventeen articles, whose more
important stipulations are the following:--
[Footnote 320: See R.I. VII. pp. 682-694.]
[Footnote 321: See Annuaire, III. and IV. vol. I. p. 349.]
[Footnote 322: See Martens, N.R.G. 2nd, Ser. XV. p. 557. It must,
however, be mentioned that Great Britain is a party to the Convention of
Constantinople under the reservation that its terms shall not be brought
into operation in so far as they would not be compatible with the
transitory and exceptional condition in which Egypt is put for the time
being in consequence of her occupation by British forces, and in so far
as they might fetter the liberty of action of the British Government
during the occupation of Egypt. But article 6 of the Declaration
respecting Egypt and Morocco signed at London on April 8, 1904, by Great
Britain and France (see Parliamentary Papers, France, No. 1 (1904), p.
9), has done away with this reservation, since it stipulates the
following:--"In order to ensure the free passage of the Suez Canal, his
Britannic Majesty's Government declare that they adhere to the
stipulations of the Treaty of October 29, 1888, and that they agree to
their being put in force. The free passage of the canal being thus
guaranteed, the execution of the last sentence of paragraph 1 as well as
of paragraph 2 of article 8 of that treaty will remain in abeyance."
(See Holland, Studies, p. 293, and Westlake, I. p. 328.)]
(1) The canal is open in time of peace as well as of war to merchantmen
and men-of-war of all nations. No attempt to restrict this free usage of
the canal is allowed in time either of peace or of war. The canal can
never be blockaded (article 1).
(2) In time of war, even if Turkey is a belligerent, no act of hostility
is allowed either inside the canal itself or within three sea miles from
its ports. Men-of-war of the belligerents have to pass through the canal
without delay. They may not stay longer than twenty-four hours, a case
of absolute necessity excepted, within the harbours of Port Said and
Suez, and twenty-four hours must intervene between the departure from
those harbours of a belligerent man-of-war and a vessel of the enemy.
Troops, munitions, and other war material may neither be shipped nor
unshipped within the canal and its harbours. All rules regarding
belligerents' men-of-war are likewise valid for their prizes (articles
4, 5, 6).
(3) No men-of-war are allowed to be stationed inside the canal, but each
Power may station two men-of-war in the harbours of Port Said and Suez.
Belligerents, however, are not allowed to station men-of-war in these
harbours (article 7). No permanent fortifications are allowed in the
canal (article 2).
(4) It is the task of Egypt to secure the carrying out of the stipulated
rules, but the consuls of the Powers in Egypt are charged to watch the
execution of these rules (articles 8 and 9).
(5) The signatory Powers are obliged to notify the treaty to others and
to invite them to accede thereto (article 16).
[Sidenote: The Panama Canal.]
§ 184. Already in 1850 Great Britain and the United States in the
Clayton-Bulwer Treaty[323] of Washington had stipulated the free
navigation and neutralisation of a canal between the Pacific and the
Atlantic Ocean proposed to be constructed by the way of the river St.
Juan de Nicaragua and either or both of the lakes of Nicaragua and
Managua. In 1881 the building of a canal through the Isthmus of Panama
was taken in hand, but in 1888 the works were stopped in consequence of
the financial collapse of the Company undertaking its construction.
After this the United States came back to the old project of a canal by
the way of the river St. Juan de Nicaragua. For the eventuality of the
completion of this canal, Great Britain and the United States signed, on
February 5, 1900, the Convention of Washington, which stipulated free
navigation on and neutralisation of the proposed canal in analogy with
the Convention of Constantinople, 1888, regarding the Suez Canal, but
ratification was refused by the Senate of the United States. In the
following year, however, on November 18, 1901, another treaty was signed
and afterwards ratified. This so-called Hay-Pauncefote Treaty[324]
applies to a canal between the Atlantic and Pacific Oceans by whatever
route may be considered expedient, and its five articles are the
following:--
[Footnote 323: See Martens, N.R.G. XV. p. 187, and Moore, III. §§
351-365. According to its article 8 this treaty was also to be applied
to a proposed canal through the Isthmus of Panama.]
[Footnote 324: See Moore, III. §§ 366-368.]
Article 1
The High Contracting Parties agree that the present Treaty shall
supersede the aforementioned Convention of April 19, 1850.
Article 2
It is agreed that the canal may be constructed under the auspices
of the Government of the United States, either directly at its own
cost, or by gift or loan of money to individuals or corporations,
or through subscription to or purchase of stock or shares, and
that, subject to the provisions of the present Treaty, the said
Government shall have and enjoy all the rights incident to such
construction, as well as the exclusive right of providing for the
regulation and management of the canal.
Article 3
The United States adopts, as the basis of the neutralisation of
such ship canal, the following Rules, substantially as embodied in
the Convention of Constantinople, signed October 29, 1888, for the
free navigation of the Suez Canal, that is to say:--
1. The canal shall be free and open to the vessels of commerce and
of war of all nations observing these Rules, on terms of entire
equality, so that there shall be no discrimination against any
such nation, or its citizens or subjects, in respect of the
conditions or charges of traffic, or otherwise. Such conditions
and charges of traffic shall be just and equitable.
2. The canal shall never be blockaded, nor shall any right of war
be exercised or any act of hostility be committed within it. The
United States, however, shall be at liberty to maintain such
military police along the canal as may be necessary to
protect[325] it against lawlessness and disorder.
[Footnote 325: This does not mean that the United States have a
right permanently to fortify the canal. Such a right has likewise
been deduced from article 23 of the Hay-Varilla Treaty of November
18, 1903, which runs:--"If it should become necessary at any time
to employ armed forces for the safety or protection of the canal,
or of the ships that make use of the same, or the railways and
auxiliary works, the United States shall have the right, at all
times in its discretion, to use its police and its land and naval
forces or to establish fortifications for these purposes."
However, it would seem that by this article 23 only temporary
fortifications are contemplated. On the other hand, if read by
itself, article 3 of the Hay-Varilla Treaty, according to which
the Republic of Panama grants to the United States all the rights,
power, and authority which the United States would possess and
exercise if she were the sovereign of the territory concerned,
could be quoted as indirectly empowering the United States to
fortify the Panama Canal permanently. But the question is whether
article 3 must not be interpreted in connection with article 23.
The fact that article 23 stipulates expressly the power of the
United States temporarily to establish fortifications would seem
to indicate that it was intended to exclude permanent
fortifications. The question of the fortification of the Panama
Canal is discussed by Hains (_contra_) and Davis (_pro_) in A.J.
III. (1909), pp. 354-394 and pp. 885-908, and by Olney, Wambough,
and Kennedy in A.J. V. (1911), pp. 298, 615, 620.]
3. Vessels of war of a belligerent shall not revictual nor take
any stores in the canal except so far as may be strictly
necessary; and the transit of such vessels through the canal
shall be effected with the least possible delay in accordance with
the regulations in force, and with only such intermission as may
result from the necessities of the service.
Prizes shall be in all respects subject to the same rules as
vessels of war of belligerents.
4. No belligerent shall embark or disembark troops, munitions of
war, or warlike materials in the canal, except in case of
accidental hindrance of the transit, and in such case the transit
shall be resumed with all possible despatch.
5. The provisions of this article shall apply to waters adjacent
to the canal, within three marine miles of either end. Vessels of
war of a belligerent shall not remain in such waters longer than
twenty-four hours at any one time except in case of distress, and
in such case shall depart as soon as possible; but a vessel of war
of one belligerent shall not depart within twenty-four hours from
the departure of a vessel of war of the other belligerent.
6. The plant, establishments, buildings and all works necessary to
the construction, maintenance, and operation of the canal shall be
deemed to be part thereof, for the purposes of this Treaty, and in
time of war, as in time of peace, shall enjoy complete immunity
from attack or injury by belligerents, and from acts calculated to
impair their usefulness as part of the canal.
Article 4
It is agreed that no change of territorial sovereignty or of the
international relations of the country or countries traversed by
the before-mentioned canal shall affect the general principle of
neutralisation or the obligation of the high contracting parties
under the present Treaty.
Article 5
The present Treaty shall be ratified by his Britannic Majesty and
by the President of the United States, by and with the advice and
consent of the Senate thereof; and the ratifications shall be
exchanged at Washington or at London at the earliest possible time
within six months from the date hereof.
In faith whereof the respective Plenipotentiaries have signed this
Treaty and thereunto affixed their seals.
Done in duplicate at Washington, the 18th day of November, in the
year of Our Lord 1901.
(Seal) PAUNCEFOTE.
(Seal) JOHN HAY.
On November 18, 1903, the so-called Hay-Varilla Treaty[326] was
concluded between the United States and the new Republic of Panama,
according to which, on the one hand, the United States guarantees and
will maintain the independence of the Republic of Panama, and, on the
other hand, the Republic of Panama grants[327] to the United States in
perpetuity for the construction, administration, and protection of a
canal between Colon and Panama the use, occupation, and control of a
strip of land required for the construction of the canal, and, further,
of land on both sides of the canal to the extent of five miles on either
side, with the exclusion, however, of the cities of Panama and Colon and
the harbours adjacent to these cities. According to article 18 of this
treaty the canal and the entrance thereto shall be neutral in
perpetuity, and shall be open to vessels of all nations as stipulated by
article 3 of the Hay-Pauncefote Treaty.
[Footnote 326: See Martens, N.R.G. 2nd Ser. XXXI. p. 599.]
[Footnote 327: That this grant is really cession all but in name, was
pointed out above, § 171 (4); see also below § 216.]
VI
MARITIME BELT
Grotius, II. c. 3, § 13--Vattel, I. §§ 287-290--Hall, §§
41-42--Westlake, I. pp. 183-192--Lawrence, § 187--Phillimore, I.
§§ 197-201--Twiss, I. §§ 144, 190-192--Halleck, I. pp.
157-167--Taylor, §§ 247-250--Walker, § 17--Wharton, § 32--Moore,
I. §§ 144-152--Wheaton, §§ 177-180--Bluntschli, §§ 302,
309-310--Hartmann, § 58--Heffter, § 75--Stoerk in Holtzendorff,
II. pp. 409-449--Gareis, § 21--Liszt, § 9--Ullmann, § 87--Bonfils,
Nos. 491-494--Despagnet, Nos. 403-414--Mérignhac, II. pp.
370-392--Pradier-Fodéré, II. Nos. 617-639--Nys, I. pp.
496-520--Rivier, I. pp. 145-153--Calvo, I. §§ 353-362--Fiore, II.
Nos. 801-809, and Code, Nos. 271-273, 1025--Martens, I. §
99--Bynkershoek, "De dominio maris" and "Quaestiones juris
publici," I. c. 8--Ortolan, "Diplomatie de la mer" (1856), I. pp.
150-175--Heilborn, System, pp. 37-57--Imbart-Latour, "La mer
territoriale, &c." (1889)--Godey, "La mer côtière"
(1896)--Schücking, "Das Küstenmeer im internationalen Recht"
(1897)--Perels, § 5--Fulton, "The Sovereignty of the Seas" (1911),
pp. 537-740--Barclay in Annuaire, XII. (1892), pp. 104-136, and
XIII. (1894), pp. 125-162--Martens in R.G. I. (1894), pp.
32-43--Aubert, _ibidem_, pp. 429-441--Engelhardt in R.I. XXVI.
(1894), pp. 209-213--Godey in R.G. III. (1896), pp.
224-237--Lapradelle in R.G. V. (1898), pp. 264-284, 309-347.
[Sidenote: State Property of Maritime Belt contested.]
§ 185. Maritime belt is that part of the sea which, in contradistinction
to the Open Sea, is under the sway of the littoral States. But no
unanimity exists with regard to the nature of the sway of the littoral
States. Many writers maintain that such sway is sovereignty, that the
maritime belt is a part of the territory of the littoral State, and that
the territorial supremacy of the latter extends over its coast waters.
Whereas it is nowadays universally recognised that the Open Sea cannot
be State property, such part of the sea as makes the coast waters would,
according to the opinion of these writers, actually be the State
property of the littoral States, although foreign States have a right of
innocent passage of their merchantmen through the coast waters.
On the other hand, many writers of great authority emphatically deny the
territorial character of the maritime belt and concede to the littoral
States, in the interest of the safety of the coast, only certain powers
of control, jurisdiction, police, and the like, but not sovereignty.
This is surely erroneous, since the real facts of international life
would seem to agree with the first-mentioned opinion only. Its
supporters rightly maintain[328] that the universally recognised fact of
the exclusive right of the littoral State to appropriate the natural
products of the sea in the coast waters, especially the use of the
fishery therein, can coincide only with the territorial character of the
maritime belt. The argument of their opponents that, if the belt is to
be considered a part of State territory, every littoral State must have
the right to cede and exchange its coast waters, can properly be met by
the statement that territorial waters of all kinds are inalienable
appurtenances[329] of the littoral and riparian States.[330]
[Footnote 328: Hall, p. 158. The question is treated with great
clearness by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.]
[Footnote 329: See above, § 175. Bynkershoek's ("De Dominio Maris," c.
5) opinion that a littoral State can alienate its maritime belt without
the coast itself, is at the present day untenable.]
[Footnote 330: The fact that art. I. of Convention 13 (Neutral Rights
and Duties in Maritime War) of the second Hague Peace Conference, 1907,
speaks of sovereign rights ... in neutral waters would seem to indicate
that the States themselves consider their sway over the maritime belt to
be of the nature of sovereignty.]
[Sidenote: Breadth of Maritime Belt.]
§ 186. Be that as it may, the question arises how far into the sea those
waters extend which are coast waters and are therefore under the sway of
the littoral State. Here, too, no unanimity exists upon either the
starting line of the belt on the coast or the breadth itself of the belt
from such starting line.
(1) Whereas the starting line is sometimes drawn along high-water mark,
many writers draw it along low-water mark. Others draw it along the
depths where the waters cease to be navigable; others again along those
depths where coast batteries can still be erected, and so on.[331] But
the number of those who draw it along low-water mark is increasing. The
Institute of International Law[332] has voted in favour of this starting
line, and many treaties stipulate the same.
[Footnote 331: See Schücking, p. 13.]
[Footnote 332: See Annuaire, XIII. p. 329.]
(2) With regard to the breadth of the maritime belt various opinions
have in former times been held, and very exorbitant claims have been
advanced by different States. And although Bynkershoek's rule that
_terrae potestas finitur ubi finitur armorum vis_ is now generally
recognised by theory and practice, and consequently a belt of such
breadth is considered under the sway of the littoral State as is within
effective range of the shore batteries, there is still no unanimity on
account of the fact that such range is day by day increasing. Since at
the end of the eighteenth century the range of artillery was about three
miles, or one marine league, that distance became generally[333]
recognised as the breadth of the maritime belt. But no sooner was a
common doctrine originated than the range of projectiles increased with
the manufacture of heavier guns. And although Great Britain, France,
Austria, the United States of America, and other States, in Municipal
Laws and International Treaties still adhere to a breadth of one marine
league, the time will come when by a common agreement of the States such
breadth will be very much extended.[334] As regards Great Britain, the
Territorial Waters Jurisdiction Act[335] of 1878 (41 and 42 Vict. c. 73)
specially recognises the extent of the territorial maritime belt as
three miles, or one marine league, measured from the low-water mark of
the coast.
[Footnote 333: But not universally. Thus Norway claims a breadth of four
miles and Spain even a breadth of six miles. As regards Norway, see
Aubert in R.G. I. (1894), pp. 429-441.]
[Footnote 334: The Institute of International Law has voted in favour of
six miles, or two marine leagues, as the breadth of the belt. See
Annuaire, XIII. p. 281.]
[Footnote 335: See above, § 25, and Maine, p. 39.]
[Sidenote: Fisheries, Cabotage, Police, and Maritime Ceremonials within
the Belt.]
§ 187. Theory and practice agree upon the following principles with
regard to fisheries, cabotage, police, and maritime ceremonials within
the maritime belt:--
(1) The littoral State can exclusively reserve the fishery within the
maritime belt[336] for its own subjects, whether fish or pearls or amber
or other products of the sea are in consideration.
[Footnote 336: All treaties stipulate for the purpose of fishery a three
miles wide territorial maritime belt. See, for instance, article 1 of
the Hague Convention concerning police and fishery in the North Sea of
May 6, 1882. (Martens, N.R.G. 2nd Ser. IX. p. 556.)]
(2) The littoral State can, in the absence of special treaties to the
contrary, exclude foreign vessels from navigation and trade along the
coast, the so-called cabotage,[337] and reserve this cabotage
exclusively for its own vessels. Cabotage meant originally navigation
and trade along the same stretch of coast between the ports thereof,
such coast belonging to the territory of one and the same State.
However, the term cabotage or coasting trade as used in commercial
treaties comprises now[338] sea trade between any two ports of the same
country, whether on the same coasts or different coasts, provided always
that the different coasts are all of them the coasts of one and the same
country as a political and geographical unit in contradistinction to the
coasts of colonial dependencies of such country.
[Footnote 337: See Pradier-Fodéré V. Nos. 2441, 2442.]
[Footnote 338: See below, § 579, where the matter is more amply
treated.]
(3) The littoral State can exclusively exercise police and control
within its maritime belt in the interest of its custom-house duties, the
secrecy of its coast fortifications, and the like. Thus foreign vessels
can be ordered to take certain routes and to avoid others.
(4) The littoral State can make laws and regulations regarding maritime
ceremonials to be observed by such foreign merchantmen as enter its
territorial maritime belt.[339]
[Footnote 339: See Twiss, I. § 194.]
[Sidenote: Navigation within the Belt.]
§ 188. Although the maritime belt is a portion of the territory of the
littoral State and therefore under the absolute territorial supremacy of
such State, the belt is nevertheless, according to the practice of all
the States, open to merchantmen of all nations for inoffensive
navigation, cabotage excepted. And it is the common conviction[340] that
every State has by customary International Law the _right_ to demand
that in time of peace its merchantmen may inoffensively pass through the
territorial maritime belt of every other State. Such right is correctly
said to be a consequence of the freedom of the Open Sea, for without
this right navigation on the Open Sea by vessels of all nations would in
fact be an impossibility. And it is a consequence of this right that no
State can levy tolls for the mere passage of foreign vessels through its
maritime belt. Although the littoral State may spend a considerable
amount of money for the erection and maintenance of lighthouses and
other facilities for safe navigation within its maritime belt, it cannot
make merely passing foreign vessels pay for such outlays. It is only
when foreign ships cast anchor within the belt or enter a port that they
can be made to pay dues and tolls by the littoral State. Some
writers[341] maintain that all nations have the right of inoffensive
passage for their merchantmen by usage only, and not by the customary
Law of Nations, and that, consequently, in strict law a littoral State
can prevent such passage. They are certainly mistaken. An attempt on the
part of a littoral State to prevent free navigation through the maritime
belt in time of peace would meet with stern opposition on the part of
all other States.
[Footnote 340: See above, § 142.]
[Footnote 341: Klüber, § 76; Pradier-Fodéré, II. No. 628.]
But a right of foreign States for their men-of-war to pass unhindered
through the maritime belt is not generally recognised. Although many
writers assert the existence of such a right, many others emphatically
deny it. As a rule, however, in practice no State actually opposes in
time of peace the passage of foreign men-of-war and other public vessels
through its maritime belt. And it may safely be stated, first, that a
usage has grown up by which such passage, if in every way inoffensive
and without danger, shall not be denied in time of peace; and, secondly,
that it is now a customary rule of International Law that the right of
passage through such parts of the maritime belt as form part of the
highways for international traffic cannot be denied to foreign
men-of-war.[342]
[Footnote 342: See below, § 449.]
[Sidenote: Jurisdiction within the Belt.]
§ 189. That the littoral State has exclusive jurisdiction within the
belt as regards mere matters of police and control is universally
recognised. Thus it can exclude foreign pilots, can make custom-house
arrangements, sanitary regulations, laws concerning stranded vessels and
goods, and the like. It is further agreed that foreign merchantmen
casting anchor within the belt or entering a port,[343] fall at once and
_ipso facto_ under the jurisdiction of the littoral State. But it is a
moot point whether such foreign vessels as do not stay but merely pass
through the belt are for the time being under this jurisdiction. It is
for this reason that the British Territorial Waters Jurisdiction Act of
1878 (41 & 42 Vict. c. 73), which claims such jurisdiction, has called
forth protests from many writers.[344] The controversy itself can be
decided only by the practice of the States. The British Act quoted, the
basis of which is, in my opinion, sound and reasonable, is a powerful
factor in initiating such a practice; but as yet no common practice of
the States can be said to exist.
[Footnote 343: The Institute of International Law--see Annuaire, XVII.
(1898), p. 273--adopted at its meeting at the Hague in 1898 a
"_Règlement_ sur le régime légal des navires et de leurs équipages dans
les ports étrangers" comprising seven rules.]
[Footnote 344: See Perels, pp. 69-77. The Institute of International
Law, which at its meeting at Paris in 1894 adopted a body of eleven
rules regarding the maritime belt, gulfs, bays, and straits, voted
against the jurisdiction of a littoral State over foreign vessels merely
passing through the belt. See Annuaire, XIII. p. 328.]
[Sidenote: Zone for Revenue and Sanitary Laws.]
§ 190. Different from the territorial maritime belt is the zone of the
Open Sea, over which a littoral State extends the operation of its
revenue and sanitary laws. The fact is that Great Britain and the United
States, as well as other States, possess revenue and sanitary laws which
impose certain duties not only on their own but also on such foreign
vessels bound to one of their ports as are approaching, but not yet
within, their territorial maritime belt.[345] Twiss and Phillimore agree
that in strict law these Municipal Laws have no basis, since every State
is by the Law of Nations prevented from extending its jurisdiction over
the Open Sea, and that it is only the Comity of Nations which admits
tacitly the operation of such Municipal Laws as long as foreign States
do not object, and provided that no measure is taken within the
territorial maritime belt of another nation. I doubt not that in time
special arrangements will be made as regards this point by a universal
international convention. But I believe that, since Municipal Laws of
the above kind have been in existence for more than a hundred years and
have not been opposed by other States, a customary rule of the Law of
Nations may be said to exist which allows littoral States in the
interest of their revenue and sanitary laws to impose certain duties on
such foreign vessels bound to their ports as are approaching, although
not yet within, their territorial maritime belt.
[Footnote 345: See, for instance, the British so-called _Hovering Acts_,
9 Geo. II. c. 35 and 24 Geo. III. c. 47. The matter is treated by Moore,
I. § 151; Taylor, § 248; Twiss, I. § 190; Phillimore, I. § 198; Halleck,
I. p. 157; Stoerk in Holtzendorff, II. pp. 475-478; Perels, § 5, pp.
25-28. See also Hall, "Foreign Powers and Jurisdiction," §§ 108 and 109,
and Annuaire, XIII. (1894), pp. 135 and 141.]
VII
GULFS AND BAYS
Vattel, I. § 291--Hall, § 41--Westlake, I. pp. 183-192--Lawrence,
§ 72--Phillimore, I. §§ 196-206--Twiss, I. §§ 181-182--Halleck, I.
pp. 165-170--Taylor, §§ 229-231--Walker, § 18--Wharton, I. §§
27-28--Moore, I. § 153--Wheaton, §§ 181-190--Bluntschli, §§
309-310--Hartmann, § 58--Heffter, § 76--Stoerk in Holtzendorff,
II. pp. 419-428--Gareis, § 21--Liszt, § 9--Ullmann, § 88--Bonfils,
No. 516--Despagnet, Nos. 405-406--Mérignhac, II. pp.
394-397--Pradier-Fodéré, II. Nos. 661-681--Nys, I. pp.
441-447--Rivier, I. pp. 153-157--Calvo, I. §§ 366-367--Fiore, II.
Nos. 808-815, and Code, Nos. 278-279--Martens, I. § 100--Perels, §
5--Schücking, "Das Küstenmeer im internationalen Recht" (1897),
pp. 20-24--Barclay in Annuaire, XII. pp. 127-129--Oppenheim in
Z.V. I. (1907), pp. 579-587, and V. (1911), pp. 74-95.
[Sidenote: Territorial Gulfs and Bays.]
§ 191. It is generally admitted that such gulfs and bays as are enclosed
by the land of one and the same littoral State, and whose entrance from
the sea is narrow enough to be commanded by coast batteries erected on
one or both sides of the entrance, belong to the territory of the
littoral State even if the entrance is wider[346] than two marine
leagues, or six miles.
[Footnote 346: I have no reason to alter the above statement, although
Lord Fitzmaurice declared in the House of Lords on February 21, 1907, in
the name of the British Government, that they considered such bays only
to be territorial as possessed an entrance _not_ wider than six miles.
The future will have to show whether Great Britain and her
self-governing colonies consider themselves bound by this statement. No
writer of authority can be quoted in favour of it, although Walker (§
18) and Wilson and Tucker (5th ed., 1910, § 53) state it. Westlake (vol.
I. p. 187) cannot be cited in favour of it, since he distinguishes
between bays and gulfs in such a way as is not generally done by
international lawyers, and as is certainly not recognised by geography;
for the very examples which he enumerates as _gulfs_ are all called
_bays_, namely those of Conception, of Cancale, of Chesapeake, and of
Delaware. In the North Atlantic Coast Fisheries case, between the United
States and Great Britain, which was decided by the Permanent Court of
Arbitration at the Hague in 1910, the United States--see the official
publication of the case, p. 136--also contended that only such bays
could be considered territorial as possessed an entrance not wider than
six miles, but the Court refused to agree to this contention.]
Some writers maintain that gulfs and bays whose entrance is wider than
ten miles, or three and a third marine leagues, cannot belong to the
territory of the littoral State, and the practice of some States accords
with this opinion. But the practice of other countries, approved by
many writers, goes beyond this limit. Thus Great Britain holds the Bay
of Conception in Newfoundland to be territorial, although it goes forty
miles into the land and has an entrance more than twenty miles wide. And
the United States claim the Chesapeake and Delaware Bays, as well as
other inlets of the same character, as territorial,[347] although many
European writers oppose this claim. The Institute of International Law
has voted in favour of a twelve miles wide entrance, but admits the
territorial character of such gulfs and bays with a wider entrance as
have been considered territorial for more than one hundred years.[348]
[Footnote 347: See Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. §
153.]
[Footnote 348: See Annuaire, XIII. p. 329.]
As the matter stands, it is doubtful as regards many gulfs and bays
whether they are territorial or not. Examples of territorial bays in
Europe are: The Zuider Zee is Dutch; the Frische Haff, the Kurische
Haff, and the Bay of Stettin, in the Baltic, are German, as is also the
Jade Bay in the North Sea. The whole matter calls for an international
congress to settle the question once for all which gulfs and bays are to
be considered territorial. And it must be specially observed that it is
hardly possible that Great Britain would still, as she formerly did for
centuries, claim the territorial character of the so-called King's
Chambers,[349] which include portions of the sea between lines drawn
from headland to headland.
[Footnote 349: Whereas Hall (§ 41, p. 162) says: "England would, no
doubt, not attempt any longer to assert a right of property over the
King's Chambers," Phillimore (I. § 200) still keeps up this claim. The
attitude of the British Government in the Moray Firth Case--see below,
p. 264--would seem to demonstrate that this claim is no longer upheld.
See also Lawrence, § 87, and Westlake, I. p. 188.]
[Sidenote: Non-territorial Gulfs and Bays.]
§ 192. Gulfs and bays surrounded by the land of one and the same
littoral State whose entrance is so wide that it cannot be commanded by
coast batteries, and, further, all gulfs and bays enclosed by the land
of more than one littoral State, however narrow their entrance may be,
are non-territorial. They are parts of the Open Sea, the marginal belt
inside the gulfs and bays excepted. They can never be appropriated, they
are in time of peace and war open to vessels of all nations including
men-of-war, and foreign fishing vessels cannot, therefore, be compelled
to comply with municipal regulations of the littoral State concerning
the mode of fishing.
An illustrative case is that of the fisheries in the Moray Firth. By
article 6 of the Herring[350] Fishery (Scotland) Act, 1889, beam and
otter trawling is prohibited within certain limits of the Scotch coast,
and the Moray Firth inside a line drawn from Duncansby Head in Caithness
to Rattray Point in Aberdeenshire is included in the prohibited area. In
1905, Mortensen, the captain of a Norwegian fishing vessel, but a Danish
subject, was prosecuted for an offence against the above-mentioned
article 6, convicted, and fined by the Sheriff Court at Dornoch,
although he contended that the incriminating act was committed outside
three miles from the coast. He appealed to the High Court of Justiciary,
which,[351] however, confirmed the verdict of the Sheriff Court,
correctly asserting that, whether or not the Moray Firth could be
considered as a British territorial bay, the Court was bound by a
British Act of Parliament even if such Act violates a rule of
International Law. The British Government, while recognising that the
Scotch Courts were bound by the Act of Parliament concerned, likewise
recognised that, the Moray Firth not being a British territorial bay,
foreign fishing vessels could not be compelled to comply with an Act of
Parliament regulating the mode of fishing in the Moray Firth outside
three miles from the coast, and therefore remitted Mortensen's fine. To
remedy the conflict between article 6 of the above-mentioned Herring
Fishery (Scotland) Act, 1889, and the requirements of International Law,
Parliament passed the Trawling in Prohibited Areas Prevention Act,[352]
1909, according to which no prosecution can take place for the exercise
of prohibited fishing methods outside the three miles from the coast,
but the fish so caught may not be landed or sold in the United
Kingdom.[353]
[Footnote 350: 52 and 53 Vict. c. 23.]
[Footnote 351: Mortensen _v._ Peters, "The Scotch Law Times Reports,"
vol. 14, p. 227.]
[Footnote 352: 9 Edw. VII. c. 8.]
[Footnote 353: See Oppenheim in Z.V. V. (1911), pp. 74-95.]
[Sidenote: Navigation and Fishery in Territorial Gulfs and Bays.]
§ 193. As regards navigation and fishery within territorial gulfs and
bays, the same rules of the Law of Nations are valid as in the case of
navigation and fishery within the territorial maritime belt. The right
of fishery may, therefore, exclusively be reserved for subjects of the
littoral State.[354] And navigation, cabotage excepted, must be open to
merchantmen of all nations, but foreign men-of-war need not be admitted.
[Footnote 354: The Hague Convention concerning police and fishery in the
North Sea, concluded on May 6, 1882, between Great Britain, Belgium,
Denmark, France, Germany, and Holland reserves by its article 2 the
fishery for subjects of the littoral States of such bays as have an
entrance from the sea not wider than ten miles, but reserves likewise a
maritime belt of three miles to be measured from the line where the
entrance is ten miles wide. Practically the fishery is therefore
reserved for subjects of the littoral State within bays with an entrance
thirteen miles wide. See Martens, N.R.G. 2nd Ser. IX. (1884), p. 556.]
VIII
STRAITS
Vattel, I. § 292--Hall, § 41--Westlake, I. pp. 193-197--Lawrence,
§§ 87-89--Phillimore, I. §§ 180-196--Twiss, I. §§ 183, 184,
189--Halleck, I. pp. 165-170--Taylor, §§ 229-231--Walker, §
17--Wharton, §§ 27-29--Wheaton, §§ 181-190--Moore, I. §§
133-134--Bluntschli, § 303--Hartmann, § 65--Heffter, § 76--Stoerk
in Holtzendorff, II. pp. 419-428--Gareis, § 21--Liszt, §§ 9 and
26--Ullmann, § 88--Bonfils, Nos. 506-511--Despagnet, Nos.
415-417--Pradier-Fodéré, II. Nos. 650-656--Nys, I. pp.
451-474--Rivier, I. pp. 157-159--Calvo, I. §§ 368-372--Fiore, II.
Nos. 745-754, and Code, Nos. 280-281--Martens, I. § 101--Holland,
Studies, p. 277.
[Sidenote: What Straits are Territorial.]
§ 194. All straits which are so narrow as to be under the command of
coast batteries erected either on one or both sides of the straits, are
territorial. Therefore, straits of this kind which divide the land of
one and the same State belong to the territory of such State. Thus the
Solent, which divides the Isle of Wight from England, is British, the
Dardanelles and the Bosphorus are Turkish, and both the Kara and the
Yugor Straits, which connect the Kara Sea with the Barents Sea, are
Russian. On the other hand, if such narrow strait divides the land of
two different States, it belongs to the territory of both, the boundary
line running, failing a special treaty making another arrangement,
through the mid-channel.[355] Thus the Lymoon Pass, the narrow strait
which separates the British island of Hong Kong from the continent, was
half British and half Chinese as long as the land opposite Hong Kong was
Chinese territory.
[Footnote 355: See below, § 199.]
It would seem that claims of States over wider straits than those which
can be commanded by guns from coast batteries are no longer upheld. Thus
Great Britain used formerly to claim the Narrow Seas--namely, the St.
George's Channel, the Bristol Channel, the Irish Sea, and the North
Channel--as territorial; and Phillimore asserts that the exclusive right
of Great Britain over these Narrow Seas is uncontested. But it must be
emphasised that this right _is_ contested, and I believe that Great
Britain would now no longer uphold her former claim,[356] at least the
Territorial Waters Jurisdiction Act 1878 does not mention it.
[Footnote 356: See Phillimore, I. § 189, and above, § 191 (King's
Chambers). Concerning the Bristol Channel, Hall (§ 41, p. 162, note 2)
remarks: "It was apparently decided by the Queen's Bench in Reg. _v._
Cunningham (Bell's "Crown Cases," 86) that the whole of the Bristol
Channel between Somerset and Glamorgan is British territory; possibly,
however, the Court intended to refer only to that portion of the Channel
which lies within Steepholm and Flatholm." See also Westlake, I. p. 188,
note 3.]
[Sidenote: Navigation, Fishery, and Jurisdiction in Straits.]
§ 195. All rules of the Law of Nations concerning navigation, fishery,
and jurisdiction within the maritime belt apply likewise to navigation,
fishery, and jurisdiction within straits. Foreign merchantmen,
therefore, cannot[357] be excluded; foreign men-of-war must be admitted
to such straits as form part of the highways for international
traffic;[358] the right of fishery may exclusively be reserved for
subjects of the littoral State; and the latter can exercise jurisdiction
over all foreign merchantmen passing through the straits. If the narrow
strait divides the land of two different States, jurisdiction and
fishery are reserved for each littoral State within the boundary line
running through the mid-channel or otherwise as by treaty arranged.
[Footnote 357: The claim of Russia--see Waultrin in R.G. XV. (1908), p.
410--to have a right to exclude foreign merchantmen from the passage
through the Kara and the Yugor Straits, is therefore unfounded. As
regards the Kara Sea, see below, § 253, note 2.]
[Footnote 358: As, for instance, the Straits of Magellan. These straits
were neutralised in 1881--see below, § 568, and vol. II. § 72--by a
treaty between Chili and Argentina. See Abribat, "Le détroit de Magellan
au point de vue international" (1902); Nys, I. pp. 470-474; and Moore,
I. § 134.]
It must, however, be stated that foreign merchantmen cannot be excluded
from the passage through territorial straits only when these connect two
parts of the Open Sea. In case a territorial strait belonging to one and
the same State connects a part of the Open Sea with a territorial gulf
or bay, or with a territorial land-locked sea belonging to the same
State--as, for instance, the Strait of Kertch[359] at present, and
formerly the Bosphorus and the Dardanelles[360]--foreign vessels can be
excluded therefrom.
[Footnote 359: See below, § 252.]
[Footnote 360: See below, § 197.]
[Sidenote: The former Sound Dues.]
§ 196. The rule that foreign merchantmen must be allowed inoffensive
passage through territorial straits without any dues and tolls whatever,
had one exception until the year 1857. From time immemorial, Denmark had
not allowed foreign vessels the passage through the two Belts and the
Sound, a narrow strait which divides Denmark from Sweden and connects
the Kattegat with the Baltic, without payment of a toll, the so-called
Sound Dues.[361] Whereas in former centuries these dues were not
opposed, they were not considered any longer admissible as soon as the
principle of free navigation on the sea became generally recognised, but
Denmark nevertheless insisted upon the dues. In 1857, however, an
arrangement[362] was completed between the maritime Powers of Europe and
Denmark by which the Sound Dues were abolished against a heavy indemnity
paid by the signatory States to Denmark. And in the same year the United
States entered into a convention[363] with Denmark for the free passage
of their vessels, and likewise paid an indemnity. With these dues has
disappeared the last witness of former times when free navigation on the
sea was not universally recognised.
[Footnote 361: See the details, which have historical interest only, in
Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer,
"Der Sundzoll" (1845).]
[Footnote 362: The Treaty of Copenhagen of March 14, 1857. See Martens,
N.R.G. XVI. 2nd part, p. 345.]
[Footnote 363: Convention of Washington of April 11, 1857. See Martens,
N.R.G. XVII. 1st part, p. 210.]
[Sidenote: The Bosphorus and Dardanelles.]
§ 197. The Bosphorus and Dardanelles, the two Turkish territorial
straits which connect the Black Sea with the Mediterranean, must be
specially mentioned.[364] So long as the Black Sea was entirely enclosed
by Turkish territory and was therefore a portion of this territory,
Turkey could exclude[365] foreign vessels from the Bosphorus and the
Dardanelles altogether, unless prevented by special treaties. But when
in the eighteenth century Russia became a littoral State of the Black
Sea, and the latter, therefore, ceased to be entirely a territorial sea,
Turkey, by several treaties with foreign Powers, conceded free
navigation through the Bosphorus and the Dardanelles to foreign
merchantmen. But she always upheld the rule that foreign men-of-war
should be excluded from these straits. And by article 1 of the
Convention of London of July 10, 1841, between Turkey, Great Britain,
Austria, France, Prussia, and Russia, this rule was once for all
accepted. Article 10 of the Peace Treaty of Paris of 1856 and the
Convention No. 1 annexed to this treaty, and, further, article 2 of the
Treaty of London, 1871, again confirm the rule, and all those Powers
which were not parties to these treaties submit nevertheless to it.[366]
According to the Treaty of London of 1871, however, the Porte can open
the straits in time of peace to the men-of-war of friendly and allied
Powers for the purpose, if necessary, of securing the execution of the
stipulations of the Peace Treaty of Paris of 1856.
[Footnote 364: See Holland, "The European Concert in the Eastern
Question," p. 225, and Perels, p. 29.]
[Footnote 365: See above, § 195.]
[Footnote 366: The United States, although she actually acquiesces in
the exclusion of her men-of-war, seems not to consider herself bound by
the Convention of London, to which she is not a party. See Wharton, I. §
29, pp. 79 and 80, and Moore, I. § 134, pp. 666-668.]
On the whole, the rule has in practice always been upheld by Turkey.
Foreign light public vessels in the service of foreign diplomatic envoys
at Constantinople can be admitted by the provisions of the Peace Treaty
of Paris of 1856. And on several occasions when Turkey has admitted a
foreign man-of-war carrying a foreign monarch on a visit to
Constantinople, there has been no opposition by the Powers.[367] But
when, in 1902, Turkey allowed four Russian torpedo destroyers to pass
through her straits on the condition that these vessels should be
disarmed and sail under the Russian commercial flag, Great Britain
protested and declared that she reserved the right to demand similar
privileges for her men-of-war should occasion arise. As far as I know,
however, no other Power has joined Great Britain in this protest. On the
other hand, no protest was raised when, in 1904, during the
Russo-Japanese war, two vessels belonging to the Russian volunteer fleet
in the Black Sea were allowed to pass through to the Mediterranean, for
nobody could presume that these vessels, which were flying the Russian
commercial flag, would later on convert themselves into men-of-war by
hoisting the Russian war flag.[368]
[Footnote 367: See Perels, p. 30.]
[Footnote 368: See below, vol. II. § 84.]
IX
BOUNDARIES OF STATE TERRITORY
Grotius, II. c. 3, § 18--Vattel, I. § 266--Hall, § 38--Westlake,
I. pp. 141-142--Twiss, I. §§ 147-148--Taylor, § 251--Moore, I. §§
154-162--Bluntschli, §§ 296-302--Hartmann, § 59--Heffter, §
66--Holtzendorff in Holtzendorff, II. pp. 232-239--Gareis, §
19--Liszt, § 9--Ullmann, § 91--Bonfils, Nos. 486-489--Despagnet,
No. 377--Pradier-Fodéré, II. Nos. 759-777--Mérignhac, II. p.
358--Nys, I. pp. 413-422--Rivier, I. § 11--Calvo, I. §§
343-352--Fiore, II. Nos. 799-806, and Code, Nos.
1040-1049--Martens, I. § 89--Lord Curzon of Kedleston, "Frontiers"
(Romanes lecture of 1907).
[Sidenote: Natural and Artificial Boundaries.]
§ 198. Boundaries of State territory are the imaginary lines on the
surface of the earth which separate the territory of one State from that
of another, or from unappropriated territory, or from the Open Sea. The
course of the boundary lines may or may not be indicated by boundary
signs. These signs may be natural or artificial, and one speaks,
therefore, of natural in contradistinction to artificial boundaries.
_Natural_ boundaries may consist of water, a range of rocks or
mountains, deserts, forests, and the like. _Artificial_ boundaries are
such signs as have been purposely put up to indicate the way of the
imaginary boundary-line. They may consist of posts, stones, bars,
walls,[369] trenches, roads, canals, buoys in water, and the like. It
must, however, be borne in mind that the distinction between artificial
and natural boundaries is not sharp, in so far as some natural
boundaries can be artificially created. Thus a forest may be planted,
and a desert may be created, as was the frequent practice of the Romans
of antiquity, for the purpose of marking the frontier.
[Footnote 369: The Romans of antiquity very often constructed boundary
walls, and the Chinese Wall may also be cited as an example.]
[Sidenote: Boundary Waters.]
§ 199. Natural boundaries consisting of water must be specially
discussed on account of the different kinds of boundary waters. Such
kinds are rivers, lakes, landlocked seas, and the maritime belt.
