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Title: International Law. A Treatise. Volume 1 (of 2)

Author: L. Oppenheim

Release date: October 16, 2012 [eBook #41046]

Language: English

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*** START OF THE PROJECT GUTENBERG EBOOK INTERNATIONAL LAW. A TREATISE. VOLUME 1 (OF 2) ***

INTERNATIONAL LAW A TREATISE VOL. I. PEACE SECOND EDITION 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

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

Transcriber's Note: Original spelling variations have not been standardized. Links have been provided to the second volume of this work, see International Law. A Treatise. Vol. II--War And Neutrality. Second Edition, by Lassa Oppenheim, M.A., LL.D., gutenberg ebooks 41047. Although we verify the correctness of these links at the time of posting, these links may not work, for various reasons, for various people, at various times.

[Pg vii]

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: § 178a (concerning the Utilisation of[Pg viii] the Flow of Rivers); §§ 287a and 287b (concerning Wireless Telegraphy on the Open Sea); §§ 287c and 287d (concerning Mines and Tunnels in the Subsoil of the Sea bed); § 446a (concerning the Casa Blanca incident); §§ 476a and 476b (concerning the International Prize Court and the suggested International Court of Justice); §§ 568a and 568b (concerning the Conventions of the Second Hague Peace Conference, and the Declaration of London); § 576a (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[Pg ix] 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.

[Pg x]

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).[Pg xi]

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).[Pg xii]

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.[Pg xiii]

CASES CITED

Aegi, § 437, p. 496

Ambrose Light, the, § 273 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, § 446a, 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 [Pg xiv]

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, § 287b, 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

[Pg xv]

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 [Pg xvi]

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[Pg xvii]

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 [Pg xviii]

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 [Pg xix]

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[Pg xx]

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[Pg xxi]

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

178a. 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[Pg xxii]

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[Pg xxiii]

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 [Pg xxiv]

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

287a. Radiotelegraphy between Ships and the Shore 355

287b. Radiotelegraphy between Ships at Sea 356

IX. The Subsoil beneath the Sea Bed

287c. Five Rules concerning the Subsoil beneath the Sea Bed 357

287d. The Proposed Channel Tunnel 359

CHAPTER III[Pg xxv]

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 [Pg xxvi]

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[Pg xxvii]

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 [Pg xxviii]

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 Subpœna 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 [Pg xxix]

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[Pg xxx]

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

446a. 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 [Pg xxxi]

467. International Office for the Protection of Works of Literature and Art and of Industrial Property 516

467a. 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

471a. Agricultural Institute 518

471b. 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

476a. The International Prize Court 522

476b. 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[Pg xxxii]

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 [Pg xxxiii]

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[Pg xxxiv]

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

568a. Conventions and Declaration of the Second Hague Peace Conference 592

568b. 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 Fœderis 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

576a. 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[Pg xxxv]

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. Pharmacopœia 622

592. Humanity 622

593. Preservation of Animal World 623

594. Private International Law 623

595. American Republics 624

596. Science 625

INDEX 627

[Pg 3]

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.

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.

[1] In contradistinction to mere usages and to rules of so-called International Comity, see below §§ 9 and 19.

[2] The best example of universal International Law is the law connected with legation.

[Pg 4]

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.

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[Pg 5] 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.

[3] De Cive, XIV. 4.

[4] De Jure Naturæ et Gentium, II. c. iii. § 22.

[5] Lectures on Jurisprudence, VI.[Pg 6]

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.

[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.

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[Pg 7] 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[Pg 8] 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.

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[Pg 9] 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.

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.

[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.

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[Pg 10] 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[Pg 11] railways which cover the continents, the international postal and telegraphic arrangements, and the Transatlantic telegraphic cables.[8]

[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."

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[Pg 12] 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,[Pg 13] the ultimate characteristic features of which cannot at present be foreseen.[9]

[9] See Oppenheim, "Die Zukunft des Völkerrechts" (1911), passim.

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[Pg 14] 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]

[10] See below, § 135, concerning intervention by right.

[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.

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[Pg 15] 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

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[Pg 16] 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.

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[Pg 17] 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[Pg 18] 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[Pg 19] 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.

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[Pg 20] imposing the respective duties upon their officials and citizens.[12]

[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.

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]

[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).

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[Pg 21] 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.

The two Sources of International Law.

§ 16. As the basis of the Law of Nations is the[Pg 22] 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.

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[Pg 23] 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.

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[Pg 24] 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]

[14] See below, § 492.

[15] Law-making treaties of world-wide importance are enumerated below, §§ 556-568b.

[16] See below, § 493.

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.

[17] See Oppenheim in A.J. II. (1908), pp. 344-348.

[18] See Oppenheim in A.J. II. (1908), pp. 341-344.

[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).[Pg 25] 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]

[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.

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[Pg 26] 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]

[21] See above, § 9.

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[Pg 27] 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.

[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.

[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."

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[Pg 28] 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.

[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.

