International Law. A Treatise Volume I Part 19

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-Fodere, I. Nos.

165-195--Merignhac, I. pp. 233-238--Rivier, I. -- 19--Fiore, I.

Nos. 367-371--Martens, I. -- 72--Fontenay, "Des droits et des devoirs des etats entre eux" (1888)--Pillet in R.G. V. (1898), pp. 66 and 236, VI. (1899), p. 503--Cavaglieri, "I diritti fondamentali degli Stati nella Societa Intern.a.z.ionale" (1906).

[Sidenote: The so-called Fundamental Rights.]

-- 112. Until the last two decades of the nineteenth century all jurists agreed that the members.h.i.+p of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. It was and is maintained that these fundamental rights are a matter of course and self-evident, since the Family of Nations consists of Sovereign States. But no unanimity exists with regard to the number, the names, and the contents of these alleged fundamental rights. A great confusion exists in this matter, and hardly two text-book writers agree in details with regard to it. This condition of things has led to a searching criticism of the whole matter, and several writers[177] have in consequence thereof asked that the fundamental rights of States should totally disappear from the treatises on the Law of Nations. I certainly agree with this.

Yet it must be taken into consideration that under the wrong heading of fundamental rights a good many correct statements have been made for hundreds of years, and that numerous real rights and duties are customarily recognised which are derived from the very members.h.i.+p of the Family of Nations. They are rights and duties which do not rise from international treaties between a mult.i.tude of States, but which the States customarily hold as International Persons, and which they grant and receive reciprocally as members of the Family of Nations. They are rights and duties connected with the position of the States within the Family of Nations, and it is therefore only adequate to their importance to discuss them in a special chapter under that heading.

[Footnote 177: See Stoerk in Holtzendorff's "Encyklopadie der Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der subjectiven offentlichen Rechte" (1892), p. 302; Heilborn, "System," p.

279; and others. The arguments of these writers have met, however, considerable resistance, and the existence of fundamental rights of States is emphatically defended by other writers. See, for instance, Pillet, l.c., Liszt, -- 7, and Gareis, ---- 24 and 25. Westlake, I. p. 293, now joins the ranks of those writers who deny the existence of fundamental rights.]

[Sidenote: International Personality a Body of Qualities.]

-- 113. International Personality is the term which characterises fitly the position of the States within the Family of Nations, since a State acquires International Personality through its recognition as a member.

What it really means can be ascertained by going back to the basis[178]

of the Law of Nations. Such basis is the common consent of the States that a body of legal rules shall regulate their intercourse with one another. Now a legally regulated intercourse between Sovereign States is only possible under the condition that a certain liberty of action is granted to every State, and that, on the other hand, every State consents to a certain restriction of action in the interest of the liberty of action granted to every other State. A State that enters into the Family of Nations retains the natural liberty of action due to it in consequence of its sovereignty, but at the same time takes over the obligation to exercise self-restraint and to restrict its liberty of action in the interest of that of other States. In entering into the Family of Nations a State comes as an equal to equals[179]; it demands that certain consideration be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy. Recognition of a State as a member of the Family of Nations contains recognition of such State's equality, dignity, independence, and territorial and personal supremacy. But the recognised State recognises in turn the same qualities in other members of that family, and thereby it undertakes responsibility for violations committed by it. All these qualities const.i.tute as a body the International Personality of a State, and International Personality may therefore be said to be the fact, given by the very members.h.i.+p of the Family of Nations, that equality, dignity, independence, territorial and personal supremacy, and the responsibility of every State are recognised by every other State. The States are International Persons because they recognise these qualities in one another and recognise their responsibility for violations of these qualities.

[Footnote 178: See above, -- 12.]

[Footnote 179: See above, -- 14.]

[Sidenote: Other Characteristics of the position of the States within the Family of Nations.]

-- 114. But the position of the States within the Family of Nations is not exclusively characterised by these qualities. The States make a community because there is constant intercourse between them.

Intercourse is therefore a condition without which the Family of Nations would not and could not exist. Again, there are exceptions to the protection of the qualities which const.i.tute the International Personality of the States, and these exceptions are likewise characteristic of the position of the States within the Family of Nations. Thus, in time of war belligerents have a right to violate one another's Personality in many ways; even annihilation of the vanquished State, through subjugation after conquest, is allowed. Thus, further, in time of peace as well as in time of war, such violations of the Personality of other States are excused as are committed in self-preservation or through justified intervention. And, finally, jurisdiction is also important for the position of the States within the Family of Nations. Intercourse, self-preservation, intervention, and jurisdiction must, therefore, likewise be discussed in this chapter.

II

EQUALITY, RANK, AND t.i.tLES

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-Fodere, II. Nos. 484-594--Merignhac, I. pp.

310-320--Rivier, I. -- 9--Nys, II. pp. 194-199, 208-218--Calvo, I.

---- 210-259--Fiore, I. Nos. 428-451, and Code, Nos.

388-421--Martens, I. ---- 70-71--Lawrence, Essays, pp.