(1) Boundary rivers[370] are such rivers as separate two different
States from each other.[371] If such river is not navigable, the
imaginary boundary line runs down the middle of the river, following all
turnings of the border line of both banks of the river. On the other
hand, in a navigable river the boundary line runs through the middle of
the so-called _Thalweg_, that is, the mid-channel of the river. It is,
thirdly, possible that the boundary line is the _border line_ of the
river, so that the whole bed belongs to one of the riparian States
only.[372] But this is an exception created by treaty or by the fact
that a State has occupied the lands on one side of a river at a time
prior to the occupation of the lands on the other side by some other
State.[373] And it must be remembered that, since a river sometimes
changes its course more or less, the boundary line running through the
middle or the _Thalweg_ or along the border line is thereby also
altered. In case a bridge is built over a boundary river, the boundary
line runs, failing special treaty arrangements, through the middle of
the bridge. As regards the boundary lines running through islands rising
in boundary rivers and through the abandoned beds of such rivers, see
below, §§ 234 and 235.
[Footnote 370: See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.]
[Footnote 371: This case is not to be confounded with the other, in
which a river runs through the lands of two different States. In this
latter case the boundary line runs across the river.]
[Footnote 372: See above, § 175.]
[Footnote 373: See Twiss, I. §§ 147 and 148, and Westlake, I. p. 142.]
(2) Boundary lakes and land-locked seas are such as separate the lands
of two or more different States from each other. The boundary line runs
through the middle of these lakes and seas, but as a rule special
treaties portion off such lakes and seas between riparian States.[374]
[Footnote 374: See above, § 179.]
(3) The boundary line of the maritime belt is, according to details
given above (§ 186), uncertain, since no unanimity prevails with regard
to the width of the belt. It is, however, certain that the boundary line
runs not nearer to the shore than three miles, or one marine league,
from the low-water mark.
(4) In a narrow strait separating the lands of two different States the
boundary line runs either through the middle or through the
mid-channel,[375] unless special treaties make different arrangements.
[Footnote 375: See Twiss, I. §§ 183 and 184, and above, § 194.]
[Sidenote: Boundary Mountains.]
§ 200. Boundary mountains or hills are such natural elevations from the
common level of the ground as separate the territories of two or more
States from each other. Failing special treaty arrangements, the
boundary line runs on the mountain ridge along with the watershed. But
it is quite possible that boundary mountains belong wholly to one of the
States which they separate.[376]
[Footnote 376: See Fiore, II. No. 800.]
[Sidenote: Boundary Disputes.]
§ 201. Boundary lines are, for many reasons, of such vital importance
that disputes relating thereto are inevitably very frequent and have
often led to war. During the nineteenth century, however, a tendency
began to prevail to settle such disputes peaceably. The simplest way in
which this can be done is always by a boundary treaty, provided the
parties can come to terms.[377] In other cases arbitration can settle
the matter, as, for instance, in the Alaska Boundary dispute between
Great Britain (representing Canada) and the United States, settled in
1903. Sometimes International Commissions are specially appointed to
settle the boundary lines. In this way the boundary lines between
Turkey, Bulgaria, Servia, Montenegro, and Roumania were settled after
the Berlin Congress of 1878. It sometimes happens that the States
concerned, instead of settling the boundary line, keep a strip of land
between their territories under their joint tenure and administration,
so that a so-called _condominium_ comes into existence, as in the case
of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378]
[Footnote 377: A good example of such a boundary treaty is that between
Great Britain and the United States of America respecting the
demarcation of the international boundary between the United States and
the Dominion of Canada, signed at Washington on April 11, 1908. See
Martens, N.R.G. 3rd Ser. IV. (1911), p. 191.]
[Footnote 378: See above, § 171, No. 1.]
[Sidenote: Natural Boundaries _sensu politico_.]
§ 202. Whereas the term "natural boundaries" in the theory and practice
of the Law of Nations means natural signs which indicate the course of
boundary lines, the same term is used politically[379] in various
different meanings. Thus the French often speak of the river Rhine as
their "natural" boundary, as the Italians do of the Alps. Thus, further,
the zones within which the language of a nation is spoken are frequently
termed that nation's "natural" boundary. Again, the line enclosing such
parts of the land as afford great facilities for defence against an
attack is often called the "natural" boundary of a State, whether or not
these parts belong to the territory of the respective State. It is
obvious that all these and other meanings of the term "natural
boundaries" are of no importance to the Law of Nations, whatever value
they may have politically.
[Footnote 379: See Rivier, I. p. 166.]
X
STATE SERVITUDES
Vattel, I. § 89--Hall, § 42*--Westlake, I. p. 61--Phillimore, I.
§§ 281-283--Twiss, I. § 245--Taylor, § 252--Moore, I. §§ 163-168,
II. § 177--Bluntschli, §§ 353-359--Hartmann, § 62--Heffter, §
43--Holtzendorff in Holtzendorff, II. pp. 242-252--Gareis, §
71--Liszt, §§ 8 and 19--Ullmann, § 99--Bonfils, Nos.
340-344--Despagnet, Nos. 190-192--Mérignhac, II. pp.
366-368--Pradier-Fodéré, II. Nos. 834-845, 1038--Rivier, I. pp.
296-303--Nys, II. pp. 271-279--Calvo, III. § 1583--Fiore, I. §
380, and Code, Nos. 1095-1097--Martens, I. §§ 94-95--Clauss, "Die
Lehre von den Staatsdienstbarkeiten" (1894)--Fabres, "Des
servitudes dans le droit international" (1901)--Hollatz, "Begriff
und Wesen der Staatsservituten" (1909)--Labrousse, "Des servitudes
en droit international public" (1911)--Nys in R.I. 2nd Ser. VII.
(1905), pp. 118-125, and XIII. (1911), pp. 312-323.
[Sidenote: Conception of State Servitudes.]
§ 203. State servitudes are those exceptional and conventional
restrictions on the territorial supremacy of a State by which a part or
the whole of its territory is in a limited way made perpetually to
serve a certain purpose or interest of another State. Thus a State may
by a convention be obliged to allow the passage of troops of a
neighbouring State, or may in the interest of a neighbouring State be
prevented from fortifying a certain town near the frontier.
Servitudes must not be confounded[380] with those general restrictions
upon territorial supremacy which, according to certain rules of the Law
of Nations, concern all States alike. These restrictions are named
"natural" restrictions of territorial supremacy (_servitutes juris
gentium naturales_), in contradistinction to the conventional
restrictions (_servitutes juris gentium voluntariae_) which constitute
the State servitudes in the technical sense of the term. Thus, for
instance, it is not a State servitude, but a "natural" restriction on
territorial supremacy, that a State is obliged to admit the free passage
of foreign merchantmen through its territorial maritime belt.
[Footnote 380: This is done, for instance, by Heffter (§ 43), Martens (§
94), Nys (II. p. 271), and Hall (§ 42*); the latter speaks of the right
of innocent use of territorial seas as a servitude.]
That State servitudes are or may on occasions be of great importance,
there can be no doubt whatever. The vast majority[381] of writers and
the practice of the States accept, therefore, the conception of State
servitudes, although they do not agree with regard to the definition and
the width of the conception, and although, consequently, in many cases
the question is disputed whether a certain restriction upon territorial
supremacy is or is not a State servitude.
[Footnote 381: The conception of State servitudes is rejected by
Bulmerincq (§ 49), Gareis (§ 71), Liszt (§§ 8 and 19), Jellinek
("Allgemeine Staatslehre," p. 366).]
The theory of State servitudes has of late been rejected by the
Permanent Court of Arbitration at the Hague in the case[382] (1910) of
the North Atlantic Coast Fisheries between Great Britain and the United
States, chiefly for the three reasons that a servitude in International
Law predicated an express grant of a sovereign right, that the doctrine
of international servitude originated in the peculiar and now obsolete
conditions prevailing in the Holy Roman Empire, and that this doctrine,
being little suited to the principle of sovereignty which prevails in
States under a constitutional government and to the present
international relations of Sovereign States, had found little, if any,
support from modern publicists. It is hardly to be expected that this
opinion of the Court will induce theory and practice to drop the
conception of State servitudes, which is of great value because it fitly
covers those restrictions on the territorial supremacy of the State by
which a part or the whole of its territory is in a limited way made
perpetually to serve a certain purpose or interest of another State.
That the doctrine of State servitudes originated in the peculiar
conditions of the Holy Roman Empire does not make it unfit for the
conditions of modern life if its practical value can be demonstrated.
Further, the assertion that the doctrine is but little suited to the
principle of sovereignty which prevails in States under a constitutional
government, and has, therefore, found little, if any, support from
modern publicists, does not agree with the facts. Lastly, the statement
that a servitude in International Law predicated an express grant of a
sovereign right, is not based on any other authority than the contention
of the United States, which made this unfounded statement in presenting
their case before the Tribunal. The fact is that a State servitude,
although to a certain degree it restricts the sovereignty (territorial
supremacy) of the State concerned, does as little as any other
restriction upon the sovereignty of a State confer a sovereign right
upon the State in favour of which it is established.
[Footnote 382: See the official publication of the case, pp. 115-116;
Hogg in _The Law Quarterly Review_, XXVI. (1910), pp. 415-417; Richards
in _The Journal of the Society of Comparative Legislation_, New Series,
XI. (1910), pp. 18-27; Lansing in A.J. V. (1911), pp. 1-31; Balch and
Louter in R.I. 2nd Ser. XIII. (1911), pp. 5-23, 131-157.]
[Sidenote: Subjects of State Servitudes.]
§ 204. Subjects of State servitudes are States only and exclusively,
since State servitudes can exist between States only (_territorium
dominans_ and _territorium serviens_). Formerly some writers[383]
maintained that private individuals and corporations were able to
acquire a State servitude; but nowadays it is agreed that this is not
possible, since the Law of Nations is a law between States only and
exclusively. Whatever rights may be granted by a State to foreign
individuals and corporations, such rights can never constitute State
servitudes.
[Footnote 383: Bluntschli, § 353; Heffter, § 44.]
On the other hand, every State can acquire and grant State servitudes,
although some States may, in consequence of their particular position
within the Family of Nations, be prevented from acquiring or granting
some special kind or another of State servitudes. Thus neutralised
States are in many points hampered in regard to acquiring and granting
State servitudes, because they have to avoid everything that could drag
them indirectly into war. Thus, further, half-Sovereign and
part-Sovereign States may not be able to acquire and to grant certain
State servitudes on account of their dependence upon their superior
State. But apart from such exceptional cases, even not-full Sovereign
States can acquire and grant State servitudes, provided they have any
international status at all.
[Sidenote: Object of State Servitudes.]
§ 205. The object of State servitudes is always the whole or a part of
the territory of the State the territorial supremacy of which is
restricted by any such servitude.[384] Since the territory of a State
includes not only the land but also the rivers which water the land, the
maritime belt, the territorial subsoil, and the territorial atmosphere,
all these can, as well as the service of the land itself, be an object
of State servitudes. Thus a State may have a perpetual right of
admittance for its subjects to the fishery in the maritime belt of
another State, or a right to lay telegraph cables through a foreign
maritime belt, or a right to make and use a tunnel through a boundary
mountain, and the like. And should ever aërostation become so developed
as to be of practical utility, a State servitude might be created
through a State acquiring a perpetual right to send military aerial
vehicles through the territorial atmosphere of a neighbouring State. It
must, however, be emphasised that the Open Sea can never be the object
of a State servitude, since it is no State's territory.
[Footnote 384: The contention of the United States, adopted by the Hague
Arbitration Tribunal, in 1910, in the case of the North Atlantic Coast
Fisheries, that a State servitude conferred a sovereign right upon the
State in favour of which it is established, was refuted above in § 203,
p. 275.]
Since the object of State servitudes is the territory of a State, all
such restrictions upon the territorial supremacy of a State as do not
make a part or the whole of its territory itself serve a purpose or an
interest of another State are not State servitudes. The territory as the
object is the mark of distinction between State servitudes and other
restrictions on the territorial supremacy. Thus the perpetual
restriction imposed upon a State by a treaty not to keep an army beyond
a certain size is certainly a restriction on territorial supremacy, but
is not, as some writers[385] maintain, a State servitude, because it
does not make the territory of one State serve an interest of another.
On the other hand, when a State submits to a perpetual right enjoyed by
another State of passage of troops, or to the duty not to fortify a
certain town, place, or island,[386] or to the claim of another State
for its subjects to be allowed the fishery within the former's
territorial belt;[387] in all these and the like[388] cases the
territorial supremacy of a State _is_ in such a way restricted that a
part or the whole of its territory is made to serve the interest of
another State, and such restrictions are therefore State
servitudes.[389]
[Footnote 385: See, for instance, Bluntschli, § 356.]
[Footnote 386: Thus by article 32 of the peace treaty of Paris, 1856,
and by the Convention of March 30, 1856, between Great Britain, France,
and Russia, annexed to the peace treaty of Paris--see Martens, N.R.G.
XV. pp. 780 and 788--Russia is prevented from fortifying the Aland
Islands in the Baltic. See below, § 522, and Waultrin in R.G. XIV. pp.
517-533. See also A.J. II. (1908), p. 397.]
[Footnote 387: Examples of such fishery servitudes are:--
(_a_) The former French fishery rights in Newfoundland which were based
on article 13 of the Treaty of Utrecht, 1713, and on the Treaty of
Versailles, 1783. See the details regarding the Newfoundland Fishery
Dispute, in Phillimore, I. § 195; Clauss, pp. 17-31; Geffcken in R.I.
XXII. p. 217; Brodhurst in _Law Magazine and Review_, XXIV. p. 67. The
French literature on the question is quoted in Bonfils, No. 342, note 1.
The dispute is now settled by France's renunciation of the privileges
due to her according to article 13 of the Treaty of Utrecht, which took
place by article 1 of the Anglo-French Convention signed in London on
April 8, 1904 (see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 29). But
France retains, according to article 2 of the latter Convention, the
right of fishing for her subjects in certain parts of the territorial
waters of Newfoundland.
(_b_) The fishery rights granted by Great Britain to the United States
of America in certain parts of the British North Atlantic Coast by
article 1 of the Treaty of 1818 which gave rise to disputes extending
over a long period. The dispute is now settled by an award of the Hague
Permanent Court of Arbitration given in September (1910). That the Court
refused to recognise the conception of State servitudes, was pointed out
above, § 203. See above, § 203, and the literature there quoted.]
[Footnote 388: Phillimore (I. § 283) quotes two interesting State
servitudes which belong to the past. According to articles 4 and 10 of
the Treaty of Utrecht, 1713, France was, in the interest of Great
Britain, not to allow the Stuart Pretender to reside on French
territory, and Great Britain was, in the interest of Spain, not to allow
Moors and Jews to reside in Gibraltar.]
[Footnote 389: The controverted question whether neutralisation of a
State creates a State servitude is answered by Clauss (p. 167) in the
affirmative, but by Ullmann (§ 99), correctly, I think, in the negative.
But a distinction must be drawn between neutralisation of a whole State
and neutralisation of certain parts of a State. In the latter case a
State servitude is indeed created.]
[Sidenote: Different kinds of State Servitudes.]
§ 206. According to different qualities different kinds of State
servitudes must be distinguished.
(1) Affirmative, active, or positive, are those servitudes which give
the right to a State to perform certain acts on the territory of another
State, such as to build and work a railway, to establish a custom-house,
to let an armed force pass through a certain territory (_droit
d'étape_), or to keep troops in a certain fortress, to use a port or an
island as a coaling station, and the like.
(2) Negative, are such servitudes as give a right to a State to demand
of another State that the latter shall abstain from exercising its
territorial supremacy in certain ways. Thus a State can have a right to
demand that a neighbouring State shall not fortify certain towns near
the frontier, that another State shall not allow foreign men-of-war in a
certain harbour.[390]
[Footnote 390: Affirmative State servitudes consist _in patiendo_,
negative servitudes _in non faciendo_. The rule of Roman Law _servitus
in faciendo consistere nequit_ has been adopted by the Law of Nations.]
(3) Military, are those State servitudes which are acquired for military
purposes, such as the right to keep troops in a foreign fortress, or to
let an armed force pass through foreign territory, or to demand that a
town on foreign territory shall not be fortified, and the like.
(4) Economic, are those servitudes which are acquired for the purpose of
commercial interests, traffic, and intercourse in general, such as the
right of fisheries in foreign territorial waters, to build a railway on
or lay a telegraph cable through foreign territory, and the like.
[Sidenote: Validity of State Servitudes.]
§ 207. Since State servitudes, in contradistinction to personal rights
(rights _in personam_), are rights inherent to the object with which
they are connected (rights _in rem_), they remain valid and may be
exercised however the ownership of the territory to which they apply may
change. Therefore, if, after the creation of a State servitude, the part
of the territory affected comes by subjugation or cession under the
territorial supremacy of another State, such servitude remains in force.
Thus, when the Alsatian town of Hüningen became in 1871, together with
the whole of Alsace, German territory, the State servitude created by
the Treaty of Paris, 1815, that Hüningen should, in the interest of the
Swiss canton of Basle, never be fortified, was not extinguished.[391]
Thus, further, when in 1860 the former Sardinian provinces of Chablais
and Faucigny became French, the State servitude created by article 92
of the Act of the Vienna Congress, 1815, that Switzerland should have
temporarily during war the right to locate troops in these provinces,
was not extinguished.[392]
[Footnote 391: Details in Clauss, pp. 15-17.]
[Footnote 392: Details in Clauss, pp. 8-15.]
It is a moot point whether military State servitudes can be exercised in
time of war by a belligerent if the State with whose territory they are
connected remains neutral. Must such State, for the purpose of upholding
its neutrality, prevent the belligerent from exercising the respective
servitude--for instance, the right of passage of troops?[393]
[Footnote 393: This question became practical when in 1900, during the
South African war, Great Britain claimed, and Portugal was ready to
grant, passage of troops through Portuguese territory in South Africa.
See below, vol. II. §§ 306 and 323; Clauss, pp. 212-217; and Dumas in
R.G. XVI. (1909), pp. 289-316.]
[Sidenote: Extinction of State Servitudes.]
§ 208. State servitudes are extinguished by agreement between the States
concerned, or by express or tacit[394] renunciation on the part of the
State in whose interest they were created. They are not, according to
the correct opinion, extinguished by reason of the territory involved
coming under the territorial supremacy of another State. But it is
difficult to understand why, although State servitudes are called into
existence through treaties, it is sometimes maintained that the clause
_rebus sic stantibus_[395] cannot be applied in case a vital change of
circumstances makes the exercise of a State servitude unbearable. It is
a matter of course that in such case the restricted State must
previously try to come to terms with the State which is the subject of
the servitude. But if an agreement cannot be arrived at on account of
the unreasonableness of the other party, the clause _rebus sic
stantibus_ may well be resorted to.[396] The fact that the practice of
the States does not provide any example of an appeal to this clause for
the purpose of doing away with a State servitude proves only that such
appeal has hitherto been unnecessary.
[Footnote 394: See Bluntschli, § 359 b. The opposition of Clauss (p.
219) and others to this sound statement of Bluntschli's is not
justified.]
[Footnote 395: See below, § 539.]
[Footnote 396: See Bluntschli, § 359 d, and Pradier-Fodéré, II. No. 845.
Clauss (p. 222) and others oppose this sound statement likewise.]
XI
MODES OF ACQUIRING STATE TERRITORY
Vattel, I. §§ 203-207--Hall, § 31--Westlake, I. pp.
84-116--Lawrence, §§ 74-78--Phillimore, I. §§ 222-225--Twiss, I.
§§ 113-139--Halleck, I. p. 154--Taylor, §§ 217-228--Wheaton, §§
161-163--Bluntschli, §§ 278-295--Hartmann, § 61--Heffter, §
69--Holtzendorff in Holtzendorff, II. pp. 252-255--Gareis, §
76--Liszt, § 10--Ullmann, § 92--Bonfils, No. 532--Despagnet, No.
378--Pradier-Fodéré, II. Nos. 781-787--Mérignhac, II. pp.
410-412--Rivier, I. § 12--Nys, II. pp. 1-3--Calvo, I. §
263--Fiore, I. Nos. 838-840--Martens, I. § 90--Heimburger, "Der
Erwerb der Gebietshoheit" (1888).
[Sidenote: Who can acquire State Territory?]
§ 209. Since States only and exclusively are subjects of the Law of
Nations, it is obvious that, as far as the Law of Nations is concerned,
States[397] solely can acquire State territory. But the acquisition of
territory by an existing State and member of the Family of Nations must
not be confounded, first, with the foundation of a new State, and,
secondly, with the acquisition of such territory and sovereignty over it
by private individuals or corporations as lies outside the dominion of
the Law of Nations.
[Footnote 397: There is no doubt that no full-Sovereign State is, as a
rule, prevented by the Law of Nations from acquiring more territory than
it already owns, unless some treaty arrangement precludes it from so
doing. As regards the question whether a neutralised State is, by its
neutralisation, prevented from acquiring territory, see above, § 96, and
below, § 215.]
(1) Whenever a multitude of individuals, living on or entering into such
a part of the surface of the globe as does not belong to the territory
of any member of the Family of Nations, constitute themselves as a State
and nation on that part of the globe, a new State comes into existence.
This State is not, by reason of its birth, a member of the Family of
Nations. The formation of a new State is, as will be remembered from
former statements,[398] a matter of fact, and not of law. It is through
recognition, which is a matter of law, that such new State becomes a
member of the Family of Nations and a subject of International Law. As
soon as recognition is given, the new State's territory is recognised as
the territory of a subject of International Law, and it matters not how
this territory was acquired before the recognition.
[Footnote 398: See above, § 71.]
(2) Not essentially different is the case in which a private individual
or a corporation acquires land with sovereignty over it in countries
which are not under the territorial supremacy of a member of the Family
of Nations. The actual proceeding in all such cases is that all such
acquisition is made either by occupation of hitherto uninhabited land,
for instance an island, or by cession from a native tribe living on the
land. Acquisition of territory and sovereignty thereon in such cases
takes place outside the dominion of the Law of Nations, and the rules of
this law, therefore, cannot be applied. If the individual or corporation
which has made the acquisition requires protection by the Law of
Nations, they must either declare a new State to be in existence and ask
for its recognition by the Powers, as in the case of the former Congo
Free State,[399] or they must ask a member of the Family of Nations to
acknowledge the acquisition as made on its behalf.[400]
[Footnote 399: See above, § 101. The case of Sir James Brooke, who
acquired in 1841 Sarawak, in North Borneo, and established an
independent State there, of which he became the Sovereign, may also be
cited. Sarawak is under English protectorate, but the successor of Sir
James Brooke is still recognised as Sovereign.]
[Footnote 400: The matter is treated with great lucidity by Heimburger,
pp. 44-77, who defends the opinion represented in the text against Sir
Travers Twiss (I. Preface, p. x.; also in R.I. XV. p. 547, and XVI. p.
237) and other writers. See also Ullmann, § 93.]
[Sidenote: Former Doctrine concerning Acquisition of Territory.]
§ 210. No unanimity exists among writers on the Law of Nations with
regard to the modes of acquiring territory on the part of the members of
the Family of Nations. The topic owes its controversial character to
the fact that the conception of State territory has undergone a great
change since the appearance of the science of the Law of Nations. When
Grotius created that science, State territory used to be still, as in
the Middle Ages, more or less identified with the private property of
the monarch of the State. Grotius and his followers applied, therefore,
the rules of Roman Law concerning the acquisition of private property to
the acquisition of territory by States.[401] As nowadays, as far as
International Law is concerned, every analogy to private property has
disappeared from the conception of State territory, the acquisition of
territory by a State can mean nothing else than the acquisition of
_sovereignty_ over such territory. It is obvious that under these
circumstances the rules of Roman Law concerning the acquisition of
private property can no longer be applied. Yet the fact that they have
been applied in the past has left traces which can hardly be
obliterated; and they need not be obliterated, since they contain a good
deal of truth in agreement with the actual facts. But the different
modes of acquiring territory must be taken from the real practice of the
States, and not from Roman Law, although the latter's terminology and
common-sense basis may be made use of.
[Footnote 401: See above, § 168. The distinction between _imperium_ and
_dominium_ in Seneca's _dictum_ that "omnia rex imperio possidet,
singuli dominio" was well known, and Grotius, II. c. 3, § 4, quotes it,
but the consequences thereof were nevertheless not deduced. (See
Westlake, Chapters, pp. 129-133, and Westlake, I. pp. 84-88.)]
[Sidenote: What Modes of Acquisition of Territory there are.]
§ 211. States as living organisms grow and decrease in territory. If the
historical facts are taken into consideration, different reasons may be
found to account for the exercise of sovereignty by a State over the
different sections of its territory. One section may have been ceded by
another State, another section may have come into the possession of the
owner in consequence of accretion, a third through subjugation, a
fourth through occupation of no State's land. As regards a fifth
section, a State may say that it has exercised its sovereignty over the
same for so long a period that the fact of having had it in undisturbed
possession is a sufficient title of ownership. Accordingly, five modes
of acquiring territory may be distinguished, namely: cession,
occupation, accretion, subjugation, and prescription. Most writers
recognise these five modes. Some, however, do not recognise
prescription; some assert that accretion creates nothing else than a
modification of the territory of a State; and some do not recognise
subjugation at all, or declare it to be only a special case of
occupation. It is for these reasons that some writers recognise only two
or three[402] modes of acquiring territory. Be that as it may, all
modes, besides the five mentioned, enumerated by some writers, are in
fact not special modes, but only special cases of cession.[403] And
whatever may be the value of the opinions of publicists, so much is
certain that the practice of the States recognises cession, occupation,
accretion, subjugation, and prescription as distinct modes of acquiring
territory.
[Footnote 402: Thus Gareis (§ 70) recognises cession and occupation
only, whereas Heimburger (pp. 106-110) and Holtzendorff (II. p. 254)
recognise cession, occupation, and accretion only.]
[Footnote 403: See below, § 216. Such alleged special modes are sale,
exchange, gift, marriage contract, testamentary disposition, and the
like.]
[Sidenote: Original and derivative Modes of Acquisition.]
§ 212. The modes of acquiring territory are correctly divided according
as the title they give is derived from the title of a prior owner State,
or not. Cession is therefore a derivative mode of acquisition, whereas
occupation, accretion, subjugation, and prescription are original
modes.[404]
[Footnote 404: Lawrence (§ 74) enumerates conquest (subjugation) and
prescription besides cession as derivative modes. This is, however,
merely the consequence of a peculiar conception of what is called a
derivative mode of acquisition.]
XII
CESSION
Hall, § 35--Lawrence, § 76--Phillimore, I. §§ 252-273--Twiss, I. §
138--Walker, § 10--Halleck, I. pp. 154-157--Taylor, § 227--Moore,
I. §§ 83-86--Bluntschli, §§ 285-287--Hartmann, § 61--Heffter, §§
69 and 182--Holtzendorff in Holtzendorff, II. pp. 269-274--Gareis,
§ 70--Liszt, § 10--Ullmann, §§ 97-98--Bonfils, Nos.
364-371--Mérignhac, II. pp. 487-497--Despagnet, Nos.
381-391--Pradier-Fodéré, II. Nos. 817-819--Rivier, I. pp.
197-217--Nys, II. pp. 8-31--Calvo, I. § 266--Fiore, II. §§
860-861, and Code, No. 1053--Martens, I. § 91--Heimburger, "Der
Erwerb der Gebietshoheit" (1888), pp. 110-120.
[Sidenote: Conception of cession of State Territory.]
§ 213. Cession of State territory is the transfer of sovereignty over
State territory by the owner State to another State. There is no doubt
whatever that such cession is possible according to the Law of Nations,
and history presents innumerable examples of such transfer of
sovereignty. The Constitutional Law of the different States may or may
not lay down special rules[405] for the transfer or acquisition of
territory. Such rules can have no direct influence upon the rules of the
Law of Nations concerning cession, since Municipal Law can neither
abolish existing nor create new rules of International Law.[406] But if
such municipal rules contain constitutional restrictions on the
Government with regard to cession of territory, these restrictions are
so far important that such treaties of cession concluded by heads of
States or Governments as violate these restrictions are not
binding.[407]
[Footnote 405: See above, § 168.]
[Footnote 406: See above, § 21.]
[Footnote 407: See below, § 497.]
[Sidenote: Subjects of cession.]
§ 214. Since cession is a bilateral transaction, it has two
subjects--namely, the ceding and the acquiring State. Both subjects must
be States, and only those cessions in which both subjects are States
concern the Law of Nations. Cessions of territory made to private
persons and to corporations[408] by native tribes or by States outside
the dominion of the Law of Nations do not fall within the sphere of
International Law, neither do cessions of territory by native tribes
made to States[409] which are members of the Family of Nations. On the
other hand, cession of territory made to a member of the Family of
Nations by a State as yet outside that family is real cession and a
concern of the Law of Nations, since such State becomes through the
treaty of cession in some respects a member of that family.[410]
[Footnote 408: See above, § 209, No. 2.]
[Footnote 409: See below, §§ 221 and 222.]
[Footnote 410: See above, § 103.]
[Sidenote: Object of cession.]
§ 215. The object of cession is sovereignty over such territory as has
hitherto already belonged to another State. As far as the Law of Nations
is concerned, every State as a rule can cede a part of its territory to
another State, or by ceding the whole of its territory can even totally
merge in another State. However, since certain parts of State territory,
as for instance rivers and the maritime belt, are inalienable
appurtenances of the land, they cannot be ceded without a piece of
land.[411]
[Footnote 411: See above, §§ 175 and 185.]
The controverted question whether permanently neutralised parts of a not
permanently neutralised State can be ceded to another State must be
answered in the affirmative,[412] although the Powers certainly can
exercise an intervention by right. On the other hand, a permanently
neutralised State could not, except in the case of mere frontier
regulation, cede a part of its neutralised territory to another State
without the consent of the Powers.[413] Nor could a State under
suzerainty or protectorate cede a part or the whole of its territory to
a third State without the consent of the superior State. Thus, the
Ionian Islands could not in 1863 have merged in Greece without the
consent of Great Britain, which exercised a protectorate over these
islands.
[Footnote 412: Thus in 1860 Sardinia ceded her neutralised provinces of
Chablais and Faucigny to France. See above, §207.]
[Footnote 413: See above, § 96, and the literature there quoted.]
[Sidenote: Form of cession.]
§ 216. The only form in which a cession can be effected is an agreement
embodied in a treaty between the ceding and the acquiring State. Such
treaty may be the outcome of peaceable negotiations or of war, and the
cession may be one with or without compensation.
If a cession of territory is the outcome of war, it is the treaty of
peace which stipulates the cession among its other provisions. Such
cession is regularly one without compensation, although certain duties
may be imposed upon the acquiring State, as, for instance, of taking
over a part of the debts of the ceding State corresponding to the extent
and importance of the ceded territory, or that of giving the individuals
domiciled on the ceded territory the option to retain their old
citizenship or, at least, to emigrate.
Cessions which are the outcome of peaceable negotiations may be agreed
upon by the interested States from different motives and for different
purposes. Thus Austria, during war with Prussia and Italy in 1866, ceded
Venice to France as a gift, and some weeks afterwards France on her part
ceded Venice to Italy. The Duchy of Courland ceded in 1795 its whole
territory to and voluntarily merged thereby in Russia, in the same way
the then Free Town of Mulhouse merged in France in 1798, the Congo Free
State in Belgium in 1908, and the Empire of Korea in Japan in 1911.
Cessions have in the past often been effected by transactions which are
analogous to transactions in private business life. As long as
absolutism was reigning over Europe, it was not at all rare for
territory to be ceded in _marriage contracts_ or by _testamentary
dispositions_.[414] In the interest of frontier regulations, but also
for other purposes, _exchanges_ of territory frequently take place.
_Sale_ of territory is quite usual; as late as 1868 Russia sold her
territory in America to the United States for 7,200,000 dollars, and in
1899 Spain sold the Caroline Islands to Germany for 25,000,000 pesetas.
_Pledge_ and _lease_ are also made use of. Thus, the then Republic of
Genoa pledged Corsica to France in 1768, Sweden pledged Wismar to
Mecklenburg in 1803; China[415] leased in 1898 Kiaochau to Germany,[416]
Wei-Hai-Wei and the land opposite the island of Hong Kong to Great
Britain,[417] and Port Arthur to Russia.
[Footnote 414: Phillimore, I. §§ 274-276, enumerates many examples of
such cession. The question whether the monarch of a State under absolute
government could nowadays by a testamentary disposition cede territory
to another State must, I believe, be answered in the affirmative.]
[Footnote 415: See above, § 171, No. 3. Cession may also take place
under the disguise of an agreement according to which territory comes
under the "administration" or under the "use, occupation, and control"
of a foreign State. See above, § 171, Nos. 2 and 4.]
[Footnote 416: See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.]
[Footnote 417: See Martens, N.R.G. 2nd Ser. XXXII. (1905), pp. 89 and
90.]
Whatever may be the motive and the purpose of the transaction, and
whatever may be the compensation, if any, for the cession, the ceded
territory is transferred to the new sovereign with all the international
obligations[418] locally connected with the territory (_Res transit cum
suo onere_, and _Nemo plus juris transferre potest, quam ipse habet_).
[Footnote 418: How far a succession of States takes place in the case of
cession of territory has been discussed above, § 84.]
[Sidenote: Tradition of the ceded Territory.]
§ 217. The treaty of cession must be followed by actual tradition of the
territory to the new owner State, unless such territory is already
occupied by the new owner, as in the case where the cession is the
outcome of war and the ceded territory has been during such war in the
military occupation of the State to which it is now ceded. But the
validity of the cession does not depend upon tradition,[419] the cession
being completed by ratification of the treaty of cession, and the
capability of the new owner to cede the acquired territory to a third
State at once without taking actual possession of it.[420] But of course
the new owner State cannot exercise its territorial supremacy thereon
until it has taken physical possession of the ceded territory.
[Footnote 419: This is controversial. Many writers--see, for instance,
Rivier, I. p. 203--oppose the opinion presented in the text.]
[Footnote 420: Thus France, to which Austria ceded in 1859 Lombardy,
ceded this territory on her part to Sardinia without previously having
actually taken possession of it.]
[Sidenote: Veto of third Powers.]
§ 218. As a rule, no third Power has the right of _veto_ with regard to
a cession of territory. Exceptionally, however, such right may exist. It
may be that a third Power has by a previous treaty acquired a right of
pre-emption concerning the ceded territory, or that some early treaty
has created another obstacle to the cession, as, for instance, in the
case of permanently neutralised parts of a not-permanently neutralised
State.[421] And the Powers have certainly the right of _veto_ in case a
permanently neutralised State desires to increase its territory by
acquiring land through cession from another State.[422] But even where
no right of _veto_ exists, a third Power might intervene for political
reasons. For there is no duty on the part of third States to acquiesce
in such cessions of territory as endanger the balance of power or are
otherwise of vital importance.[423] And a strong State will practically
always interfere in case a cession of such a kind as menaces its vital
interests is agreed upon. Thus, when in 1867 the reigning King of
Holland proposed to sell Luxemburg to France, the North German
Confederation intervened, and the cession was not effected, but
Luxemburg became permanently neutralised.
[Footnote 421: See above, § 215.]
[Footnote 422: See above, §§ 209 and 215.]
[Footnote 423: See above, § 136.]
[Sidenote: Plebiscite and option.]
§ 219. As the object of cession is sovereignty over the ceded territory,
all such individuals domiciled thereon as are subjects of the ceding
State become _ipso facto_ by the cession subjects[424] of the acquiring
State. The hardship involved in the fact that in all cases of cession
the inhabitants of the territory lose their old citizenship and are
handed over to a new Sovereign whether they like it or not, has created
a movement in favour of the claim that no cession shall be valid until
the inhabitants have by a plebiscite[425] given their consent to the
cession. And several treaties[426] of cession concluded during the
nineteenth century stipulate that the cession shall only be valid
provided the inhabitants consent to it through a plebiscite. But it is
doubtful whether the Law of Nations will ever make it a condition of
every cession that it must be ratified by a plebiscite.[427] The
necessities of international policy may now and then allow or even
demand such a plebiscite, but in most cases they will not allow it.
[Footnote 424: See Keith, "The Theory of State Succession, &c." (1907),
pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. §
379.]
[Footnote 425: See Stoerk, "Option und Plebiscite" (1879); Rivier, I. p.
204; Freudenthal, "Die Volksabstimmung bei Gebietsabtretungen und
Eroberungen" (1891); Bonfils, No. 570; Despagnet, No. 391; Ullmann, §
97.]
[Footnote 426: See Rivier, I. p. 210, where all these treaties are
enumerated.]
[Footnote 427: Although Grotius (II. c. VI. § 4) taught this to be
necessary.]
The hardship of the inhabitants being handed over to a new Sovereign
against their will can be lessened by a stipulation in the treaty of
cession binding the acquiring State to give the inhabitants of the ceded
territory the option of retaining their old citizenship on making an
express declaration. Many treaties of cession concluded during the
second half of the nineteenth century contain this stipulation. But it
must be emphasised that, failing a stipulation expressly forbidding it,
the acquiring State may expel those inhabitants who have made use of the
option and retained their old citizenship, since otherwise the whole
population of the ceded territory might actually consist of aliens and
endanger the safety of the acquiring State.
The option to emigrate within a certain period, which is frequently
stipulated in favour of the inhabitants of ceded territory, is another
means of averting the charge that inhabitants are handed over to a new
Sovereign against their will. Thus article 2 of the Peace Treaty of
Frankfort, 1871, which ended the Franco-German war, stipulated that the
French inhabitants of the ceded territory of Alsace and Lorraine should
up to October 1, 1872, enjoy the privilege of transferring their
domicile from the ceded territory to French soil.[428]
[Footnote 428: The important question whether subjects of the ceding
States who are born on the ceded territory but have their domicile
abroad become _ipso facto_ by the cession subjects of the acquiring
State, must, I think, be answered in the negative, unless special treaty
arrangements stipulate the contrary. Therefore, Frenchmen born in Alsace
but domiciled at the time of the cession in Great Britain, would not
have lost their French citizenship through the cession to Germany but
for article 1, part 2, of the additional treaty of Dec. 11, 1871, to the
Peace Treaty of Frankfort. (Martens, N.R.G. XX. p. 847.) See Bonfils,
No. 427, and Cogordan, "La Nationalité, &c." (1890), p. 361.]
XIII
OCCUPATION
Hall, §§ 32-34--Westlake, I. pp. 96-111, 119-133--Lawrence, §
74--Phillimore, I. §§ 236-250--Twiss, I. §§ 118-126--Halleck, I.
p. 154--Taylor, §§ 221-224--Walker, § 9--Wharton, I. § 2--Moore,
I. §§ 80-81--Wheaton, §§ 165-174--Bluntschli, §§
278-283--Hartmann, § 61--Heffter, § 70--Holtzendorff in
Holtzendorff, II. pp. 255-266--Gareis, § 70--Liszt, § 10--Ullmann,
§§ 93-96--Bonfils, Nos. 536-563--Despagnet, Nos.
329-399--Mérignhac, II. pp. 419-487--Pradier-Fodéré, II. Nos.
784-802--Rivier, I. pp. 188-197--Nys, II. pp. 47-108--Calvo, I. §§
266-282--Fiore, II. Nos. 841-849, and Code, Nos.
1054-1067--Martens, I. § 90--Tartarin, "Traité de l'occupation"
(1873)--Westlake, Chapters, pp. 155-187--Heimburger, "Der Erwerb
der Gebietshoheit" (1888), pp. 103-155--Salomon, "L'occupation des
territoires sans maître" (1889)--Jèze, "Étude théorique et
pratique sur l'occupation, &c." (1896)--Macdonell in the _Journal
of the Society of Comparative Legislation_, New Series, I. (1899),
pp. 276-286--Waultrin in R.G. XV. (1908), pp. 78, 185, 401.
[Sidenote: Conception of Occupation.]
§ 220. Occupation is the act of appropriation by a State through which
it intentionally acquires sovereignty over such territory as is at the
time not under the sovereignty of another State. Occupation as a mode of
acquisition differs from subjugation[429] chiefly in so far as the
conquered and afterwards annexed territory has hitherto belonged to
another State. Again, occupation differs from cession in so far as
through cession the acquiring State receives sovereignty over the
respective territory from the former owner State. In contradistinction
to cession, which is a derivative mode of acquisition, occupation is
therefore an original mode. And it must be emphasised that occupation
can only take place by and for a State;[430] it must be a State act,
that is, it must be performed in the service of a State, or it must be
acknowledged by a State after its performance.
[Footnote 429: See below, § 236.]
[Footnote 430: See above, § 209.]
[Sidenote: Object of Occupation.]
§ 221. Only such territory can be the object of occupation as is no
State's land, whether entirely uninhabited, as _e.g._ an island, or
inhabited by natives whose community is not to be considered as a State.
Even civilised individuals may live and have private property on a
territory without any union by them into a State proper which exercises
sovereignty over such territory. And natives may live on a territory
under a tribal organisation which need not be considered a State proper.
But a part or the whole of the territory of any State, even although
such State is entirely outside the Family of Nations, is not a possible
object of occupation, and it can only be acquired through cession[431]
or subjugation. On the other hand, a territory which belonged at one
time to a State but has been afterwards abandoned, is a possible object
for occupation on the part of another State.[432]
[Footnote 431: See above, § 214.]
[Footnote 432: See below, §§ 228 and 247.]
Although the Open Sea is free and is, therefore, not the object of
occupation, the subsoil[433] of the bed of the Open Sea may become the
object of occupation through driving mines and piercing tunnels from the
coast.[434]
[Footnote 433: See below, §§ 287_c_ and 287_d_.]