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.

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.

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[Pg 29] 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]

[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.

[26] 41 and 42 Vict. c. 73.[Pg 30]

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.

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[Pg 31] 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.

[27] See, for instance, Bluntschli, § 8, and Fiore, Code, No. 38.

[28] See, for instance, Martens, § 41.

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[Pg 32] several non-Christian States into the community of States which are subjects of International Law.

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.

[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[Pg 33] 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.

[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[Pg 34] 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.

[31] See below, § 101.

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[Pg 35] 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.

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]

[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,[Pg 36] was rejected by the Convention, and the matter dropped.[33]

[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]

[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[Pg 37] 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.

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[Pg 38] 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.

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[Pg 39] 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.[Pg 40]

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.

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[Pg 41] 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[Pg 42] 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.

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[Pg 43] 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[Pg 44] Conference of London, 1908-9, should leave no doubt as to the feasibility of such partial codification.

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.[Pg 45]

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).

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[Pg 46] 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.

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[Pg 47] 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[Pg 48] 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 international. 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.[Pg 49]

(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.

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[Pg 50] 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.

The Romans.

§ 40. Totally different again from the Greek contribution[Pg 51] 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 [Pg 52] 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[Pg 53] 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.

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,[Pg 54] 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.

The Fifteenth and Sixteenth Centuries.

§ 42. The necessity for a Law of Nations did not[Pg 55] 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]

[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[Pg 56] 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.

[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.[Pg 57] 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.[Pg 58]

(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[Pg 59] 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]

[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.

[38] See Schwitzky, "Der Europaeische Fürstenbund Georg's von Podiebrad" (1909), and Schücking, "Die Organisation der Welt" (1909), pp. 32-36.

[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.

[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).

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[Pg 60] 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[Pg 61] 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.

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[Pg 62] (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.

[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.[Pg 63] 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[Pg 64] 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.

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.

[42] See below, Vol. II. §§ 289 and 290, where details concerning the First and Second Armed Neutrality are given.

The period 1789-1815.

§ 46. All progress, however, was endangered, and indeed the Law of Nations seemed partly non-existent,[Pg 65] 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[Pg 66] 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.

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[Pg 67] 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.

[43] See Martens, N.R. IV. p. 560.

[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[Pg 68] 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.

[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[Pg 69] 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.

[46] See below, § 251.

[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.

The period 1856-1874.

§ 48. The next period, the time from 1856 to 1874,[Pg 70] 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[Pg 71] 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.

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.[Pg 72]

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.

[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.

[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[Pg 73] 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.[Pg 74] 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.

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[Pg 75] 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.

[50] See Martens, N.R.G. 2nd Ser. XXXII. p. 94.

[51] See Martens, N.R.G. 3rd Ser. I. p. 46.

[52] See Martens, N.R.G. 3rd Ser. I. p. 57.

[53] See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.

[54] See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.

[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.

[56] See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.

[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[Pg 76] 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]

[58] See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.

[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[Pg 77] 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]

[60] See Martens, N.R.G. 3rd Ser. II. p. 101.

[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.

[62] See Moore, VI. § 969; Fried, "Pan-America" (1910); Barrett, "The Pan-American Union" (1911).

[63] See Martens, N.R.G. 3rd Ser. II. p. 323.[Pg 78]

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).

[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.[Pg 79]

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 Pharmacopœial 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[Pg 80] 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]

[65] See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 vols. (1911).

[66] See below, § 476.

[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.

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]

[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,[Pg 81] 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[Pg 82] 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]

[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.

[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.[Pg 83]

(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.

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[Pg 84] 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,[Pg 85] 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."

[71] See details in Holland, Studies, pp. 51-52.

[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.

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[Pg 86] 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."

[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,[Pg 87] 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[Pg 88] 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.

[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.

[75] See Rivier in Holtzendorff, I. p. 412. The last English translation is that of 1854 by William Whewell.

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 International Law.

[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,[Pg 89] 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."

[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).

[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.

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).

[79] De jure naturae et gentium, II. c. 3, § 22.[Pg 90]

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.

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[Pg 91] 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.

[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[Pg 92] 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.

[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."

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[Pg 93] 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[Pg 94] circles his book still enjoys an unshaken authority.

[82] See Montmorency in The Journal of the Society of Comparative Legislation, New Series, X. (1909), pp. 17-39.

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.

[Pg 95]

(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.

[Pg 96]

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.[Pg 97]

(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]

[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.

[Pg 98]

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[Pg 99] 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.

[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.

[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[Pg 100] 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[Pg 101] 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]

[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.[Pg 102]

§ 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 XX^e Siècle: Edited by Descamps and Renault since 1901.

Strupp: Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911).[Pg 103]

(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.[Pg 104]

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.

[Pg 107]

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.

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[Pg 108] 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.

[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]

[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.

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[Pg 109] 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.

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]

[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.[Pg 110] 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.

[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.

Divisibility of Sovereignty contested.