191-213--Westlake, Chapters, pp. 86-109--Huber, "Die Gleichheit der Staaten" (1909)--Streit in R.I. 2nd Ser. II. pp. 5-27--Hicks in A.J. II. (1908), pp. 530-561.

[Sidenote: Legal Equality of States.]

-- 115. The equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality.[180] Whatever inequality may exist between States as regards their size, population, power, degree of civilisation, wealth, and other qualities, they are nevertheless equals as International Persons. This legal equality has three important consequences:

[Footnote 180: See above, ---- 14 and 113.]

The first is that, whenever a question arises which has to be settled by the consent of the members of the Family of Nations, every State has a right to a vote, but to one vote only.

The second consequence is that legally--although not politically--the vote of the weakest and smallest State has quite as much weight as the vote of the largest and most powerful. Therefore any alteration of an existing rule or creation of a new rule of International Law by a law-making treaty has legal validity for the signatory Powers and those only who later on accede expressly or submit to it tacitly through custom.

The third consequence is that--according to the rule _par in parem non habet imperium_--no State can claim jurisdiction over another full-Sovereign State. Therefore, although foreign States can sue in foreign Courts,[181] they cannot as a rule be sued[182] there, unless they voluntarily accept[183] the jurisdiction of the Court concerned, or have submitted themselves to such jurisdiction by suing in such foreign Court.[184]

[Footnote 181: See Phillimore, II. -- 113 A; Nys, II. pp. 288-296; Loening, "Die Gerichtsbarkeit uber fremde Staaten und Souverane" (1903); and the following cases:--The United States _v._ Wagner (1867), L.R. 2 Ch. App. 582; The Republic of Mexico _v._ Francisco de Arrangoiz, and others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164.

See also below, -- 348.]

[Footnote 182: See De Haber _v._ the Queen of Portugal (1851), 17 Ch. D.

171, and Vava.s.seur _v._ Krupp (1878), L.R. 9 Ch. D. 351.]

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

[Footnote 184: Provided the cross-suit is really connected with the claim in the action. As regards the German case of h.e.l.lfeld _v._ the Russian Government, see Kohler in Z.V. IV. (1910), pp. 309-333; the opinions of Laband, Meili, and Seuffert, _ibidem_, pp. 334-448; Baty in _The Law Magazine and Review_, XXV. (1909-1910), p. 207; Wolfman in A.J.

IV. (1910), pp. 373-383.]

To the rule of equality there are three exceptions:--

First, such States as can for some parts[185] only be considered International Persons, are not equals of the full members of the Family of Nations.

[Footnote 185: See above, -- 103.]

Secondly, States under suzerainty and under protectorate which are half-Sovereign and under the guardians.h.i.+p[186] of other States with regard to the management of external affairs, are not equals of States which enjoy full sovereignty.

[Footnote 186: See above, ---- 91 and 93.]

Thirdly, the part-sovereign member-States of a Federal State are not equals of full-Sovereign States.

It is, however, quite impossible to lay down a hard and fast general rule concerning the amount of inequality between the equal and the unequal States, as everything depends upon the circ.u.mstances and conditions of the special case.

[Sidenote: Political Hegemony of Great Powers.]

-- 116. Legal equality must not be confounded with political equality.

The enormous differences between States as regards their strength are the result of a natural inequality which, apart from rank and t.i.tles, 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 j.a.pan in Asia.

All arrangements made by the body of the Great Powers naturally gain the consent of the minor States, and the body of the six Great Powers in Europe is therefore called the European Concert. The Great Powers are the leaders of the Family of Nations, and every progress of the Law of Nations during the past is the result of their political hegemony, although the initiative towards the progress was frequently taken by a minor Power.

But, however important the position and the influence of the Great Powers may be, they are by no means derived from a legal basis or rule.[187] It is nothing else than powerful example which makes the smaller States agree to the arrangements of the Great Powers. Nor has a State the character of a Great Power by law. It is nothing else than its actual size and strength which makes a State a Great Power. Changes, therefore, often take place. Whereas at the time of the Vienna Congress in 1815 eight States--namely, Great Britain, Austria, France, Portugal, Prussia, Spain, Sweden, and Russia--were still considered Great Powers, their number decreased soon to five, when Portugal, Spain, and Sweden lost that character. But the so-called Pentarchy of the remaining Great Powers turned into a Hexarchy after the unification of Italy, because the latter became at once a Great Power. The United States rose as a Great Power out of the civil war in 1865, and j.a.pan did the same out of the war with China in 1895. Any day a change may take place and one of the present Great Powers may lose its position, or one of the weaker States may become a Great Power. It is a question of political influence, and not of law, whether a State is or is not a Great Power.

Whatever large-sized State with a large population gains such strength that its political influence must be reckoned with by the other Great Powers, becomes a Great Power itself.[188]

[Footnote 187: This is, however, maintained by a few writers. See, for instance, Lorimer, I. p. 170; Lawrence, ---- 113 and 114; Westlake, I. pp.

308, 309; and Pitt Cobbett, "Cases and Opinions on International Law,"

2nd ed. vol. I. (1909), p. 50.]