[Footnote 434: When, in 1909, Admiral Peary reached the North Pole and
hoisted the flag of the United States the question was discussed whether
the North Pole could be the object of occupation. The question must, I
believe, be answered in the negative since there is no land on the Pole.
See Scott in A.J. III. (1909), pp. 928-941 and Balch in A.J. IV. (1910),
pp. 265-275.]
[Sidenote: Occupation how effected.]
§ 222. Theory and practice agree nowadays upon the rule that occupation
is effected through taking possession of and establishing an
administration over the territory in the name of and for the acquiring
State. Occupation thus effected is _real_ occupation, and, in
contradistinction to _fictitious_ occupation, is named _effective_
occupation. Possession and administration are the two essential facts
that constitute an effective occupation.
(1) The territory must really be taken into possession by the occupying
State. For this purpose it is necessary that the respective State should
take the territory under its sway (_corpus_) with the intention to
acquire sovereignty over it (_animus_). This can only be done by a
settlement on the territory accompanied by some formal act which
announces both that the territory has been taken possession of and that
the possessor intends to keep it under his sovereignty. The necessary
formal act is usually performed either by the publication of a
proclamation or by the hoisting of a flag. But such formal act by itself
constitutes fictitious occupation only, unless there is left on the
territory a settlement which is able to keep up the authority of the
flag. On the other hand, it is irrelevant whether or not some agreement
is made with the natives by which they submit themselves to the sway of
the occupying State. Any such agreement is usually neither understood
nor appreciated by them, and even if the natives really do understand
the meaning, such agreements have a moral value only.[435]
[Footnote 435: If an agreement with natives were legally important, the
respective territory would be acquired by cession, and not by
occupation. But although it is nowadays quite usual to obtain a cession
from a native chief, this is, nevertheless, not cession in the technical
sense of the term in International Law; see above, § 214.]
(2) After having, in the aforementioned way, taken possession of a
territory, the possessor must establish some kind of administration
thereon which shows that the territory is really governed by the new
possessor. If within a reasonable time after the act of taking
possession the possessor does not establish some responsible authority
which exercises governing functions, there is then no effective
occupation, since in fact no sovereignty of a State is exercised over
the territory.
[Sidenote: Inchoate Title of Discovery.]
§ 223. In former times the two conditions of possession and
administration which now make the occupation effective were not
considered necessary for the acquisition of territory through
occupation. In the age of the discoveries, States maintained that the
fact of discovering a hitherto unknown territory was sufficient reason
for considering it as acquired through occupation by the State in whose
service the discoverer made his explorations. And although later on a
real taking possession of the territory was considered necessary for its
occupation, it was not until the eighteenth century that the writers on
the Law of Nations postulated an _effective_ occupation as
necessary,[436] and it was not until the nineteenth century that the
practice of the States accorded with this postulate. But although
nowadays discovery does not constitute acquisition through occupation,
it is nevertheless not without importance. It is agreed that discovery
gives to the State in whose service it was made an _inchoate_ title; it
"acts as a temporary bar to occupation by another State"[437] within
such a period as is reasonably sufficient for effectively occupying the
discovered territory. If such period lapses without any attempt by the
discovering State to turn its _inchoate_ title into a _real_ title of
occupation, such inchoate title perishes, and any other State can now
acquire the territory by means of an effective occupation.
[Footnote 436: See Vattel, I. § 208.]
[Footnote 437: Thus Hall, § 32.]
[Sidenote: Notification of Occupation to other Powers.]
§ 224. No rule of the Law of Nations exists which makes notification of
occupation to other Powers a necessary condition of its validity. But as
regards all future occupations on the _African_ coast the Powers
assembled at the Berlin Congo Conference in 1884-1885 have by article 34
of the General Act[438] of this Conference stipulated that occupation
shall be notified to one another, so that such notification is now a
condition of the validity of certain occupations in Africa. And there is
no doubt that in time this rule will either by custom or by treaty be
extended from occupations on the African coast to occupations everywhere
else.
[Footnote 438: See Martens, N.R.G. 2nd Ser. X. p. 426.]
[Sidenote: Extent of Occupation.]
§ 225. Since an occupation is valid only if effective, it is obvious
that the extent of an occupation ought only to reach over so much
territory as is effectively occupied. In practice, however, the
interested States have neither in the past nor in the present acted in
conformity with such a rule; on the contrary, they have always tried to
attribute to their occupation a much wider area. Thus it has been
maintained that an effective occupation of the land at the mouth of a
river is sufficient to bring under the sovereignty of the occupying
State the whole territory through which such river and its tributaries
run up to the very crest of the watershed.[439] Again, it has been
maintained that, when a coast line has been effectively occupied, the
extent of the occupation reaches up to the watershed of all such rivers
as empty into the coast line.[440] And it has, thirdly, been asserted
that effective occupation of a territory extends the sovereignty of the
possessor also over neighbouring territories as far as it is necessary
for the integrity, security, and defence of the really occupied
land.[441] But all these and other fanciful assertions have no basis to
rest upon. In truth, no general rule can be laid down beyond the above,
that occupation reaches as far as it is effective. How far it is
effective is a question of the special case. It is obvious that when
the agent of a State takes possession of a territory and makes a
settlement on a certain spot of it, he intends thereby to acquire a vast
area by his occupation. Everything depends, therefore, upon the fact how
far around the settlement or settlements the established responsible
authority that governs the territory in the name of the possessor
succeeds in gradually extending the established sovereignty. The payment
of a tribute on the part of tribes settled far away, the fact that
flying columns of the military or the police sweep, when necessary,
remote spots, and many other facts, can show how far round the
settlements the possessor is really able to assert the established
authority. But it will always be difficult to mark exactly in this way
the boundary of an effective occupation, since naturally the tendency
prevails to extend the sway constantly and gradually over a wider area.
It is, therefore, a well-known fact that disputes concerning the
boundaries of occupations can only rarely be decided on the basis of
strict law; they must nearly always be compromised, whether by a treaty
or by arbitration.[442]
[Footnote 439: Claim of the United States in the Oregon Boundary dispute
(1827) with Great Britain. See Twiss, I. §§ 126 and 127, and his "The
Oregon Question Examined" (1846); Phillimore, I. § 250; Hall, § 34.]
[Footnote 440: Claim of the United States in their dispute with Spain
concerning the boundary of Louisiana (1803), approved of by Twiss, I. §
125.]
[Footnote 441: This is the so-called "right of contiguity," approved of
by Twiss, I. §§ 124 and 131.]
[Footnote 442: The Institute of International Law, in 1887, at its
meeting in Lausanne, adopted a "Projet de déclaration internationale
relatif aux occupations de territoires," comprising ten articles; see
Annuaire, X. p. 201.]
[Sidenote: Protectorate as Precursor of Occupation.]
§ 226. The growing desire to acquire vast territories as colonies on the
part of States unable at once to occupy effectively such territories
has, in the second half of the nineteenth century, led to the
contracting of agreements with the chiefs of natives inhabiting
unoccupied territories, by which these chiefs commit themselves to the
"protectorate" of States that are members of the Family of Nations.
These so-called protectorates are certainly not protectorates in the
technical sense of the term designating the relation that exists between
a strong and a weak State through a treaty by which the weak State
surrenders itself into the protection of the strong and transfers to the
latter the management of its more important international
relations.[443] Neither can they be compared with the protectorate of
members of the Family of Nations exercised over such non-Christian
States as are outside that family,[444] because the respective chiefs of
natives are not the heads of States, but heads of tribal communities
only. Such agreements, although they are named "Protectorates," are
nothing else than steps taken to exclude other Powers from occupying the
respective territories. They give, like discovery, an inchoate title,
and are preparations and precursors of future occupations.
[Footnote 443: See above, §§ 92 and 93.]
[Footnote 444: See above, § 94.]
[Sidenote: Spheres of influence.]
§ 227. The uncertainty of the extent of an occupation and the tendency
of every colonising State to extend its occupation constantly and
gradually into the interior, the "Hinterland," of an occupied territory,
has led several States which have colonies in Africa to secure for
themselves "spheres of influence" by international treaties with other
interested Powers. Spheres of influence are therefore the names of such
territories as are exclusively reserved for future occupation on the
part of a Power which has effectively occupied adjoining territories. In
this way disputes are avoided for the future, and the interested Powers
can gradually extend their sovereignty over vast territories without
coming into conflict with other Powers. Thus, to give some examples,
Great Britain has concluded treaties regarding spheres of influence with
Portugal[445] in 1890, with Italy[446] in 1891, with Germany[447] in
1886 and 1890, and with France[448] in 1898.[449]
[Footnote 445: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.]
[Footnote 446: See Martens, N.R.G. 2nd Ser. XVIII. p. 175.]
[Footnote 447: See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p.
895.]
[Footnote 448: See Martens, N.R.G. 2nd Ser. XXIX. p. 116.]
[Footnote 449: Protectorates and Spheres of Influence are exhaustively
treated in Hall, "Foreign Powers and Jurisdiction of the British Crown,"
§§ 92-100; but Hall fails to distinguish between protectorates over
Eastern States and protectorates over native tribes.]
[Sidenote: Consequences of Occupation.]
§ 228. As soon as a territory is occupied by a member of the Family of
Nations, it comes within the sphere of the Law of Nations, because it
constitutes a portion of the territory of a subject of International
Law. No other Power can acquire it hereafter through occupation, unless
the present possessor has either intentionally withdrawn from it or has
been successfully driven away by the natives without making efforts, or
without capacity, to re-occupy it.[450] On the other hand, the Power
which now exercises sovereignty over the occupied territory is hereafter
responsible for all events of international importance on the territory.
Such Power has in especial to keep up a certain order among the native
tribes in order to restrain them from acts of violence against
neighbouring territories, and has eventually to punish them for such
acts.
[Footnote 450: See below, § 247.]
A question of some importance is how far occupation affects private
property of the inhabitants of the occupied territory. As according to
the modern conception of State territory the latter is not identical
with private property of the State, occupation brings a territory under
the sovereignty only of the occupying State, and therefore in no wise
touches or affects existing private property of the inhabitants. In the
age of the discoveries, occupation was indeed considered to include a
title to property over the whole occupied land, but nowadays this can no
longer be maintained. Being now their sovereign, the occupying State may
impose any burdens it likes on its new subjects, and may, therefore,
even confiscate their private property; but occupation as a mode of
acquiring territory does not of itself touch or affect private property
thereon. If the Municipal Law of the occupying State does give a title
to private property over the whole occupied land, such title is not
based on International Law.
XIV
ACCRETION
Grotius, II. c. 8, §§ 8-16--Hall, § 37--Lawrence, §
75--Phillimore, I. §§ 240-241--Twiss, I. §§ 131 and 154--Moore, I.
§ 82--Bluntschli, §§ 294-295--Hartmann, § 61--Heffter, §
69--Holtzendorff in Holtzendorff, II. pp. 266-268--Gareis, §
20--Liszt, § 10--Ullmann, § 92--Bonfils, No. 533--Despagnet, No.
387--Pradier-Fodéré, II. Nos. 803-816--Rivier, I. pp.
179-180--Nys, II. pp. 3-7--Calvo, I. § 266--Fiore, II. No. 852,
and Code, Nos. 1068-1070--Martens, I. § 90--Heimburger, "Der
Erwerb der Gebietshoheit" (1888), p. 107.
[Sidenote: Conception of Accretion.]
§ 229. Accretion is the name for the increase of land through new
formations. Such new formations may be a modification only of the
existing State territory, as, for instance, where an island rises within
such river or a part of it as is totally within the territory of one and
the same State; and in such case there is no increase of territory to
correspond with the increase of land. On the other hand, many new
formations occur which really do enlarge the territory of the State to
which they accrue, as, for instance, where an island rises within the
maritime belt. And it is a customary rule of the Law of Nations that
enlargement of territory, if any, created through new formations, takes
place _ipso facto_ by the accretion, without the State concerned taking
any special step for the purpose of extending its sovereignty. Accretion
must, therefore, be considered as a mode of acquiring territory.
[Sidenote: Different kinds of Accretion.]
§ 230. New formations through accretion may be artificial or natural.
They are artificial if they are the outcome of human work. They are
natural if they are produced through operation of nature. And within the
circle of natural formations different kinds must again be
distinguished--namely, alluvions, deltas, new-born islands, and
abandoned river beds.
[Sidenote: Artificial Formations.]
§ 231. Artificial formations are embankments, breakwaters, dykes, and
the like, built along the river or the coast-line of the sea. As such
artificial new formations along the bank of a boundary river may more
or less push the volume of water so far as to encroach upon the other
bank of the river, and as no State is allowed to alter the natural
condition of its own territory to the disadvantage[451] of the natural
conditions of a neighbouring State territory, a State cannot build
embankments, and the like, of such kind without a previous agreement
with the neighbouring State. But every State may construct such
artificial formations as far into the sea beyond the low-water mark as
it likes, and thereby gain considerably in land and also in territory,
since the extent of the at least three miles wide maritime belt is now
to be measured from the extended shore.
[Footnote 451: See above, § 127.]
[Sidenote: Alluvions.]
§ 232. Alluvion is the name for an accession of land washed up on the
sea-shore or on a river-bank by the waters. Such accession is as a rule
produced by a slow and gradual process, but sometimes also through a
sudden act of violence, the stream detaching a portion of the soil from
one bank of a river, carrying it over to the other bank, and embedding
it there so as to be immovable (_avulsio_). Through alluvions the land
and also the territory of a State may be considerably enlarged. For, if
the alluvion takes place on the shore, the extent of the territorial
maritime belt is now to be measured from the extended shore. And, if the
alluvion takes place on the one bank of a boundary river, and the course
of the river is thereby naturally so altered that the waters in
consequence cover a part of the other bank, the boundary line, which
runs through the middle or through the mid-channel,[452] may thereby be
extended into former territory of the other riparian State.
[Footnote 452: See above, § 199, No. 1.]
[Sidenote: Deltas.]
§ 233. Similar to alluvions are Deltas. Delta is the name for a tract of
land at the mouth of a river shaped like the Greek letter Δ,
which land owes its existence to a gradual deposit by the river of sand,
stones, and earth on one particular place at its mouth. As the Deltas
are continually increasing, the accession of land they produce may be
very considerable, and such accession is, according to the Law of
Nations, considered an accretion to the land of the State to whose
territory the mouth of the respective river belongs, although the Delta
may be formed outside the territorial maritime belt. It is evident that
in the latter case an increase of territory is the result, since the at
least three miles wide maritime belt is now to be measured from the
shore of the Delta.
[Sidenote: New-born Islands.]
§ 234. The same and other natural processes which create alluvions on
the shore and banks, and Deltas at the mouths of rivers, lead to the
birth of new islands. If they rise on the High Seas outside the
territorial maritime belt, they are no State's land, and may be acquired
through occupation on the part of any State. But if they rise in rivers,
lakes, and within the maritime belt, they are, according to the Law of
Nations, considered accretions to the neighbouring land. It is for this
reason that such new islands in boundary rivers as rise within the
boundary line of one of the riparian States accrue to the land of such
State, and that, on the other hand, such islands as rise upon the
boundary line are divided into parts by it, the respective parts
accruing to the land of the riparian States concerned. If an island
rises within the territorial maritime belt, it accrues to the land of
the littoral State, and the extent of the maritime belt is now to be
measured from the shore of the new-born island.
An illustrative example is the case[453] of the _Anna_. In 1805, during
war between Great Britain and Spain, the British privateer _Minerva_
captured the Spanish vessel _Anna_ near the mouth of the River
Mississippi. When brought before the British Prize Court, the United
States claimed the captured vessel on the ground that she was captured
within the American territorial maritime belt. Lord Stowell gave
judgment in favour of this claim, because, although it appeared that the
capture did actually take place more than three miles off the coast of
the continent, the place of capture was within three miles of some small
mud-islands composed of earth and trees drifted down into the sea.
[Footnote 453: See 5 C. Rob. 373.]
[Sidenote: Abandoned Riverbeds.]
§ 235. It happens sometimes that a river abandons its bed entirely or
dries up altogether. If such river was a boundary river, the abandoned
bed is now the natural boundary. But often the old boundary line cannot
be ascertained, and in such cases the boundary line is considered to run
through the middle of the abandoned bed, and the portions _ipso facto_
accrue to the land of the riparian States, although the territory of one
of these States may become thereby enlarged, and that of the other
diminished.
XV
SUBJUGATION
Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, §
77--Halleck, II. pp. 467-498--Taylor, § 220--Walker, §
11--Wheaton, § 165--Moore, I. § 87--Bluntschli, §§ 287-289,
701-702--Heffter, § 178--Liszt, § 10--Ullmann, §§ 92 and
97--Bonfils, No. 535--Despagnet, Nos. 387-390--Rivier, I. pp.
181-182, II. 436-441--Nys, II. pp. 40-46--Calvo, V. §§ 3117,
3118--Fiore, II. No. 863, III. No. 1693, and Code, Nos.
1078-1081--Martens, I. § 91--Holtzendorff, "Eroberung und
Eroberungsrecht" (1871)--Heimburger, "Der Erwerb der
Gebietshoheit" (1888), pp. 121-132--Westlake in _The Law Quarterly
Review_, XVII. (1901), p. 392.
[Sidenote: Conception of Conquest and of Subjugation.]
§ 236. Conquest is the taking possession of enemy territory through
military force in time of war. Conquest alone does not _ipso facto_ make
the conquering State the sovereign of the conquered territory, although
such territory comes through conquest for the time under the sway of the
conqueror. Conquest is only a mode of acquisition if the conqueror,
after having firmly established the conquest, formally annexed the
territory. Such annexation makes the enemy State cease to exist and
thereby brings the war to an end. And as such ending of war is named
subjugation, it is conquest followed by subjugation, and not conquest
alone, which gives a title and is a mode of acquiring territory.[454] It
is, however, quite usual to speak of conquest as a title, and everybody
knows that subjugation after conquest is thereby meant. But it must be
specially mentioned that, if a belligerent conquers a part of the enemy
territory and makes afterwards the vanquished State cede the conquered
territory in the treaty of peace, the mode of acquisition is not
subjugation but cession.[455]
[Footnote 454: Concerning the distinction between conquest and
subjugation, see below, vol. II. § 264.]
[Footnote 455: See above, §§ 216 and 219.]
[Sidenote: Subjugation in Contradistinction to Occupation.]
§ 237. Some writers[456] maintain that subjugation is only a special
case of occupation, because, as they assert, through conquest the enemy
territory becomes no State's land and the conqueror can acquire it by
turning his military occupation into absolute occupation. Yet this
opinion cannot be upheld, because military occupation, which is
conquest, in no way makes enemy territory no State's land. Conquered
enemy territory, although actually in possession and under the sway of
the conqueror, remains legally under the sovereignty of the enemy until
through annexation it comes under the sovereignty of the conqueror.
Annexation turns the conquest into subjugation. It is the very
annexation which _uno actu_ makes the vanquished State cease to exist
and brings the territory under the conqueror's sovereignty. Thus the
subjugated territory has not for one moment been no State's land, but
comes from the enemy's into the conqueror's sovereignty, although not
through cession, but through annexation.
[Footnote 456: Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p.
24.]
[Sidenote: Justification of Subjugation as a Mode of Acquisition.]
§ 238. As long as a Law of Nations has been in existence, the States as
well as the vast majority of writers have recognised subjugation as a
mode of acquiring territory. Its justification lies in the fact that war
is a contention between States for the purpose of overpowering one
another. States which go to war know beforehand that they risk more or
less their very existence, and that it may be a necessity for the victor
to annex the conquered enemy territory, be it in the interest of
national unity or of safety against further attacks, or for other
reasons. One must hope that the time will come when war will disappear
entirely, but, as long as war exists, subjugation will also be
recognised. If some writers[457] refuse to recognise subjugation at all
as a mode of acquiring territory, they show a lack of insight into the
historical development of States and nations.[458]
[Footnote 457: Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and
Code N. See also Despagnet, Nos. 387-390.]
[Footnote 458: It should be mentioned that the Pan-American Congress at
Washington, 1890, passed a resolution that conquest should hereafter not
be a mode of acquisition of territory in America; see Moore, I. § 87.]
[Sidenote: Subjugation of the whole or of a part of Enemy Territory.]
§ 239. Subjugation is as a rule a mode of acquiring the entire enemy
territory. The actual process is regularly that the victor destroys the
enemy military forces, takes possession of the enemy territory, and then
annexes it, although the head and the Government of the extinguished
State might have fled, might protest, and still keep up a claim. Thus
after the war with Austria and her allies in 1866, Prussia subjugated
the territories of the Duchy of Nassau, the Kingdom of Hanover, the
Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main;
and Great Britain subjugated in 1900 the territories of the Orange Free
State and the South African Republic.
But it is possible, although it will nowadays hardly occur, for a State
to conquer and annex a part of enemy territory, whether the war ends by
a Treaty of Peace in which the vanquished State, without ceding the
conquered territory, submits silently[459] to the annexation, or by
simple cessation of hostilities.[460]
[Footnote 459: See below, vol. II. § 273.]
[Footnote 460: See below, vol. II. § 263.]
It must, however, be emphasised that such a mode of acquiring a part of
enemy territory is totally different from forcibly taking possession of
a part thereof during the continuance of war. Such a conquest, although
the conqueror may intend to keep the conquered territory and therefore
annex it, is not a title as long as the war has not terminated either
actually through simple cessation of hostilities or through a Treaty of
Peace. Therefore, the practice, which sometimes prevails, of annexing a
conquered part of enemy territory during war cannot be approved.
Concerning subjugation either of the whole or of a part of enemy
territory, it must be asserted that annexation gives a title only after
a _firmly established_ conquest. So long as war continues, conquest is
not firmly established.[461]
[Footnote 461: See below, vol. II. § 60, concerning guerilla war after
the termination of real war. Many writers, however, deny that a conquest
is firmly established as long as guerilla war is going on.]
[Sidenote: Consequences of Subjugation.]
§ 240. Although subjugation is an original mode of acquisition, since
the sovereignty of the new acquirer is not derived from that of the
former owner State, the new owner State is nevertheless the successor of
the former owner State as regards many points which have been discussed
above (§ 82). It must be specially mentioned that, as far as the Law of
Nations is concerned, the subjugator does not acquire the private
property of the inhabitants of the annexed territory. Being now their
Sovereign, the subjugating State may indeed impose any burdens it
pleases on its new subjects, it may even confiscate their private
property, since a Sovereign State can do what it likes with its
subjects, but subjugation itself does not by International Law touch or
affect private property.
As regards the national status of the subjects of the subjugated State,
doctrine and practice agree that such enemy subjects as are domiciled on
the annexed territory and remain there after annexation become _ipso
facto_ by the subjugation[462] subjects of the subjugator. But the
national status of such enemy subjects as are domiciled abroad and do
not return, and further of such as leave the country before the
annexation or immediately afterwards, is matter of dispute. Some writers
maintain that these individuals do in spite of their absence become
subjects of the subjugator, others emphatically deny it. Whereas the
practice of the United States of America seems to be in conformity with
the latter opinion,[463] the practice of Prussia in 1866 was in
conformity with the former. Thus in the case of Count Platen-Hallermund,
a Cabinet Minister of King George V. of Hanover, who left Hanover with
his King before the annexation in 1866 and was in 1868 prosecuted for
high treason before the Supreme Prussian Court at Berlin, this Court
decided that the accused had become a Prussian subject through the
annexation of Hanover.[464] I believe that a distinction must be made
between those individuals who leave the country _before_ and those who
leave it _after_ annexation. The former are not under the sway of the
subjugator at the time of annexation, and, since the personal supremacy
of their home State terminates with the latter's extinction through
annexation, they would seem to be outside the sovereignty of the
subjugator. But those individuals who leave the country _after_
annexation leave it at a time when they have become subjects of the new
Sovereign, and they therefore remain such subjects even after they have
left the country, for there is no rule of the Law of Nations in
existence which obliges a subjugator to grant the privilege of
emigration[465] to the inhabitants of the conquered territory.
[Footnote 462: See Hall _v._ Campbell (1774), 1 Cowper 1208, and United
States _v._ Repentigny (1866), 5 Wallace, 211. The case is similar to
that of cession: see above, § 219; Keith, "The Theory of State
Succession" (1907), pp. 45 and 48; Moore, III. § 379.]
[Footnote 463: See Halleck, II. p. 476.]
[Footnote 464: See Halleck, II. p. 476, on the one hand, and, on the
other, Rivier, II. p. 436. Valuable opinions of Zachariae and Neumann,
who deny that Count Platen was a Prussian subject, are printed in the
"Deutsche Strafrechts-Zeitung" (1868), pp. 304-320.]
[Footnote 465: Both Westlake and Halleck state that the inhabitants
_must_ have a free option to stay or leave the country; but there is no
rule of International Law which imposes the duty upon a subjugator to
grant this option.]
Different from the fact that enemy subjects become through annexation
subjects of the subjugator is the question what position they acquire
within the subjugating State. This question is one of Municipal, and not
of International Law. The subjugator can, if he likes, allow them to
emigrate and to renounce their newly acquired citizenship, and the
Municipal Law of the subjugating State can put them in any position it
likes, can in especial grant or refuse them the same rights as those
which its citizens by birth enjoy.
[Sidenote: Veto of third Powers.]
§ 241. Although subjugation is an original mode of acquiring territory
and no third Power has as a rule[466] a right of intervention, the
conqueror has not in fact an unlimited possibility of annexation of the
territory of the vanquished State. When the balance of power is
endangered or when other vital interests are at stake, third Powers can
and will intervene, and history records many instances of such
interventions. But it must be emphasised that the validity of the title
of the subjugator does not depend upon recognition on the part of other
Powers. And a mere protest of a third Power is of no legal weight
either.
[Footnote 466: But this rule has exceptions, as in the case of a State
whose independence and integrity have been guaranteed by one or more
Powers.]
XVI
PRESCRIPTION
Grotius, II. c. 4--Vattel, I. §§ 140-151--Hall, § 36--Westlake, I.
pp. 92-94--Lawrence, § 78--Phillimore, I. §§ 251-261--Twiss, I. §
129--Taylor, §§ 218-219--Walker, § 13--Wheaton, § 164--Moore, I. §
88--Bluntschli, § 290--Hartmann, § 61--Heffter, § 12--Holtzendorff
in Holtzendorff, II. p. 255--Ullmann, § 92--Bonfils, No.
534--Mérignhac, II. p. 412--Despagnet, No. 380--Pradier-Fodéré, II.
Nos. 820-829--Rivier, I. pp. 182-184--Nys, II. pp. 34-39--Calvo,
I. §§ 264-265--Fiore, II Nos. 850-851, and Code, Nos.
1074-1077--Martens, I. § 90--G. F. Martens, §§ 70-71--Bynkershoek,
"Quaestiones juris publici," IV. c. 12--Heimburger, "Der Erwerb der
Gebietshoheit" (1888), pp. 140-155--Ralston in A.J. IV. (1910),
pp. 133-144.
[Sidenote: Conception of Prescription.]
§ 242. Since the existence of a science of the Law of Nations there has
always been opposition to prescription as a mode of acquiring territory.
Grotius rejected the usucaption of the Roman Law, yet adopted the same
law's _immemorial_ prescription[467] for the Law of Nations. But whereas
a good many writers[468] still defend that standpoint, others[469]
reject prescription altogether. Again, others[470] go beyond Grotius and
his followers and do not require possession from time _immemorial_, but
teach that an undisturbed continuous possession can under certain
conditions produce a title for the possessor, if the possession has
lasted for some length of time.
[Footnote 467: See Grotius, II. c. 4, §§ 1, 7, 9.]
[Footnote 468: See, for instance, Heffter, § 12; Martens, § 90.]
[Footnote 469: G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff,
II. p. 255; Ullmann, § 92.]
[Footnote 470: Vattel, II. § 147; Wheaton, § 165; Phillimore, I. § 259;
Hall, § 36; Bluntschli, § 290; Pradier-Fodéré, II. No. 825; Bonfils,
No. 534, and many others.]
This opinion would indeed seem to be correct, because it recognises
theoretically what actually goes on in practice. There is no doubt that
in the practice of the members of the Family of Nations a State is
considered to be the lawful owner even of those parts of its territory
of which originally it took possession wrongfully and unlawfully,
provided only the possessor has been in undisturbed possession for such
a length of time as is necessary to create the general conviction among
the members of the Family of Nations that the present condition of
things is in conformity with international order. Such prescription
cannot be compared with the usucaption of Roman Law because the latter
required _bona-fide_ possession, whereas the Law of Nations recognises
prescription both in cases where the State is in _bona-fide_ possession
and in cases where it is not. The basis of prescription in International
Law is nothing else than general recognition[471] of a fact, however
unlawful in its origin, on the part of the members of the Family of
Nations. And prescription in International Law may therefore be defined
as _the acquisition of sovereignty over a territory through continuous
and undisturbed exercise of sovereignty over it during such a period as
is necessary to create under the influence of historical development the
general conviction that the present condition of things is in conformity
with international order_. Thus, prescription in International Law has
the same rational basis as prescription in Municipal Law--namely, the
creation of stability of order.
[Footnote 471: This is pointed out with great lucidity by Heimburger,
pp. 151-155; he rejects, however, prescription as a mode of acquiring
territory, maintaining that there is a customary rule of International
Law in existence according to which recognition can make good originally
wrongful possession.]
[Sidenote: Prescription how effected.]
§ 243. From the conception of prescription, as above defined, it becomes
apparent that no general rule can be laid down as regards the length of
time and other circumstances which are necessary to create a title by
prescription. Everything depends upon the merits of the individual case.
As long as other Powers keep up protests and claims, the actual exercise
of sovereignty is not undisturbed, nor is there the required general
conviction that the present condition of things is in conformity with
international order. But after such protests and claims, if any, cease
to be repeated, the actual possession ceases to be disturbed, and thus
under certain circumstances matters may gradually ripen into that
condition which is in conformity with international order. The question,
at what time and under what circumstances such a condition of things
arises, is not one of law but of fact. The question, for instance,
whether, although the three partitions of Poland were wrongful and
unlawful acts, Prussia, Austria, and Russia have now a good title by
prescription to hold territories which were formerly Polish must, I
doubt not, be answered in the affirmative. For all the members of the
Family of Nations have now silently acquiesced in the present condition
of things, although as late as 1846 Great Britain and France protested
against the annexation of the Republic of Cracow on the part of Austria.
In spite of the fact that the Polish nation has not yet given up its
hope of seeing a Polish State re-established on the former Polish
territory, the general conviction among the members of the Family of
Nations is that the present condition of things is in conformity with
international order. When, to give another example, a State which
originally held an island _mala fide_ under the title by occupation,
knowing well that this land had already been occupied by another State,
has succeeded in keeping up its possession undisturbed for so long a
time that the former possessor has ceased to protest and has silently
dropped the claim, the conviction will be prevalent among the members of
the Family of Nations that the present condition of things is in
conformity with international order. These examples show why a certain
number of years[472] cannot, once for all, be fixed to create the title
by prescription. There are indeed immeasurable and imponderable
circumstances and influences besides the mere run of time[473] at work
to create the conviction on the part of the members of the Family of
Nations that in the interest of stability of order the present possessor
should be considered the rightful owner of a territory. And these
circumstances and influences, which are of a political and historical
character, differ so much in the different cases that the length of time
necessary for prescription must likewise differ.
[Footnote 472: Vattel (II. § 151) suggests that the members of the
Family of Nations should enter into an agreement stipulating the number
of years necessary for prescription, and David Dudley Field proposes the
following rule (52) in his Outlines of an International Code: "The
uninterrupted possession of territory or other property for fifty years
by a nation excludes the claim of every other nation."]
[Footnote 473: Heffter's (§ 12) dictum, "Hundert Jahre Unrecht ist noch
kein Tag Recht" is met by the fact that it is not the operation of time
alone, but the co-operation of other circumstances and influences which
creates the title by prescription.]
XVII
LOSS OF STATE TERRITORY
Hall, § 34--Phillimore, I. §§ 284-295--Moore, I. §§ 89 and
90--Holtzendorff in Holtzendorff, II. pp. 274-279--Gareis, §
70--Liszt, § 10--Ullmann, § 101--Pradier-Fodéré, II. Nos.
850-852--Rivier, I. § 13--Fiore, II. No. 865--Martens, I. § 92.
[Sidenote: Six modes of losing State Territory.]
§ 244. To the five modes of acquiring sovereignty over territory
correspond five modes of losing it--namely, cession, dereliction,
operation of nature, subjugation, prescription. But there is a sixth
mode of losing territory--namely, revolt. No special details are
necessary with regard to loss of territory through subjugation,
prescription, and cession, except that it is of some importance to
repeat here that the historical cases of pledging, leasing, and giving
territory to another State to administer are in fact, although not in
strict law, nothing else than cessions[474] of territory. But operation
of nature, revolt, and dereliction must be specially discussed.
[Footnote 474: See above, §§ 171 and 216.]
[Sidenote: Operation of Nature.]
§ 245. Operation of nature as a mode of losing corresponds to accretion
as a mode of acquiring territory. Just as through accretion a State may
become enlarged, so it may become diminished through the disappearance
of land and other operations of nature. And the loss of territory
through operation of nature takes place _ipso facto_ by such operation.
Thus, if an island near the shore disappears through volcanic action,
the extent of the maritime territorial belt of the respective littoral
State is hereafter to be measured from the low-water mark of the shore
of the continent, instead of from the shore of the former island. Thus,
further, if through a piece of land being detached by the current of a
river from one bank and carried over to the other bank, the river alters
its course and covers now part of the land on the bank from which such
piece became detached, the territory of one of the riparian States may
decrease through the boundary line being _ipso facto_ transferred to the
present middle or mid-channel of the river.
[Sidenote: Revolt.]
§ 246. Revolt followed by secession is a mode of losing territory to
which no mode of acquisition corresponds.[475] Revolt followed by
secession has, as history teaches, frequently been a cause of loss of
territory. Thus the Netherlands fell away from Spain in 1579, Belgium
from the Netherlands in 1830, the United States of America from Great
Britain in 1776, Brazil from Portugal in 1822, the former Spanish South
American States from Spain in 1810, Greece from Turkey in 1830, Cuba
from Spain in 1898, Panama from Colombia in 1903. The question at what
time a loss of territory through revolt is consummated cannot be
answered once for all, since no hard-and-fast rule can be laid down
regarding the time when it can be said that a State broken off from
another has established itself safely and permanently. The matter has,
as will be remembered, been treated above (§ 74), in connection with
recognition. It may well happen that, although such a seceded State is
already recognised by a third Power, the mother country does not
consider the territory to be lost and succeeds in reconquering it.
[Footnote 475: The possible case where a province revolts, secedes from
the mother country, and, after having successfully defended itself
against the attempts of the latter to reconquer it, unites itself with
the territory of another State, is a case of merger by cession of the
whole territory.]
[Sidenote: Dereliction.]
§ 247. Dereliction as a mode of losing corresponds to occupation as a
mode of acquiring territory. Dereliction frees a territory from the
sovereignty of the present owner State. Dereliction is effected through
the owner State's complete abandonment of the territory with the
intention of withdrawing from it for ever, thus relinquishing
sovereignty over it. Just as occupation[476] requires, first, the actual
taking into possession (_corpus_) of territory and, secondly, the
intention (_animus_) to acquire sovereignty over it, so dereliction
requires, first, actual abandonment of a territory, and, secondly, the
intention to give up sovereignty over it. Actual abandonment alone does
not involve dereliction as long as it must be presumed that the owner
has the will and ability to retake possession of the territory. Thus,
for instance, if the rising of natives forces a State to withdraw from a
territory, such territory is not derelict as long as the former
possessor is able and makes efforts to retake possession. It is only
when a territory is really derelict that any State may acquire it
through occupation.[477] History knows of several such cases. But very
often, when such occupation of derelict territory occurs, the former
owner protests and tries to prevent the new occupier from acquiring it.
The cases of the island of Santa Lucia and of the Delagoa Bay may be
quoted as illustrations:--
[Footnote 476: See above, § 222.]
[Footnote 477: See above, § 228.]
(_a_) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by
England, but in the following year the English settlers were massacred
by the natives. No attempt was made by England to retake the island, and
France, considering it no man's land, took possession of it in 1650. In
1664 an English force under Lord Willoughby attacked the French, drove
them into the mountains, and held the island until 1667, when the
English withdrew and the French returned from the mountains. No further
step was made by England to retake the island, but she nevertheless
asserted for many years to come that she had not abandoned it _sine spe
redeundi_, and that, therefore, France in 1650 had no right to consider
it no man's land. Finally, however, England resigned her claims by the
Peace Treaty of Paris of 1763.[478]
[Footnote 478: See Hall, § 34, and Moore, I. § 89.]
(_b_) In 1823 England occupied, in consequence of a so-called cession
from native chiefs, a piece of territory at Delagoa Bay, which Portugal
claimed as part of the territory owned by her at the bay, maintaining
that the chiefs concerned were rebels. The dispute was not settled until
1875, when the case was submitted to the arbitration of the President of
France. The award was given in favour of Portugal, since the
interruption of the Portuguese occupation in 1823 was not to be
considered as abandonment of a territory over which Portugal had
exercised sovereignty for nearly three hundred years.[479]
[Footnote 479: See Hall, § 34. The text of the award is printed in
Moore, "Arbitrations," V. p. 4984.]
CHAPTER II
THE OPEN SEA
I
RISE OF THE FREEDOM OF THE OPEN SEA
Grotius, II. c. 2, § 3--Pufendorf, IV. c. 5, § 5--Vattel, I. §§
279-286--Hall, § 40--Westlake, I. pp. 161-162--Phillimore, I. §§
172-179--Taylor, §§ 242-246--Walker, Science, pp.
163-171--Wheaton, §§ 186-187--Hartmann, § 64--Heffter, §
73--Stoerk in Holtzendorff, II. pp. 483-490--Bonfils, Nos.
573-576--Despagnet, No. 401--Pradier-Fodéré, II. Nos.
871-874--Nys, II. pp. 132-139--Mérignhac, II. pp. 498-505--Calvo,
I. §§ 347-352--Fiore, II. Nos. 718-726--Martens, I. § 97--Perels,
§ 4--Azuni, "Diritto maritimo" (1796), 1, c. I. Article
III.--Cauchy, "Le droit maritime international considéré dans ses
origines," 2 vols. (1862)--Nys, "Les origines du droit
international" (1894), pp. 377-388--Castel, "Du principe de la
liberté des mers" (1900), pp. 1-15--Fulton, "The Sovereignty of
the Seas" (1911), pp. 1-56.
[Sidenote: Former Claims to Control over the Sea.]
§ 248. In antiquity and the first half of the Middle Ages navigation on
the Open Sea was free to everybody. According to Ulpianus,[480] the sea
is open to everybody by nature, and, according to Celsus,[481] the sea,
like the air, is common to all mankind. Since no Law of Nations in the
modern sense of the term existed during antiquity and the greater part
of the Middle Ages, no importance is to be attached to the pronouncement
of Antoninus Pius, Roman Emperor from 138 to 161:--"Being[482] the
Emperor of the world, I am consequently the law of the sea." Nor is it
of importance that the Emperors of the old German Empire, who were
considered to be the successors of the Roman Emperors, styled themselves
among other titles "King of the Ocean." Real claims to sovereignty over
parts of the Open Sea begin, however, to be made in the second half of
the Middle Ages. And there is no doubt whatever that at the time when
the modern Law of Nations gradually rose it was the conviction of the
States that they could extend their sovereignty over certain parts of
the Open Sea. Thus, the Republic of Venice was recognised as the
Sovereign over the Adriatic Sea, and the Republic of Genoa as the
Sovereign of the Ligurian Sea. Portugal claimed sovereignty over the
whole of the Indian Ocean and of the Atlantic south of Morocco, Spain
over the Pacific and the Gulf of Mexico, both Portugal and Spain basing
their claims on two Papal Bulls promulgated by Alexander VI. in 1493,
which divided the new world between these Powers. Sweden and Denmark
claimed sovereignty over the Baltic, Great Britain over the Narrow Seas,
the North Sea, and the Atlantic from the North Cape to Cape Finisterre.
[Footnote 480: L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.]
[Footnote 481: L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus
ut aeris.]
[Footnote 482: L. 9 D. XIV. 2: ἐγὼ μὲν τοῦ κόσμου κύριος, ὁ δὲ
νόμος τῆς θαλάσσης.]
These claims have been more or less successfully asserted for several
hundreds of years. They were favoured by a number of different
circumstances, such as the maintenance of an effective protection
against piracy for instance. And numerous examples can be adduced which
show that such claims have more or less been recognised. Thus, Frederick
III., Emperor of Germany, had in 1478 to ask the permission of Venice
for a transportation of corn from Apulia through the Adriatic Sea.[483]
Thus, Great Britain in the seventeenth century compelled foreigners to
take out an English licence for fishing in the North Sea; and when in
1636 the Dutch attempted to fish without such licence, they were
attacked and compelled to pay £30,000 as the price for the
indulgence.[484] Again, when Philip II. of Spain was in 1554 on his way
to England to marry Queen Mary, the British Admiral, who met him in the
"British Seas," fired on his ship for flying the Spanish flag. And the
King of Denmark, when returning from a visit to James I. in 1606, was
forced by a British captain, who met him off the mouth of the Thames, to
strike the Danish flag.
[Footnote 483: See Walker, "History," I. p. 163.]
[Footnote 484: This and the two following examples are quoted by Hall, §
40.]
[Sidenote: Practical Expression of claims to Maritime Sovereignty.]