§ 66. The distinction between States full Sovereign[Pg 111] 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]

[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.

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[Pg 112] 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]

[92] Souverain is derived either from the Latin superanus or from suprema potestas.

[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.

[94] See Hobbes, "De cive," c. 6, §§ 12-15.

[95] See Pufendorf, "De jure naturae et gentium," VII. c. 6, §§ 1-13.

Meaning of Sovereignty in the Eighteenth Century.

§ 68. In the eighteenth century matters changed again. The fact that the several hundred reigning[Pg 113] 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.

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[Pg 114] 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[Pg 115] 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.

[96] Politik, 1862.

[97] A Disquisition on Government, 1851.

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.[Pg 116]

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).

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.

[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[Pg 117] 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.

[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.

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 [Pg 118]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.

[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.

[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.

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[Pg 119] 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.

[102] This condition contains a restriction on the personal supremacy of the respective States. See below, § 128.

[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.

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.

[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[Pg 120] 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.

[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]

[106] See Gibbs, "Recognition: a Chapter from the History of the North American and South American States" (1863), and Moore, I. §§ 28-36.

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[Pg 121] 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.

[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.

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[Pg 122] 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.

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[Pg 123] 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.

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.

[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[Pg 124] 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.

[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.

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[Pg 125] 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.

[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.

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[Pg 126] 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.

[111] See Gareis, pp. 66-70, who discusses the matter with great clearness, and Liszt, § 23.[Pg 127]

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.

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[Pg 128] 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]

[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[Pg 129] 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[Pg 130] such obligations as have been incurred by the annexed State for the immediate purpose of the war which led to its subjugation.[119]

[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.

[114] See Moore, I. § 97, and Appleton, "Des effets des annexions de territoires sur les dettes, &c." (1895).

[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.)

[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.

[117] See Martens, I. § 67; Heffter, § 25; Huber, op. cit. p. 158.

[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.)

[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]

[120] See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp. 92-98.

[121] See below, § 89.

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.[Pg 131] 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.

[122] See below, § 87.

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[Pg 132] 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.

[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.

[124] See Martens, N.R.G. 2nd Ser. III. p. 449.

[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).

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[Pg 133] 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]

[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.

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[Pg 134] 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.

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.

[127] See Blüthgen in Z.V. I. (1906), pp. 237-263.

[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[Pg 135] 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]

[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.

[130] See above, § 50, p. 75.

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[Pg 136] 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.

[131] See N.R.G. 2nd Ser. XXXII. pp. 276-292.

Federal States (Bundesstaaten).

§ 89. A Federal State[132] is a perpetual union of several Sovereign States which has organs of its own and is[Pg 137] 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.

[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.

[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.[Pg 138]

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[Pg 139] 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.

[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.

[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[Pg 140] 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.

[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).

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[Pg 141] 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.

[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.

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[Pg 142] 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[Pg 143] 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.

[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.

[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.

[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[Pg 144] 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.

[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.

[142] See Streit in R.G. X. (1903), pp. 399-417.

[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).

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[Pg 145] 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.

[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.

[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.

[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.

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[Pg 146] 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.

[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.

[148] This protectorate is exercised for Spain by the Bishop of Urgel. As regards the international position of Andorra, see Vilar, "L'Andorre" (1905).

[149] This is a clear case of desuetudo.

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[Pg 147] 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.

[150] Examples of such non-Christian States under protectorate are Zanzibar under Great Britain and Tunis under France.

[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.

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[Pg 148] 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.

[152] See below, Vol. II. § 72.

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[Pg 149] 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]

[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."

[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.

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[Pg 150] 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[Pg 151] 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.

[155] See below, § 126.

[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]

[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.

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[Pg 152] 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.

[158] See Schweizer, "Geschichte der schweizerischen Neutralität," 2 vols. (1895).

[159] See Martens, N.R. II. pp. 157, 173, 419, 740.

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.

[160] See Descamps, "La Neutralité de la Belgique" (1902).

[161] See Martens, N.R. XI. pp. 394 and 404.

[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.

Luxemburg.

§ 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal union with the Netherlands, but at[Pg 153] 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]

[163] See Wompach, "Le Luxembourg neutre" (1900).

[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.

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[Pg 154] 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.

[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.

[166] See Protocol 9 of that Conference in Martens, N.R.G. 2nd Ser. X. p. 353.

[167] See Martens, N.R.G. 2nd Ser. XVI. p. 585.

[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.

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[Pg 155] would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.

[169] See above, § 28.

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,[Pg 156] 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.

[170] See Martens, N.R.G. 2nd Ser. XXXV. p. 556.

[171] See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.

[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.

[Pg 157]

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.

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.[Pg 158]

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[Pg 159] 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.

[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.

[174] But the Popes have hitherto never accepted the allowance provided by the Law of Guaranty.

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[Pg 160] 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,[Pg 161] 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.

[175] Westlake, I. p. 38, now joins the ranks of these writers.