§ 249. Maritime sovereignty found expression in maritime ceremonials at
least. Such State as claimed sovereignty over a part of the Open Sea
required foreign vessels navigating on that part to honour its flag[485]
as a symbol of recognition of its sovereignty. So late as 1805 the
British Admiralty Regulations contained an order[486] to the effect that
"when any of His Majesty's ships shall meet with the ships of any
foreign Power within His Majesty's Seas (which extend to Cape
Finisterre), it is expected that the said foreign ships do strike their
topsail and take in their flag, in acknowledgment of His Majesty's
sovereignty in those seas; and if any do resist, all flag officers and
commanders are to use their utmost endeavours to compel them thereto,
and not suffer any dishonour to be done to His Majesty."
[Footnote 485: See Fulton, "The Sovereignty of the Seas" (1911), pp. 38
and 204-208.]
[Footnote 486: Quoted by Hall, § 40.]
But apart from maritime ceremonials maritime sovereignty found
expression in the levying of tolls from foreign ships, in the
interdiction of fisheries to foreigners, and in the control or even the
prohibition of foreign navigation. Thus, Portugal and Spain attempted,
after the discovery of America, to keep foreign vessels altogether out
of the seas over which they claimed sovereignty. The magnitude of this
claim created an opposition to the very existence of such rights.
English, French, and Dutch explorers and traders navigated on the Indian
Ocean and the Pacific in spite of the Spanish and Portuguese
interdictions. And when, in 1580, the Spanish ambassador Mendoza lodged
a complaint with Queen Elizabeth against Drake for having made his
famous voyage to the Pacific, Elizabeth answered that vessels of all
nations could navigate on the Pacific, since the use of the sea and the
air is common to all, and that no title to the ocean can belong to any
nation, since neither nature nor regard for the public use permits any
possession of the ocean.[487]
[Footnote 487: See Walker, "History," I. p. 161. It is obvious that this
attitude of Queen Elizabeth was in no way the outcome of the conviction
that really no State could claim sovereignty over a part of the Open
Sea. For she herself did not think of dropping the British claims to
sovereignty over the "British Seas." Her arguments against the Spanish
claims were made in the interest of the growing commerce and navigation
of England, and any one daring to apply the same arguments against
England's claims would have incurred her royal displeasure.]
[Sidenote: Grotius's Attack on Maritime Sovereignty.]
§ 250. Queen Elizabeth's attitude was the germ out of which grew
gradually the present freedom of the Open Sea. Twenty-nine years after
her answer to Mendoza, in 1609, appeared Grotius's short treatise[488]
"Mare liberum." The intention of Grotius was to show that the Dutch had
a right of navigation and commerce with the Indies in spite of the
Portuguese interdictions. He contends that the sea cannot be State
property, because it cannot really be taken into possession through
occupation,[489] and that consequently the sea is by nature free from
the sovereignty of any State.[490] The attack of Grotius was met by
several authors of different nations. Gentilis defends Spanish and
English claims in his "Advocatio Hispanica," which appeared in 1613.
Likewise, in 1613 William Welwood defends the English claims in his
book, "De dominio maris." John Selden wrote his "Mare Clausum sive de
dominio maris" in 1618, but it was not printed until 1635. Sir John
Burroughs published in 1653 his book, "The Sovereignty of the British
Seas proved by Records, History, and the Municipal Laws of this
Kingdom." And in defence of the claims of the Republic of Venice Paolo
Sarpi published in 1676 his book "Del dominio del mare Adriatico." The
most important of these books defending maritime sovereignty is that of
Selden. King Charles I., by whose command Selden's "Mare Clausum" was
printed in 1635, was so much impressed by it that he instructed in 1629
his ambassador in the Netherlands to complain of the audacity of Grotius
and to request that the author of the "Mare liberum" should be
punished.[491]
[Footnote 488: Its full title is: "Mare liberum, seu de jure quod
Batavis competit ad Indicana commercia Dissertatio," and it is now
proved that this short treatise is only chapter 12 of another work of
Grotius, "De jure praedae," which was found in manuscript in 1864 and
published in 1868. See above, § 53.]
[Footnote 489: See below, § 259.]
[Footnote 490: Grotius was by no means the first author who defended the
freedom of the sea. See Nys, "Les origines du droit international," pp.
381 and 382.]
[Footnote 491: See Phillimore, I. § 182.]
The general opposition to Grotius's bold attack on maritime sovereignty
prevented his immediate victory. Too firmly established were the then
recognised claims to sovereignty over certain parts of the Open Sea for
the novel principle of the freedom of the sea to supplant them. Progress
was made regarding one point only--namely, freedom of navigation of the
sea. England had never pushed her claims so far as to attempt the
prohibition of free navigation on the so-called British Seas. And
although Venice succeeded in keeping up her control of navigation on the
Adriatic till the middle of the seventeenth century, it may be said that
in the second half of that century navigation on all parts of the Open
Sea was practically free for vessels of all nations. But with regard to
other points, claims to maritime sovereignty continued to be kept up.
Thus the Netherlands had by article 4 of the Treaty of Westminster,
1674, to acknowledge that their vessels had to salute the British flag
within the "British Seas" as a recognition of British maritime
sovereignty.[492]
[Footnote 492: See Hall, § 40, p. 152, note 1.]
[Sidenote: Gradual Recognition of the Freedom of the Open Sea.]
§ 251. In spite of opposition, the work of Grotius was not to be
undone. All prominent writers of the eighteenth century take up again
the case of the freedom of the Open Sea, making a distinction between
the maritime belt which is to be considered under the sway of the
littoral States, and, on the other hand, the High Seas, which are under
no State's sovereignty. The leading author is Bynkershoek, whose
standard work, "De dominio maris," appeared in 1702. Vattel, G. F. de
Martens, Azuni, and others follow the lead. And although Great Britain
upheld her claim to the salute due to her flag within the "British Seas"
throughout the eighteenth and at the beginning of the nineteenth
century, the principle of the freedom of the Open Sea became more and
more vigorous with the growth of the navies of other States; and at the
end of the first quarter of the nineteenth century this principle became
universally recognised in theory and practice. Great Britain silently
dropped her claim to the salute due to her flag, and with it her claim
to maritime sovereignty, and became now a champion of the freedom of the
Open Sea. When, in 1821, Russia, who was then still the owner of Alaska
in North America, attempted to prohibit all foreign ships from
approaching the shore of Alaska within one hundred Italian miles, Great
Britain and the United States protested in the interest of the freedom
of the Open Sea, and Russia dropped her claims in conventions concluded
with the protesting Powers in 1824 and 1825. And when, after Russia had
sold Alaska in 1867 to the United States, the latter made regulations
regarding the killing of seals within Behring Sea, claiming thereby
jurisdiction and control over a part of the Open Sea, a conflict arose
in 1886 with Great Britain, which was settled by arbitration[493] in
1893 in favour of the freedom of the Open Sea.
[Footnote 493: See below, § 284.]
II
CONCEPTION OF THE OPEN SEA
Field, article 53--Westlake, I. p. 160--Moore, II. § 308--Rivier,
I. pp. 234-235--Pradier-Fodéré, II. No. 868--Ullmann, §
101--Stoerk in Holtzendorff, II. p. 483.
[Sidenote: Discrimination between Open Sea and Territorial Waters.]
§ 252. Open Sea or High Seas[494] is the coherent body of salt water all
over the greater part of the globe, with the exception of the maritime
belt and the territorial straits, gulfs, and bays, which are parts of
the sea, but not parts of the Open Sea. Wherever there is a salt-water
sea on the globe, it is part of the Open Sea, provided it is not
isolated from, but coherent with, the general body of salt water
extending over the globe, and provided that the salt water approach to
it is navigable and open to vessels of all nations. The enclosure of a
sea by the land of one and the same State does not matter, provided such
a navigable connection of salt water as is open to vessels of all
nations exists between such sea and the general body of salt water, even
if that navigable connection itself be part of the territory of one or
more littoral States. Whereas, therefore, the Dead Sea is Turkish and
the Aral Sea is Russian territory, the Sea of Marmora is part of the
Open Sea, although it is surrounded by Turkish land and although the
Bosphorus and the Dardanelles are Turkish territorial straits, because
these are now open to merchantmen of all nations. For the same reason
the Black Sea[495] is now part of the Open Sea. On the other hand, the
Sea of Azoff is not part of the Open Sea, but Russian territory,
although there exists a navigable connection between it and the Black
Sea. The reason is that this connection, the Strait of Kertch, is not
according to the Law of Nations open to vessels of all nations, since
the Sea of Azoff is less a sea than a mere gulf of the Black Sea.[496]
[Footnote 494: Field defines in article 53: "The High Seas are the
ocean, and all connecting arms and bays or other extensions thereof not
within the territorial limits of any nation whatever."]
[Footnote 495: See above, § 181.]
[Footnote 496: So say Rivier, I. p. 237, and Martens, I. § 97: but
Stoerk in Holtzendorff, II. p. 513, declares that the Sea of Azoff is
part of the Open Sea.]
[Sidenote: Clear Instances of Parts of the Open Sea.]
§ 253. It is not necessary and not possible to particularise every
portion of the Open Sea. It is sufficient to state instances which
clearly indicate the extent of the Open Sea. To the Open Sea belong, of
course, all the so-called oceans--namely, the Atlantic, Pacific, Indian,
Arctic, and Antarctic. But the branches of the oceans, which go under
special names, and, further, the branches of these branches, which again
go under special names, belong likewise to the Open Sea. Examples of
these branches are: the North Sea, the English Channel, and the Irish
Sea; the Baltic Sea, the Gulf of Bothnia, the Gulf of Finland, the Kara
Sea,[497] and the White Sea; the Mediterranean and the Ligurian,
Tyrrhenian, Adriatic, Ionian, Marmora, and Black Seas; the Gulf of
Guinea; the Mozambique Channel; the Arabian Sea and the Red Sea; the Bay
of Bengal, the China Sea, the Gulf of Siam, and the Gulf of Tonking; the
Eastern Sea, the Yellow Sea, the Sea of Japan, and the Sea of Okhotsk;
the Behring Sea; the Gulf of Mexico and the Caribbean Sea; Baffin's Bay.
[Footnote 497: The assertion of some Russian publicists that the Kara
Sea is Russian territory is refuted by Martens, I. § 97. As regards the
Kara Straits, see above, § 194.]
It will be remembered that it is doubtful as regards many gulfs and bays
whether they belong to the Open Sea or are territorial.[498]
[Footnote 498: See above, § 191.]
III
THE FREEDOM OF THE OPEN SEA
Hall, § 75--Westlake, I. pp. 160-166--Lawrence, § 100--Twiss, I.
§§ 172-173--Moore, II. §§ 309-310--Taylor, § 242--Wheaton, §
187--Bluntschli, §§ 304-308--Heffter, § 94--Stoerk in
Holtzendorff, II. pp. 483-498--Ullmann, § 101--Bonfils, Nos.
572-577--Pradier-Fodéré, II. Nos. 874-881--Rivier, I. § 17--Nys,
II. pp. 140-166--Calvo, I. § 346--Fiore, II. Nos. 724, 727, and
Code, Nos. 928-930--Martens, I. § 97--Perels, § 4--Testa, pp.
63-66--Ortolan, "Diplomatie de la mer" (1856), I. pp. 119-149--De
Burgh, "Elements of Maritime International Law" (1868), pp.
1-24--Castel, "Du principe de la liberté des mers" (1900), pp.
37-80.
[Sidenote: Meaning of the Term "Freedom of the Open Sea."]
§ 254. The term "Freedom of the Open Sea" indicates the rule of the Law
of Nations that the Open Sea is not and never can be under the
sovereignty of any State whatever. Since, therefore, the Open Sea is not
the territory of any State, no State has as a rule a right to exercise
its legislation, administration, jurisdiction,[499] or police[500] over
parts of the Open Sea. Since, further, the Open Sea can never be under
the sovereignty of any State, no State has a right to acquire parts of
the Open Sea through occupation,[501] for, as far as the acquisition of
territory is concerned, the Open Sea is what Roman Law calls _res extra
commercium_.[502] But although the Open Sea is not the territory of any
State, it is nevertheless an object of the Law of Nations. The very fact
alone of such a rule exempting the Open Sea from the sovereignty of any
State whatever shows this. But there are other reasons. For if the Law
of Nations were to content itself with the rule which excludes the Open
Sea from possible State property, the consequence would be a condition
of lawlessness and anarchy on the Open Sea. To obviate such lawlessness,
customary International Law contains some rules which guarantee a
certain legal order on the Open Sea in spite of the fact that it is not
the territory of any State.
[Footnote 499: As regards jurisdiction in cases of collision and salvage
on the Open Sea, see below, §§ 265 and 271.]
[Footnote 500: See, however, above, § 190, concerning the zone for
Revenue and Sanitary Laws.]
[Footnote 501: Following Grotius (II. c. 3, § 13) and Bynkershoek ("De
dominio maris," c. 3), some writers (for instance, Phillimore, I. § 203)
maintain that any part of the Open Sea covered for the time by a vessel
is by occupation to be considered as the temporary territory of the
vessel's flag State. And some French writers go even beyond that and
claim a certain zone round the respective vessel as temporary territory
of the flag State. But this is an absolutely superfluous fiction. (See
Stoerk in Holtzendorff, II. p. 494; Rivier, I. p. 238; Perels, pp.
37-39.)]
[Footnote 502: But the subsoil of the bed of the Open Sea can well,
through driving mines and piercing tunnels from the coast, be acquired
by a littoral State. See above, § 221, and below, §§ 287_c_ and 287_d_.]
[Sidenote: Legal Provisions for the Open Sea.]
§ 255. This legal order is created through the co-operation of the Law
of Nations and the Municipal Laws of such States as possess a maritime
flag. The following rules of the Law of Nations are universally
recognised, namely:--First, that every State which has a maritime flag
must lay down rules according to which vessels can claim to sail under
its flag, and must furnish such vessels with some official voucher
authorising them to make use of its flag; secondly, that every State has
a right to punish all such foreign vessels as sail under its flag
without being authorised to do so; thirdly, that all vessels with their
persons and goods are, whilst on the Open Sea, considered under the sway
of the flag State; fourthly, that every State has a right to punish
piracy on the Open Seas even if committed by foreigners, and that, with
a view to the extinction of piracy, men-of-war of all nations can
require all suspect vessels to show their flag.
These customary rules of International Law are, so to say, supplemented
by Municipal Laws of the maritime States comprising provisions, first,
regarding the conditions to be fulfilled by vessels for the purpose of
being authorised to sail under their flags; secondly, regarding the
details of jurisdiction over persons and goods on board vessels sailing
under their flags; thirdly, concerning the order on board ship and the
relations between the master, the crew, and the passengers; fourthly,
concerning punishment of ships sailing without authorisation under their
flags.
The fact that each maritime State has a right to legislate for its own
vessels gives it a share in keeping up a certain order on the Open Sea.
And such order has been turned into a more or less general order since
the large maritime States have concurrently made more or less concordant
laws for the conduct of their vessels on the Open Sea.
[Sidenote: Freedom of the Open Sea and war.]
§ 256. Although the Open Sea is free and not the territory of any State,
it may nevertheless in its whole extent become the theatre of war, since
the region of war is not only the territories of the belligerents, but
likewise the Open Sea, provided that one of the belligerents at least is
a Power with a maritime flag.[503] Men-of-war of the belligerents may
fight a battle in any part of the Open Sea where they meet, and they may
capture all enemy merchantmen they meet on the Open Sea. And, further,
the jurisdiction and police of the belligerents become through the
outbreak of war in so far extended over vessels of other States, that
belligerent men-of-war may now visit, search, and capture neutral
merchantmen for breach of blockade, contraband, and the like.
[Footnote 503: Concerning the distinction between theatre and region of
war, see below, vol. II. § 70.]
However, certain parts of the Open Sea can become neutralised and
thereby be excluded from the region of war. Thus, the Black Sea became
neutralised in 1856 through article 11 of the Peace Treaty of Paris
stipulating:--"La Mer Noire est neutralisée: ouverte à la marine
marchande de toutes les nations, ses eaux et ses ports sont formellement
et à perpétuité interdites au pavillon de guerre, soit des puissances
riveraines, soit de tout autre puissance." Yet this neutralisation of
the Black Sea was abolished[504] in 1871 by article 1 of the Treaty of
London, and no other part of the Open Sea is at present neutralised.
[Footnote 504: See above, § 181.]
[Sidenote: Navigation and ceremonials on the Open Sea.]
§ 257. The freedom of the Open Sea involves perfect freedom of
navigation for vessels of all nations, whether men-of-war, other public
vessels, or merchantmen. It involves, further, absence of compulsory
maritime ceremonials on the Open Sea. According to the Law of Nations,
no rights whatever of salute exist between vessels meeting on the Open
Sea. All so-called maritime ceremonials on the Open Sea[505] are a
matter either of courtesy and usage or of special conventions and
Municipal Laws of those States under whose flags vessels sail. There is
in especial no right of any State to require a salute from foreign
merchantmen for its men-of-war.[506]
[Footnote 505: But not within the maritime belt or other territorial
waters. See above, §§ 122 and 187.]
[Footnote 506: That men-of-war can on the Open Sea ask suspicious
foreign merchantmen to show their flags has nothing to do with
ceremonials, but with the supervision of the Open Sea in the interest of
its safety. See below, § 266.]
The freedom of the Open Sea involves likewise freedom of inoffensive
passage[507] through the maritime belt for merchantmen of all nations,
and also for men-of-war of all nations in so far as the part concerned
of the maritime belt forms a part of the highways for international
traffic. Without such freedom of passage, navigation on the Open Sea by
vessels of all nations would be a physical impossibility.
[Footnote 507: See above, § 188.]
[Sidenote: Claim of States to Maritime Flag.]
§ 258. Since no State can exercise protection over vessels that do not
sail under its flag, and since every vessel must, in the interest of the
order and safety of the Open Sea, sail under the flag of a State, the
question has been raised whether not only maritime States but also such
States as are not littoral States of the Sea have a claim to a maritime
flag. There ought to be no doubt[508] that the freedom of the Open Sea
involves a claim of any State to a maritime flag. At present no
non-littoral State actually has a maritime flag, and all vessels
belonging to subjects of such non-littoral States sail under the flag of
a maritime State. But any day might bring a change. The question as to
the claim to a maritime flag on the part of a non-littoral State was
discussed in Switzerland. When, in 1864, Swiss merchants in Trieste,
Smyrna, Hamburg, and St. Petersburg applied to the Swiss Bundesrath for
permission to have their vessels sailing under the Swiss flag, the
Bundesrath was ready to comply with the request, but the Swiss
Parliament, the Bundesversammlung, refused the necessary consent. In
1889 and 1891 new applications of the same kind were made, but
Switzerland again refused to have a maritime flag.[509] She had no doubt
that she had a claim to such flag, but was aware of the difficulties
arising from the fact that, having no seaports of her own, vessels
sailing under her flag would in many points have to depend upon the
goodwill of the maritime Powers.[510]
[Footnote 508: See, however, Westlake, I. p. 165.]
[Footnote 509: See Salis, "Schweizerisches Bundesrecht" (1891), vol. I.
p. 234.]
[Footnote 510: The question is discussed by Calvo, I. § 427; Twiss, I.
§§ 197 and 198; and Westlake, I. p. 165.]
Such States as have a maritime flag as a rule have a war flag different
from their commercial flag; some States, however, have one and the same
flag for both their navy and their mercantile marine. But it must be
mentioned that a State can by an international convention be restricted
to a mercantile flag only, such State being prevented from having a
navy. This is the position of Montenegro[511] according to article 29 of
the Treaty of Berlin of 1878.
[Footnote 511: See above, § 127, but it is doubtful whether this
restriction is still in existence, since article 29 has, after the
annexation of Bosnia and Herzegovina by Austria in 1908, been modified
by the Powers, so that the port of Antivari and the other Montenegrin
waters are now no longer closed to men-of-war of all nations. See R.G.
XVII. (1910), pp. 173-176.]
[Sidenote: Rationale for the Freedom of the Open Sea.]
§ 259. Grotius and many writers who follow[512] him establish two facts
as the reason for the freedom of the Open Sea. They maintain, first,
that a part of the Open Sea could not effectively be occupied by a Navy
and could therefore not be brought under the actual sway of any State.
And they assert, secondly, that Nature does not give a right to anybody
to appropriate such things as may inoffensively be used by everybody and
are inexhaustible, and, therefore, sufficient for all.[513] The last
argument has nowadays hardly any value, especially for those who have
freed themselves from the fanciful rules of the so-called Law of Nature.
And the first argument is now without basis in face of the development
of the modern navies, since the number of public vessels which the
different States possess at present would enable many a State to occupy
effectively one part or another of the Open Sea. The real reason for the
freedom of the Open Sea is represented in the motive which led to the
attack against maritime sovereignty, and in the purpose for which such
attack was made--namely, the freedom of communication, and especially
commerce, between the States which are severed by the Sea. The Sea being
an international highway which connects distant lands, it is the common
conviction that it should not be under the sway of any State whatever.
It is in the interest of free intercourse[514] between the States that
the principle of the freedom of the Open Sea has become universally
recognised and will always be upheld.[515]
[Footnote 512: See, for instance, Twiss, I. § 172, and Westlake, I. p.
160.]
[Footnote 513: See Grotius, II. c. 2, § 3.]
[Footnote 514: See above, § 142.]
[Footnote 515: Connected with the reason for the freedom of the Open Sea
is the merely theoretical question whether the vessels of a State could
through an international treaty be prevented from navigating on the
whole or on certain parts of the Open Sea. See Pradier-Fodéré, II. Nos.
881-885, where this point is exhaustively discussed.]
IV
JURISDICTION ON THE OPEN SEA
Vattel, II. § 80--Hall, § 45--Westlake, I. pp. 166-176--Lawrence,
§ 100--Halleck, p. 438--Taylor, §§ 262-267--Walker, § 20--Wheaton,
§ 106--Moore, II. §§ 309-310--Bluntschli, §§ 317-352--Heffter, §§
78-80--Stoerk in Holtzendorff, II. pp. 518-550--Liszt, §
26--Bonfils, Nos. 578-580, 597-613--Despagnet, Nos.
422-430--Mérignhac, II. pp. 505-511--Pradier-Fodéré, V. Nos.
2376-2470--Rivier, I. § 18--Nys, II. pp. 139-165--Calvo, I. §§
385-473--Fiore, II. Nos. 730-742, and Code, Nos.
1001-1027--Martens, II. §§ 55-56--Perels, § 12--Testa, pp.
98-112--Ortolan, "Diplomatie de la mer" (1856), II. 254-326--Hall,
"Foreign Powers and Jurisdiction of the British Crown" (1894), §§
106-109.
[Sidenote: Jurisdiction on the Open Sea mainly connected with Flag.]
§ 260. Jurisdiction on the Open Sea is in the main connected with the
maritime flag under which vessels sail. This is the consequence of the
fact stated above[516] that a certain legal order is created on the Open
Sea through the co-operation of rules of the Law of Nations with rules
of the Municipal Laws of such States as possess a maritime flag. But two
points must be emphasised. The one is that this jurisdiction is not
jurisdiction over the Open Sea as such, but only over vessels, persons,
and goods on the Open Sea. And the other is that jurisdiction on the
Open Sea is, although mainly, not exclusively connected with the flag
under which vessels sail, because men-of-war of all nations have, as
will be seen,[517] certain powers over merchantmen of all nations. The
points which must therefore be here discussed singly are--the claim of
vessels to sail under a certain flag, ship-papers, the names of vessels,
the connection of vessels with the territory of the flag State, the
safety of traffic on the Open Sea, the powers of men-of-war over
merchantmen of all nations, and, lastly, shipwreck.
[Footnote 516: See above, § 255.]
[Footnote 517: See below, § 266.]
[Sidenote: Claim of Vessels to sail under a certain Flag.]
§ 261. The Law of Nations does not include any rules regarding the claim
of vessels to sail under a certain maritime flag, but imposes the duty
upon every State having a maritime flag to stipulate by its own
Municipal Laws the conditions to be fulfilled by those vessels which
wish to sail under its flag. In the interest of order on the Open Sea, a
vessel not sailing under the maritime flag of a State enjoys no
protection whatever, for the freedom of navigation on the Open Sea is
freedom for such vessels only as sail under the flag of a State. But a
State is absolutely independent in framing the rules concerning the
claim of vessels to its flag. It can in especial authorise such vessels
to sail under its flag as are the property of foreign subjects; but such
foreign vessels sailing under its flag fall thereby under its
jurisdiction. The different States have made different rules concerning
the sailing of vessels under their flags.[518] Some, as Great
Britain[519] and Germany, allow only such vessels to sail under their
flags as are the exclusive property of their citizens or of corporations
established on their territory. Others, as Argentina, admit vessels
which are the property of foreigners. Others again, as France, admit
vessels which are in part the property of French citizens.[520]
[Footnote 518: See Calvo, I. §§ 393-423, where the respective Municipal
Laws of most countries are quoted.]
[Footnote 519: See section 1 of the Merchant Shipping Act, 1894 (27 and
28 Vict. c. 60), and sections 51 and 80 of the Merchant Shipping Act,
1906 (6 Ed. VII. c. 7).]
[Footnote 520: The Institute of International Law adopted, at its
meeting at Venice--see Annuaire, XV. (1896), p. 201--in 1896, a body of
ten rules concerning the sailing of merchantmen under the maritime flag
of a State under the heading:--"_Règles relatives à l'usage du pavillon
national pour les navires de commerce_."]
But no State can allow such vessel to sail under its flag as already
sails under the flag of another State. Just as a vessel not sailing
under the flag of a State, so a vessel sailing under the flags of two
different States does not enjoy any protection whatever. Nor is
protection enjoyed by such vessel as sails under the flag of a State
which, like Switzerland, has no maritime flag. Vessels belonging to
persons who are subjects of States without a maritime flag must obtain
authority to sail under some other State's flag, if they wish to enjoy
protection on the Open Sea. And any vessel, although the property of
foreigners, which sails without authority under the flag of a State, may
be captured by the men-of-war of such State, prosecuted, punished, and
confiscated.[521]
[Footnote 521: See the case of the steamship _Maori King_ _v._ His
Britannic Majesty's Consul-General at Shanghai, L.R., App. c. 1909, p.
562, and sections 69 and 76 of the Merchant Shipping Act, 1894 (27 and
28 Vict. c. 60).]
[Sidenote: Ship Papers.]
§ 262. All States with a maritime flag are by the Law of Nations obliged
to make private vessels sailing under their flags carry on board
so-called ship papers, which serve the purpose of identification on the
Open Sea. But neither the number nor the kind of such papers is
prescribed by International Law, and the Municipal Laws of the different
States differ much on this subject.[522] But, on the other hand, they
agree as to the following papers:--
[Footnote 522: See Holland, "Manual of Naval Prize Law," §§ 178-194,
where the papers required by the different maritime States are
enumerated.]
(1) An official voucher authorising the vessel to sail under its flag.
This voucher consists of a Certificate of Registry, in case the flag
State possesses, like Great Britain and Germany for instance, a register
of its mercantile marine; in other cases the voucher consists of a
"Passport," "Sea-letter," "Sea-brief," or of some other document serving
the purpose of showing the vessel's nationality.
(2) The Muster Roll. This is a list of all the members of the crew,
their nationality, and the like.
(3) The Log Book. This is a full record of the voyage, with all nautical
details.
(4) The Manifest of Cargo. This is a list of the cargo of a vessel, with
details concerning the number and the mark of each package, the names of
the shippers and the consignees, and the like.
(5) The Bills of Lading. These are duplicates of the documents which
the master of the vessel hands over to the shipper of the goods at
shipment.
(6) The Charter Party, if the vessel is chartered. This is the contract
between the owner of the ship, who lets it wholly or in part, and the
charterer, the person who hires it.
[Sidenote: Names of Vessels.]
§ 263. Every State must register the names of all private vessels
sailing under its flag, and it must make them bear their names visibly,
so that every vessel may be identified from a distance. No vessel must
be allowed to change her name without permission and fresh
registration.[523]
[Footnote 523: As regards Great Britain, see sections 47 and 48 of the
Merchant Shipping Act, 1894, and sections 50 and 53 of the Merchant
Shipping Act, 1906.]
[Sidenote: Territorial Quality of Vessels on the Open Sea.]
§ 264. It is a customary rule of the Law of Nations that men-of-war and
other public vessels of any State are, whilst on the Open Sea as well as
in foreign territorial waters, in every point considered as though they
were floating parts of their home States.[524] Private vessels are only
considered as though they were floating portions of the flag State in so
far as they remain whilst on the Open Sea in principle under the
exclusive jurisdiction of the flag State. Thus the birth of a child, a
will or business contract made, a crime[525] committed on board ship,
and the like, are considered as happening on the territory and therefore
under the territorial supremacy of the flag[526] State. But although
they appear in this respect as though they were, private vessels are in
fact not floating portions of the flag State. For in time of war
belligerent men-of-war can visit, search, and capture neutral private
vessels on the Open Sea for breach of blockade, contraband, and the
like, and in time of peace men-of-war of all nations have certain
powers[527] over merchantmen of all nations.
[Footnote 524: See above, § 172, and below, §§ 447-451.]
[Footnote 525: See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and
481-500.]
[Footnote 526: Since, however, individuals abroad remain under the
personal supremacy of their home State, nothing can prevent a State from
legislating as regards such of its citizens as sail on the Open Sea on
board a foreign vessel.]
[Footnote 527: See below, § 266. The question of the territoriality of
vessels is ably discussed by Hall, §§ 76-79.]
[Sidenote: Safety of Traffic on the Open Sea.]
§ 265. No rules of the Law of Nations exist as yet[528] for the purpose
of preventing collisions, saving lives after collisions, and the like,
but every State possessing a maritime flag has legislated for the
conduct on the Open Sea of vessels sailing under its flag concerning
signalling, piloting, courses, collisions, and the like. Although every
State can legislate on these matters independently of other States, more
and more corresponding rules have been put into force by all the States
during the second half of the nineteenth century, following the lead
given by Great Britain through section 25 of the Merchant Shipping Act
Amendment Act of 1862, the "Regulations for preventing Collisions at
Sea" which accompany this Act, and, further, Sections 16 to 20 of the
Merchant Shipping Act, 1873.[529] And the "Commercial Code of Signals
for the Use of all Nations," published by Great Britain in 1857, has
been adopted by all maritime States. In 1889 a maritime Conference took
place at Washington, at which eighteen maritime States were represented
and which recommended a body of rules for preventing collisions at sea
to be adopted by the single States,[530] and a revision of the Code of
Signals. These regulations were revised in 1890 by a British Committee
appointed by the Board of Trade,[531] and, after some direct
negotiations between the Governments, most maritime States have made
corresponding regulations by their Municipal Laws.[532] And a new and
revised edition of "The International Code of Signals" was published by
the British Board of Trade, in conformity with arrangements with other
maritime Powers, in 1900, and is now in general use.[533]
[Footnote 528: It is to be expected that matters will soon undergo a
change, for the Conference of the International Maritime Committee,
which met at Brussels in September 1910 and where all the maritime
States of Europe, the United States of America, most of the South
American States, and Japan were represented, produced a draft convention
concerning collisions (see Supplement to the _American Journal of
International Law_, IV. (1910), p. 121). The "Maritime Conventions
Bill," which is now before Parliament, proposes such alterations of
British Municipal Law as would enable the British Government to ratify
this Convention. The Institute of International Law already in 1888, at
its meeting at Lausanne--see Annuaire, X. (1889), p. 150--adopted a body
of eight rules concerning the subject.]
[Footnote 529: See 25 and 26 Vict. c. 63; 36 and 37 Vict. c. 83. The
matter is now dealt with by sections 418-421 of the Merchant Shipping
Act, 1894 (57 and 58 Vict. c. 60).]
[Footnote 530: See Martens, N.R.G. 2nd Ser. XII. p. 416.]
[Footnote 531: See Martens, N.R.G. 2nd Ser. XXII. p. 113.]
[Footnote 532: Latest British Regulations, 1896.]
[Footnote 533: The matter of collision at sea is exhaustively treated by
Prien, "Der Zusammenstoss von Schiffen nach dem Gesetzen des Erdhalls"
(2nd ed. 1899).]
The question of jurisdiction in actions for damages for collision at sea
is not at all settled.[534] That the damaged innocent vessel can bring
an action against the guilty ship in the Courts of the latter's flag
State is beyond doubt since jurisdiction on the Open Sea follows the
flag. If the rule that all vessels while on the Open Sea are considered
under the sway of their flag State were one without exception, no other
State would claim jurisdiction in cases of collision but the flag State
of the guilty ship. Yet the practice of the maritime States[535] goes
far beyond this, without, however, being uniform. Thus, for instance,
France[536] claims jurisdiction if the damaged ship is French, although
the guilty ship may be foreign, and also in the event of both ships
being foreign in case both consent, or for urgent measures having a
provisionary character, or in case France is a place of payment. Thus,
further, Italy[537] claims jurisdiction even if both ships are foreign
in case an Italian port is the port nearest to the collision, or in case
the damaged ship was forced by the collision to remain in an Italian
port. Great Britain goes farthest, for the Admiralty Court claims
jurisdiction provided the guilty ship is in a British port at the time
the action for damages is brought, even if the collision took place
between two foreign ships anywhere on the High Seas.[538] And the
Admiralty Court justifies this extended claim of jurisdiction[539] by
maintaining that collision is a matter of _communis juris_, and can
therefore be adjudicated upon by the Courts[540] of all maritime
States.[541]
[Footnote 534: See Phillimore, IV. § 815; Calvo, I. § 444;
Pradier-Fodéré, V. Nos. 2362-2374; Bar, "Private International Law" (2nd
ed. translated by Gillespie), pp. 720 and 928; Dicey, "Conflict of Laws"
(2nd ed.), pp. 650-652 and 790; Foote, "Private International Law" (3rd
ed.), pp. 486 and 495; Westlake, "Private International Law" (3rd ed.),
pp. 266-269; Marsden, "The Law of Collisions at Sea" (6th ed. 1910);
Williams and Bruce, "Treatise on the Jurisdiction of English Courts in
Admiralty Actions" (3rd ed. 1902).]
[Footnote 535: See above, § 146.]
[Footnote 536: See Pradier-Fodéré, No. 2363.]
[Footnote 537: See Pradier-Fodéré, No. 2364.]
[Footnote 538: Or even in foreign territorial waters. See Williams and
Bruce, _op. cit._, p. 78:--"The Admiralty Court from ancient times
exercised jurisdiction in cases of collision between foreign vessels on
the High Seas; and since the Admiralty Court Act, 1861, it has
entertained suits for collision between ships in foreign waters, and
between an English and a foreign ship in foreign waters."]
[Footnote 539: _The Johann Friederich_ (1838), 1 W. Robinson, 35; the
Chartered Mercantile Bank of India, London, and China _v._ The
Netherlands India Steam Navigation Co., 10 Q.B.D. 537.]
[Footnote 540: The practice of the United States of America coincides
with that of Great Britain; see the case of the _Belgenland_, 114,
United States, 355, and Wharton, I. § 27.]
[Footnote 541: The Institute of International Law, at its meeting at
Lausanne in 1888, adopted two rules concerning the jurisdiction in cases
of collision; see Annuaire, X. (1889), p. 152.]
[Sidenote: Powers of Men-of-war over Merchantmen of all Nations.]
§ 266. Although the freedom of the Open Sea and the fact that vessels on
the Open Sea remain under the jurisdiction of the flag State exclude as
a rule the exercise of any State's authority over foreign vessels, there
are certain exceptions in the interest of all maritime nations. These
exceptions are the following:--
(1) Blockade and Contraband. In time of war belligerents can blockade
not only enemy ports and territorial coast waters, but also parts of the
Open Sea adjoining those ports and waters, and neutral merchantmen
attempting to break such a blockade can be confiscated. And, further, in
time of war belligerent men-of-war can visit, search, and eventually
seize neutral merchantmen for contraband, and the like.
(2) Verification of Flag. It is a universally recognised customary rule
of International Law that men-of-war of all nations have, to maintain
the safety of the Open Sea against piracy, the power to require
suspicious private vessels on the Open Sea to show their flag.[542] But
such vessels must be suspicious, and, since a vessel may be a pirate
although she shows a flag, she may eventually be stopped and visited for
the purpose of inspecting her papers and thereby verifying the flag. It
is, however, quite obvious that this power of men-of-war must not be
abused, and that the home State is responsible for damages in case a
man-of-war stops and visits a foreign merchantman without sufficient
ground of suspicion. The right of every State to punish piracy on the
Open Sea will be treated below, §§ 272-280.
[Footnote 542: So-called "Droit d'enquête" or "Vérification du
pavillon." This power of men-of-war has given occasion to much dispute
and discussion, but in fact nobody denies that in case of grave
suspicion this power does exist. See Twiss, I. § 193; Hall, § 81, p.
276; Fiore, II. Nos. 732-736; Perels, § 17; Taylor, § 266; Bonfils, No.
519.]
(3) So-called Right of Pursuit. It is a universally recognised customary
rule that men-of-war of a littoral State can pursue into the Open Sea,
seize, and bring back into a port for trial any foreign merchantman that
has violated the law whilst in the territorial waters of the State in
question. But such pursuit into the Open Sea is permissible only if
commenced while the merchantman is still in the said territorial waters
or has only just escaped thence, and the pursuit must stop as soon as
the merchantman passes into the maritime belt of a foreign State.[543]
[Footnote 543: See Hall, § 80.]
(4) Abuse of Flag. It is another universally recognised rule that
men-of-war of every State may seize and bring to a port of their own for
punishment any foreign vessel sailing under the flag of such State
without authority.[544] Accordingly, Great Britain has, by section 69
of the Merchant Shipping Act, 1894, enacted:--"If a person uses the
British flag and assumes the British national character on board a ship
owned in whole or in part by any persons not qualified to own a British
ship, for the purpose of making the ship appear a British ship, the ship
shall be subject to forfeiture under this Act, unless the assumption has
been made for the purpose of escaping capture by an enemy or by a
foreign ship of war in the exercise of some belligerent right."
[Footnote 544: The four exceptions mentioned in the text above are based
on universally recognised customary rules of the Law of Nations. It is,
of course, possible for several States to enter into treaty agreements
according to which their men-of-war acquire certain powers over each
other's merchantmen on the Open Sea. According to such agreements, which
are, however, not universal, the following additional exceptions may be
enumerated:--
(1) In the interest of the suppression of the slave trade, the signatory
Powers of the General Act of the Brussels Conference of 1890 to which
all the larger maritime Powers belong, have, by articles 20-65,
stipulated that their men-of-war shall have the power, in certain parts
of the Open Sea where slave traffic still continues, to stop every
suspect vessel under 500 tons.
(2) In the interest of the Fisheries in the North Sea, special cruisers
of the littoral Powers control all fishing vessels and bumboats. See
below, §§ 282 and 283.
(3) In the interest of Transatlantic telegraph cables, men-of-war of the
signatory Powers of the treaty for the protection of such cables have
certain powers over merchantmen. (See below, § 287.)]
[Sidenote: How Verification of Flag is effected.]
§ 267. A man-of-war which meets a suspicious merchantman not showing her
colours and wishes to verify the same, hoists her own flag and fires a
blank cartridge. This is a signal for the other vessel to hoist her flag
in reply. If she takes no notice of the signal, the man-of-war fires a
shot across her bows. If the suspicious vessel, in spite of this
warning, still declines to hoist her flag, the suspicion becomes so
grave that the man-of-war may compel her to bring to for the purpose of
visiting her and thereby verifying her nationality.
[Sidenote: How Visit is effected.]
§ 268. The intention to visit may be communicated to a merchantman
either by hailing or by the "informing gun"--that is, by firing either
one or two blank cartridges. If the vessel takes no notice of this
communication, a shot may be fired across her bows as a signal to bring
to, and, if this also has no effect, force may be resorted to. After the
vessel has been brought to, either an officer is sent on board for the
purpose of inspecting her papers, or her master is ordered to bring his
ship papers for inspection on board the man-of-war. If the inspection
proves the papers to be in order, a memorandum of the visit is made in
the log-book, and the vessel is allowed to proceed on her course.
[Sidenote: How Search is effected.]
§ 269. Search is naturally a measure which visit must always precede. It
is because the visit has given no satisfaction that search is
instituted. Search is effected by an officer and some of the crew of the
man-of-war, the master and crew of the vessel to be searched not being
compelled to render any assistance whatever except to open locked
cupboards and the like. The search must take place in an orderly way,
and no damage must be done to the cargo. If the search proves everything
to be in order, the searchers have carefully to replace everything
removed, a memorandum of the search is to be made in the log-book, and
the searched vessel is to be allowed to proceed on her course.
[Sidenote: How Arrest is effected.]
§ 270. Arrest of a vessel takes place either after visit and search have
shown her liable thereto, or after she has committed some act which
alone already justifies her seizure. Arrest is effected through the
commander of the arresting man-of-war appointing one of her officers and
a part of her crew to take charge of the arrested vessel. Such officer
is responsible for the vessel and her cargo, which latter must be kept
safe and intact. The arrested vessel, either accompanied by the
arresting vessel or not, must be brought to such harbour as is
determined by the cause of the arrest. Thus, neutral or enemy ships
seized in time of war are always[545] to be brought into a harbour of
the flag State of the captor. And the same is the case in time of peace,
when a vessel is seized because her flag cannot be verified, or because
she was sailing under no flag at all. On the other hand, when a fishing
vessel or a bumboat is arrested in the North Sea, she is always to be
brought into a harbour of her flag State and handed over to the
authorities there.[546]
[Footnote 545: Except in the case of distress or unseaworthiness; see
below, vol. II. § 193.]
[Footnote 546: See below, §§ 282 and 283.]
[Sidenote: Shipwreck and Distress on the Open Sea.]
§ 271. It is at present the universal conviction on the part of the
States that goods and persons shipwrecked on the Open Sea do not thereby
lose the protection of the flag State of the shipwrecked vessel. No
State is allowed to recognise appropriation of abandoned vessels and
other derelicts on the Open Sea by those of its subjects who take
possession thereof. But every State can by its Municipal Laws enact that
those of its subjects who take possession of abandoned vessels and of
shipwrecked goods need not restore them to their owners without
salvage,[547] whether the act of taking possession occurred on the
actual Open Sea or within territorial waters and on shore of the
respective State.
[Footnote 547: The Conference of the Maritime Committee held at Brussels
in September 1910 also produced a draft convention concerning salvage,
which the British Government likewise intends to ratify provided
Parliament passes the "Maritime Conventions Bill," see above, § 265, p.
333, note 2, and Supplement to the _American Journal of International
Law_, IV. (1910), p. 126. According to the practice of the Admiralty
Court--see the case of the _Johann Friederich_, 1 W. Robinson,
35--salvage on the Open Sea is, just like collisions, a matter of
_communis juris_ upon which the Courts of all maritime States are
competent to adjudicate. See Phillimore, IV. § 815; and Dicey, "Conflict
of Laws" (2nd ed. 1908), p. 791. See also sect. 545 and 565 of the
Merchant Shipping Act, 1894.]
As regards vessels in distress on the Open Sea, some writers[548]
maintain that men-of-war must render assistance even to foreign vessels
in distress. But it is impossible to say that there is a customary or
conventional rule of the Law of Nations in existence which imposes upon
all States the duty of instructing their men-of-war to render assistance
to foreign vessels in distress, although many States order by Municipal
Regulations their men-of-war to render such assistance, and although
morally every vessel is bound to render assistance to another vessel in
distress.[549]
[Footnote 548: See, for instance, Perels, § 25, and Fiore, II. No. 732.]
[Footnote 549: According to article 11 of the draft convention
concerning salvage produced by the Conference of the Maritime Committee
at Brussels in September 1910--see above, note 1--"every master shall be
obliged, as far as he can do so without serious danger to his vessel,
his crew, or his passengers, to lend assistance to any person, even an
enemy, found at sea in danger of perishing. The owner of the vessel
shall not be liable for violations of the foregoing provision."]
V
PIRACY
Hall, §§ 81-82--Westlake, I. pp. 177-182--Lawrence, §
102--Phillimore, I. §§ 356-361--Twiss, I. §§ 177 and 193--Halleck,
I. pp. 444-450--Taylor, §§ 188-189--Walker, § 21--Westlake, I. pp.
177-182--Wheaton, §§ 122-124--Moore, II. §§ 311-315--Bluntschli,
§§ 343-350--Heffter, § 104--Gareis in Holtzendorff, II. pp.
571-581--Gareis, § 58--Liszt, § 26--Ullmann, § 104--Bonfils, Nos.
592-594--Despagnet, Nos. 431-433--Mérignhac, II. pp.
506-511--Pradier-Fodéré, V. Nos. 2491-2515--Rivier, I. pp.
248-251--Calvo, I. §§ 485-512--Fiore, I. Nos. 494-495, and Code,
Nos. 295-300--Perels, §§ 16-17--Testa, pp. 90-97--Ortolan,
"Diplomatie de la mer" (1856), I. pp. 231-253--Stiel, "Der
Thatbestand der Piraterie" (1905).
[Sidenote: Conception of Piracy.]
§ 272. Piracy, in its original and strict meaning, is every unauthorised
act of violence committed by a private vessel on the Open Sea against
another vessel with intent to plunder (_animo furandi_). The majority of
writers confine piracy to such acts, which indeed are the normal cases
of piracy. But there are cases possible which are not covered by this
narrow definition, and yet they are practically treated as though they
were cases of piracy. Thus, if the members of the crew revolt and
convert the ship and the goods thereon to their own use, they are
considered to be pirates, although they have not committed an act of
violence against another ship. Thus, secondly, if unauthorised acts of
violence, such as murder of persons on board the attacked vessel or
destruction of goods thereon, are committed on the Open Sea without
intent to plunder, such acts are practically considered to be piratical.
Under these circumstances several writers,[550] correctly, I think,
oppose the usual definition of piracy as an act of violence committed by
a private vessel against another with intent to plunder. But no
unanimity exists among these very writers concerning a fit definition of
piracy, and the matter is therefore very controversial. If a definition
is desired which really covers all such acts as are practically treated
as piratical, piracy must be defined as _every unauthorised act of
violence against persons or goods committed on the Open Sea either by a
private vessel against another vessel or by the mutinous crew or
passengers against their own vessel_.[551]
[Footnote 550: Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, §
26; Calvo, § 485.]
[Footnote 551: The conception of Piracy is discussed in the case of the
Republic of Bolivia _v._ The Indemnity Mutual Marine Assurance Co., L.R.
(1909), 1 K.B., 785.]
Already, before a Law of Nations in the modern sense of the term was in
existence, a pirate was considered an outlaw, a "hostis humani generis."
According to the Law of Nations the act of piracy makes the pirate lose
the protection of his home State, and thereby his national character;
and his vessel, although she may formerly have possessed a claim to sail
under a certain State's flag, loses such claim. Piracy is a so-called
"international crime";[552] the pirate is considered the enemy of every
State, and can be brought to justice anywhere.
[Footnote 552: See above, § 151.]
[Sidenote: Private Ships as Subjects of Piracy.]
§ 273. Private vessels only[553] can commit piracy. A man-of-war or
other public ship, as long as she remains such, is never a pirate. If
she commits unjustified acts of violence, redress must be asked from her
flag State, which has to punish the commander and to pay damages where
required. But if a man-of-war or other public ship of a State revolts
and cruises the sea for her own purposes, she ceases to be a public
ship, and acts of violence now committed by her are indeed piratical
acts. A _privateer_ is not a pirate as long as her acts of violence are
confined to enemy vessels, because such acts are authorised by the
belligerent in whose services she is acting. And it matters not that the
privateer is originally a neutral vessel.[554] But if a neutral vessel
were to take Letters of Marque from both belligerents, she would be
considered a pirate.
[Footnote 553: Piracy committed by the mutinous crew will be treated
below, § 274.]
[Footnote 554: See details regarding this controversial point in Hall, §
81. See also below, vol. II. §§ 83 and 330.]
Doubtful is the case where a privateer in a civil war has received her
Letters of Marque from the insurgents, and, further, the case where
during a civil war men-of-war join the insurgents before the latter have
been recognised as a belligerent Power. It is evident that the
legitimate Government will treat such ships as pirates; but third Powers
ought not to do so, as long as these vessels do not commit any act of
violence against ships of these third Powers. Thus, in 1873, when an
insurrection broke out in Spain, Spanish men-of-war stationed at
Carthagena fell into the hands of the insurgents, and the Spanish
Government proclaimed these vessels pirates, England, France, and
Germany instructed the commanders of their men-of-war in the
Mediterranean not to interfere as long as these insurgent vessels[555]
abstained from acts of violence against the lives and property of their
subjects.[556] On the other hand, when in 1877 a revolutionary outbreak
occurred at Callao in Peru and the ironclad _Huascar_, which had been
seized by the insurgents, put to sea, stopped British steamers, took a
supply of coal without payment from one of these, and forcibly took two
Peruvian officials from on board another where they were passengers, she
was justly considered a pirate and attacked by the British Admiral de
Horsey, who was in command of the British squadron in the Pacific.[557]
[Footnote 555: See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp.
179-182.]
[Footnote 556: But in the American case of the _Ambrose Light_ (25
Federal 408; see also Moore, II. § 332, p. 1098) the Court did not agree
with this. The _Ambrose Light_ was a brigantine which, when on April 24,
1885, she was sighted by Commander Clark of the U.S.S. _Alliance_ in the
Caribbean Sea, was flying a strange flag showing a red cross on a white
ground, but she afterwards hoisted the Columbian flag; when seized she
was found to carry sixty armed soldiers, one cannon, and a considerable
quantity of ammunition. She bore a commission from Columbian insurgents,
and was designed to assist in the blockade of the port of Carthagena by
the rebels. Commander Clark considered the vessel to be a pirate and
sent her in for condemnation. The Court held that in absence of any
recognition of the Columbian insurgents as a belligerent Power the
_Ambrose Light_ had been lawfully seized as a pirate. The vessel was,
however, nevertheless released because the American Secretary of State
had recognised by implication a state of war between the insurgents and
the legitimate Columbian Government.]
[Footnote 557: As regards the case of the Argentinian vessel _Porteña_
and the Spanish vessel _Montezuma_, afterwards called _Cespedes_, see
Calvo, I. §§ 502 and 503.]
The case must also be mentioned of a privateer or man-of-war which after
the conclusion of peace or the termination of war by subjugation and the
like continues to commit hostile acts. If such vessel is not cognisant
of the fact that the war has come to an end she cannot be considered as
a pirate. Thus the Confederate cruiser _Shenandoah_, which in 1865, for
some months after the end of the American Civil War, attacked American
vessels, was not considered a pirate[558] by the British Government when
her commander gave her up to the port authorities at Liverpool in
November 1865, because he asserted that he had not known till August of
the termination of the war, and that he had abstained from hostilities
as soon as he had obtained this information.
[Footnote 558: See Lawrence, § 102.]
It must be emphasised that the motive and the purpose of such acts of
violence do not alter their piratical character, since the intent to
plunder (_animus furandi_) is not required. Thus, for instance, if a
private neutral vessel without Letters of Marque during war out of
hatred of one of the belligerents were to attack and to sink vessels of
such belligerent without plundering at all, she would nevertheless be
considered as a pirate.[559]
[Footnote 559: This statement is correct in spite of art. 46, No. 1, of
the Declaration of London; see below, vol. II. § 410, No. 1.]
[Sidenote: Mutinous Crew and Passengers as Subjects of Piracy.]
§ 274. The crew or the whole or a part of the passengers who revolt on
the Open Sea and convert the vessel and her goods to their own use,
commit thereby piracy, whether the vessel is private or public. But a
simple act of violence alone on the part of crew or passengers does not
constitute in itself the crime of piracy, at least not as far as
International Law is concerned. If, for instance, the crew were to
murder the master on account of his cruelty and afterwards carry on the
voyage, they would be murderers, but not pirates. They are pirates only
when the revolt is directed not merely against the master, but also
against the vessel, for the purpose of converting her and her goods to
their own use.
[Sidenote: Object of Piracy.]
§ 275. The object of piracy is any public or private vessel, or the
persons or the goods thereon, whilst on the Open Sea. In the regular
case of piracy the pirate wants to make booty; it is the cargo of the
attacked vessel which is the centre of his interest, and he might free
the vessel and the crew after having appropriated the cargo. But he
remains a pirate whether he does so or kills the crew and appropriates
the ship, or sinks her. On the other hand, it does not matter if the
cargo is not the object of his act of violence. If he stops a vessel and
takes a rich passenger off with the intention to keep him for the
purpose of a high ransom, his act is piracy. It is likewise piracy if he
stops a vessel for the purpose of killing a certain person only on
board, although he may afterwards free vessel, crew, and cargo.
That a possible object of piracy is not only another vessel, but also
the very ship on which the crew and passenger navigate, is an inference
from the statements above in § 274.
[Sidenote: Piracy, how effected.]
§ 276. Piracy is effected by any unauthorised act of violence, be it
direct application of force or intimidation through menace. The crew or
passengers who, for the purpose of converting a vessel and her goods to
their own use, force the master through intimidation to steer another
course, commit piracy as well as those who murder the master and steer
the vessel themselves. And a ship which, through the threat to sink her
if she should refuse, forces another ship to deliver up her cargo or a
person on board, commits piracy as well as the ship which attacks
another vessel, kills her crew, and thereby gets hold of her cargo or a
person on board.
The act of violence need not be consummated to constitute the crime of
piracy. The mere attempt, such as attacking or even chasing only for the
purpose of attack, by itself comprises piracy. On the other hand, it is
doubtful whether persons cruising in armed vessels with the intention of
committing piracies are liable to be treated as pirates before they have
committed a single act of violence.[560]
[Footnote 560: See Stephen, "Digest of the Criminal Law," article 104.
In the case of the _Ambrose Light_--see above, § 273--the Court
considered the vessel to be a pirate, although no attempt to commit a
piratical act had been made by her.]
[Sidenote: Where Piracy can be committed.]
§ 277. Piracy as an "international crime" can be committed on the Open
Sea only. Piracy in territorial coast waters has quite as little to do
with International Law as other robberies on the territory of a State.
Some writers[561] maintain that piracy need not necessarily be committed
on the Open Sea, but that it suffices that the respective acts of
violence are committed by descent from the Open Sea. They maintain,
therefore, that if "a body of pirates land on an island unappropriated
by a civilised Power, and rob and murder a trader who may be carrying on
commerce there with the savage inhabitants, they are guilty of a crime
possessing all the marks of commonplace professional piracy." With this
opinion I cannot agree. Piracy is, and always has been, a crime against
the safety of traffic on the Open Sea, and therefore it cannot be
committed anywhere else than on the Open Sea.
[Footnote 561: Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.]
[Sidenote: Jurisdiction over Pirates, and their Punishment.]
§ 278. A pirate and his vessel lose _ipso facto_ by an act of piracy the
protection of their flag State and their national character. Every
maritime State has by a customary rule of the Law of Nations the right
to punish pirates. And the vessels of all nations, whether men-of-war,
other public vessels, or merchantmen,[562] can on the Open Sea[563]
chase, attack, seize, and bring the pirate home for trial and punishment
by the Courts of their own country. In former times it was said to be a
customary rule of International Law that pirates could at once after
seizure be hanged or drowned by the captor. But this cannot now be
upheld, although some writers assert that it is still the law. It would
seem that the captor may execute pirates on the spot only when he is not
able to bring them safely into a port for trial; but Municipal Law may,
of course, interdict such execution. Concerning the punishment for
piracy, the Law of Nations lays down the rule that it may be capital.
But it need not be, the Municipal Law of the different States being
competent to order any less severe punishment. Nor does the Law of
Nations make it a duty for every maritime State to punish all
pirates.[564]
[Footnote 562: A few writers (Gareis in Holtzendorff, II. p 575; Liszt,
§ 26; Ullmann, § 104; Stiel, _op. cit._, p. 51) maintain, however, that
men-of-war only have the power to seize the pirate.]
[Footnote 563: If a pirate is chased on the Open Sea and flees into the
territorial maritime belt, the pursuers may follow, attack, and arrest
the pirate there; but they must give him up to the authorities of the
littoral State.]
[Footnote 564: Thus, according to the German Criminal Code, piracy
committed by foreigners against foreign vessels cannot be punished by
German Courts (see Perels, § 17). From article 104 of Stephen's "Digest
of the Criminal Law," there seems to be no doubt that, according to
English Law, all pirates are liable to be punished. See Stiel, _op.
cit._, p. 15, note 4, where a survey is given of the Municipal Law of
many States concerning this point.]
That men-of-war of all nations have, with a view to insuring the safety
of traffic, the power of verifying the flags of suspicious merchantmen
of all nations, has already been stated above (§ 266, No. 2).
[Sidenote: _Pirata non mutat dominium._]
§ 279. The question as to the property in the seized piratical vessels
and the goods thereon has been the subject of much controversy. During
the seventeenth century the practice of several States conceded such
vessel and goods to the captor as a premium. But during the eighteenth
century the rule _pirata non mutat dominium_ became more and more
recognised. Nowadays the conviction would seem to be general that ship
and goods have to be restored to their proprietors, and may be conceded
to the captor only when the real ownership cannot be ascertained. In the
first case, however, a certain percentage of the value is very often
conceded to the captor as a premium and an equivalent for his expenses
(so-called _droit de recousse_[565]). Thus, according to British
Law,[566] a salvage of 12-1/2 per cent. is to be paid to the captor of
the pirate.
[Footnote 565: See details regarding the question as to the piratical
vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.]
[Footnote 566: See section 5 of the "Act to repeal an Act of the Sixth
Year of King George the Fourth, for encouraging the Capture or
Destruction of Piratical Ships, &c." (13 & 14 Vict. ch. 26).]
[Sidenote: Piracy according to Municipal Law.]
§ 280. Piracy, according to the Law of Nations, which has been defined
above (§ 272) as every unauthorised act of violence against persons or
goods committed on the Open Sea either by a private vessel against
another vessel or by the mutinous crew or passengers against their own
vessel, must not be confounded with the conception of piracy according
to the different Municipal Laws.[567] The several States may confine
themselves to punishing as piracy a narrower circle of acts of violence
than that which the Law of Nations defines as piracy. On the other hand,
they may punish their subjects as pirates for a much wider circle of
acts. Thus, for instance, according to the Criminal Law of England,[568]
every English subject is _inter alia_ deemed to be a pirate who gives
aid or comfort upon the sea to the King's enemies during a war, or who
transports slaves on the High Seas.
[Footnote 567: See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré,
V. Nos. 2501 and 2502.]
[Footnote 568: See Stephen, "Digest of the Criminal Law," articles
104-117.]
However, since a State cannot on the Open Sea enforce its Municipal Laws
against others than its own subjects, no State can treat such foreign
subjects on the Open Sea as pirates as are not pirates according to the
Law of Nations. Thus, when in 1858, before the abolition of slavery in
America, British men-of-war molested American vessels suspected of
carrying slaves, the United States objected and rightly complained.[569]
[Footnote 569: See Wharton, III. § 327, pp. 142 and 143; Taylor, § 190;
Moore, II. § 310, pp. 941-946.]
VI
FISHERIES IN THE OPEN SEA
Grotius, II. c. 3, § 4--Vattel, I. § 287--Hall, § 27--Lawrence, §§
86 and 91--Phillimore, I. §§ 181-195--Twiss, I. § 185--Taylor, §§
249-250--Wharton, II. §§ 300-308--Wheaton, §§ 167-171--Moore, I.
§§ 169-173--Bluntschli, § 307--Stoerk in Holtzendorff, II. pp.
504-507--Gareis, § 62--Liszt, § 35--Ullmann, § 103--Bonfils, Nos.
581-582, 595--Despagnet, Nos. 411-413--Mérignhac, II. p.
531--Pradier-Fodéré, V. Nos. 2446-2458--Rivier, I. pp.
243-245--Nys, II. pp. 165-169--Calvo, I. §§ 357-364--Fiore, II.
Nos. 728-729, and Code, Nos. 995-999--Martens, I. § 98--Perels, §
20--Hall, "Foreign Powers and Jurisdiction" (1894), § 107--David,
"La pêche maritime au point de vue international" (1897)--Fulton,
"The Sovereignty of the Seas" (1911), pp. 57-534.
[Sidenote: Fisheries in the Open Sea free to all Nations.]
§ 281. Whereas the fisheries in the territorial maritime belt can be
reserved by the littoral State for its own subjects, it is an inference
of the freedom of the Open Sea that the fisheries thereon are open[570]
to vessels of all nations. Since, however, vessels remain whilst on the
Open Sea under the jurisdiction of their flag State, every State
possessing a maritime flag can legislate concerning the exercise of
fisheries on the Open Sea on the part of vessels sailing under its flag.
And for the same reason a State can by an international agreement
renounce its fisheries on certain parts of the Open Sea, and accordingly
interdict its vessels from exercising fisheries there. If certain
circumstances and conditions make it advisable to restrict and regulate
the fisheries on some parts of the Open Sea, the Powers are therefore
able to create restrictions and regulations for that purpose through
international treaties. Such treaties have been concluded--first, with
regard to the fisheries in the North Sea and the suppression of the
liquor trade among the fishing vessels in that Sea; secondly, with
regard to the seal fisheries in the Behring Sea; thirdly, with regard to
the fisheries around the Faröe Islands and Iceland.
[Footnote 570: Denmark silently, by fishing regulations of 1872, dropped
her claim to an exclusive right of fisheries within twenty miles of the
coast of Iceland; see Hall, § 40, p. 153, note 2. Russia promulgated, in
1911, a statute forbidding the fisheries to foreign vessels within
twelve miles of the shore of the White Sea, but the Powers protested
against this encroachment upon the freedom of the Open Sea; the matter
is still unsettled.
A case of a particular kind would seem to be the pearl fishery off
Ceylon, which extends to a distance of twenty miles from the shore and
for which regulations exist which are enforced against foreign as well
as British subjects. The claim on which these regulations are based is
one "to the products of certain submerged portions of land which have
been treated from time immemorial by the successive rulers of the island
as subject of property and jurisdiction." See Hall, "Foreign Powers and
Jurisdiction" (1894), p. 243, note 1. See also Westlake, I. p. 186, who
says: "The case of the pearl fishery is peculiar, the pearls being
obtained from the sea bottom by divers, so that it has a physical
connection with the stable element of the locality which is wanting to
the pursuit of fish swimming in the water. When carried on under State
protection, as that off the British island of Ceylon, or that in the
Persian Gulf which is protected by British ships in pursuance of
treaties with certain chiefs of the Arabian mainland, it may be regarded
as an occupation of the bed of the sea. In that character the pearl
fishery will be territorial even though the shallowness of the water may
allow it to be practised beyond the limit which the State in question
generally fixes for the littoral seas, as in the case of Ceylon it is
practised beyond the three miles limit generally recognised by Great
Britain. 'Qui doutera,' says Vattel (I. § 28), 'que les pêcheries de
Bahrein et de Ceylon ne puissent légitimement tomber en propriété?' And
the territorial nature of the industry will carry with it, as being
necessary for its protection, the territorial character of the spot."
This opinion of Westlake coincides with that contended by Great Britain
during the Behring Sea Arbitration; see Parliamentary Papers, United
States, No. 4 (1893) Behring Sea Arbitration, Archives of His Majesty's
Government, pp. 51 and 59. But it is submitted that the bed of the Open
Sea is not a possible object of occupation. The explanation of the pearl
fisheries off Ceylon and in the Persian Gulf being exclusively British
is to be found in the fact that the freedom of the Open Sea was not a
rule of International Law when these fisheries were taken possession of.
See Oppenheim in Z.V. II. (1908), pp. 6-10, and Westlake, I. (2nd ed.),
p. 203.]
[Sidenote: Fisheries in the North Sea.]
§ 282. For the purpose of regulating the fisheries in the North Sea, an
International Conference took place at the Hague in 1881 and again in
1882, at which Great Britain, Belgium, Denmark, France, Germany,
Holland, and Sweden-Norway were represented, and on May 6, 1882, the
International Convention for the Regulation of the Police of the
Fisheries in the North Sea outside the territorial waters[571] was
signed by the representatives of all these States, Sweden-Norway
excepted, to which the option of joining later on is given. This treaty
contains the following stipulations:[572]--
[Footnote 571: Martens, N.R.G. 2nd Ser. IX. p. 556.]
[Footnote 572: The matter is exhaustively treated by Rykere, "Le régime
légal de la pêche maritime dans la Mer du Nord" (1901). To carry out the
obligations undertaken by her in the Convention for the regulation of
the fisheries in the North Sea, Great Britain enacted in 1883 the "Act
to carry into effect an International Convention concerning the
Fisheries in the North Sea, and to amend the Laws relating to British
Sea Fisheries" (46 and 47 Vict. ch. 22).]
(1) All the fishing vessels of the signatory Powers must be registered,
and the registers have to be exchanged between the Powers (article 5).
Every vessel has to bear visibly in white colour on black ground its
number, name, and the name of its harbour (articles 6-11). Every vessel
must bear an official voucher of her nationality (articles 12-13).
(2) To avoid conflicts between the different fishing vessels, very
minute interdictions and injunctions are provided (articles 14-25).
(3) The supervision of the fisheries by the fishing vessels of the
signatory Powers is exercised by special cruisers of these Powers
(article 26). With the exception of those contraventions which are
specially enumerated by article 27, all these cruisers are competent to
verify all contraventions committed by the fishing vessels of all the
signatory Powers (article 28). For that purpose they have the right of
visit, search, and arrest (article 29). But a seized fishing vessel is
to be brought into a harbour of her flag State and to be handed over to
the authorities there (article 30). All contraventions are to be tried
by the Courts of the State to which the contravening vessels belong
(article 36); but in cases of a trifling character the matter can be
compromised on the spot by the commanders of the special public cruisers
of the Powers (article 33).
[Sidenote: Bumboats in the North Sea.]
§ 283. Connected with the regulation of the fisheries is the abolition
of the liquor trade among the fishing vessels in the North Sea. Since
serious quarrels and difficulties were caused through bumboats and
floating grog-shops selling intoxicating liquors to the fishermen, an
International Conference took place at the Hague in 1886, where the
signatory Powers of the Hague Convention concerning the fisheries in the
North Sea were represented. And on November 16, 1887, the International
Convention concerning the Abolition of the Liquor Traffic among the
fishermen in the North Sea was signed by the representatives of these
Powers--namely, Great Britain, Belgium, Denmark, France, Germany, and
Holland. This treaty[573] was, however, not ratified until 1894, and
France did not ratify it at all. It contains the following
stipulations:[574]--
[Footnote 573: See Martens, N.R.G. 2nd Ser. XIV. p. 540, and XXII. p.
563.]
[Footnote 574: The matter is treated by Guillaume in R.I. XXVI. (1894),
p. 488.]
It is interdicted to sell spirituous drinks to persons on board of
fishing vessels, and these persons are prohibited from buying such
drinks (article 2). Bumboats, which wish to sell provisions to
fishermen, must be licensed by their flag State and must fly a white
flag[575] with the letter S in black in the middle (article 3). The
special cruisers of the Powers which supervise the fisheries in the
North Sea are likewise competent to supervise the treaty stipulations
concerning bumboats; they have the right to ask for the production of
the proper licence, and eventually the right to arrest the vessel
(article 7). But arrested vessels must always be brought into a harbour
of their flag State, and all contraventions are to be tried by Courts of
the flag State of the contravening vessel (articles 2, 7, 8).
[Footnote 575: This flag was agreed upon in the Protocol concerning the
ratification of the Convention. (See Martens, N.R.G. 2nd Ser. XXII. p.
565.)]
[Sidenote: Seal Fisheries in Behring Sea.]
§ 284. In 1886 a conflict arose between Great Britain and the United
States through the seizure and confiscation of British-Columbian vessels
which had hunted seals in the Behring Sea outside the American
territorial belt, infringing regulations made by the United States
concerning seal fishing in that sea. Great Britain and the United States
concluded an arbitration treaty[576] concerning this conflict in 1892,
according to which the arbitrators should not only settle the dispute
itself, but also (article 7) "determine what concurrent regulations
outside the jurisdictional limits of the respective Governments are
necessary" in the interest of the preservation of the seals. The
Arbitration Tribunal, which assembled and gave its award[577] at Paris
in 1893, imposed the duty upon both parties of forbidding their subjects
to kill seals within a zone of sixty miles around the Pribilof Islands;
the killing of seals at all between May 1 and July 31 each year;
seal-fishing with nets, firearms, and explosives; seal-fishing in other
than specially licensed sailing vessels. Both parties in 1894 carried
out this task imposed upon them.[578] Other maritime Powers were at the
same time asked by the United States to submit voluntarily to the
regulations made for the parties by the arbitrators, but only Italy[579]
has agreed to this.
[Footnote 576: See Martens, N.R.G. 2nd Ser. XVIII. p. 587.]
[Footnote 577: See Martens, N.R.G. 2nd Ser. XXI. p. 439. The award is
discussed by Barclay in R.I. XXV. (1893), p. 417, and Engelhardt in R.I.
XXVI. (1894), p. 386, and R.G. V. (1898), pp. 193 and 347. See also
Tillier, "Les Pêcheries de Phoques de la Mer de Behring" (1906), and
Balch, "L'évolution de l'Arbitrage International" (1908), pp. 70-91.]
[Footnote 578: See the Behring Sea Award Act, 1894 (57 Vict. c. 2).]
[Footnote 579: See Martens, N.R.G. 2nd Ser. XXII. p. 624.]
Experience has shown that the provisions made by the Arbitration
Tribunal for the purpose of preventing the extinction of the seals in
the Behring Sea are insufficient. The United States therefore invited
the maritime Powers whose subjects are engaged in the seal fisheries to
a Pelagic Sealing Conference which took place at Washington in 1911, and
produced a convention[580] which was signed on July 7, 1911, by which
the suspension of pelagic sealing for fifteen years was agreed upon.
[No further details of this Convention are as yet known, and it
has not yet been ratified.]
[Footnote 580: See below, § 593, No. 2.]
[Sidenote: Fisheries around the Faröe Islands and Iceland.]
§ 285. For the purpose of regulating the fisheries outside territorial
waters around the Faröe Islands and Iceland, Great Britain and Denmark
signed on June 24, 1901, the Convention of London,[581] whose
stipulations are for the most part literally the same as those of the
International Convention for the Regulation of the Fisheries in the
North Sea, concluded at the Hague in 1882.[582] The additional article
of this Convention of London stipulates that any other State whose
subjects fish around the Faröe Islands and Iceland may accede to it.
[Footnote 581: See Martens, N.R.G. 2nd Ser. XXXIII. (1906), p. 268.]
[Footnote 582: See above, § 282.]
VII
TELEGRAPH CABLES IN THE OPEN SEA
Bonfils, No. 583--Despagnet, No. 401--Pradier-Fodéré, V. No.
2548--Mérignhac, II. p. 532--Nys, II. p. 170--Rivier, I. pp. 244
and 386--Fiore, II. No. 822, and Code, Nos. 1134-1137--Stoerk in
Holtzendorff, II. pp. 507-508--Liszt, § 29--Ullmann, §
103--Lauterbach, "Die Beschädigung unterseeischer
Telegraphenkabel" (1889)--Landois, "Zur Lehre vom
völkerrechtlichen Schutz der submarinen Telegraphenkabel"
(1894)--Jouhannaud, "Les câbles sous-marins" (1904)--Renault, in
R.I. XII. (1880), p. 251, XV. (1883), p. 17. See also the
literature quoted below, vol. II., at the commencement of § 214.
[Sidenote: Telegraph cables in the Open Sea admitted.]
§ 286. It is a consequence of the freedom of the Open Sea that no State
can prevent another from laying telegraph and telephone cables in any
part of the Open Sea, whereas no State need allow this within its
territorial maritime belt. As numerous submarine cables have been laid,
the question as to their protection arose. Already in 1869 the United
States proposed an international convention for this purpose, but the
matter dropped in consequence of the outbreak of the Franco-German war.
The Institute of International Law took up the matter in 1879[583] and
recommended an international agreement. In 1882 France invited the
Powers to an International Conference at Paris for the purpose of
regulating the protection of submarine cables. This conference met in
October 1882, again in October 1883, and produced the "International
Convention for the Protection of Submarine Telegraph Cables" which was
signed at Paris on April 16, 1884.[584]
[Footnote 583: See Annuaire, III. pp. 351-394.]
[Footnote 584: See Martens, N.R.G. 2nd Ser. XI. p. 281.]
The signatory Powers are:--Great Britain, Argentina, Austria-Hungary,
Belgium, Brazil, Colombia, Costa Rica, Denmark, San Domingo, France,
Germany, Greece, Guatemala, Holland, Italy, Persia, Portugal, Roumania,
Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United
States, and Uruguay. Colombia and Persia did not ratify the treaty, but,
on the other hand, Japan acceded to it later on.
[Sidenote: International Protection of Submarine Telegraph Cables.]
§ 287. The protection afforded to submarine telegraph cables finds its
expression in the following stipulations of this international treaty:--
(1) Intentional or culpably negligent breaking or damaging of a cable in
the Open Sea is to be punished by all the signatory Powers,[585] except
in the case of such damage having been caused in the effort of
self-preservation (article 2).
[Footnote 585: See the Submarine Telegraph Act, 1885 (48 & 49 Vict. c.
49).]
(2) Ships within sight of buoys indicating cables which are being laid
or which are damaged must keep at least a quarter of a nautical mile
distant (article 6).
(3) For dealing with infractions of the interdictions and injunctions of
the treaty the Courts of the flag State of the infringing vessel are
exclusively competent (article 8).
(4) Men-of-war of all signatory Powers have a right to stop and to
verify the nationality of merchantmen of all nations which are suspected
of having infringed the regulations of the treaty (article 10).
(5) All stipulations are made for the time of peace only and in no wise
restrict the action of belligerents during time of war.[586]
[Footnote 586: See below, vol. II. § 214, and art. 54 of the Hague rules
concerning land warfare which enacts:--"Submarine cables connecting a
territory occupied with a neutral territory shall not be seized or
destroyed except in the case of absolute necessity. They also must be
restored and indemnities for them regulated at the peace."]
VIII
WIRELESS TELEGRAPHY ON THE OPEN SEA
Bonfils, Nos. 531{10, 11}--Despagnet, 433 _quater_--Liszt, §
29--Ullmann, § 147--Meili, "Die drahtlose Telegraphie, &c."
(1908)--Schneeli, "Drahtlose Telegraphie und Völkerrecht"
(1908)--Landsberg, "Die drahtlose Telegraphie" (1909)--Kausen,
"Die drahtlose Telegraphie im Völkerrecht" (1910)--Rolland in R.G.
XIII. (1906), pp. 58-92--Fauchille in Annuaire, XXI. (1906), pp.
76-87--Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.
[Sidenote: Radio-telegraphy between ships and the shore.]
§ 287_a_. To secure radio-telegraphic[587] communication between ships
of all nations at sea and the continents, a Conference met at Berlin in
1906, where Great Britain, Germany, the United States of America,
Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Chili, Denmark,
Spain, France, Greece, Italy, Japan, Mexico, Monaco, Norway, Holland,
Persia, Portugal, Roumania, Russia, Sweden, Turkey, and Uruguay were
represented, and where was signed on November 3, 1906, the International
Radio-telegraphic Convention.[588] This Convention, which consists of
twenty-three articles, is accompanied by a Final Protocol, comprising
six important articles, and by Service Regulations, embodying fifty-two
articles. The more important stipulations of the Convention are the
following:--Coast Stations and ships are bound to exchange
radio-telegrams reciprocally without regard to the particular system of
radio-telegraphy adopted by them (article 3). Each of the contracting
parties undertakes to cause its coast stations to be connected with the
telegraph system by means of special wires, or at least to take such
other measures as will ensure an expeditious exchange of traffic between
the coast stations and the telegraph system (article 5). Radio-telegraph
stations are bound to accept with absolute priority calls of distress
from ships, to answer such calls with similar priority, and to take the
necessary steps with regard to them (article 9). An International Bureau
shall be established with the duty of collecting, arranging, and
publishing information of every kind concerning radio-telegraphy, and
for some other purposes mentioned in article 13.
[Footnote 587: See above, § 173, and below, §§ 464 and 582, No. 4.]
[Footnote 588: See Martens, N.R.G. 3rd Ser. III. (1910), p. 147. But not
all the signatory Powers have as yet ratified the Convention,
ratification having been given hitherto only by Great Britain,
Austria-Hungary, Belgium, Brazil, Bulgaria, Denmark, France, Germany,
Japan, Mexico, Monaco, Holland, Norway, Portugal, Roumania, Russia,
Spain, Sweden and Turkey; and Tunis acceded to it. Italy has reserved
ratification on account of her relations with the Marconi Wireless
Telegraphy Co.]
[Sidenote: Radio-telegraphy between ships at sea.]
§ 287_b_. To secure radio-telegraphic communication between such ships
at sea as possess installations for wireless telegraphy, an Additional
Convention[589] to that mentioned above in § 287_a_ was signed on
November 3, 1906, by all the Powers who signed the forementioned
Convention except by Great Britain, Italy, Japan, Mexico, Persia, and
Portugal. According to this additional Convention all ships at sea which
possess radio-telegraphic installations are compelled to exchange
radio-telegrams reciprocally at all times without regard to the
particular system of radio-telegraphy adopted.
[Footnote 589: See Martens, N.R.G. 3rd Ser. III. (1910), p. 158. But
this Convention likewise has not yet been ratified by all the signatory
Powers.]
It is to be hoped that in time all the Powers will accede to this
Additional Convention, for its stipulation is of great importance in
cases of shipwreck. If ships at sea can refuse to exchange
radio-telegrams, it is impossible for them to render one another
assistance. It ought not to be possible for the following case[590] to
occur, to which attention was drawn at the Berlin Conference by the
delegate of the United States of America:--The American steamer
_Lebanon_ had received orders to search the Atlantic for a wrecked
vessel which offered great danger to navigation. The _Lebanon_ came
within communicating reach of the liner _Vaderland_, and inquired by
wireless telegraphy whether the _Vaderland_ had seen the wreck. The
_Vaderland_ refused to reply to this question, on the ground that she
was not permitted to enter into communication with a ship provided with
a wireless apparatus other than the Marconi.
[Footnote 590: See Hazeltine, "The Law of the Air" (1911), p. 101.]
IX
THE SUBSOIL BENEATH THE SEA BED
[Sidenote: Five rules concerning the subsoil beneath the Sea Bed.]
§ 287_c_. The subsoil beneath the bed of the Open Sea requires special
consideration on account of coal or other mines, tunnels, and the like,
for the question is whether such buildings can be driven into that
subsoil at all, and, if this can be done, whether they can be under the
territorial supremacy of a particular State. The answer depends entirely
upon the character in law of such subsoil. If the rules concerning the
territorial subsoil[591] would have analogously to be applied to the
subsoil beneath the bed of the Open Sea, all rules concerning the Open
Sea would necessarily have to be applied to the subsoil beneath its bed,
and no part of this subsoil could ever come under the territorial
supremacy of any State. It is, however, submitted[592] that it would not
be rational to consider the subsoil beneath the bed of the Open Sea an
inseparable appurtenance of the latter, such as the subsoil beneath the
territorial land and water is. The rationale of the Open Sea being free
and for ever excluded from occupation on the part of any State is that
it is an international highway which connects distant lands and thereby
secures freedom of communication, and especially of commerce, between
such States as are separated by the sea.[593] There is no reason
whatever for extending this freedom of the Open Sea to the subsoil
beneath its bed. On the contrary, there are practical reasons--taking
into consideration the building of mines, tunnels, and the like--which
compel the recognition of the fact that this subsoil can be acquired
through occupation. The following five rules recommend themselves
concerning this subject:--
[Footnote 591: See above, §§ 173, 175.]
[Footnote 592: See Oppenheim in Z.V. II. (1908), p. 11.]
[Footnote 593: See above, § 259.]
(1) The subsoil beneath the bed of the Open Sea is no man's land, and it
can be acquired on the part of a littoral State through occupation,
starting from the subsoil beneath the bed of the territorial maritime
belt.
(2) This occupation takes place _ipso facto_ by a tunnel or a mine being
driven from the shore through the subsoil of the maritime belt into the
subsoil of the Open Sea.
(3) This occupation of the subsoil of the Open Sea can be extended up to
the boundary line of the subsoil of the territorial maritime belt of
another State, for no State has an exclusive claim to occupy such part
of the subsoil of the Open Sea as is adjacent to the subsoil of its
territorial maritime belt.
(4) An occupation of the subsoil beneath the bed of the Open Sea for a
purpose which would endanger the freedom of the Open Sea is
inadmissible.
(5) It is likewise inadmissible to make such arrangements in a part of
the subsoil beneath the Open Sea which has previously been occupied for
a legitimate purpose as would indirectly endanger the freedom of the
Open Sea.
If these five rules are correct, there is nothing in the way of coal and
other mines which are being exploited on the shore of a littoral State
being extended into the subsoil beneath the Open Sea up to the boundary
line of the subsoil beneath the territorial maritime belt of another
State. Further, a tunnel which might be built between such two parts of
the same State--for instance, between Ireland and Scotland--as are
separated by the Open Sea would fall entirely under the territorial
supremacy of the State concerned. On the other hand, for a tunnel
between two different States separated by the Open Sea special
arrangements by treaty would have to be made concerning the territorial
supremacy over that part of the tunnel which runs under the bed of the
Open Sea.
[Sidenote: The proposed Channel Tunnel.]
§ 287_d_. Since there is as yet no submarine tunnel in existence, it is
of interest to give some details concerning the project of a Channel
Tunnel[594] between Dover and Calais, and the preliminary arrangements
between France and England concerning it. Already some years before the
Franco-German War the possibility of such a tunnel was discussed, but it
was not until 1874 that the first preliminary steps were taken. The
subsoil of the Channel was geologically explored, plans were worked out,
and a shaft of more than a mile long was tentatively bored from the
English shore. And in 1876 an International Commission, appointed by the
English and French Governments, and comprising three French and three
English members, made a report on the construction and working of the
proposed tunnel.[595] The report enclosed a memorandum, recommended by
the Commissioners to be adopted as the basis of a treaty between Great
Britain and France concerning the tunnel, the juridically important
articles of which are the following:--
[Footnote 594: See Oppenheim in Z.V. II. (1908), pp. 1-16; Robin in R.G.
XV. (1908), pp. 50-77; and Liszt, § 26.]
[Footnote 595: See Parliamentary Papers, C. 1576, Report of the
Commissioners for the Channel Tunnel and Railway, 1876.]
(Article 1) The boundary between England and France in the tunnel shall
be half-way between low-water mark (above the tunnel) on the coast of
England, and low-water mark (above the tunnel) on the coast of France.
The said boundary shall be ascertained and marked out under the
direction of the International Commission to be appointed, as mentioned
in article 4, before the Submarine Railway is opened for public traffic.
The definition of boundary provided for by this article shall have
reference to the tunnel and Submarine Railway only, and shall not in any
way affect any question of the nationality of, or any rights of
navigation, fishing, anchoring, or other rights in, the sea above the
tunnel, or elsewhere than in the tunnel itself.
(Article 4) There shall be constituted an International Commission to
consist of six members, three of whom shall be nominated by the British
Government and three by the French Government....
* * * * *
The International Commission shall ... submit to the two Governments its
proposals for Supplementary Conventions with respect--(_a_) to the
apprehension and trial of alleged criminals for offences committed in
the tunnel or in trains which have passed through it, and the summoning
of witnesses; (_b_) to customs, police, and postal arrangements, and
other matters which it may be found convenient so to deal with.