[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.

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.[Pg 162] 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

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.

Great Britain.

France.

Italy.

Germany.

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).

[Pg 163] 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.

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.[Pg 164]

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.

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.

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.[Pg 165]

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).

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,[Pg 166] 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.

[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.

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[Pg 167] 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.

[178] See above, § 12.

[179] See above, § 14.

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,[Pg 168] 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.

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:

[180] See above, §§ 14 and 113.[Pg 169]

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]

[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.

[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.

[183] See Prioleau v. United States, &c. (1866), L.R. 2 Equity, 656.

[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.

[185] See above, § 103.

Secondly, States under suzerainty and under protectorate which are half-Sovereign and under the[Pg 170] guardianship[186] of other States with regard to the management of external affairs, are not equals of States which enjoy full sovereignty.

[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.

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[Pg 171] 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]

[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.

[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.

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[Pg 172] 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.

[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[Pg 173] 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.

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).

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[Pg 174] 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.

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

[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.

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[Pg 175] 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.

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[Pg 176] 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.

[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.

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[Pg 177] 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]

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

[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.

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.[Pg 178]

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.

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[Pg 179] 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.

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[Pg 180] 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.

[195] See below, § 155.

[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.

[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.

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[Pg 181] 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.

[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]

[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.

[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).[Pg 182]

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.

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

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]

[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."

[203] See below, § 178 a.

In contradistinction to these restrictions by the customary Law of Nations, a State can through treaties[Pg 183] 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.

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

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

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[Pg 184] in so far as these States are thereby obliged not to impose any religious disabilities on any of their subjects.[206]

[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.

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[Pg 185] self-preservation is in certain cases an excuse recognised by International Law, no State is obliged patiently to submit to violations done to it by such other State as acts in self-preservation, but can repulse them. It is a fact that in certain cases violations committed in self-preservation are not prohibited by the Law of Nations. But, nevertheless, they remain violations and can therefore be repulsed. Self-preservation is consequently an excuse, because violations of other States are in certain exceptional cases not prohibited when they are committed for the purpose and in the interest of self-preservation, although they need not patiently be suffered and endured by the States concerned.

[207] This right was formerly frequently called droit de convenance, and was said to exist in the right of every State to act in favour of its interests in case of a conflict between its own and the interests of another State. See Heffter, § 26.

What acts of self-preservation are excused.

§ 130. It is frequently maintained that every violation is excused so long as it was caused by the motive of self-preservation, but it becomes more and more recognised that violations of other States in the interest of self-preservation are excused in cases of necessity only. Such acts of violence in the interest of self-preservation are exclusively excused as are necessary in self-defence, because otherwise the acting State would have to suffer or have to continue to suffer a violation against itself. If an imminent violation or the continuation of an already commenced violation can be prevented and redressed otherwise than by a violation of another State on the part of the endangered State, this latter violation is not necessary, and therefore not excused and justified. When, to give an example, a State is informed that on neighbouring territory a body of armed men is being organised for the purpose of a raid into its own territory, and when the danger can be removed through an appeal to the authorities of the neighbouring country, no case of necessity has arisen. But if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading[Pg 186] the neighbouring country and disarming the intending raiders.

The reason of the thing, of course, makes it necessary for every State to judge for itself when it considers a case of necessity has arisen, and it is therefore impossible to lay down a hard-and-fast rule regarding the question when a State can or cannot have recourse to self-help which violates another State. Everything depends upon the circumstances and conditions of the special case, and it is therefore of value to give some historical examples.

Case of the Danish Fleet (1807).

§ 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.

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

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[Pg 187] 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]

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

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]

[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.[Pg 188]

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).

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.

[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[Pg 189] 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.

[212] Many writers constantly commit this confusion.

[213] See below, vol. II. § 9.

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[Pg 190] 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]

[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[Pg 191] 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."

[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.

[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[Pg 192] the respective States and not between their monarchs personally.

[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.

[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[Pg 193] all contract debts, whether or no they arise from public loans.

[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.

[220] See Scott in A.J. II. (1908), pp. 78-94.

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[Pg 194] 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.

[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.

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[Pg 195] interventions in the interests of humanity are admissible provided they are exercised in the form of a collective intervention of the Powers.[222]

[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.

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[Pg 196] 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.

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[Pg 197] 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.

[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 XIX^e 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[Pg 198] 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.

[224] See Moore, VI. § 957.

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[Pg 199] 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.

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[Pg 200] 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.

[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.

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,[Pg 201] 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.

[226] See below, § 360.

[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.

[228] See below, § 259.

[229] See below, § 188.

[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.

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[Pg 202] 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.

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.

[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.

[232] Details below, §§ 385-405.

[233] Details below, §§ 450-451.

[234] Details below, § 445.

[235] Details below, §§ 318 and 440.

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[Pg 203] 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.

[236] See below, § 317.

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.

[237] See below, § 260.

[238] See below, § 278.

[239] See below, § 265.