(Article 15) Each Government shall have the right to suspend the working
of the Submarine Railway and the passage through the tunnel whenever
such Government shall, in the interest of its own country, think
necessary to do so. And each Government shall have power, to be
exercised if and when such Government may deem it necessary, to damage
or destroy[596] the works of the tunnel or Submarine Railway, or any
part of them, in the territory of such Government, and also to flood the
tunnel with water.
[Footnote 596: This stipulation was proposed in the interest of defence
in time of war. As regards the position of a Channel Tunnel in time of
war, see Oppenheim in Z.V. II. (1908), pp. 13-16.]
In spite of this elaborate preparation the project could not be
realised, since public opinion in England was for political reasons
opposed to it. And although several times since--in 1880, 1884, 1888,
and 1908--steps were again taken in favour of the proposed tunnel,
public opinion in England remained hostile and the project has had for
the time to be abandoned. It is, however, to be hoped and expected that
ultimately the tunnel will be built when the political conditions which
are now standing in the way of its realisation have undergone a change.
CHAPTER III
INDIVIDUALS
I
POSITION OF INDIVIDUALS IN INTERNATIONAL LAW
Lawrence, § 42--Taylor, § 171--Heffter, § 58--Stoerk in
Holtzendorff, II. pp. 585-592--Gareis, § 53--Liszt, §§ 5 and
11--Ullmann, § 107--Bonfils, Nos. 397-409--Despagnet, No.
328--Mérignhac, II. pp. 169-172--Pradier-Fodéré, I. Nos.
43-49--Fiore, II. Nos. 568-712--Martens, I. §§ 85-86--Jellinek,
"System der subjectiven öffentlichen Rechte" (1892), pp.
310-314--Heilborn, "System," pp. 58-138--Kaufmann, "Die
Rechtskraft des Internationalen Rechtes" (1899)--Buonvino,
"Diritto e personalità giuridica internazionale" (1910)--Rehm and
Adler in Z.V. II. (1908), pp. 53-55 and 614-618--Kohler in Z.V.
III. (1909), pp. 209-230--Diena in R.G. XVI. (1909), pp. 57-76.
[Sidenote: Importance of Individuals to the Law of Nations.]
§ 288. The importance of individuals to the Law of Nations is just as
great as that of territory, for individuals are the personal basis of
every State. Just as a State cannot exist without a territory, so it
cannot exist without a multitude of individuals who are its subjects and
who, as a body, form the people or the nation. The individuals belonging
to a State can and do come in various ways in contact with foreign
States in time of peace as well as of war. The Law of Nations is
therefore compelled to provide certain rules regarding individuals.
[Sidenote: Individuals never Subjects of the Law of Nations.]
§ 289. Now, what is the position of individuals in International Law
according to these rules? Since the Law of Nations is a law between
States only and exclusively, States only and exclusively[597] are
subjects of the Law of Nations. How is it, then, that, although
individuals are not subjects of the Law of Nations, they have certain
rights and duties in conformity with or according to International Law?
Have not monarchs and other heads of States, diplomatic envoys, and even
simple citizens certain rights according to the Law of Nations whilst on
foreign territory? If we look more closely into these rights, it becomes
quite obvious that they are not given to the favoured individual by the
Law of Nations directly. For how could International Law, which is a law
between States, give rights to individuals concerning their relations to
a State? What the Law of Nations really does concerning individuals, is
to impose the duty upon all the members of the Family of Nations to
grant certain privileges to such foreign heads of States and diplomatic
envoys, and certain rights to such foreign citizens as are on their
territory. And, corresponding to this duty, every State has by the Law
of Nations a right to demand that its head, its diplomatic envoys, and
its simple citizens be granted certain rights by foreign States when on
their territory. Foreign States granting these rights to foreign
individuals do this by their Municipal Laws, and these rights are,
therefore, not international rights, but rights derived from Municipal
Laws. International Law is indeed the background of these rights in so
far as the duty to grant them is imposed upon the single States by
International Law. It is therefore quite correct to say that the
individuals have these rights in conformity with or according to
International Law, if it is only remembered that these rights would not
exist had the single States not created them by their Municipal Law.
[Footnote 597: See above, §§ 13 and 63.]
And the same is valid as regards special rights of individuals in
foreign countries according to special international treaties between
two or more Powers. Although such treaties mostly speak of rights which
individuals shall have as derived from the treaties themselves, this is
nothing more than an inaccuracy of language. In fact, such treaties do
not create these rights, but they impose the duty upon the contracting
States of calling these rights into existence by their Municipal
Laws.[598]
[Footnote 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]
[Footnote 599: See Heilborn, "System," p. 67.]
[Footnote 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.
[Footnote 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.]
[Sidenote: 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]
[Footnote 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.]
[Sidenote: Nationality the Link between Individuals and the Law of
Nations.]
§ 291. If, as stated, individuals are never subjects but always objects
of the Law of Nations, then nationality is the link between this law and
individuals. It is through the medium of their nationality only that
individuals can enjoy benefits from the existence of the Law of Nations.
This is a fact which has its consequences over the whole area of
International Law.[603] Such individuals as do not possess any
nationality enjoy no protection whatever, and if they are aggrieved by a
State they have no way of redress, there being no State which would be
competent to take their case in hand. As far as the Law of Nations is
concerned, apart from morality, there is no restriction whatever to
cause a State to abstain from maltreating to any extent such stateless
individuals.[604] On the other hand, if individuals who possess
nationality are wronged abroad, it is their home State only and
exclusively which has a right to ask for redress, and these individuals
themselves have no such right. It is for this reason that the question
of nationality is a very important one for the Law of Nations, and that
individuals enjoy benefits from this law not as human beings but as
subjects of such States as are members of the Family of Nations. And so
distinct is the position as subjects of these members from the position
of stateless individuals and from subjects of States outside the Family
of Nations, that it has been correctly characterised as a kind of
international "indigenousness," a _Völkerrechts-Indigenat_.[605] Just as
municipal citizenship procures for an individual the enjoyment of the
benefits of the Municipal Laws, so this international "indigenousness,"
which is a necessary inference from municipal citizenship, procures the
enjoyment of the benefits of the Law of Nations.
[Footnote 603: See below, § 294.]
[Footnote 604: See below, § 312.]
[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.]
[Sidenote: The Law of Nations and the Rights of Mankind.]
§ 292. Several writers[606] maintain that the Law of Nations guarantees
to every individual at home and abroad the so-called rights of mankind,
without regarding whether an individual be stateless or not, or whether
he be a subject of a member-State of the Family of Nations or not. Such
rights are said to comprise the right of existence, the right to
protection of honour, life, health, liberty, and property, the right of
practising any religion one likes, the right of emigration, and the
like. But such rights do not in fact enjoy any guarantee whatever from
the Law of Nations,[607] and they cannot enjoy such guarantee, since the
Law of Nations is a law between States, and since individuals cannot be
subjects of this law. But there are certain facts which cannot be denied
at the background of this erroneous opinion. The Law of Nations is a
product of Christian civilisation and represents a legal order which
binds States, chiefly Christian, into a community. It is therefore no
wonder that ethical ideas which are some of them the basis of, others a
development from, Christian morals, have a tendency to require the help
of International Law for their realisation. When the Powers stipulated
at the Berlin Congress of 1878 that the Balkan States should be
recognised only under the condition that they did not impose any
religious disabilities on their subjects, they lent their arm to the
realisation of such an idea. Again, when the Powers after the beginning
of the nineteenth century agreed to several international arrangements
in the interest of the abolition of the slave trade,[608] they fostered
the realisation of another of these ideas. And the innumerable treaties
between the different States as regards extradition of criminals,
commerce, navigation, copyright, and the like, are inspired by the idea
of affording ample protection to life, health, and property of
individuals. Lastly, there is no doubt that, should a State venture to
treat its own subjects or a part thereof with such cruelty as would
stagger humanity, public opinion of the rest of the world would call
upon the Powers to exercise intervention[609] for the purpose of
compelling such State to establish a legal order of things within its
boundaries sufficient to guarantee to its citizens an existence more
adequate to the ideas of modern civilisation. However, a guarantee of
the so-called rights of mankind cannot be found in all these and other
facts. Nor do the actual conditions of life to which certain classes of
subjects are forcibly submitted within certain States show that the Law
of Nations really comprises such guarantee.[610]
[Footnote 606: Bluntschli, §§ 360-363 and 370; Martens, I. §§ 85 and 86;
Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and
others.]
[Footnote 607: The matter is treated with great lucidity by Heilborn,
"System," pp. 83-138.]
[Footnote 608: It is incorrect to maintain that the Law of Nations has
abolished slavery, but there is no doubt that the conventional Law of
Nations has tried to abolish the slave trade. Three important general
treaties have been concluded for that purpose during the nineteenth
century, since the Vienna Congress--namely, (1) the Treaty of London,
1841, between Great Britain, Austria, France, Prussia, and Russia; (2)
the General Act of the Congo Conference of Berlin, 1885, whose article 9
deals with the slave trade; (3) the General Act of the anti-slavery
Conference of Brussels, 1890, which is signed by Great Britain,
Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see,
however, below, § 517), Germany, Holland, Italy, Luxemburg, Persia,
Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and
Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage"
(1907).]
[Footnote 609: See above, § 137.]
[Footnote 610: The reader may think of the sad position of the Jews
within the Russian Empire. The treatment of the native Jews in Roumania,
although the Powers have, according to the spirit of article 44 of the
Treaty of Berlin of 1878, a right of intervention, shows even more
clearly that the Law of Nations does not guarantee what are called
rights of mankind. See below, § 312.]
II
NATIONALITY
Vattel, I. §§ 220-226--Hall, §§ 66 and 87--Westlake, I. pp. 213,
231-233--Halleck, I. p. 401--Taylor, §§ 172-178--Moore, III. §§
372-376--Bluntschli, §§ 364-380--Stoerk in Holtzendorff, II. pp.
630-650--Gareis, § 54--Liszt, § 11--Ullmann, § 108--Bonfils, Nos.
433-454--Despagnet, Nos. 329-333--Pradier-Fodéré, III. No.
1645--Rivier, I. p. 303--Nys, II. pp. 214-220, 229-237--Calvo, II.
§§ 539-540--Fiore, I. Nos. 644-658, 684-717, and Code, Nos.
638-641--Martens, I. §§ 85-87--Hall, "Foreign Powers and
Jurisdiction" (1894), § 14--Cogordan, "La nationalité au point de
vue des rapports internationaux" (2nd ed. 1890)--Gargas in Z.V. V.
(1911), pp. 278-316 and [...]
[Sidenote: Conception of Nationality.]
§ 293. Nationality of an individual is his quality of being a subject of
a certain State and therefore its citizen. It is not for International
but for Municipal Law to determine who is and who is not to be
considered a subject. And therefore it matters not, as far as the Law of
Nations is concerned, that Municipal Laws may distinguish between
different kinds of subjects--for instance, those who enjoy full
political rights and are on that account named citizens, and those who
are less favoured and are on that account not named citizens. Nor does
it matter that according to the Municipal Laws a person may be a subject
of a part of a State, for instance of a colony, but not a subject of the
mother-country, provided only such person appears as a subject of the
mother-country as far as the latter's international relations are
concerned. Thus, a person naturalised in a British Colony is for all
international purposes a British subject, although he may not have the
rights of a British subject within the United Kingdom itself.[611] For
all international purposes, all distinctions made by Municipal Laws
between subjects and citizens and between different kinds of subjects
have neither theoretical nor practical value, and the terms "subject"
and "citizen" are, therefore, synonymously made use of in the theory and
practice of International Law.
[Footnote 611: See below, § 307, and Hall, "Foreign Powers and
Jurisdiction," § 20, who quotes, however, a decision of the French Cour
de Cassation according to which naturalisation in a British Colony does
not constitute a real naturalisation. But this decision is based on the
Code Civil of France and has nothing to do with the Law of Nations. See
also Westlake, I. pp. 231-233.]
But it must be emphasised that nationality as citizenship of a certain
State must not be confounded with nationality as membership of a certain
nation in the sense of a race. Thus, all Englishmen, Scotchmen, and
Irishmen are, despite their different nationality as regards their race,
of British nationality as regards their citizenship. Thus, further,
although all Polish individuals are of Polish nationality _qua_ race,
they have been, since the partition of Poland at the end of the
eighteenth century between Russia, Austria, and Prussia, either of
Russian, Austrian, or German nationality _qua_ citizenship.
[Sidenote: Function of Nationality.]
§ 294. It will be remembered that nationality is the link between
individuals and the benefits of the Law of Nations.[612] This function
of nationality becomes apparent with regard to individuals abroad, or
property abroad of individuals who themselves are within the territory
of their home State. Through one particular right and one particular
duty of every State towards all other States this function of
nationality becomes most conspicuous. The right is that of protection
over its citizens abroad which every State holds and occasionally
vigorously exercises towards other States; it will be discussed in
detail below, § 319. The duty, on the other hand, is that of receiving
on its territory such citizens as are not allowed to remain[613] on the
territory of other States. Since no State is obliged by the Law of
Nations to allow foreigners to remain within its boundaries, it may, for
many reasons, happen that certain individuals are expelled from all
foreign countries. The home State of those expelled cannot refuse to
receive them on the home territory, the expelling States having a claim
on the home State that the latter do receive the expelled
individuals.[614]
[Footnote 612: See above, § 291.]
[Footnote 613: See below, § 326.]
[Footnote 614: Beyond the right of protection and the duty to receive
expelled citizens at home, the powers of a State over its citizens
abroad in consequence of its personal supremacy illustrate the function
of nationality. (See above, § 124.) Thus, the home State can tax
citizens living abroad in the interest of home finance, can request them
to come home for the purpose of rendering military service, can punish
them for crimes committed abroad, can categorically request them to come
home for good (so-called _jus avocandi_). And no State has a right
forcibly to retain foreign citizens called home by their home State, or
to prevent them from paying taxes to their home State, and the like.]
[Sidenote: So-called _Protégés_ and _de facto_ Subjects.]
§ 295. Although nationality alone is the regular means through which
individuals can derive benefit from the Law of Nations, there are two
exceptional cases in which individuals may come under the international
protection of a State without these individuals being really its
subjects. It happens, first, that a State undertakes by an international
agreement the diplomatic protection of another State's citizens abroad,
and in this case the protected foreign subjects are named "_protégés_"
of the protecting States. Such agreements are either concluded for a
permanency as in the case of a small State, Switzerland for instance,
having no diplomatic envoy in a certain foreign country where many of
its subjects reside, or in time of war only, a belligerent handing over
the protection of its subjects in the enemy State to a neutral State.
It happens, secondly, that a State promises diplomatic protection within
the boundaries of Turkey and other Oriental countries to certain
natives. Such protected natives are likewise named _protégés_, but they
are also called "_de facto_ subjects" of the protecting State. The
position of these _protégés_ is quite anomalous, it is based on custom
and treaties, and no special rules of the Law of Nations itself are in
existence concerning such _de facto_ subjects. Every State which takes
such _de facto_ subjects under its protection can act according to its
discretion, and there is no doubt that as soon as these Oriental States
have reached a level of civilisation equal to that of the Western
members of the Family of Nations, the whole institution of the _de
facto_ subjects will disappear.
Concerning the exercise of protection in Morocco, a treaty[615] was
concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain,
Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal,
Spain, Sweden-Norway, and the United States of America, which sanctions
the stipulations of the treaty of 1863 between France and Morocco
concerning the same subject. According to this treaty the term
"_protégé_" embraces[616] in relation to States of Capitulations only
the following classes of persons:--(1) Persons being subjects of a
country which is under the protectorate of the Power whose protection
they claim; (2) individuals corresponding to the classes enumerated in
the treaties with Morocco of 1863 and 1880 and in the Ottoman law of
1863; (3) persons, who under a special treaty have been recognised as
_protégés_ like those enumerated by article 4 of the French Muscat
Convention of 1844; and (4) those individuals who can establish that
they had been considered and treated as _protégés_ by the Power in
question before the year in which the creation of new _protégés_ was
regulated and limited--that is to say, before the year 1863, these
individuals not having lost the _status_ they had once legitimately
acquired.
[Footnote 615: See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.]
[Footnote 616: See p. 56 of the official publication of the Award, given
in 1905, of the Hague Court of Arbitration in the case of France _v._
Great Britain concerning the Muscat Dhows.
It is of interest to note that the Court considers it a fact that the
Powers have no longer the right to create _protégés_ in unlimited
numbers in any of the Oriental States, for the Award states on p.
56:--"Although the Powers have _expressis verbis_ resigned the exercise
of the pretended right to create '_protégés_' in unlimited number only
in relation to Turkey and Morocco, nevertheless the exercise of this
pretended right has been abandoned also in relation to other Oriental
States, analogy having always been recognised as a means to complete the
very deficient written regulations of the capitulations as far as
circumstances are analogous."]
[Sidenote: Nationality and Emigration.]
§ 296. As emigration comprises the voluntary removal of an individual
from his home State with the intention of residing abroad, but not
necessarily with the intention of renouncing his nationality, it is
obvious that emigrants may well retain their nationality. Emigration is
in fact entirely a matter of internal legislation of the different
States. Every State can fix for itself the conditions under which
emigrants lose or retain their nationality, as it can also prohibit
emigration altogether, or can at any moment request those who have
emigrated to return to their former home, provided the emigrants have
retained their nationality of birth. And it must be specially emphasised
that the Law of Nations does not and cannot grant a right of emigration
to every individual, although it is frequently maintained that it is a
"natural" right of every individual to emigrate from his own
State.[617]
[Footnote 617: Attention ought to be drawn to the fact that, to ensure
the protection of the interests of emigrants and immigrants from the
moral, hygienic, and economic view, the Institute of International Law,
at its meeting at Copenhagen in 1897, adopted a body of fourteen
principles concerning emigration under the heading "Voeux relatifs
à la matière de l'émigration"; see Annuaire, XVI. (1897), p. 276. See
also Gargas in Z.V. V. (1911), pp. 278-316.]
III
MODES OF ACQUIRING AND LOSING NATIONALITY
Vattel, I. §§ 212-219--Hall, §§ 67-72--Westlake, I. pp.
213-220--Lawrence, §§ 94-95--Halleck, I. pp. 402-418--Moore, III.
§§ 372-473--Taylor, §§ 176-183--Walker, § 19--Bluntschli, §§
364-373--Hartmann, § 81--Heffter, § 59--Stoerk in Holtzendorff,
II. pp. 592-630--Gareis, § 55--Liszt, § 11--Ullmann, §§ 110 and
112--Bonfils, Nos. 417-432--Despagnet, Nos.
318-327--Pradier-Fodéré, III. Nos. 1646-1691--Rivier, I. pp.
303-306--Calvo, II. §§ 541-654, VI. §§ 92-117--Martens, II. §§
44-48--Fiore, Code, Nos. 660-669--Foote, "Private International
Jurisprudence" (3rd ed. 1904), pp. 1-52--Dicey, "Conflict of Laws"
(1896), pp. 173-204--Martitz, "Das Recht der Staatsangehörigkeit
im internationalen Verkehr" (1885)--Cogordan, "La nationalité, &c"
(2nd ed. 1890), pp. 21-116, 317-400--Lapradelle, "De la
nationalité d'origine" (1893)--Berney, "La nationalité à
l'Institut de Droit International" (1897)--Bisocchi, "Acquisto e
perdita della Nazionalità, &c." (1907)--Sieber, "Das
Staatsbürgerrecht in internationalem Verkehr," 2 vols.
(1907)--Lehr, "La nationalité dans les principaux états du globe"
(1909), and in R.I. 2nd Ser. X. (1908), pp. 285, 401, and 525.
In 1893 the British Government addressed a circular to its
representatives abroad requesting them to send in a report
concerning the laws relating to nationality and naturalisation in
force in the respective foreign countries. These reports have been
collected and presented to Parliament. They are printed in
Martens, N.R.G. 2nd Ser. XIX. pp. 515-760.
[Sidenote: Five Modes of Acquisition of Nationality.]
§ 297. Although it is for Municipal Law to determine who is and who is
not a subject of a State, it is nevertheless of interest for the theory
of the Law of Nations to ascertain how nationality can be acquired
according to the Municipal Law of the different States. The reason of
the thing presents five possible modes of acquiring nationality, and,
although no State is obliged to recognise all five, nevertheless all
States practically do recognise them. They are birth, naturalisation,
redintegration, subjugation, and cession.
[Sidenote: Acquisition of Nationality by Birth.]
§ 298. The first and chief mode of acquiring nationality is by birth,
for the acquisition of nationality by another mode is exceptional only,
since the vast majority of mankind acquires nationality by birth and
does not change it afterwards. But no uniform rules exist according to
the Municipal Law of the different States concerning this matter. Some
States, as Germany and Austria, have adopted the rule that descent alone
is the decisive factor,[618] so that a child born of their subjects
becomes _ipso facto_ by birth their subject likewise, be the child born
at home or abroad. According to this rule, illegitimate children acquire
the nationality of their mother. Other States, such as Argentina, have
adopted the rule that the territory on which birth occurs is exclusively
the decisive factor.[619] According to this rule every child born on the
territory of such State, whether the parents be citizens or aliens,
becomes a subject of such State, whereas a child born abroad is foreign,
although the parents may be subjects. Again, other States, as Great
Britain[620] and the United States, have adopted a mixed principle,
since, according to their Municipal Law, not only children of their
subjects born at home or abroad become their subjects, but also such
children of alien parents as are born on their territory.
[Footnote 618: _Jus sanguinis._]
[Footnote 619: _Jus soli._]
[Footnote 620: See details concerning British law on this point in Hall,
"Foreign Powers and Jurisdiction" (1894), § 14.]
[Sidenote: Acquisition of Nationality through Naturalisation.]
§ 299. The most important mode of acquiring nationality besides birth is
that of naturalisation in the wider sense of the term. Through
naturalisation an alien by birth acquires the nationality of the
naturalising State. According to the Municipal Law of the different
States naturalisation may take place through six different acts--namely,
marriage, legitimation, option, acquisition of domicile, appointment as
Government official, grant on application. Thus, according to the
Municipal Law of most States, an alien female marrying a subject of such
State becomes thereby _ipso facto_ naturalised. Thus, further, according
to the Municipal Law of several States, an illegitimate child born of an
alien mother, and therefore an alien himself, becomes _ipso facto_
naturalised through the father marrying the mother and thereby
legitimating the child.[621] Thus, thirdly, according to the Municipal
Law of some States, which declare children of foreign parents born on
their territory to be aliens, such children, if, after having come of
age, they make a declaration that they intend to be subjects of the
country of their birth, become _ipso facto_ by such option naturalised.
Again, fourthly, some States, such as Venezuela, let an alien become
naturalised _ipso facto_ by his taking his domicile[622] on their
territory. Some States, fifthly, let an alien become naturalised _ipso
facto_ on appointment as a Government official. And, lastly, in all
States naturalisation may be procured through a direct act on the part
of the State granting nationality to an alien who has applied for it.
This last kind of naturalisation is naturalisation in the narrower sense
of the term; it is the most important for the Law of Nations, and,
whenever one speaks of naturalisation pure and simple, such
naturalisation through direct grant on application is meant; it will be
discussed in detail below, §§ 303-307.
[Footnote 621: English law has not adopted this rule.]
[Footnote 622: It is doubtful (see Hall, § 64) whether the home State of
such individuals naturalised against their will must submit to this
_ipso facto_ naturalisation. See above, § 125, where the rule has been
stated that in consideration of the personal supremacy of the home State
over its citizens abroad no State can naturalise foreigners against
their will.]
[Sidenote: Acquisition of Nationality through Redintegration.]
§ 300. The third mode of acquiring nationality is that by so-called
redintegration or resumption. Such individuals as have been natural-born
subjects of a State, but have lost their original nationality through
naturalisation abroad or for some other cause, may recover their
original nationality on their return home. One speaks in this case of
redintegration or resumption in contradistinction to naturalisation, the
favoured person being redintegrated and resumed into his original
nationality. Thus, according to Section 10 of the Naturalisation
Act,[623] 1870, a widow being a natural-born British subject, who has
lost her British nationality through marriage with a foreigner, may at
any time during her widowhood obtain a certificate of readmission to
British nationality, provided she performs the same conditions and
adduces the same evidence as is required in the case of an alien
applying for naturalisation. And according to section 8 of the same Act,
a British-born individual who has lost his British nationality through
being naturalised abroad, may, if he returns home, obtain a certificate
of readmission to British nationality, provided he performs the same
conditions and adduces the same evidence as is required in the case of
an alien applying for naturalisation.
[Footnote 623: 33 and 34 Vict. c. 14.]
[Sidenote: Acquisition of Nationality through Subjugation and Cession.]
§ 301. The fourth and fifth modes of acquiring nationality are by
subjugation after conquest and by cession of territory, the inhabitants
of the subjugated as well as of the ceded territory acquiring _ipso
facto_ by the subjugation or cession the nationality of the State which
acquires the territory. These modes of acquisition of nationality are
modes settled by the customary Law of Nations; it will be remembered
that details concerning this matter have been given above, §§ 219 and
240.
[Sidenote: Seven modes of losing Nationality.]
§ 302. Although it is left in the discretion of the different States to
determine the grounds on which individuals lose their nationality, it is
nevertheless of interest for the theory of the Law of Nations to take
notice of these grounds. Seven modes of losing nationality must be
stated to exist according to the reason of the thing, although all
seven are by no means recognised by all the States. These modes
are:--Release, deprivation, expiration, option, substitution,
subjugation, and cession.
(1) Release. Some States, as Germany, give their citizens the right to
ask to be released from their nationality. Such release, if granted,
denationalises the released individual.
(2) Deprivation. According to the Municipal Law of some States, as, for
instance, Bulgaria, Greece, Italy, Holland, Portugal, and Spain, the
fact that a citizen enters into foreign civil or military service
without permission of his Sovereign deprives him of his nationality.
(3) Expiration. Some States have legislated that citizenship expires in
the cases of such of their subjects as have emigrated and stayed abroad
beyond a certain length of time. Thus, a German ceases to be a German
subject through the mere fact that he has emigrated and stayed abroad
for ten years without having undertaken the necessary step for the
purpose of retaining his nationality.
(4) Option. Some States, as Great Britain, which declare a child born of
foreign parents on their territory to be their natural-born subject,
although he becomes at the same time according to the Municipal Law of
the home State of the parents a subject of such State, give the right to
such child to make, after coming of age, a declaration that he desires
to cease to be a citizen. Such declaration of alienage creates _ipso
facto_ the loss of nationality.
(5) Substitution. Many States, as, for instance, Great Britain, have
legislated that the nationality of their subjects extinguishes _ipso
facto_ by their naturalisation abroad, be it through marriage, grant on
application, or otherwise. Other States, however, as, for instance,
Germany, do not object to their citizens acquiring another nationality
besides that which they already possess.
(6) Subjugation and cession. It is a universally recognised customary
rule of the Law of Nations that the inhabitants of subjugated as well as
ceded territory lose their nationality and acquire that of the State
which annexes the territory.[624]
[Footnote 624: See above, § 301. Concerning the option sometimes given
to inhabitants of ceded territory to retain their former nationality,
see above, § 219.]
IV
NATURALISATION IN ESPECIAL
Vattel, I. § 214--Hall, §§ 71-71*--Westlake, § I. pp.
225-230--Lawrence, §§ 95-96--Phillimore, I. §§ 325-332--Halleck,
I. pp. 403-410--Taylor, §§ 181-182--Walker, § 19--Wharton, II. §§
173-183--Moore, III. §§ 377-380--Wheaton, § 85--Bluntschli, §§
371-372--Ullmann, §§ 110-111--Pradier-Fodéré, III. Nos.
1656-1659--Calvo, II. §§ 581-646--Martens, II. §§
47-48--Stoicesco, "Étude sur la naturalisation"
(1875)--Folleville, "Traité de la naturalisation"
(1880)--Cogordan, "La nationalité, &c." (2nd ed. 1890), pp.
117-284, 307-316--Delécaille, "De la naturalisation"
(1893)--Henriques, "The Law of Aliens, &c." (1906), pp.
91-121--Piggott, "Nationality and Naturalisation, &c." 2 vols.
(new ed. 1907)--Hart, in the _Journal of the Society of
Comparative Legislation_, new series, vol. II. (1900), pp. 11-26.
[Sidenote: Conception and Importance of Naturalisation.]
§ 303. Naturalisation in the narrower sense of the term--in
contradistinction to naturalisation _ipso facto_ through marriage,
legitimation, option, domicile, and Government office (see above, §
299)--must be defined as reception of an alien into the citizenship of a
State through a formal act on application of the favoured individual.
International Law does not provide any such rules for such reception,
but it recognises the natural competence of every State as a Sovereign
to increase its population through naturalisation, although a State
might by its Municipal Law be prevented from making use of this natural
competence.[625] In spite, however, of the fact that naturalisation is a
domestic affair of the different States, it is nevertheless of special
importance to the theory and practice of the Law of Nations. This is the
case because naturalisation is effected through a special grant of the
naturalising State, and regularly involves either a change or a
multiplication of nationality, facts which can be and have been the
source of grave international conflicts. In the face of the fact that
millions of citizens emigrate every year from their home countries with
the intention of settling permanently in foreign countries, where the
majority of them become sooner or later naturalised, the international
importance of naturalisation cannot be denied.
[Footnote 625: But there is, as far as I know, no civilised State in
existence which abstains altogether from naturalising foreigners.]
[Sidenote: Object of Naturalisation.]
§ 304. The object of naturalisation is always an alien. Some States will
naturalise such aliens only as are stateless because they never have
been citizens of another State or because they have renounced, or have
been released from or deprived of, the citizenship of their home State.
But other States, as Great Britain, naturalise also such aliens as are
and remain subjects of their home State. Most States naturalise such
person only as has taken his domicile in their country, has been
residing there for some length of time, and intends permanently to
remain in their country. And according to the Municipal Law of many
States, naturalisation of a married individual includes that of his wife
and children under age. But although every alien may be naturalised, no
alien has, according to the Municipal Law of most States, a claim to
become naturalised, naturalisation being a matter of discretion of the
Government, which can refuse it without giving any reasons.
[Sidenote: Conditions of Naturalisation.]
§ 305. If granted, naturalisation makes an alien a citizen. But it is
left to the discretion of the naturalising State to grant naturalisation
under any conditions it likes. Thus, for example, Great Britain grants
naturalisation on the sole condition that the naturalised alien shall
not be deemed to be a British subject when within the limits of the
foreign State of which he has been a subject previously to his
naturalisation, unless at the time of naturalisation he has ceased to be
a subject of that State. And it must be specially mentioned that
naturalisation need not give an alien absolutely the same rights as are
possessed by natural-born citizens. Thus according to article 2 of the
Constitution of the United States of America a naturalised alien can
never be elected President.[626]
[Footnote 626: A foreigner naturalised in Great Britain by Letters of
Denization does not acquire the same rights as a natural-born British
subject. See Hall, "Foreign Powers and Jurisdiction" (1894), § 22.]
[Sidenote: Effect of Naturalisation upon previous Citizenship.]
§ 306. Since the Law of Nations does not comprise any rules concerning
naturalisation, the effect of naturalisation upon previous citizenship
is exclusively a matter of the Municipal Law of the States concerned.
Some States, as Great Britain,[627] have legislated that one of their
subjects becoming naturalised abroad loses thereby his previous
nationality; but other States, as Germany, have not done this. Further,
some States, as Great Britain again, deny every effect to the
naturalisation granted by them to an alien whilst he is staying on the
territory of the State whose subject he was previously to his
naturalisation, unless at the time of naturalisation he was no longer a
subject of such State. But other States do not make this provision. Be
that as it may, there can be no doubt that a person who is naturalised
abroad and temporarily or permanently returns into the country of his
origin, can be held responsible[628] for all acts done there at the time
before his naturalisation abroad.
[Footnote 627: Formerly Great Britain upheld the rule _nemo potest
exuere patriam_, but Section 6 of the Naturalisation Act, 1870, does
away with that rule. Its antithesis is the rule _ne quis invitus
civitate mutetur, neve in civitate maneat invitus_ (Cicero, "Pro Balbo,"
c. 13, § 31; see Rattigan, "Private International Law" (1895), p. 29,
No. 21).]
[Footnote 628: Many instructive cases concerning this matter are
reported by Wharton, II. §§ 180 and 181, and Moore, III. §§ 401-407. See
also Hall, § 71, where details concerning the practice of many States
are given with regard to their subjects naturalised abroad.]
[Sidenote: Naturalisation in Great Britain.]
§ 307. The present law of Great Britain[629] concerning Naturalisation
is mainly contained in the Naturalisation Acts of 1870, 1874, and
1895.[630] Aliens may on their application become naturalised by a
certificate of naturalisation in case they have resided in the United
Kingdom or have been in the service of the British Crown for a term of
not less than five years, and in case they have the intention to
continue residing within the United Kingdom or serving under the Crown.
But naturalisation may be refused without giving a reason therefor
(section 7). British possessions may legislate on their own account
concerning naturalisation (section 16), and aliens so naturalised are
for all international purposes[631] British subjects. Where the Crown
enters into a convention with a foreign State to the effect that the
subjects of such State who have been naturalised in Great Britain may
divest themselves of their status as British subjects, such naturalised
British subjects can through a declaration of alienage shake off the
acquired British nationality (section 3). Naturalisation of the husband
includes that of his wife, and naturalisation of the father, or mother
in case she is a widow, includes naturalisation of such children as have
during infancy become resident in the United Kingdom at the time of
their father's or mother's naturalisation (section 10). Neither the case
of children who are not resident within the United Kingdom or not
resident with their father in the service of the Crown abroad at the
time of the naturalisation of their father or widowed mother, nor the
case of children born abroad after the naturalisation of the father is
mentioned in the Naturalisation Act. It is, therefore, to be taken for
granted that such children are not[632] British subjects, except
children born of a naturalised father abroad in the service of the
Crown.[633]
[Footnote 629: As regards naturalisation in the United States of
America, see Moore, III. §§ 381-389, and Dyne, "Naturalisation in the
United States" (1907).]
[Footnote 630: 33 Vict. c. 14; 35 and 36 Vict. c. 39; 58 & 59 Vict. c.
43. See Foote, "Private International Jurisprudence," 3rd ed. (1904),
pp. 1-51; Westlake, "Private International Law," 4th ed. (1905), §§
284-287; Dicey, "Conflict of Laws," 2nd ed. (1908), pp. 172-191.]
[Footnote 631: See Hall, "Foreign Powers and Jurisdiction," §§ 20 and
21, especially concerning naturalisation in India.]
[Footnote 632: See Hall, "Foreign Powers and Jurisdiction," § 19.]
[Footnote 633: See Naturalisation Act, 1895 (58 & 59 Vict. c. 43).]
Not to be confounded with naturalisation proper is naturalisation
through _denization_ by means of Letters Patent under the Great Seal.
This way of making an alien a British subject is based on a very ancient
practice[634] which has not yet become obsolete. Such denization
requires no previous residence within the United Kingdom. "A person may
be made a denizen without ever having set foot upon British soil. There
have been, and from time to time there no doubt will be, persons of
foreign nationality to whom it is wished to entrust functions which can
only be legally exercised by British subjects. In such instances, the
condition of five years' residence in the United Kingdom would generally
be prohibitory. The difficulty can be avoided by the issue of Letters of
Denization; and it is believed that on one or two occasions letters have
in fact been issued with the view of enabling persons of foreign
nationality to exercise British consular jurisdiction in the East."
(Hall.)
[Footnote 634: See Hall, "Foreign Powers and Jurisdiction," § 22.]
V
DOUBLE AND ABSENT NATIONALITY
Hall, § 71--Westlake, I. pp. 221-225--Lawrence, § 96--Halleck, I.
pp. 410-413--Taylor, § 183--Wheaton, § 85 (Dana's note)--Moore,
III. §§ 426-430--Bluntschli, §§ 373-374--Hartmann, § 82--Heffter,
§ 59--Stoerk in Holtzendorff, II. pp. 650-655--Ullmann, §
110--Bonfils, No. 422--Pradier-Fodéré, III. Nos.
1660-1665--Rivier, I. pp. 304-306--Calvo, II. §§ 647-654--Martens,
II. § 46.
[Sidenote: Possibility of Double and Absent Nationality.]
§ 308. The Law of Nations having no rule concerning acquisition and loss
of nationality beyond this, that nationality is lost and acquired
through subjugation and cession, and, on the other hand, the Municipal
Laws of the different States differing in many points concerning this
matter, the necessary consequence is that an individual may own two
different nationalities as easily as none at all. The points to be
discussed here are therefore: how double nationality occurs, the
position of individuals with double nationality, how absent nationality
occurs, the position of individuals destitute of nationality, and,
lastly, means of redress against difficulties arising from double and
absent nationality.
It must, however, be specially mentioned that the Law of Nations is
concerned with such cases only of double and absent nationality as are
the consequences of conflicting Municipal Laws of several absolutely
different States. Such cases as are the consequence of the Municipal
Laws of a Federal State or of a State which, as Great Britain, allows
outlying parts to legislate on their own account concerning
naturalisation, fall outside the scope of the Law of Nations. Thus the
fact that, according to the law of Germany, a German can be at the same
time a subject of several member-States of the German Empire, or can be
a subject of this Empire without being a subject of one of its
member-States, does as little concern the Law of Nations as the fact
that an individual can be a subject of a British Colonial State without
at the same time being a subject of the United Kingdom. For
internationally such individuals appear as subjects of such Federal
State or the mother-country, whatever their position may be inside these
States.
[Sidenote: How Double Nationality occurs.]
§ 309. An individual may own double nationality knowingly or
unknowingly, and with or without intention. And double nationality may
be produced by every mode of acquiring nationality. Even birth can vest
a child with double nationality. Thus, every child born in Great
Britain of German parents acquires at the same time British and German
nationality, for such child is British according to British, and German
according to German Municipal Law. Double nationality can likewise be
the result of marriage. Thus, a Venezuelan woman marrying an Englishman
acquires according to British law British nationality, but according to
Venezuelan law she does not lose her Venezuelan nationality.
Legitimation of illegitimate children can produce the same effect. Thus,
an illegitimate child of a German born in England of an English mother
is a British subject according to British and German law, but if after
the birth of the child the father marries the mother and remains a
resident in England, he thereby legitimates the child according to
German law, and such child acquires thereby German nationality without
losing his British nationality, although the mother does lose her
British nationality.[635] Again, double nationality may be the result of
option. Thus, a child born in France of German parents acquires German
nationality, but if, after having come of age, he acquires French
nationality by option through making the declaration necessary according
to French Municipal Law, he does not thereby, according to German
Municipal Law, lose his German nationality. It is not necessary to give
examples of double nationality caused by taking domicile abroad,
accepting foreign Government office, and redintegration, and it suffices
merely to draw attention to the fact that naturalisation in the narrower
sense of the term is frequently a cause of double nationality, since
individuals may apply for and receive naturalisation in a State without
thereby losing the nationality of their home State.
[Footnote 635: This is the consequence of Section 10, Nos. 1 and 3, of
the Naturalisation Act, 1870.]
[Sidenote: Position of Individuals with Double Nationality.]
§ 310. Individuals owning double nationality bear in the language of
diplomatists the name _sujets mixtes_. The position of such "mixed
subjects" is awkward on account of the fact that two different States
claim them as subjects, and therefore their allegiance. In case a
serious dispute arises between these two States which leads to war, an
irreconcilable conflict of duties is created for these unfortunate
individuals. It is all very well to say that such conflict is a personal
matter which concerns neither the Law of Nations nor the two States in
dispute. As far as an individual has, through naturalisation, option,
and the like, acquired his double nationality, one may say that he has
placed himself in that awkward position by intentionally and knowingly
acquiring a second without being released from his original nationality.
But those who are natural-born _sujets mixtes_ in most cases do not know
thereof before they have to face the conflict, and their difficult
position is not their own fault.
Be that as it may, there is no doubt that each of the States claiming
such an individual as subject is internationally competent to do this,
although they cannot claim him against one another, since each of them
correctly maintains that he is its subject.[636] But against third
States each of them appears as his Sovereign, and it is therefore
possible that each of them can exercise its right of protection over him
within third States.
[Footnote 636: I cannot agree with the statement in its generality made
by Westlake, I. p. 221:--"If, for instance, a man claimed as a national
both by the United Kingdom and by another country should contract in the
latter a marriage permitted by its laws to its subjects, an English
Court would have to accept him as a married man." If this were correct,
the marriage of a German who, without having given up his German
citizenship, has become naturalised in Great Britain and has afterwards
married his niece in Germany, would have to be recognised as legal by
the English Courts. The correct solution seems to me to be that such
marriage is legal in Germany, but not legal in England, because British
law does not admit of marriage between uncle and niece. The case is
different when a German who marries his niece in Germany, afterwards
takes his domicile and becomes naturalised in England; in this case
English Courts would have to recognise the marriage as legal because
German law does not object to a marriage between uncle and niece, and
because the marriage was concluded before the man took his domicile in
England and became a British subject. See Foote, "Private International
Jurisprudence," 3rd ed. (1904), p. 106, and the cases there cited.]
[Sidenote: How Absent Nationality occurs.]
§ 311. An individual may be destitute of nationality knowingly or
unknowingly, intentionally or through no fault of his own. Even by birth
a person may be stateless. Thus, an illegitimate child born in Germany
of an English mother is actually destitute of nationality because
according to German law he does not acquire German nationality, and
according to British law he does not acquire British nationality. Thus,
further, all children born in Germany of parents who are destitute of
nationality are themselves, according to German law, stateless. But
statelessness may take place after birth. All individuals who have lost
their original nationality without having acquired another are in fact
destitute of nationality.
[Sidenote: Position of Individuals destitute of Nationality.]