[240] See below, §§ 265-266.

Criminal Jurisdiction over Foreigners in Foreign States.

§ 147. Many States claim jurisdiction and threaten[Pg 204] 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[Pg 205] 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.

[241] See Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § 104; Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.

[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.

[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.

[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.[Pg 206]

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.

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[Pg 207] 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."

[245] See above, § 113.

[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."

[247] See below, § 151.

Original and Vicarious State Responsibility.

§ 149. Now if we examine the various international duties out of which responsibility of a State may rise,[Pg 208] 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]

[248] See below, § 290.

[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.

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[Pg 209] 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.

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[Pg 210] 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.

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[Pg 211] 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.

[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.

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,[Pg 212] but for that very reason these acts do not comprise international delinquencies.

[251] See below, §§ 157-158.

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.

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[Pg 213] 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.

[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.

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[Pg 214] 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]

[253] See below, vol. II. § 34.

[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.

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.

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[Pg 215] 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.

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.

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,[Pg 216] 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.

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.

Internationally injurious Acts of Judicial Functionaries.

§ 162. Internationally injurious acts committed by[Pg 217] 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.

[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,[Pg 218] 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]

[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).

[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.

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.

[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[Pg 219] 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]

[259] See R.G. XIII. (1906), pp. 200-206.

[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[Pg 220] 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[Pg 221] 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.

[261] Provided, however, such law does not violate essential principles of justice. See below, § 320.

[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.

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[Pg 222] for such injurious acts of private individuals as are incapable of prevention.

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.

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.

[263] As regards the Criminal Law of England concerning such acts, see Stephen's Digest, articles 96-103.

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[Pg 223] 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.

[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[Pg 224] 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.

[265] See the cases in Calvo, III. §§ 1283-1290.

[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:—

[267] At its meeting at Neuchâtel in 1900; see Annuaire, XVIII. p. 254.

(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[Pg 225] 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.

[268] For example, in the case of conduct which is particularly provocative to a crowd.

(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]

[269] The Institute of International Law has likewise—see Annuaire, XVIII. pp. 253 and 256—expressed the two following vœux:—

(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.

[Pg 229]

PART II THE OBJECTS OF THE LAW OFNATIONS

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).

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,[Pg 230] 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]

[270] And some writers refuse to draw it even nowadays, as, for instance, Lawrence, § 71.

[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.

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[Pg 231] 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]

[272] See above, § 91.

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.

[273] See above, §§ 126-128.

One Territory, one State.

§ 171. The supreme authority which a State exercises over its territory makes it apparent that on one[Pg 232] 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.

[274] See Schröder, "Das grenzstreitige Gebiet von Moresnet" (1902).

[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.

[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[Pg 233] 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]

[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[Pg 234] 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.

[278] See below, § 216.

[279] Russia in 1905, by the Peace Treaty of Portsmouth, transferred her lease to Japan.

[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.

[281] See, for instance, Perrinjaquet in R.G. XVI. (1909), pp. 349-367.

[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.

[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.

[284] See above, § 89.[Pg 235]

II THE DIFFERENT PARTS OF STATE TERRITORY

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]

[285] See below, § 450.

[286] See below, § 390.

[287] See below, § 264.

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[Pg 236] subsoil to an unbounded depth belongs to the State which owns the territory on the surface.

[288] As regards the subsoil of the Open Sea, see below, §§ 287c and 287d.

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.

[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. 53110 and 53111; Despagnet, No. 433 quater; Meurer and Boidin in R.G. XVI. (1909), pp. 76 and 261.

[290] See below, §§ 287a, 287b, and 582, No. 4.

[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[Pg 237] 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[Pg 238] 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]

[292] The literature on aviation is abundant, see Holtzendorff, II. p. 230; Lawrence, § 73; Bonfils, Nos. 5311-5319; 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.

[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.

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[Pg 239] 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.

[294] See below, § 185.

[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.

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[Pg 240] 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.

[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.

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.[Pg 241]

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.

[297] See below, § 178a.

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.

[298] Articles 108-117 of the Final Act of the Vienna Congress; see Martens, N.R. II. p. 427.

[299] "Règlements pour la libre navigation des rivières"; see Martens, N.R. II. p. 434.[Pg 242]

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.

[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.

[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.

[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[Pg 243] 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]

[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]

[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.

[305] See Annuaire, IX. p. 182.

Utilisation of the flow of rivers.

§ 178a. 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[Pg 244] 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":—

[306] See above, § 127.

[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.

[308] See Annuaire, XXIV. (1911). See also Bar in R.G. XVII. (1910), pp. 281-288.

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[Pg 245] 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.

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.

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[Pg 246] 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]

[309] See, for instance, Calvo, I. § 301; Caratheodory in Holtzendorff, II. p. 378.

[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, § 178a.

[311] See Stoffel, "Die Fischerei-Verhältnisse des Bodensees unter besonderer Berücksichtigung der an ihm bestehenden Hoheitsrechte" (1906).

[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.

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[Pg 247] 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.

[313] See, for instance, Rivier, I. p. 230; Caratheodory in Holtzendorff, II. p. 378; Calvo, I. § 301.

[314] Article 15 of the General Act of the Congo Conference. (See Martens, N.R.G. 2nd Ser. X. p. 417.)

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[Pg 248] 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.

[315] See below, § 252.

[316] See Martens, N.R.G. XV. p. 775.

[317] See Martens, N.R.G. XVIII. p. 303.

[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.

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[Pg 249] 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.

[319] See, however, Holland, Studies, p. 278.

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,[Pg 250] 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:—

[320] See R.I. VII. pp. 682-694.

[321] See Annuaire, III. and IV. vol. I. p. 349.

[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).[Pg 251]

(5) The signatory Powers are obliged to notify the treaty to others and to invite them to accede thereto (article 16).

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:—

[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.

[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.[Pg 252]

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.

[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;[Pg 253] 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.

[Pg 254] 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.

[326] See Martens, N.R.G. 2nd Ser. XXXI. p. 599.

[327] That this grant is really cession all but in name, was pointed out above, § 171 (4); see also below § 216.[Pg 255]

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.

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[Pg 256] 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]

[328] Hall, p. 158. The question is treated with great clearness by Heilborn, "System," pp. 37-57, and Schücking, pp. 14-20.

[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.

[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.

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[Pg 257] Institute of International Law[332] has voted in favour of this starting line, and many treaties stipulate the same.

[331] See Schücking, p. 13.

[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.

[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.

[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.

[335] See above, § 25, and Maine, p. 39.

Fisheries, Cabotage, Police, and Maritime Ceremonials within the Belt.

§ 187. Theory and practice agree upon the following[Pg 258] 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.

[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.

[337] See Pradier-Fodéré, V. Nos. 2441, 2442.

[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]

[339] See Twiss, I. § 194.

Navigation within the Belt.

§ 188. Although the maritime belt is a portion of[Pg 259] 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.

[340] See above, § 142.

[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[Pg 260] 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]

[342] See below, § 449.

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[Pg 261] yet no common practice of the States can be said to exist.

[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.

[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.

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.

[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.[Pg 262]

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.

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.

[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,[Pg 263] 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]

[347] See Taylor, § 229; Wharton, I. §§ 27 and 28; Moore, I. § 153.

[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.

[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.

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[Pg 264] 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[Pg 265] 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]

[350] 52 and 53 Vict. c. 23.

[351] Mortensen v. Peters, "The Scotch Law Times Reports," vol. 14, p. 227.

[352] 9 Edw. VII. c. 8.

[353] See Oppenheim in Z.V. V. (1911), pp. 74-95.

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.

[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.

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,[Pg 266] 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.

[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.

[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.

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,[Pg 267] 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.

[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.

[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.

[359] See below, § 252.

[360] See below, § 197.

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[Pg 268] 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.

[361] See the details, which have historical interest only, in Twiss, I. § 188; Phillimore, I. § 189; Wharton, I. § 29; and Scherer, "Der Sundzoll" (1845).

[362] The Treaty of Copenhagen of March 14, 1857. See Martens, N.R.G. XVI. 2nd part, p. 345.

[363] Convention of Washington of April 11, 1857. See Martens, N.R.G. XVII. 1st part, p. 210.

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[Pg 269] 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.

[364] See Holland, "The European Concert in the Eastern Question," p. 225, and Perels, p. 29.

[365] See above, § 195.

[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]

[367] See Perels, p. 30.

[368] See below, vol. II. § 84.[Pg 270]

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).

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.

[369] The Romans of antiquity very often constructed boundary walls, and the Chinese Wall may also be cited as an example.

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[Pg 271] 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.

[370] See Huber in Z.V. I. (1906), pp. 29-52 and 159-217.

[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.

[372] See above, § 175.

[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]

[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.[Pg 272]

(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.

[375] See Twiss, I. §§ 183 and 184, and above, § 194.

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]

[376] See Fiore, II. No. 800.

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,[Pg 273] as in the case of Moresnet (Kelmis) on the Prusso-Belgian frontier.[378]

[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.

[378] See above, § 171, No. 1.

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.

[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.

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[Pg 274] 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.

[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.

[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[Pg 275] 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.

[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.[Pg 276]

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.

[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.

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[Pg 277] 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.

[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[Pg 278] 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]

[385] See, for instance, Bluntschli, § 356.

[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.

[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.

[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.

[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.

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[Pg 279] 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]

[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.

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[Pg 280] 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]

[391] Details in Clauss, pp. 15-17.

[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]

[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.

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[Pg 281] for the purpose of doing away with a State servitude proves only that such appeal has hitherto been unnecessary.

[394] See Bluntschli, § 359 b. The opposition of Clauss (p. 219) and others to this sound statement of Bluntschli's is not justified.

[395] See below, § 539.

[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).

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.