§ 312. That stateless individuals are objects of the Law of Nations in
so far as they fall under the territorial supremacy of the State on
whose territory they live there is no doubt whatever. But since they do
not own a nationality, the link[637] by which they could derive benefits
from International Law is missing, and thus they lack any protection
whatever as far as this law is concerned. The position of such
individuals destitute of nationality may be compared to vessels on the
Open Sea not sailing under the flag of a State, which likewise do not
enjoy any protection whatever. In practice, stateless individuals are in
most States treated more or less as though they were subjects of foreign
States, but as a point of international legality there is no restriction
whatever upon a State's maltreating them to any extent.[638]
[Footnote 637: See above, § 291.]
[Footnote 638: The position of the Jews in Roumania furnishes a sad
example. According to Municipal Law they are, with a few exceptions,
considered as foreigners for the purpose of avoiding the consequences of
article 44 of the Treaty of Berlin, 1878, according to which no
religious disabilities may be imposed by Roumania upon her subjects. But
as these Jews are not subjects of any other State, Roumania compels them
to render military service, and actually treats them in every way
according to discretion without any foreign State being able to exercise
a right of protection over them. See Rey in R.G. X. (1903), pp. 460-526,
and Bar in R.I. 2nd Ser. IX. (1907), pp. 711-716. See also above, § 293,
p. 369, note 2.]
[Sidenote: Redress against Difficulties arising from Double and Absent
Nationality.]
§ 313. Double as well as absent nationality of individuals has from time
to time created many difficulties for the States concerned. As regards
the remedy for such difficulties, it is comparatively easy to meet those
created by absent nationality. If the number of stateless individuals
increases much within a certain State, the latter can require them to
apply for naturalisation or to leave the country; it can even naturalise
them by Municipal Law against their will, as no other State will, or has
a right to, interfere, and as, further, the very fact of the existence
of individuals destitute of nationality is a blemish in Municipal as
well as in International Law. Much more difficult is it, however, to
find, within the limits of the present rules of the Law of Nations,
means of redress against conflicts arising from double nationality. Very
grave disputes indeed have occasionally occurred between States on
account of individuals who were claimed as subjects by both sides. Thus,
in 1812, a time when England still kept to her old rule that no
natural-born English subject could lose his nationality, the United
States went to war with England because the latter impressed Englishmen
naturalised in America from on board American merchantmen, claiming the
right to do so, as according to her law these men were still English
citizens. Thus, further, Prussia frequently had during the sixties of
the last century disputes with the United States on account of Prussian
individuals who, without having rendered military service at home, had
emigrated to America to become there naturalised and had afterwards
returned to Prussia.[639] Again, during the time of the revolutionary
movements in Ireland in the last century before the Naturalisation Act
of 1870 was passed, disputes arose between Great Britain and the United
States on account of such Irishmen as took part in these revolutionary
movements after having become naturalised in the United States.[640] It
would seem that the only way in which all the difficulties arising from
double and absent nationality could really be done away with is for all
the Powers to agree upon an international convention, according to which
they undertake the obligation to enact by their Municipal Law such
corresponding rules regarding acquisition and loss of nationality as
make the very occurrence of double and absent nationality
impossible.[641]
[Footnote 639: The case of Martin Koszta ought here to be mentioned,
details of which are reported by Wharton, II. § 175; Moore, III. §§
490-491, and Martens, "Causes Célèbre," V. pp. 583-599. Koszta was a
Hungarian subject who took part in the revolutionary movement of 1848,
escaped to the United States, and in July, 1852, made a declaration
under oath, before a proper tribunal, of his intention to become
naturalised there. After remaining nearly two years in the United
States, but before he was really naturalised, he visited Turkey, and
obtained a _tezkereh_, a kind of letter of safe-conduct, from the
American Chargé d'Affaires at Constantinople. Later on, while at Smyrna,
he was seized by Austrian officials and taken on board an Austrian
man-of-war with the intention of bringing him to Austria, to be there
punished for his part in the revolution of 1848. The American Consul
demanded his release, but Austria maintained that she had a right to
arrest Koszta according to treaties between her and Turkey. Thereupon
the American man-of-war _Saint Louis_ threatened to attack the Austrian
man-of-war in case she would not give up her prisoner, and an
arrangement was made that Koszta should be delivered into the custody of
the French Consul at Smyrna until the matter was settled between the
United States and Austrian Governments. Finally, Austria consented to
Koszta's being brought back to America. Although Koszta was not yet
naturalised, the United States claimed a right of protection over him,
since he had taken his domicile on her territory with the intention to
become there naturalised in due time, and had thereby in a sense
acquired the national character of an American.]
[Footnote 640: The United States have, through the so-called "Bancroft
Treaties," attempted to overcome conflicts arising from double
nationality. The first of these treaties was concluded in 1868 with the
North German Confederation, the precursor of the present German Empire,
and signed on behalf of the United States by her Minister in Berlin,
George Bancroft. (See Wharton, II. §§ 149 and 179, and Moore, III. §§
391-400.) In the same and the following years treaties of the same kind
were concluded with many other States, the last with Portugal in 1908. A
treaty of another kind, but with the same object, was concluded between
the United States and Great Britain on May 13, 1870. (See Martens,
N.R.G. XX. p. 524, and Moore, III. § 397.) All these treaties stipulate
that naturalisation in one of the contracting States shall be recognised
by the other, whether the naturalised individual has or has not
previously been released from his original citizenship, provided he has
resided for five years in such country. And they further stipulate that
such naturalised individuals, in case they return after naturalisation
into their former home State and take their residence there for some
years, either _ipso facto_ become again subjects of their former home
State and cease to be naturalised abroad (as the Bancroft Treaties), or
can be reinstated in their former citizenship, and cease thereby to be
naturalised abroad (as the treaty with Great Britain).]
[Footnote 641: The Institute of International Law has studied the
matter, and formulated at its meeting in Venice in 1896 six rules,
which, if adopted on the part of the different States, would do away
with many of the difficulties. (See Annuaire, XV. p. 270.)]
VI
RECEPTION OF ALIENS AND RIGHT OF ASYLUM
Vattel, II. § 100--Hall, §§ 63-64--Westlake, I. pp.
208-210--Lawrence, §§ 97-98--Phillimore, I. §§ 365-370--Twiss, I.
§ 238--Halleck, I. pp. 452-454--Taylor, § 186--Walker, §
19--Wharton, II. § 206--Wheaton, § 115, and Dana's Note--Moore,
IV. §§ 560-566--Bluntschli, §§ 381-398--Hartmann, §§ 84-85,
89--Heffter, §§ 61-63--Stoerk in Holtzendorff, II. pp.
637-650--Gareis, § 57--Liszt, § 25--Ullmann, §§ 113-115--Bonfils,
Nos. 441-446--Despagnet, Nos. 339-343--Rivier, I. pp.
307-309--Nys, II. pp. 232-237--Calvo, II. §§ 701-706, VI. §
119--Martens, II. § 46--Overbeck, "Niederlassungsfreiheit und
Ausweisungsrecht" (1906); Henriques, "The Law of Aliens, &c."
(1906)--Sibley and Elias, "The Aliens Act, &c."
(1906)--Proceedings of the American Society of International Law,
1911, pp. 65-115.
[Sidenote: No Obligation to admit Aliens.]
§ 314. Many writers[642] maintain that every member of the Family of
Nations is bound by International Law to admit all aliens into its
territory for all lawful purposes, although they agree that every State
could exclude certain classes of aliens. This opinion is generally held
by those who assert that there is a fundamental right of intercourse
between States. It will be remembered[643] that no such fundamental
right exists, but that intercourse is a characteristic of the position
of the States within the Family of Nations and therefore a
presupposition of the international personality of every State. A State,
therefore, cannot exclude aliens altogether from its territory without
violating the spirit of the Law of Nations and endangering its very
membership of the Family of Nations. But no State actually does exclude
aliens altogether. The question is only whether an international legal
duty can be said to exist for every State to admit all unobjectionable
aliens to all parts of its territory. And it is this duty which must be
denied as far as the customary Law of Nations is concerned. It must be
emphasised that, apart from general conventional arrangements, as, for
instance, those concerning navigation on international rivers, and apart
from special treaties of commerce, friendship, and the like, no State
can claim the right for its subjects to enter into and reside on the
territory of a foreign State. The reception of aliens is a matter of
discretion, and every State is by reason of its territorial supremacy
competent to exclude aliens from the whole or any part of its territory.
And it is only by an inference of this competence that Great
Britain,[644] the United States of America, and other States have made
special laws according to which paupers and criminals, as well as
diseased and other objectionable aliens, are prevented from entering
their territory. Every State is and must remain master in its own house,
and such mastership is of especial importance with regard to the
admittance of aliens. Of course, if a State excluded all subjects of one
State only, this would constitute an unfriendly act, against which
retorsion would be admissible; but it cannot be denied that a State is
competent to do this, although in practice such wholesale exclusion will
never happen. Hundreds of treaties of commerce and friendship exist
between the members of the Family of Nations according to which they are
obliged to receive each other's unobjectionable subjects, and thus
practically the matter is settled, although in strict law every State is
competent to exclude foreigners from its territory.[645]
[Footnote 642: See, for instance, Bluntschli, § 381, and Liszt, § 25.]
[Footnote 643: See above, § 141.]
[Footnote 644: See the Aliens Act, 1905 (5 Edw. VII. c. 13). See also
Henriques, "The Law of Aliens, &c." (1906), and Sibley and Elias, "The
Aliens Act, &c." (1906).]
[Footnote 645: The Institute of International Law has studied the
matter, and adopted, at its meeting at Geneva in 1892 (see Annuaire,
XII. p. 219), a body of forty-one articles concerning the admission and
expulsion of aliens; articles 6-13 deal with the admittance of aliens.]
[Sidenote: Reception of Aliens under conditions.]
§ 315. It is obvious that, if a State need not receive aliens at all, it
can, on the other hand, receive them under certain conditions only.
Thus, for example, Russia does not admit aliens without passports, and
if the alien adheres to the Jewish faith he has to submit to a number of
special restrictions. Thus, further, during the time Napoleon III. ruled
in France, every alien entering French territory from the sea or from
neighbouring land was admitted only after having stated his name,
nationality, and the place to which he intended to go. Some States, as
Switzerland, make a distinction between such aliens as intend to settle
down in the country and such as intend only to travel in the country; no
alien is allowed to settle in the country without having asked and
received a special authorisation on the part of the Government, whereas
the country is unconditionally open to all mere travelling aliens.
[Sidenote: So-called Right of Asylum.]
§ 316. The fact that every State exercises territorial supremacy over
all persons on its territory, whether they are its subjects or aliens,
excludes the prosecution of aliens thereon by foreign States. Thus, a
foreign State is, provisionally at least, an asylum for every individual
who, being prosecuted at home, crosses its frontier. In the absence of
extradition treaties stipulating the contrary, no State is by
International Law obliged to refuse admittance into its territory to
such a fugitive or, in case he has been admitted, to expel him or
deliver him up to the prosecuting State. On the contrary, States have
always upheld their competence to grant asylum if they choose to do so.
Now the so-called right of asylum is certainly not a right of the alien
to demand that the State into whose territory he has entered with the
intention of escaping prosecution from some other State should grant
protection and asylum. For such State need not grant them. The so-called
right of asylum is nothing but the competence mentioned above of every
State, and inferred from its territorial supremacy, to allow a
prosecuted alien to enter and to remain on its territory under its
protection, and to grant thereby an asylum to him. Such fugitive alien
enjoys the hospitality of the State which grants him asylum; but it
might be necessary to place him under surveillance, or even to intern
him at some place in the interest of the State which is prosecuting him.
For it is the duty of every State to prevent individuals living on its
territory from endangering the safety of another State. And if a State
grants asylum to a prosecuted alien, this duty becomes of special
importance.
VII
POSITION OF ALIENS AFTER RECEPTION
Vattel, I. § 213, II. §§ 101-115--Hall, §§ 63 and 87--Westlake, I.
pp. 211-212, 313-316--Lawrence, §§ 97-98--Phillimore, I. §§
332-339--Twiss, I. § 163--Taylor, §§ 173, 187, 201-203--Walker, §
19--Wharton, II. §§ 201-205--Wheaton, § 77-82--Moore, IV. §§
534-549--Bluntschli, §§ 385-393--Hartmann, §§ 84-85--Heffter, §
62--Stoerk in Holtzendorff, II. pp. 637-650--Gareis, § 57--Liszt,
§ 25--Ullmann, §§ 113-115--Bonfils, Nos. 447-454--Despagnet, Nos.
339-343--Rivier, I. pp. 309-311--Calvo, II. §§ 701-706--Martens,
II. § 46--Gaston de Leval, "De la protection des nationaux à
l'étranger" (1907)--Wheeler in A.J. III. (1909), pp.
869-884--Proceedings of the American Society of International Law,
1911, pp. 32-65, 150-225.
[Sidenote: Aliens subjected to territorial Supremacy.]
§ 317. With his entrance into a State, an alien, unless he belongs to
the class of those who enjoy so-called exterritoriality, falls at once
under such State's territorial supremacy, although he remains at the
same time under the personal supremacy of his home State. Such alien is
therefore under the jurisdiction of the State in which he stays, and is
responsible to such State for all acts he commits on its territory. He
is further subjected to all administrative arrangements of such State
which concern the very locality where the alien is. If in consequence of
a public calamity, such as the outbreak of a fire or an infectious
disease, certain administrative restrictions are enforced, they can be
enforced against all aliens as well as against citizens. But apart from
jurisdiction and mere local administrative arrangements, both of which
concern all aliens alike, a distinction must be made between such aliens
as are merely travelling and stay, therefore, only temporarily on the
territory, and such as take their residence there either permanently or
for some length of time. A State has wider power over aliens of the
latter kind; it can make them pay rates and taxes, and can even compel
them in case of need, under the same conditions as citizens, to serve in
the local police and the local fire brigade for the purpose of
maintaining public order and safety. On the other hand, an alien does
not fall under the personal supremacy of the local State; therefore he
cannot be made to serve[646] in its army or navy, and cannot, like a
citizen, be treated according to discretion.
[Footnote 646: See, however, above, § 127, concerning the attitude of
Great Britain with regard to aliens in British colonies.]
It must be emphasised that an alien is responsible to the local State
for all illegal acts which he commits while the territory concerned is
during war temporarily occupied by the enemy. An illustrative case is
that of De Jager _v._ the Attorney-General for Natal.[647] De Jager was
a burgher of the South African Republic, but a settled resident at Natal
when the South African War broke out. In October 1899 the British forces
evacuated that part of Natal in which Waschbank, where he lived, is
situated, and the Boer forces were in occupation for some six months. He
joined them, and served in different capacities until March 1900, when
he went to the Transvaal, and took no further part in the war.
[Footnote 647: L.R. [1907] App. C., 326. See Baty in _The Law Magazine
and Review_, XXXIII. (1908), pp. 214-218, who disapproves of the
conviction of De Jager.]
He was tried in March 1901, and convicted of
high treason, and sentenced to five years' imprisonment and a fine of
£5000, or, failing payment thereof, to a further three years.
[Sidenote: Aliens in Eastern Countries.]
§ 318. The rule that aliens fall under the territorial supremacy of the
State they are in finds an exception in Turkey and, further, in such
other Eastern States, like China, as are, in consequence of their
deficient civilisation, only for some parts members of the Family of
Nations. Aliens who are subjects of Christian States and enter into the
territory of such Eastern States, remain wholly under the
jurisdiction[648] of their home State. This exceptional condition of
things is based, as regards Turkey, on custom and treaties which are
called Capitulations, as regards other Eastern States on treaties
only.[649] Jurisdiction over aliens in these countries is exercised by
the consuls of their home States, which have enacted special Municipal
Laws for that purpose. Thus, Great Britain has enacted so-called Foreign
Jurisdiction Acts at several times, which are now all consolidated in
the Foreign Jurisdiction Act of 1890.[650] It must be specially
mentioned that Japan has since 1899 ceased to belong to the Eastern
States in which aliens are exempt from local jurisdiction.
[Footnote 648: See below, § 440.]
[Footnote 649: See Twiss, I. § 163, who enumerates many of these
treaties; see also Phillimore, I. §§ 336-339; Hall, "Foreign Powers and
Jurisdiction," §§ 59-91; and Scott, "The Law affecting Foreigners in
Egypt as the Result of the Capitulations" (1907).]
[Footnote 650: 53 & 54 Vict. c. 37. See Piggott, "Exterritoriality. The
Law relating to Consular Jurisdiction, &c.," new edition (1907).]
[Sidenote: Aliens under the Protection of their Home State.]
§ 319. Although aliens fall at once under the territorial supremacy of
the State they enter, they remain nevertheless under the protection of
their home State. By a universally recognised customary rule of the Law
of Nations every State holds a right of protection[651] over its
citizens abroad, to which corresponds the duty of every State to treat
foreigners on its territory with a certain consideration which will be
discussed below, §§ 320-322. The question here is only when and how this
right of protection can be exercised.[652] Now there is certainly, as
far as the Law of Nations is concerned, no duty incumbent upon a State
to exercise its protection over its citizens abroad. The matter is
absolutely in the discretion of every State, and no citizen abroad has
by International Law, although he may have it by Municipal Law, a right
to demand protection from his home State. Often for political reasons
States have in certain cases refused the exercise of their right of
protection over citizens abroad. Be that as it may, every State _can_
exercise this right when one of its subjects is wronged abroad in his
person or property, either by the State itself on whose territory such
person or property is for the time, or by such State's officials or
citizens without such State's interfering for the purpose of making good
the wrong done.[653] And this right can be realised in several ways.
Thus, a State whose subjects are wronged abroad can diplomatically
insist upon the wrongdoers being punished according to the law of the
land and upon damages, if necessary, being paid to its subjects
concerned. It can, secondly, exercise retorsion and reprisals for the
purpose of making the other State comply with its demands. It can,
further, exercise intervention, and it can even go to war when
necessary. And there are other means besides those mentioned. It is,
however, quite impossible to lay down hard-and-fast rules as regards
the question in which way and how far in every case the right of
protection ought to be exercised. Everything depends upon the merits of
the individual case and must be left to the discretion of the State
concerned. The latter will have to take into consideration whether the
wronged alien was only travelling through or had settled down in the
country, whether his behaviour had been provocative or not, how far the
foreign Government identified itself with the acts of officials or
subjects, and the like.
[Footnote 651: This right has, I believe, grown up in furtherance of
intercourse between the members of the Family of Nations (see above, §
142); Hall (§ 87) and others deduce this indubitable right from the
"fundamental" right of self-preservation.]
[Footnote 652: See Moore, VI. §§ 979-997, and Wheeler in A.J. III.
(1909), pp. 869-884.]
[Footnote 653: Concerning the responsibility of a State for
internationally injurious acts of its own, its organs and other
officials, and its subjects, see above, §§ 151-167, and Anzilloti in
R.G. XIII. (1906), pp. 5 and 285. The right of protection over citizens
abroad is discussed in detail by Hall, § 87, Westlake, I. pp. 313-320,
and Gaston de Leval, op. cit. Concerning the right of protection of a
State over its citizens with regard to public debts of foreign States,
see above, §§ 135 (6) and 155.]
[Sidenote: Protection to be afforded to Aliens' Persons and Property.]
§ 320. Under the influence of the right of protection over its subjects
abroad which every State holds, and the corresponding duty of every
State to treat aliens on its territory with a certain consideration, an
alien, provided he owns a nationality at all, cannot be outlawed in
foreign countries, but must be afforded protection of his person and
property. The home State of the alien has by its right of protection a
claim upon such State as allows him to enter its territory that such
protection shall be afforded, and it is no excuse that such State does
not provide any protection whatever for its own subjects. In consequence
thereof every State is by the Law of Nations compelled, at least, to
grant to aliens equality before the law with its citizens as far as
safety of person and property is concerned. An alien must in especial
not be wronged in person or property by the officials and Courts of a
State. Thus, the police must not arrest him without just cause,
custom-house officials must treat him civilly, Courts of Justice must
treat him justly and in accordance with the law. Corrupt administration
of the law against natives is no excuse for the same against aliens, and
no Government can cloak itself with the judgment of corrupt judges.
[Sidenote: How far Aliens can be treated according to Discretion.]
§ 321. Apart from protection of person and property, every State can
treat aliens according to discretion, those points excepted concerning
which discretion is restricted through international treaties between
the States concerned. Thus, a State can exclude aliens from certain
professions and trades; it can, as Great Britain did formerly and Russia
does even to-day, exclude them from holding real property; it can, as
again Great Britain[654] did in former times, compel them to have their
names registered for the purpose of keeping them under control, and the
like. It must, however, be stated that there is a tendency within all
the States which are members of the Family of Nations to treat admitted
aliens more and more on the same footing as citizens, political rights
and duties, of course, excepted. Thus, for instance, with the only
exception that an alien cannot be sole or part owner of a British ship,
aliens having taken up their domicile in this country are for all
practical purposes treated by the law[655] of the land on the same
footing as British subjects.
[Footnote 654: See an Act for the Registration of Aliens, &c., 1836 (6 &
7 William IV. c. 11).]
[Footnote 655: That aliens cannot now any longer belong to the London
Stock Exchange, is an outcome not of British Municipal Law, but of
regulations of the Stock Exchange.]
[Sidenote: Departure from the Foreign Country.]
§ 322. Since a State holds territorial only, but not personal supremacy
over an alien within its boundaries, it can never under any
circumstances prevent him from leaving its territory, provided he has
fulfilled his local obligations, as payment of rates and taxes, of
fines, of private debts, and the like. And an alien leaving a State can
take all his property away with him, and a tax for leaving the country
or tax upon the property he takes away with him[656] cannot be levied.
And it must be specially mentioned that since the beginning of the
nineteenth century the so-called _droit d'aubaine_ belongs to the past;
this is the name of the right, which was formerly frequently exercised,
of a State to confiscate the whole estate of an alien deceased on its
territory.[657] But if a State levies estate duties in the case of a
citizen dying on its territory, as Great Britain does according to the
Finance Act[658] of 1894, such duties can likewise be levied in case of
an alien dying on its territory.
[Footnote 656: So-called _gabella emigrationis_.]
[Footnote 657: See details in Wheaton, § 82. The _droit d'aubaine_ was
likewise named _jus albinagii_.]
[Footnote 658: 57 & 58 Vict. c. 30. Estate duty is levied in Great
Britain in the case also of such alien dying abroad as leaves movable
property in the United Kingdom without having ever been resident there.
As far as the Law of Nations is concerned, it is doubtful whether Great
Britain is competent to claim estate duties in such cases.]
VIII
EXPULSION OF ALIENS
Hall, § 63--Westlake, I. p. 210--Phillimore, I. § 364--Halleck, I.
pp. 460-461--Taylor, § 186--Walker, § 19--Wharton, II. §
206--Moore, IV. §§ 550-559--Bluntschli, §§ 383-384--Stoerk in
Holtzendorff, II. pp. 646-656--Ullmann, § 115--Bonfils, No.
442--Despagnet, Nos. 336-337--Pradier-Fodéré, III. Nos.
1857-1859--Rivier, I. pp. 311-314--Nys, II. pp. 229-237--Calvo,
VI. §§ 119-125--Fiore, Code, Nos. 252-259--Martens, I. §
79--Bleteau, "De l'asile et de l'expulsion" (1886)--Berc, "De
l'expulsion des étrangers" (1888)--Féraud-Giraud, "Droit
d'expulsion des étrangers" (1889)--Langhard, "Das Recht der
politischen Fremdenausweisung" (1891)--Overbeck,
"Niederlassungsfreiheit und Ausweisungsrecht"
(1906)--Rolin-Jaequemyns in R.I. XX. (1888), pp. 499 and
615--Proceedings of the American Society of International Law,
1911, pp. 119-149.
[Sidenote: Competence to expel Aliens.]
§ 323. Just as a State is competent to refuse admittance to an alien, so
it is, in conformity with its territorial supremacy, competent to expel
at any moment an alien who has been admitted into its territory. And it
matters not whether the respective individual is only on a temporary
visit or has settled down for professional or business purposes on that
territory, having taken his domicile thereon. Such States, of course, as
have a high appreciation of individual liberty and abhor arbitrary
powers of Government will not readily expel aliens. Thus, the British
Government has no power to expel even the most dangerous alien without
the recommendation of a Court, or without an Act of Parliament making
provision for such expulsion. And in Switzerland, article 70 of the
Constitution empowers the Government to expel such aliens only as
endanger the internal and external safety of the land. But many States
are in no way prevented by their Municipal Law from expelling aliens
according to discretion, and examples of arbitrary expulsion of aliens,
who had made themselves objectionable to the respective Governments, are
numerous in the past and the present.
On the other hand, it cannot be denied that, especially in the case of
expulsion of an alien who has been residing within the expelling State
for some length of time and has established a business there, the home
State of the expelled individual is by its right of protection over
citizens abroad justified in making diplomatic representations to the
expelling State and asking for the reasons for the expulsion. But as in
strict law a State can expel even domiciled aliens without so much as
giving the reasons, the refusal of the expelling State to supply the
reasons for expulsion to the home State of the expelled alien does not
constitute an illegal, although a very unfriendly, act. And there is no
doubt that every expulsion of an alien without just cause is, in spite
of its international legality, an unfriendly act, which can rightfully
be met with retorsion.
[Sidenote: Just Causes of Expulsion of Aliens.]
§ 324. On account of the fact that retorsion might be justified, the
question is of importance what just causes of expulsion of aliens there
are. As International Law gives no detailed rules regarding expulsion,
everything is left to the discretion of the single States and depends
upon the merits of the individual case. Theory and practice correctly
make a distinction between expulsion in time of war and in time of
peace. A belligerent may consider it convenient to expel all enemy
subjects residing or temporarily staying within his territory. And,
although such a measure may be very hard and cruel, the opinion is
general that such expulsion is justifiable.[659] As regards expulsion in
time of peace, on the other hand, the opinions of writers as well as of
States naturally differ much. Such State as expels an alien will hardly
admit not having had a just cause. Some States, as Belgium[660] since
1885, possess Municipal Laws determining just causes for the expulsion
of aliens, and such States' discretion concerning expulsion is, of
course, more or less restricted. But many States do not possess such
laws, and are, therefore, entirely at liberty to consider a cause as
justifying expulsion or not. The Institute of International Law at its
meeting at Geneva in 1892 adopted a body of forty-one articles
concerning the admittance and expulsion of aliens, and in article 28
thereof enumerated nine just causes for expulsion in time of peace.[661]
I doubt whether the States will ever come to an agreement about just
causes of expulsion. The fact cannot be denied that an alien is more or
less a guest in the foreign land, and the question under what conditions
such guest makes himself objectionable to his host cannot once for all
be answered by the establishment of a body of rules. So much is certain,
that with the gradual disappearance of despotic views in the different
States, and with the advance of true constitutionalism guaranteeing
individual liberty and freedom of opinion and speech, expulsion of
aliens, especially for political reasons, will become less frequent.
Expulsion will, however, never totally disappear, because it may well be
justified. Thus, for example, Prussia after the annexation of the
formerly Free Town of Frankfort-on-the-Main, was certainly justified in
expelling those individuals who, for the purpose of avoiding military
service in the Prussian Army, had by naturalisation become Swiss
citizens without giving up their residence at Frankfort.
[Footnote 659: Thus in 1870, during the Franco-German war, the French
expelled all Germans from France, and the former South African Republic
expelled in 1899, during the Boer war, almost all British subjects. See
below, vol. II. § 100.]
[Footnote 660: See details in Rivier, I. p. 312.]
[Footnote 661: See Annuaire, XII. p. 223. Many of these causes, as
conviction for crimes, for instance, are certainly just causes, but
others are doubtful.]
[Sidenote: Expulsion how effected.]
§ 325. Expulsion is, in theory at least, not a punishment, but an
administrative measure consisting in an order of the Government
directing a foreigner to leave the country. Expulsion must therefore be
effected with as much forbearance and indulgence as the circumstances
and conditions of the case allow and demand, especially when compulsion
is meted out to a domiciled alien. And the home State of the expelled,
by its right of protection over its citizens abroad, may well insist
upon such forbearance and indulgence. But this is valid as regards the
first expulsion only. Should the expelled refuse to leave the territory
voluntarily or, after having left, return without authorisation, he may
be arrested, punished, and forcibly brought to the frontier.
[Sidenote: Reconduction in Contradistinction to Expulsion.]
§ 326. In many Continental States destitute aliens, foreign vagabonds,
suspicious aliens without papers of legitimation, alien criminals who
have served their punishment, and the like, are without any formalities
arrested by the police and reconducted to the frontier. There is no
doubt that the competence for such reconduction, which is often called
_droit de renvoi_, is an inference from the territorial supremacy of
every State, for there is no reason whatever why a State should not get
rid of such undesirable aliens as speedily as possible. But although
such reconduction is materially not much different from expulsion, it
nevertheless differs much from this in form, since expulsion is an order
to leave the country, whereas reconduction is forcible conveying away of
foreigners.[662] The home State of such reconducted aliens has the duty
to receive them, since, as will be remembered,[663] a State cannot
refuse to receive such of its subjects as are expelled from abroad.
Difficulties arise, however, sometimes concerning the reconduction of
such alien individuals as have lost their nationality through
long-continued absence[664] from home without having acquired another
nationality abroad. Such cases are a further example of the fact that
the very existence of stateless individuals is a blemish in Municipal as
well as International Law.[665]
[Footnote 662: Rivier, I. p. 308, correctly distinguishes between
reconduction and expulsion, but Phillimore, I. § 364, seems to confound
them.]
[Footnote 663: See above, § 294.]
[Footnote 664: See above, § 302, No. 3.]
[Footnote 665: It ought to be mentioned that many States have, either by
special treaties or in their treaties of commerce, friendship, and the
like, stipulated proper treatment of each other's destitute subjects on
each other's territory.]
IX
EXTRADITION
Hall, §§ 13 and 63--Westlake, I. pp. 241-251--Lawrence, §§
110-111--Phillimore, I. §§ 365-389D--Twiss, I. § 236--Halleck, I.
pp. 257-268--Taylor, §§ 205-211--Walker, § 19--Wharton, II. §§
268-282--Wheaton, §§ 115-121--Moore, IV. §§ 579-622--Bluntschli,
§§ 394-401--Hartmann, § 89--Heffter, § 63--Lammasch in
Holtzendorff, III. pp. 454-566--Liszt, § 33--Ullmann, §§
127-131--Bonfils, Nos. 455-481--Despagnet, Nos.
276-286--Pradier-Fodéré, III. Nos. 1863-1893--Mérignhac, II. pp.
732-777--Rivier, I. pp. 348-357--Nys, II. pp. 244-253--Calvo, II.
§§ 949-1071--Fiore, Code, Nos. 584-586--Martens, II. §§
91-98--Spear, "The Law of Extradition" (1879)--Lammasch,
"Auslieferungspflicht und Asylrecht" (1887)--Martitz,
"Internationale Rechtshilfe in Strafsachen," 2 vols. (1888 and
1897)--Bernard, "Traité théorique et pratique de l'extradition," 2
vols. (2nd ed. 1890)--Moore, "Treatise on Extradition"
(1891)--Hawley, "The Law of International Extradition"
(1893)--Clark, "The Law of Extradition" (3rd ed. 1903)--Biron and
Chalmers, "The Law and Practice of Extradition" (1903)--Piggott,
"Extradition" (1910)--Lammasch in R.G. III. (1896), pp.
5-14--Diena in R.G. XII. (1905), pp. 516-544--See the French,
German, and Italian literature concerning extradition quoted by
Fauchille in Bonfils, No. 455.
[Sidenote: Extradition no legal duty.]
§ 327. Extradition is the delivery of a prosecuted individual to the
State on whose territory he has committed a crime by the State on whose
territory the criminal is for the time staying. Although Grotius[666]
holds that every State has the duty either to punish or to surrender to
the prosecuting State such individuals within its boundaries as have
committed a crime abroad, and although there is as regards the majority
of such cases an important interest of civilised mankind that this
should be done, this rule of Grotius has never been adopted by the
States and has, therefore, never become a rule of the Law of Nations. On
the contrary, States have always upheld their competence to grant asylum
to foreign individuals as an inference from their territorial supremacy,
those cases, of course, excepted which fall under stipulations of
special extradition treaties, if any. There is, therefore, no universal
rule of customary International Law in existence which commands[667]
extradition.
[Footnote 666: II. c. 21, § 4.]
[Footnote 667: Clarke, op. cit. pp. 1-15, tries to prove that a duty to
extradite criminals does exist, but the result of all his labour is that
he finds that the refusal of extradition is "a serious violation of the
moral obligations which exist between civilised States" (see p. 14). But
nobody has ever denied this as far as the ordinary criminal is
concerned. The question is only whether an international _legal_ duty
exists to surrender a criminal. And this _legal_ duty States have always
denied.]
[Sidenote: Extradition Treaties how arisen.]
§ 328. Since, however, modern civilisation categorically demands
extradition of criminals as a rule, numerous treaties have been
concluded between the several States stipulating the cases in which
extradition shall take place. According to these treaties, individuals
prosecuted for the more important crimes, political crimes excepted, are
actually always surrendered to the prosecuting State, if not punished
locally. But this solution of the problem of extradition is a product of
the nineteenth century only. Before the eighteenth century extradition
of ordinary criminals hardly ever occurred, although many States used
then frequently to surrender to each other political fugitives,
heretics, and even emigrants, either in consequence of special treaties
stipulating the surrender of such individuals, or voluntarily without
such treaties. Matters began to undergo a change in the eighteenth
century, for then treaties between neighbouring States frequently
stipulated extradition of ordinary criminals besides that of political
fugitives, conspirators, military deserters, and the like. Vattel (II.
§ 76) is able to assert in 1758 that murderers, incendiaries, and
thieves are regularly surrendered by neighbouring States to each other.
But general treaties of extradition between all the members of the
Family of Nations did not exist in the eighteenth century, and there was
hardly a necessity for such general treaties, since traffic was not so
developed as nowadays and fugitive criminals seldom succeeded in
reaching a foreign territory beyond that of a neighbouring State. When,
however, in the nineteenth century, with the appearance of railways and
Transatlantic steamships, transit began to develop immensely, criminals
used the opportunity to flee to distant foreign countries. It was then
and thereby that the conviction was forced upon the States of civilised
humanity that it was in their common interest to surrender ordinary
criminals regularly to each other. General treaties of extradition
became, therefore, a necessity, and the several States succeeded in
concluding such treaties with each other. There is no civilised State in
existence nowadays which has not concluded such treaties with the
majority of the other civilised States. And the consequence is that,
although no universal rule of International Law commands it, extradition
of criminals between States is an established fact based on treaties.
The present condition of affairs is, however, very unsatisfactory, since
there are many hundreds of treaties in existence which do not at all
agree in their details. What is required nowadays, and what will
certainly be realised in the near future, is a universal treaty of
extradition, one single treaty to which all the civilised States become
parties.[668]
[Footnote 668: The Second Pan-American Conference of 1902 produced a
treaty of extradition which was signed by twelve States, namely, the
United States of America, Colombia, Costa Rica, Chili, San Domingo,
Ecuador, Salvador, Guatemala, Haiti, Honduras, Mexico, and Nicaragua,
but this treaty has not been ratified; see the text in "Annuaire de la
Vie Internationale" (1908-9), p. 461.]
[Sidenote: Municipal Extradition Laws.]
§ 329. Some States, however, were unwilling to depend entirely upon the
discretion of their Governments as regards the conclusion of extradition
treaties and the procedure in extradition cases. They have therefore
enacted special Municipal Laws which enumerate those crimes for which
extradition shall be granted and asked in return, and which at the same
time regulate the procedure in extradition cases. These Municipal
Laws[669] furnish the basis for the conclusion of extradition treaties.
The first in the field with such an extradition law was Belgium in 1833,
which remained, however, for far more than a generation quite isolated.
It was not until 1870 that England followed the example given by
Belgium. English public opinion was for many years against extradition
treaties at all, considering them as a great danger to individual
liberty and to the competence of every State to grant asylum to
political refugees. This country possessed, therefore, before 1870 a few
extradition treaties only, which moreover were in many points
inadequate. But in 1870 the British Government succeeded in getting
Parliament to pass the Extradition Act.[670] This Act, which was amended
by another in 1873[671] and a third in 1895,[672] has furnished the
basis for extradition treaties of Great Britain with forty other
States.[673] Belgium enacted a new extradition law in 1874. Holland
enacted such a law in 1875, Luxemburg in the same year, Argentina in
1885, the Congo Free State in 1886, Peru in 1888, Switzerland in 1892.
[Footnote 669: See Martitz, "Internationale Rechtshilfe," I. pp.
747-818, where the history of all these laws is sketched and their text
is printed.]
[Footnote 670: 33 & 34 Vict. c. 52.]
[Footnote 671: 36 & 37 Vict. c. 60.]
[Footnote 672: 58 & 59 Vict. c. 33. On the history of extradition in
Great Britain before the Extradition Act, 1870, see Clarke, op. cit. pp.
126-166.]
[Footnote 673: The full text of these treaties is printed by Clarke, as
well as Biron and Chalmers. Not to be confounded with extradition of
criminals to foreign States is extradition within the British Empire
from one part of the British dominions to another. This matter is
regulated by the Fugitive Offenders Act, 1881 (44 & 45 Vict. c. 169).]
Such States as possess no extradition laws and whose written
Constitution does not mention the matter, leave it to their Governments
to conclude extradition treaties according to their discretion. And in
these countries the Governments are competent to extradite an individual
even if no extradition treaty exists.
[Sidenote: Object of Extradition.]
§ 330. Since extradition is the delivery of an incriminated individual
to the State on whose territory he has committed a crime by the State on
whose territory he is for the time staying, the object of extradition
can be any individual, whether he is a subject of the prosecuting State,
or of the State which is required to extradite him, or of a third State.
Many States, however, as France and most other States of the European
continent, have adopted the principle never to extradite one of their
subjects to a foreign State, but themselves to punish subjects of their
own for grave crimes committed abroad. Other States, as Great Britain
and the United States, have not adopted this principle, and do extradite
such of their subjects as have committed a grave crime abroad. Thus
Great Britain surrendered in 1879 to Austria, where he was convicted and
hanged,[674] one Tourville, a British subject, who, after having
murdered his wife in the Tyrol, had fled home to England. And it must be
emphasised that the object of extradition is an individual who has
committed a crime abroad, whether or not he was during the commission of
the criminal act physically present on the territory of the State where
the crime was committed. Thus, in 1884, Great Britain surrendered one
Nillins to Germany, who, by sending from Southampton forged bills of
exchange to a merchant in Germany as payment for goods ordered, was
considered to have committed forgery and to have obtained goods by
false pretences in Germany.[675]
[Footnote 674: This case is all the more remarkable, as (see 24 & 25
Vict. c. 100, § 9) the criminal law of England extends over murder and
manslaughter committed abroad by English subjects, and as, according to
article 3 of the extradition treaty of 1873 between England and
Austria-Hungary, the contracting parties are in no case under obligation
to extradite their own subjects.]
[Footnote 675: See Clarke, op. cit. pp. 177 and 262, who, however,
disapproves of this surrender.]
A conflict between International and Municipal Law arises if a certain
individual must be extradited according to an extradition treaty, but
cannot be extradited according to the Municipal Law of the State from
which extradition is demanded. Thus in the case of Salvatore
Paladini,[676] whose extradition was demanded by the United States of
America from the Italian Government in 1888 for having passed
counterfeit money, Italian Municipal Law, which prohibits the
extradition of an Italian citizen, came into conflict with article 1 of
the Extradition Treaty of 1868 between Italy and the United States which
stipulates extradition of criminals without exempting nationals. For
this reason Italy refused to extradite Paladini. It is noteworthy that
the United States, although they do not any longer press for extradition
of Italian subjects who, after having committed a crime in the United
States have returned to Italy, nevertheless consider themselves bound by
the above-mentioned treaty of 1868 to extradite to Italy such American
subjects as have committed a crime in Italy. Therefore, when in 1910 the
Italian Government demanded from the United States extradition of one
Porter Charlton,[677] an American citizen, for having committed a murder
in Italy, extradition was granted.
[Footnote 676: See Moore, IV. § 594, pp. 290-297.]
[Footnote 677: See A.J. V. (1911), pp. 182-191.]
[Sidenote: Extraditable Crimes.]
§ 331. Unless a State is restricted by an extradition law, it can grant
extradition for any crime it thinks fit. And unless a State is bound by
an extradition treaty, it can refuse extradition for any crime. Such
States as possess extradition laws frame their extradition treaties
conformably therewith and specify in those treaties all those crimes for
which they are willing to grant extradition. And no person is to be
extradited whose deed is not a crime according to the Criminal Law of
the State which is asked to extradite, as well as of the State which
demands extradition. As regards Great Britain, the following are
extraditable crimes according to the Extradition Act of 1870:--Murder
and manslaughter; counterfeiting and uttering counterfeit money; forgery
and uttering what is forged; embezzlement and larceny; obtaining goods
or money by false pretences; crimes by bankrupts against bankruptcy
laws; fraud by a bailee, banker, agent, factor, trustee, or by a
director, or member, or public officer of any company; rape; abduction;
child stealing; burglary and housebreaking; arson; robbery with
violence; threats with intent to extort; piracy by the Law of Nations;
sinking or destroying a vessel at sea; assaults on board ship on the
High Seas with intent to destroy life or to do grievous bodily harm;
revolt or conspiracy against the authority of the master on board a ship
on the High Seas. The Extradition Acts of 1873 and 1906 added the
following crimes to the list:--Kidnapping, false imprisonment, perjury,
subornation of perjury, and bribery.
Political criminals are, as a rule, not extradited,[678] and according
to many extradition treaties military deserters and such persons as have
committed offences against religion are likewise excluded from
extradition.
[Footnote 678: See below, §§ 333-340.]
[Sidenote: Effectuation and Condition of Extradition.]
§ 332. Extradition is granted only if asked for, and after the
formalities have taken place which are stipulated in the treaties of
extradition and the extradition laws, if any. It is effected through
handing over the criminal by the police of the extraditing State to the
police of the prosecuting State. But it must be emphasised that,
according to most extradition treaties, it is a condition that the
extradited individual shall be tried and punished for those crimes
exclusively for which his extradition has been asked and granted, or
for those at least which the extradition treaty concerned
enumerates.[679] If, nevertheless, an extradited individual is tried and
punished for another crime, the extraditing State has a right of
intervention.[680]
[Footnote 679: See Mettgenberg in the "Zeitschrift für internationales
Recht," XVIII. (1908), pp. 425-430.]
[Footnote 680: It ought to be mentioned that the Institute of
International Law in 1880, at its meeting in Oxford (see Annuaire, V. p.
117), adopted a body of twenty-six rules concerning extradition.]
An important question is whether, in case a criminal, who has succeeded
in escaping into the territory of another State, is erroneously handed
over, without the formalities of extradition having been complied with,
by the police of the local State to the police of the prosecuting State,
such local State can demand that the prosecuting State shall send the
criminal back and ask for his formal extradition. This question was
decided in the negative in February 1911 by the Court of Arbitration at
the Hague in the case of France _v._ Great Britain concerning Savarkar.
This British-Indian subject, who was prosecuted for high treason and
abatement of murder, and was being transported in the P. and O. boat
_Morea_ to India for the purpose of standing his trial there, escaped to
the shore on October 25, 1910, while the vessel was in the harbour of
Marseilles. He was, however, seized by a French policeman, who,
erroneously and without further formalities, reconducted him to the
_Morea_ with the assistance of individuals from the vessel who had
raised a hue-and-cry. Since Savarkar was _prima facie_ a political
criminal, France demanded that England should give him up and should
request his extradition in a formal way, but England refused to comply
with this demand, and the parties, therefore, agreed to have the
conflict decided by the Court of Arbitration at the Hague. The award,
while admitting that an irregularity had been committed by the
reconduction of Savarkar to the British vessel, decided, correctly, I
believe, in favour of Great Britain, asserting that there was no rule of
International Law imposing, in circumstances such as those which have
been set out above, any obligation on the Power which has in its custody
a prisoner, to restore him on account of a mistake committed by the
foreign agent who delivered him up to that Power.[681] It should be
mentioned that the French Government had been previously informed of the
fact that Savarkar would be a prisoner on board the _Morea_ while she
was calling at Marseilles, and had agreed to this.
[Footnote 681: See Hamelin, "L'Affaire Savarkar" (Extrait du "Recueil
général de Jurisprudence, de Doctrine et de Législation coloniales,"
1911), who defends the French view. The award of the Court of
Arbitration has been severely criticised by Baty in the _Law Magazine
and Review_, XXXVI. (1911), pp. 326-330; Kohler in Z.V. V. (1911), pp.
202-211; Strupp, "Zwei praktische Fälle aus dem Völkerrecht" (1911), pp.
12-26; Robin in R.G. XVIII. (1911), pp. 303-352; Hamel in R.I. 2nd Ser.
XIII. (1911), pp. 370-403.]
X
PRINCIPLE OF NON-EXTRADITION OF POLITICAL CRIMINALS
Westlake, I. pp. 247-248--Lawrence, § 111--Taylor, § 212--Wharton,
II. § 272--Moore, IV. § 604--Bluntschli, § 396--Hartmann, §
89--Lammasch in Holtzendorff, III. pp. 485-510--Liszt, §
33--Ullmann, § 129--Rivier, I. pp. 351-357--Nys, II. pp.
253-256--Calvo, II. §§ 1034-1036--Martens, II. § 96--Bonfils, Nos.
466-467--Pradier-Fodéré, III. Nos. 1871-1873--Mérignhac, II. pp.
754-771--Soldan, "L'extradition des criminels politiques"
(1882)--Martitz, "Internationale Rechtshilfe in Strafsachen," vol.
II. (1897), pp. 134-707--Lammasch, "Auslieferungspflicht und
Asylrecht" (1887), pp. 203-355--Grivaz, "Nature et effets du
principe de l'asyle politique" (1895)--Piggott, "Extradition"
(1910), pp. 42-60--Scott in A.J. III. (1909), pp. 459-461.
[Sidenote: How Non-extradition of Political Criminals became the Rule.]
§ 333. Before the French Revolution[682] the term "political crime" was
unknown in either the theory or the practice of the Law of Nations. And
the principle of non-extradition of political criminals was likewise
non-existent. On the contrary, whereas extradition of ordinary
criminals was, before the eighteenth century at least, hardly ever
stipulated, treaties very often stipulated the extradition of
individuals who had committed such deeds as are nowadays termed
"political crimes," and such individuals were frequently extradited even
when no treaty stipulated it.[683] And writers in the sixteenth and
seventeenth centuries did not at all object to such practice on the part
of the States; on the contrary, they frequently approved of it.[684] It
is indirectly due to the French Revolution that matters gradually
underwent a change, since this event was the starting-point for the
revolt in the nineteenth century against despotism and absolutism
throughout the western part of the European continent. It was then that
the term "political crime" arose, and article 120 of the French
Constitution of 1793 granted asylum to foreigners exiled from their home
country "for the cause of liberty." On the other hand, the French
emigrants, who had fled from France to escape the Reign of Terror, found
an asylum in foreign States. However, the modern principle of
non-extradition of political criminals even then did not conquer the
world. Until 1830 political criminals frequently were extradited. But
public opinion in free countries began gradually to revolt against such
extradition, and Great Britain was its first opponent. The fact that
several political fugitives were surrendered by the Governor of
Gibraltar to Spain created a storm of indignation in Parliament in 1815,
where Sir James Mackintosh proclaimed the principle that no nation ought
to refuse asylum to political fugitives. And in 1816 Lord Castlereagh
declared that there could be no greater abuse of the law than by
allowing it to be the instrument of inflicting punishment on foreigners
who had committed political crimes only. The second in the field was
Switzerland, the asylum for many political fugitives from neighbouring
countries, when, after the final defeat of Napoleon, the reactionary
Continental monarchs refused the introduction of constitutional reforms
which were demanded by their peoples. And although, in 1823, Switzerland
was forced by threats of the reactionary leading Powers of the Holy
Alliance to restrict somewhat the asylum afforded by her to individuals
who had taken part in the unsuccessful political revolts in Naples and
Piedmont, the principle of non-extradition went on fighting its way. The
question as to that asylum was discussed with much passion in the press
of Europe. And although the principle of non-extradition was far from
becoming universally recognised, that discussion indirectly fostered its
growth. A practical proof thereof is that in 1830 even Austria and
Prussia, two of the reactionary Powers of that time, refused Russia's
demand for extradition of fugitives who had taken part in the Polish
Revolution of that year. And another proof thereof is that at about the
same time, in 1829, a celebrated dissertation[685] by a Dutch jurist
made its appearance, in which the principle of non-extradition of
political criminals was for the first time defended with juristic
arguments and on a juristic basis.
[Footnote 682: I follow in this section for the most part the summary of
the facts given by Martitz, op. cit. II. pp. 134-184.]
[Footnote 683: Martitz, op. cit. II. p. 177, gives a list of important
extraditions of political criminals which took place between 1648 and
1789.]
[Footnote 684: So Grotius, II. c. 21, § 5, No. 5.]
[Footnote 685: H. Provó Kluit, "De deditione profugorum."]
On the other hand, a reaction set in in 1833, when Austria, Prussia, and
Russia concluded treaties which remained in force for a generation, and
which stipulated that henceforth individuals who had committed crimes of
high treason and _lèse-majesté_, or had conspired against the safety of
the throne and the legitimate Government, or had taken part in a revolt,
should be surrendered to the State concerned. The same year, however, is
epoch-making in favour of the principle of non-extradition of political
criminals, for in 1833 Belgium enacted her celebrated extradition law,
the first of its kind, being the very first Municipal Law which
expressly interdicted the extradition of foreign political criminals. As
Belgium, which had seceded from the Netherlands in 1830 and became
recognised and neutralised by the Powers in 1831, owed her very
existence to revolt, she felt the duty of making it a principle of her
Municipal Law to grant asylum to foreign political fugitives, a
principle which was for the first time put into practice in the treaty
of extradition concluded in 1834 between Belgium and France. The latter,
which to the present day has no municipal extradition law, has
nevertheless henceforth always in her extradition treaties with other
Powers stipulated the principle of non-extradition of political
criminals. And the other Powers followed gradually. Even Russia had to
give way, and since 1867 this principle is to be found in all
extradition treaties of Russia with other Powers, that with Spain of
1888 excepted. It is due to the stern attitude of Great Britain,
Switzerland, Belgium, France, and the United States that the principle
has conquered the world. These countries, in which individual liberty is
the very basis of all political life, and constitutional government a
political dogma of the nation, watched with abhorrence the methods of
government of many other States between 1815 and 1860. These Governments
were more or less absolute and despotic, repressing by force every
endeavour of their subjects to obtain individual liberty and a share in
the government. Thousands of the most worthy citizens and truest
patriots had to leave their country for fear of severe punishment for
political crimes. Great Britain and the other free countries felt in
honour bound not to surrender such exiled patriots to the persecution of
their Governments, but to grant them an asylum.
[Sidenote: Difficulty concerning the Conception of Political Crime.]
§ 334. Although the principle became and is generally[686] recognised
that political criminals shall not be extradited, serious difficulties
exist concerning the conception of "political crime." Such conception is
of great importance, as the extradition of a criminal may depend upon
it. It is unnecessary here to discuss the numerous details of the
controversy. It suffices to state that whereas many writers call such
crime "political" as was committed from a political motive, others call
"political" any crime committed for a political purpose; again, others
recognise such crime only as "political" as was committed from a
political motive and at the same time for a political purpose; and,
thirdly, some writers confine the term "political crime" to certain
offences against the State only, as high treason, _lèse-majesté_, and
the like.[687] To the present day all attempts have failed to formulate
a satisfactory conception of the term, and the reason of the thing will,
I believe, for ever exclude the possibility of finding a satisfactory
conception and definition.[688] The difficulty is caused through the
so-called "relative political crimes" or _délits complexes_--namely,
those complex cases in which the political offence comprises at the same
time[689] an ordinary crime, such as murder, arson, theft, and the like.
Some writers deny categorically that such complex crimes are political;
but this opinion is wrong and dangerous, since indeed many honourable
political criminals would have to be extradited in consequence thereof.
On the other hand, it cannot be denied that many cases of complex
crimes, although the deed may have been committed from a political
motive or for a political purpose, are such as ought not to be
considered political. Such cases have roused the indignation of the
whole civilised world, and have indeed endangered the very value of the
principle of non-extradition of political criminals. Three practical
attempts have therefore been made to deal with such complex crimes
without violating this principle.
[Footnote 686: See, however, below, § 340, concerning the reactionary
movement in the matter.]
[Footnote 687: See Mettgenberg, "Die Attentatsklausel im deutschen
Auslieferungsrecht" (1906), pp. 61-76, where a survey of the different
opinions is given.]
[Footnote 688: According to Stephen, "History of the Criminal Law in
England," vol. II. p. 71, political crimes are such as are identical to
and form a part of political disturbances.]
[Footnote 689: The problem came twice before the English courts; see _Ex
parte_ Castione, L.R. [1891] 1 Q.B. 149, and _In re_ Meunier, L.R.
[1894] 2 Q.B. 415. In the case of Castione, a Swiss who had taken part
in a revolutionary movement in the canton of Ticino and had incidentally
shot a member of the Government, the Court refused extradition because
the crime was considered to be political. On the other hand, in the case
of Meunier, a French anarchist who was prosecuted for having caused two
explosions in France, one of which resulted in the death of two
individuals, the extradition was granted because the crime was not
considered to be political.]
[Sidenote: The so-called Belgian _Attentat_ Clause.]
§ 335. The first attempt was the enactment of the so-called _attentat_
clause by Belgium in 1856,[690] following the case of Jacquin in 1854. A
French manufacturer named Jules Jacquin, domiciled in Belgium, and a
foreman of his factory named Célestin Jacquin, who was also a Frenchman,
tried to cause an explosion on the railway line between Lille and Calais
with the intention of murdering the Emperor Napoleon III. France
requested the extradition of the two criminals, but the Belgian Court of
Appeal had to refuse the surrender on account of the Belgian extradition
law interdicting the surrender of political criminals. To provide for
such cases in the future, Belgium enacted in 1856 a law amending her
extradition law and stipulating that murder of the head of a foreign
Government or of a member of his family should not be considered a
political crime. Gradually all European States, with the exception of
England and Switzerland, have adopted that _attentat_ clause, and a
great many Continental writers urge its adoption by the whole of the
civilised world.[691]
[Footnote 690: See details in Martitz, op. cit. II. p. 372.]
[Footnote 691: See Mettgenberg, op. cit. pp. 109-114.]
[Sidenote: The Russian Project of 1881.]
§ 336. Another attempt to deal with complex crimes without detriment to
the principle of non-extradition of political criminals was made by
Russia in 1881. Influenced by the murder of the Emperor Alexander II.
in that year, Russia invited the Powers to hold an International
Conference at Brussels for the consideration of the proposal that
thenceforth no murder or attempt to murder ought to be considered as a
political crime. But the Conference did not take place, since Great
Britain as well as France declined to take part in it.[692] Thus the
development of things had come to a standstill, many States having
adopted, others declining to adopt, the Belgian clause, and the Russian
proposal having fallen through.
[Footnote 692: See details in Martitz, op. cit. II. p. 479.]
[Sidenote: The Swiss Solution of the Problem in 1892.]
§ 337. Eleven years later, in 1892, Switzerland attempted a solution of
the problem on a new basis. In that year Switzerland enacted an
extradition law whose article 10 recognises the non-extradition of
political criminals, but at the same time lays down the rule that
political criminals shall nevertheless be surrendered in case the chief
feature of the offence wears more the aspect of an ordinary than of a
political crime, and that the decision concerning the extraditability of
such criminals rests with the "Bundesgericht," the highest Swiss Court
of Justice. This Swiss rule contains a better solution of the problem
than the Belgian _attentat_ clause in so far as it allows the
circumstances of the special case to be taken into consideration. And
the fact that the decision is taken out of the hands of the Government
and transferred to the highest Court of the country, denotes likewise a
remarkable progress.[693] For the Government cannot now be blamed
whether extradition is granted or refused, the decision of an
independent Court of Justice being a certain guarantee that an impartial
view of the circumstances of the case has been taken.[694]
[Footnote 693: See Langhard, "Das Schweizerische Auslieferungsrecht"
(1910), where all the cases are discussed which have come before the
Court since 1892.]
[Footnote 694: It ought to be mentioned that the Institute of
International Law at its meeting at Geneva in 1892 (see Annuaire, XII.
p. 182) adopted four rules concerning extradition of political
criminals, but I do not think that on the whole these rules give much
satisfaction.]
[Sidenote: Rationale for the Principle of Non-extradition of Political
Criminals.]
§ 338. The numerous attempts[695] against the lives of heads of States
and the frequency of anarchistic crimes have shaken the value of the
principle of non-extradition of political criminals in the opinion of
the civilised world as illustrated by the three practical attempts
described above to meet certain difficulties. It is, consequently, no
wonder that some writers[696] plead openly and directly for the
abolition of this principle, maintaining that it was only the product of
abnormal times and circumstances such as were in existence during the
first half of the nineteenth century, and that with their disappearance
the principle is likely to do more harm than good. And indeed it cannot
be denied that the application of the principle in favour of some
criminals, such as anarchistic[697] murderers and bomb-throwers, could
only be called an abuse. But the question is whether, apart from such
exceptional cases, the principle itself is still to be considered as
justified or not.
[Footnote 695: Not less than nineteen of these attempts have been
successful since 1850, as the following formidable list shows:--
Charles II., Duke of Parma, murdered on March 26, 1854.
Prince Danilo of Montenegro, " August 14, 1860.
President Abraham Lincoln, U.S.A., " April 14, 1865.
Prince Michael of Servia, " June 10, 1868.
President Balta of Peru, " July, 1872.
President Moreno of Ecuador, " August 6, 1872.
Sultan Abdul Assis of Turkey, " June 4, 1876.
Emperor Alexander II. of Russia, " March 13, 1881.
President Garfield, U.S.A., " July 2, 1881.
President Carnot of France, " June 24, 1894.
Shah Nazr-e-Din of Persia, " May 1, 1896.
Empress Elizabeth of Austria, " September 10, 1898.
King Humbert I. of Italy, " July 30, 1900.
President McKinley, U.S.A., " September 6, 1901.
King Alexander I. of Servia and
Queen Draga, " June 10, 1903.
King Carlos I. of Portugal and
the Crown Prince, " February 15, 1908.
President Caceres of San Domingo, " November 19, 1911.]
[Footnote 696: See, for instance, Rivier, I. p. 354, and Scott in A.J.
III. (1909), p. 459.]
[Footnote 697: "... the party with whom the accused is identified ...
namely the party of anarchy, is the enemy of all governments. Their
efforts are directed primarily against the general body of citizens.
They may, secondarily and incidentally, commit offences against some
particular government, but anarchist offences are mainly directed
against private citizens." (From the judgment of Cave, J. _In re_
Meunier, L.R. [1894] 2 Q.B. 419.)--See also Diena in R.G. II. (1905),
pp. 306-336.]
Without doubt the answer must be in the affirmative. I readily admit
that every political crime is by no means an honourable deed, which as
such deserves protection. Still, political crimes are committed by the
best of patriots, and, what is of more weight, they are in many cases a
consequence of oppression on the part of the respective Governments.
They are comparatively infrequent in free countries, where there is
individual liberty, where the nation governs itself, and where,
therefore, there are plenty of legal ways to bring grievances before the
authorities. A free country can never agree to surrender foreigners to
their prosecuting home State for deeds done in the interest of the same
freedom and liberty which the subjects of such free country enjoy. For
individual liberty and self-government of nations are demanded by modern
civilisation, and their gradual realisation over the whole globe is
conducive to the welfare of the human race.
Political crimes may certainly be committed in the interest of reaction
as well as in the interest of progress, and reactionary political
criminals may have occasion to ask for asylum as well as progressive
political criminals. The principle of non-extradition of political
criminals indeed extends its protection over the former too, and this is
the very point where the value of the principle reveals itself. For no
State has a right to interfere with the internal affairs of another
State, and, if a State were to surrender reactionary political criminals
but not progressive ones, the prosecuting State of the latter could
indeed complain and consider the refusal of extradition an unfriendly
act. If, however, non-extradition is made a general principle which
finds its application in favour of political criminals of every kind, no
State can complain if extradition is refused. Have not reactionary
States the same faculty of refusing the extradition of reactionary
political criminals as free States have of refusing the extradition of
progressive political criminals?
Now, many writers agree upon this point, but maintain that such
arguments meet the so-called purely political crimes only, and not the
relative or complex political crimes, and they contend, therefore, that
the principle of non-extradition ought to be restricted to the former
crimes only. But to this I cannot assent. No revolt happens without such
complex crimes taking place, and the individuals who commit them may
indeed deserve the same protection as other political criminals. And,
further, although I can under no circumstances approve of murder, can
never sympathise with a murderer, and can never pardon his crime, it may
well be the case that the murdered official or head of a State has by
inhuman cruelty and oppression himself whetted the knife which cut short
his span of life. On the other hand, the mere fact that a crime was
committed for a political purpose may well be without any importance in
comparison with its detestability and heinousness. Attempts on heads of
States, such, for example, as the murders of Presidents Lincoln and
Carnot or of Alexander II. of Russia and Humbert of Italy, are as a
rule, and all anarchistic crimes are without any exception, crimes of
that kind. Criminals who commit such crimes ought under no circumstances
to find protection and asylum, but ought to be surrendered for the
purpose of receiving their just and appropriate punishment.
[Sidenote: How to avoid Misapplication of the Principle of
Non-extradition of Political Criminals.]
§ 339. The question, however, is how to sift the chaff from the wheat,
how to distinguish between such political criminals as deserve an asylum
and such as do not. The difficulties are great and partly insuperable as
long as we do not succeed in finding a satisfactory conception of the
term "political crime." But such difficulties are only partly, not
wholly, insuperable. The step taken by the Swiss extradition law of 1892
is so far in advance as to meet a great many of the difficulties. There
is no doubt that the adoption of the Swiss rule by all the other
civilised States would improve matters more than the universal adoption
of the so-called Belgian _attentat_ clause. The fact that according to
Swiss law each case of complex political crime is unravelled and obtains
the verdict of an independent Court according to the very circumstances,
conditions, and requirements under which it occurred, is of the greatest
value. It enables every case to be met in such a way as it deserves,
without compromising the Government, and without sacrificing the
principle of non-extradition of political criminals as a valuable rule.
I cannot support the charge made by some writers[698] that the Swiss law
is inadequate because it does not give criteria for the guidance of the
Court in deciding whether or no extradition for complex crimes should be
granted. In my opinion, the very absence of such criteria proves the
superiority of the Swiss clause to the Belgian _attentat_ clause. On the
one hand, the latter is quite insufficient, for it restricts its
stipulations to murder of heads of States and members of their families
only. But I see no reason why individuals guilty of any murder--as
provided by the Russian proposal--or who have committed other crimes,
such as arson, theft, and the like, should not be surrendered in case
the political motive or purpose of the crime is of no importance in
comparison with the crime itself. On the other hand, the Belgian clause
goes too far, since exceptional cases of murder of heads of States from
political motives or for political purposes might occur which do not
deserve extradition. The Swiss clause, however, with its absence of
fixed distinctions between such complex crimes as are extraditable, and
such as are not, permits the consideration of the circumstances,
conditions, and requirements under which a complex crime was committed.
It is true that the responsibility of the Court of Justice which has to
decide whether such a complex crime is extraditable is great. But it is
to be taken for granted that such Court will give its decision with
impartiality, fairness, and justice. And it need not be feared that such
Court will grant asylum to a murderer, incendiary, and the like, unless
convinced that the deed was really political.
[Footnote 698: See, for instance, Martitz, op. cit. II. pp. 533-539.]
[Sidenote: Reactionary Extradition Treaties.]
§ 340. Be that as it may, the present condition of matters is a danger
to the very principle of non-extradition of political criminals. Under
the influence of the excitement caused by numerous criminal attempts in
the last quarter of the nineteenth century, a few treaties have already
been concluded which make a wide breach in this principle. It is Russia
which is leading the reaction. This Power in 1885 concluded treaties
with Prussia and Bavaria which stipulate the extradition of all
individuals who have made an attack on the life, the body, or the
honour[699] of a monarch, or of a member of his family, or who have
committed any kind of murder or attempt to murder. And the extradition
treaty between Russia and Spain of 1888 goes even further and abandons
the principle of non-extradition of political criminals altogether.
Fortunately, the endeavour of Russia to abolish this principle
altogether has not succeeded. In her extradition treaty with Great
Britain of 1886 she had to adopt it without any restriction, and in her
extradition treaties with Portugal of 1887, with Luxemburg of 1892, and
with the United States and Holland of 1893, she had to adopt it with a
restrictive clause similar to the Belgian _attentat_ clause.
[Footnote 699: Thus, even for _lèse majesté_ extradition must be
granted.]
PART III
ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS
CHAPTER I
HEADS OF STATES, AND FOREIGN OFFICES
I
POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW
Hall, § 97--Phillimore, II. §§ 101 and 102--Bluntschli, §§
115-125--Holtzendorff in Holtzendorff, II. pp. 77-81--Ullmann, §
40--Rivier, I. § 32--Nys, II. pp. 325-329--Fiore, II. No.
1097--Bonfils, No. 632--Mérignhac, II. pp. 294-305--Bynkershoek,
"De foro legatorum" (1721), c. III. § 13.
[Sidenote: Necessity of a Head for every State.]
§ 341. As a State is an abstraction from the fact that a multitude of
individuals live in a country under a Sovereign Government, every State
must have a head as its highest organ, which represents it within and
without its borders in the totality of its relations. Such head is the
monarch in a monarchy and a president or a body of individuals, as the
Bundesrath of Switzerland, in a republic. The Law of Nations prescribes
no rules as regards the kind of head a State may have. Every State is,
naturally, independent regarding this point, possessing the faculty of
adopting any Constitution it likes and of changing such Constitution
according to its discretion. Some kind or other of a head of the State
is, however, necessary according to International Law, as without a head
there is no State in existence, but anarchy.
[Sidenote: Recognition of Heads of States.]
§ 342. In case of the accession of a new head of a State, other States
are as a rule notified. The latter usually recognise the new head
through some formal act, such as a congratulation. But neither such
notification nor recognition is strictly necessary according to
International Law, as an individual becomes head of a State, not through
the recognition of other States, but through Municipal Law. Such
notification and recognition are, however, of legal importance. For
through notification a State declares that the individual concerned is
its highest organ, and has by Municipal Law the power to represent the
State in the totality of its international relations. And through
recognition the other States declare that they are ready to negotiate
with such individual as the highest organ of his State. But recognition
of a new head by other States is in every respect a matter of
discretion. Neither has a State the right to demand from other States
recognition of its new head, nor has any State a right to refuse such
recognition. Thus Russia, Austria, and Prussia refused until 1848
recognition to Isabella, Queen of Spain, who had come to the throne as
an infant in 1833. But, practically, in the long run recognition cannot
be withheld, for without it international intercourse is impossible, and
States with self-respect will exercise retorsion if recognition is
refused to the heads they have chosen. Thus, when, after the unification
of Italy in 1861, Mecklenburg and Bavaria refused the recognition of
Victor Emanuel as King of Italy, Count Cavour revoked the _exequatur_ of
the consuls of these States in Italy.
But it must be emphasised that recognition of a new head of a State by
no means implies the recognition of such head as the legitimate head of
the State in question. Recognition is in fact nothing else than the
declaration of other States that they are ready to deal with a certain
individual as the highest organ of the particular State, and the
question remains totally undecided whether such individual is or is not
to be considered the legitimate head of that State.
[Sidenote: Competence of Heads of States.]
§ 343. The head of a State, as its chief organ and representative in
the totality of its international relations, acts for his State in the
latter's international intercourse, with the consequence that all his
legally relevant international acts are considered acts of his State.
His competence to perform such acts is termed _jus repraesentationis
omnimodae_. It comprises in substance chiefly: reception and mission of
diplomatic agents and consuls, conclusion of international treaties,
declaration of war, and conclusion of peace. But it is a question of the
special case, how far this competence is independent of Municipal Law.
For heads of States exercise this competence for their States and as the
latter's representatives, and not in their own right. If a head of a
State should, for instance, ratify a treaty without the necessary
approval of his Parliament, he would go beyond his powers, and therefore
such treaty would not be binding upon his State.[700]
[Footnote 700: See below, § 497.]
On the other hand, this competence is certainly independent of the
question whether a head of a State is the legitimate head or a usurper.
The mere fact that an individual is for the time being the head of a
State makes him competent to act as such head, and his State is legally
bound by his acts. It may, however, be difficult to decide whether a
certain individual is or is not the head of a State, for after a
revolution some time always elapses before matters are settled.
[Sidenote: Heads of States Objects of the Law of Nations.]
§ 344. Heads of States are never subjects[701] of the Law of Nations.
The position a head of a State has according to International Law is due
to him, not as an individual, but as the head of his State. His position
is derived from international rights and duties of his State, and not
from international rights of his own. Consequently, all rights possessed
by heads of States abroad are not international rights, but rights
which must be granted to them by the Municipal Law of the foreign State
on whose territory such foreign heads of States are temporarily staying,
and such rights must be granted in compliance with international rights
of the home States of the respective heads. Thus, heads of States are
not subjects but objects of International Law, and in this regard are
like any other individual.
[Footnote 701: But Heffter (§ 48) maintains the contrary, and Phillimore
(II. § 100) designates monarchs _mediately and derivatively_ as subjects
of International Law. The matter is treated in detail above, §§ 13 and
288-290; see also below, § 384.]
[Sidenote: Honours and Privileges of Heads of States.]
§ 345. All honours and privileges of heads of States due to them by
foreign States are derived from the fact that dignity is a recognised
quality of States as members of the Family of Nations and International
Persons.[702] Concerning such honours and privileges, International Law
distinguishes between monarchs and heads of republics. This distinction
is the necessary outcome of the fact that the position of monarchs
according to the Municipal Law of monarchies is totally different from
the position of heads of republics according to the Municipal Law of the
republics. For monarchs are sovereigns, but heads of republics are not.
[Footnote 702: See above, § 121.]
II
MONARCHS
Vattel, I. §§ 28-45; IV. § 108--Hall, § 49--Lawrence, §
105--Phillimore, II. §§ 108-113--Taylor, § 129--Moore, II. §
250--Bluntschli, §§ 126-153--Heffter, §§ 48-57--Ullmann, §§
41-42--Rivier, I. § 33--Nys, II. pp. 280-296--Calvo, III. §§
1454-1479--Fiore, II. Nos. 1098-1102--Bonfils, Nos.
633-647--Mérignhac, II. pp. 94-105--Pradier-Fodéré, III. Nos.
1564-1591.
[Sidenote: Sovereignty of Monarchs.]
§ 346. In every monarchy the monarch appears as the representative of
the sovereignty of the State and thereby becomes a Sovereign himself, a
fact which is recognised by International Law. And the difference
between the Municipal Laws of the different States regarding this point
matters in no way. Consequently, International Law recognises all
monarchs as equally sovereign, although the difference between the
constitutional positions of monarchs is enormous, if looked upon in the
light of the rules laid down by the Constitutional Laws of the different
States. Thus, the Emperor of Russia, whose powers are very wide, and the
King of England, who is sovereign in Parliament only, and whose powers
are therefore very much restricted, are indifferently sovereign
according to International Law.
[Sidenote: Consideration due to Monarchs at home.]
§ 347. Not much need be said as regards the consideration due to a
monarch from other States when within the boundaries of his own State.
Foreign States have to give him his usual and recognised predicates[703]
in all official communications. Every monarch must be treated as a peer
of other monarchs, whatever difference in title and actual power there
may be between them.
[Footnote 703: Details as regards the predicates of monarchs are given
above, § 119.]
[Sidenote: Consideration due to Monarchs abroad.]
§ 348. As regards, however, the consideration due to a monarch abroad
from the State on whose territory he is staying in time of peace and
with the consent and the knowledge of the Government, details must
necessarily be given. The consideration due to him consists in honours,
inviolability, and exterritoriality.
(1) In consequence of his character of Sovereign, his home State has the
right to demand that certain ceremonial honours be rendered to him, the
members of his family, and the members of his retinue. He must be
addressed by his usual predicates. Military salutes must be paid to him,
and the like.
(2) As his person is sacrosanct, his home State has a right to insist
that he be afforded special protection as regards personal safety, the
maintenance of personal dignity, and the unrestrained intercourse with
his Government at home. Every offence against him must be visited with
specially severe penalties. On the other hand, he must be exempt from
every kind of criminal jurisdiction. The wife of a Sovereign must be
afforded the same protection and exemption.
(3) He must be granted so-called exterritoriality conformably with the
principle: "_Par in parem non habet imperium_," according to which one
Sovereign cannot have any power over another Sovereign. He must,
therefore, in every point be exempt from taxation, rating, and every
fiscal regulation, and likewise from civil jurisdiction, except when he
himself is the plaintiff.[704] The house where he has taken his
residence must enjoy the same exterritoriality as the official residence
of an ambassador; no policeman or other official must be allowed to
enter it without his permission. Even if a criminal takes refuge in such
residence, the police must be prevented from entering it, although, if
the criminal's surrender is deliberately refused, the Government may
request the recalcitrant Sovereign to leave the country and then arrest
the criminal. If a foreign Sovereign has real property in a country,
such property is under the latter's jurisdiction. But as soon as such
Sovereign takes his residence on the property, it must become
exterritorial for the time being. Further, a Sovereign staying in a
foreign country must be allowed to perform all his own governmental acts
and functions, except when his country is at war with a third State and
the State in which he is staying remains neutral. And, lastly, a
Sovereign must be allowed, within the same limits as at home, to
exercise civil jurisdiction over the members of his retinue. In former
times even criminal jurisdiction over the members of his suite was very
often claimed and conceded, but this is now antiquated.[705] The wife
of a Sovereign must likewise be granted exterritoriality, but not other
members of a Sovereign's family.[706]
[Footnote 704: See above, § 115, and the cases there quoted; see also
Phillimore, II. § 113A, and Loening, "Die Gerichtsbarkeit über fremde
Staaten und Souveräne" (1903).]
[Footnote 705: A celebrated case happened on November 10, 1656, in
France, when Christina, Queen of Sweden, although she had already
abdicated, sentenced her grand equerry, Monaldeschi, to death, and had
him executed by her bodyguard.]
[Footnote 706: See Rivier, I. p. 421, and Bluntschli, § 154; but,
according to Bluntschli, exterritoriality need not in strict law be
granted even to the wife of a Sovereign.]
However, exterritoriality is in the case of a foreign Sovereign, as in
any other case, a fiction only, which is kept up for certain purposes
within certain limits. Should a Sovereign during his stay within a
foreign State abuse his privileges, such State is not obliged to bear
such abuse tacitly and quietly, but can request him to leave the
country. And when a foreign Sovereign commits acts of violence or such
acts as endanger the internal or external safety of the State, the
latter can put him under restraint to prevent further acts of the same
kind, but must at the same time bring him as speedily as possible to the
frontier.
[Sidenote: The Retinue of Monarchs abroad.]
§ 349. The position of individuals who accompany a monarch during his
stay abroad is a matter of some dispute. Several publicists maintain
that the home State can claim the privilege of exterritoriality as well
for members of his suite as for the Sovereign himself, but others deny
this.[707] I believe that the opinion of the former is correct, since I
cannot see any reason why a Sovereign abroad should as regards the
members of his suite be in an inferior position to a diplomatic
envoy.[708]
[Footnote 707: See Bluntschli, § 154, and Hall, § 49, in
contradistinction to Martens, I. § 83.]
[Footnote 708: See below, §§ 401-405.]
[Sidenote: Monarchs travelling _incognito_.]
§ 350. Hitherto only the case where a monarch is staying in a foreign
country with the official knowledge of the latter's Government has been
discussed. Such knowledge may be held in the case of a monarch
travelling _incognito_, and he enjoys then the same privileges as if
travelling not _incognito_. The only difference is that many ceremonial
observances, which are due to a monarch, are not rendered to him when
travelling _incognito_. But the case may happen that a monarch is
travelling in a foreign country _incognito_ without the latter's
Government having the slightest knowledge thereof. Such monarch cannot
then of course be treated otherwise than as any other foreign
individual; but he can at any time make known his real character and
assume the privileges due to him. Thus the late King William of Holland,
when travelling _incognito_ in Switzerland in 1873, was condemned to a
fine for some slight contravention, but the sentence was not carried
out, as he gave up his _incognito_.
[Sidenote: Deposed and Abdicated Monarchs.]
§ 351. All privileges mentioned must be granted to a monarch only as
long as he is really the head of a State. As soon as he is deposed or
has abdicated, he is no longer a Sovereign. Therefore in 1870 and 1872
the French Courts permitted, because she was deposed, a civil action
against Queen Isabella of Spain, then living in Paris, for money due to
the plaintiffs. Nothing, of course, prevents the Municipal Law of a
State from granting the same privileges to a foreign deposed or
abdicated monarch as to a foreign Sovereign, but the Law of Nations does
not exact any such courtesy.
[Sidenote: Regents.]
§ 352. All privileges due to a monarch are also due to a Regent, at home
or abroad, whilst he governs on behalf of an infant, or of a King who is
through illness incapable of exercising his powers. And it matters not
whether such Regent is a member of the King's family and a Prince of
royal blood or not.
[Sidenote: Monarchs in the service or subjects of Foreign Powers.]
§ 353. When a monarch accepts any office in a foreign State, when, for
instance, he serves in a foreign army, as the monarchs of the small
German States have formerly frequently done, he submits to such State as
far as the duties of the office are concerned, and his home State
cannot claim any privileges for him that otherwise would be due to him.
When a monarch is at the same time a subject of another State,
distinction must be made between his acts as a Sovereign, on the one
hand, and his acts as a subject, on the other. For the latter, the State
whose subject he is has jurisdiction over him, but not for the former.
Thus, in 1837, the Duke of Cumberland became King of Hanover, but at the
same time he was by hereditary title an English Peer and therefore an
English subject. And in 1844, in the case _Duke of Brunswick_ v. _King
of Hanover_,[709] the Master of the Rolls held that the King of Hanover
was liable to be sued in the Courts of England in respect of any acts
done by him as an English subject.
[Footnote 709: 6 Beavan, 1; 2 House of Lords Cases, 1; see also
Phillimore, II. § 109.]
III
PRESIDENTS OF REPUBLICS
Bluntschli, § 134--Stoerk in Holtzendorff, II. p. 661--Ullmann, §
42--Rivier, I. § 33--Martens, I. § 80--Walther, "Das Staatshaupt
in den Republiken" (1907), pp. 190-204.
[Sidenote: Presidents not Sovereigns.]
§ 354. In contradistinction to monarchies, in republics the people
itself, and not a single individual, appears as the representative of
the sovereignty of the State, and accordingly the people styles itself
the Sovereign of the State. And it will be remembered that the head of a
republic may consist of a body of individuals, such as the Bundesrath in
Switzerland. But in case the head is a President, as in France and the
United States of America, such President represents the State, at least
in the totality of its international relations. He is, however, not a
Sovereign, but a citizen and subject of the very State whose head he is
as President.
[Sidenote: Position of Presidents in general.]
§ 355. Consequently, his position at home and abroad cannot be compared
with that of monarchs, and International Law does not empower his home
State to claim for him the same, but only similar, consideration as that
due to a monarch. Neither at home nor abroad, therefore, does a
president of a republic appear as a peer of monarchs. Whereas all
monarchs are in the style of the Court phraseology considered as though
they were members of the same family, and therefore address each other
in letters as "my brother," a president of a republic is usually
addressed in letters from monarchs as "my friend." His home State can
certainly at home and abroad claim such honours for him as are due to
its dignity, but no such honours as must be granted to a Sovereign
monarch.
[Sidenote: Position of Presidents abroad.]
§ 356. As to the position of a president when abroad, writers on the Law
of Nations do not agree. Some[710] maintain that, since a president is
not a Sovereign, his home State can never claim for him the same
privileges as for a monarch, and especially that of exterritoriality.
Others[711] make a distinction whether a president is staying abroad in
his official capacity as head of a State or for his private purposes,
and they maintain that his home State could only in the first case claim
exterritoriality for him. Others[712] again will not admit any
difference in the position of a president abroad from that of a monarch
abroad. How the States themselves think as regards the question of the
exterritoriality of presidents of republics abroad cannot be
ascertained, since to my knowledge no case has hitherto occurred in
practice from which a conclusion may be drawn. But practice seems to
have settled the question of ceremonial honours due to a president
officially abroad; they are such as correspond to the rank of his home
State, and not such as are due to a monarch. As regards
exterritoriality, I believe that future contingencies will create the
practice on the part of the States of granting this privilege to
presidents and members of their suite as in the case of monarchs. I
cannot see that there is any danger in such a grant. And nobody can deny
that, if exterritoriality is not granted, all kinds of friction and even
conflicts might arise. Although not Sovereigns, presidents of republics
fill for the time being a sublime office, and the grant of
exterritoriality to them is a tribute paid to the dignity of the States
they represent.
[Footnote 710: Ullmann, § 42; Rivier, I. p. 423; Stoerk in Holtzendorff,
II. p. 658.]
[Footnote 711: Martens, I. § 80; Bluntschli, § 134; Despagnet, No. 254;
Hall, § 97.]
[Footnote 712: Bonfils, No. 632; Nys, II. p. 287; Mérignhac, II. p. 298;
Liszt, § 13; Walther, op. cit., p. 195.]
IV
FOREIGN OFFICES
Heffter, § 201--Geffcken in Holtzendorff, III. p. 668--Ullmann, §
43--Rivier, I. § 34--Bonfils, Nos. 648-651--Nys, II. pp. 330-334.
[Sidenote: Position of the Secretary for Foreign Affairs.]
§ 357. As a rule nowadays no head of a State, be he a monarch or a
president, negotiates directly and in person with a foreign Power,
although this happens occasionally. The necessary negotiations are
regularly conducted by the Foreign Office, an office which since the
Westphalian Peace has been in existence in every civilised State. The
chief of this office, the Secretary for Foreign Affairs, who is a
Cabinet Minister, directs the foreign affairs of the State in the name
of the head and with the latter's consent; he is the middle-man between
the head of the State and other States. And although many a head of a
State directs in fact all the foreign affairs himself, the Secretary for
Foreign Affairs is nevertheless the person through whose hands all
transactions must pass. Now, as regards the position of such Foreign
Secretary at home, it is the Municipal Law of a State which regulates
this. International Law defines his position regarding international
intercourse with other States. He is the chief over all the ambassadors
of the State, over its consuls, and over its other agents in matters
international. It is he who, either in person or through the envoys of
his State, approaches foreign States for the purpose of negotiating
matters international. And again it is he whom foreign States through
their Foreign Secretaries or their envoys approach for the like purpose.
He is present when Ministers hand in their credentials to the head of
the State. All documents of importance regarding foreign matters are
signed by him or his substitute, the Under-Secretary for Foreign
Affairs. It is, therefore, usual to notify the appointment of a new
Foreign Secretary of a State to such foreign States as are represented
within its boundaries by diplomatic envoys; the new Foreign Secretary
himself makes this notification.