[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[Pg 282] 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.

[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]

[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.

[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.

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[Pg 283] 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.

[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.)

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[Pg 284] 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.

[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.

[403] See below, § 216. Such alleged special modes are sale, exchange, gift, marriage contract, testamentary disposition, and the like.

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]

[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.[Pg 285]

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.

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]

[405] See above, § 168.

[406] See above, § 21.

[407] See below, § 497.

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[Pg 286] 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]

[408] See above, § 209, No. 2.

[409] See below, §§ 221 and 222.

[410] See above, § 103.

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]

[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.

[412] Thus in 1860 Sardinia ceded her neutralised provinces of Chablais and Faucigny to France. See above, §207.

[413] See above, § 96, and the literature there quoted.

Form of cession.

§ 216. The only form in which a cession can be effected[Pg 287] 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[Pg 288] 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.

[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.

[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.

[416] See Martens, N.R.G. 2nd Ser. XXX. (1904), p. 326.

[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).

[418] How far a succession of States takes place in the case of cession of territory has been discussed above, § 84.

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[Pg 289] exercise its territorial supremacy thereon until it has taken physical possession of the ceded territory.

[419] This is controversial. Many writers—see, for instance, Rivier, I. p. 203—oppose the opinion presented in the text.

[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.

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.

[421] See above. § 215.

[422] See above, §§ 209 and 215.

[423] See above, § 136.

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[Pg 290] 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.

[424] See Keith, "The Theory of State Succession, &c." (1907), pp. 42-45; Cogordan, "La Nationalité" (1890), pp. 317-400; Moore, III. § 379.

[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.

[426] See Rivier, I. p. 210, where all these treaties are enumerated.

[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[Pg 291] 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]

[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.

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[Pg 292] 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.

[429] See below, § 236.

[430] See above, § 209.

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]

[431] See above, § 214.

[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]

[433] See below, §§ 287c and 287d.

[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.

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.[Pg 293] 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]

[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,[Pg 294] there is then no effective occupation, since in fact no sovereignty of a State is exercised over the territory.

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.

[436] See Vattel, I. § 208.

[437] Thus Hall, § 32.

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[Pg 295] 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.

[438] See Martens, N.R.G. 2nd Ser. X. p. 426.

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[Pg 296] 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]

[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.

[440] Claim of the United States in their dispute with Spain concerning the boundary of Louisiana (1803), approved of by Twiss, I. § 125.

[441] This is the so-called "right of contiguity," approved of by Twiss, I. §§ 124 and 131.

[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.

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[Pg 297] 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.

[443] See above, §§ 92 and 93.

[444] See above, § 94.

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]

[445] See Martens, N.R.G. 2nd Ser. XVIII. p. 558.

[446] See Martens, N.R.G. 2nd Ser. XVIII. p. 175.

[447] See Martens, N.R.G. 2nd Ser. XII. p. 298, and XVI. p. 895.

[448] See Martens, N.R.G. 2nd Ser. XXIX. p. 116.

[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.[Pg 298]

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.

[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.[Pg 299]

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.

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.

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.

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[Pg 300] 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.

[451] See above, § 127.

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.

[452] See above, § 199, No. 1.

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[Pg 301] 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.

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[Pg 302] 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.

[453] See 5 C. Rob. 373.

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.

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[Pg 303] 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]

[454] Concerning the distinction between conquest and subjugation, see below, vol. II. § 264.

[455] See above, §§ 216 and 219.

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.

[456] Holtzendorff, II. p. 255; Heimburger, p. 128; Salomon, p. 24.[Pg 304]

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]

[457] Bonfils, No. 535; Fiore, II. No. 863, III. No. 1693, and Code N. See also Despagnet, Nos. 387-390.

[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.

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[Pg 305] in which the vanquished State, without ceding the conquered territory, submits silently[459] to the annexation, or by simple cessation of hostilities.[460]

[459] See below, vol. II. § 273.

[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]

[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.

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.[Pg 306]

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[Pg 307] 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.

[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.

[463] See Halleck, II. p. 476.

[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.

[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.

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.

[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.[Pg 308]

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.

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.

[467] See Grotius, II. c. 4, §§ 1, 7, 9.

[468] See, for instance, Heffter, § 12; Martens, § 90.

[469] G. F. Martens, § 71; Klüber, §§ 6 and 125; Holtzendorff, II. p. 255; Ullmann, § 92.

[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[Pg 309] 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.

[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.

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[Pg 310] 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, [Pg 311]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.

[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."

[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.

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.

[474] See above, §§ 171 and 216.[Pg 312]

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.

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[Pg 313] 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.

[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.

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:—

[476] See above, § 222.

[477] See above, § 228.

(a) In 1639 Santa Lucia, one of the Antilles Islands, was occupied by England, but in the following year[Pg 314] 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]

[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]

[479] See Hall, § 34. The text of the award is printed in Moore, "Arbitrations," V. p. 4984.[Pg 315]

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.

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[Pg 316] 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.

[480] L. 13, pr. D. VIII. 4: mari quod natura omnibus patet.

[481] L. 3 D. XLIII. 8: Maris communem usum omnibus hominibus ut aeris.

[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[Pg 317] 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.

[483] See Walker, "History," I. p. 163.

[484] This and the two following examples are quoted by Hall, § 40.

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."

[485] See Fulton, "The Sovereignty of the Seas" (1911), pp. 38 and 204-208.

[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[Pg 318] 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]

[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.

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[Pg 319] 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]

[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.

[489] See below, § 259.

[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.

[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]

[492] See Hall, § 40, p. 152, note 1.

Gradual Recognition of the Freedom of the Open Sea.

§ 251. In spite of opposition, the work of Grotius[Pg 320] 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.

[493] See below, § 284.[Pg 321]

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.

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,[Pg 322] 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]

[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."

[495] See above, § 181.

[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.

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.

[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]

[498] See above, § 191.[Pg 323]

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.

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[Pg 324] 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.

[499] As regards jurisdiction in cases of collision and salvage on the Open Sea, see below, §§ 265 and 271.

[500] See, however, above, § 190, concerning the zone for Revenue and Sanitary Laws.

[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.)

[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, §§ 287c and 287d.

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.[Pg 325]

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.

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.

[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.

[504] See above, § 181.[Pg 326]

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]

[505] But not within the maritime belt or other territorial waters. See above, §§ 122 and 187.

[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.

[507] See above, § 188.

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[Pg 327] 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]

[508] See, however, Westlake, I. p. 165.

[509] See Salis, "Schweizerisches Bundesrecht" (1891), vol. I. p. 234.

[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.

[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.

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[Pg 328] 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]

[512] See, for instance, Twiss, I. § 172, and Westlake, I. p. 160.

[513] See Grotius, II. c. 2, § 3.

[514] See above, § 142.

[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.[Pg 329]

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.

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.

[516] See above, § 255.

[517] See below, § 266.

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[Pg 330] 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]

[518] See Calvo, I. §§ 393-423, where the respective Municipal Laws of most countries are quoted.

[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).

[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[Pg 331] 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]

[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).

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:—

[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[Pg 332] 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.

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]

[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.

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,[Pg 333] and in time of peace men-of-war of all nations have certain powers[527] over merchantmen of all nations.

[524] See above, § 172, and below, §§ 447-451.

[525] See Jordan in R.I. 2nd Ser. X. (1908), pp. 340-362 and 481-500.

[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.

[527] See below, § 266. The question of the territoriality of vessels is ably discussed by Hall, §§ 76-79.

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[Pg 334] 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]

[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.

[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).

[530] See Martens, N.R.G. 2nd Ser. XII. p. 416.

[531] See Martens, N.R.G. 2nd Ser. XXII. p. 113.

[532] Latest British Regulations, 1896.

[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[Pg 335] 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]

[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).

[535] See above, § 146.

[536] See Pradier-Fodéré, No. 2363.

[537] See Pradier-Fodéré, No. 2364.

[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."

[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.

[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.

[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.

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[Pg 336] 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.

[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]

[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[Pg 337] 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."

[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.)

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.

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[Pg 338] in order, a memorandum of the visit is made in the log-book, and the vessel is allowed to proceed on her course.

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.

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]

[545] Except in the case of distress or unseaworthiness; see below, vol. II. § 193.

[546] See below, §§ 282 and 283.[Pg 339]

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.

[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]

[548] See, for instance, Perels, § 25, and Fiore, II. No. 732.

[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."

[Pg 340]

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).

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[Pg 341] 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]

[550] Hall, § 81; Lawrence, § 102; Bluntschli, § 343; Liszt, § 26; Calvo, § 485.

[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.

[552] See above, § 151.

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.

[553] Piracy committed by the mutinous crew will be treated below, § 274.

[554] See details regarding this controversial point in Hall, § 81. See also below, vol. II. §§ 83 and 330.[Pg 342]

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[Pg 343] was in command of the British squadron in the Pacific.[557]

[555] See Calvo, I. §§ 497-501; Hall, § 82; Westlake, I. pp. 179-182.

[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.

[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.

[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]

[559] This statement is correct in spite of art. 46, No. 1, of the Declaration of London; see below, vol. II. § 410, No. 1.

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[Pg 344] 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.

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.

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[Pg 345] 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]

[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.

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.

[561] Hall, § 81; Lawrence, § 102; Westlake, I. p. 177.

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[Pg 346] 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]

[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.

[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.

[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).

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 [Pg 347] 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.

[565] See details regarding the question as to the piratical vessels and goods in Pradier-Fodéré, V. Nos. 2496-2499.

[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).

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.

[567] See Calvo, §§ 488-492; Lawrence, § 103; Pradier-Fodéré, V. Nos. 2501 and 2502.

[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[Pg 348] 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]

[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.

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[Pg 349] 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