International Law. A Treatise Volume I Part 46

310-314, and Heilborn, "System," pp. 58-138.]

Again, in those rare cases in which States stipulate by international treaties certain favours for individuals other than their own subjects, these individuals do not acquire any international rights under these treaties. The latter impose the duty only upon the State whose subjects these individuals are of calling those favours into existence by its Munic.i.p.al Law. Thus, for example, when articles 5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition of the recognition of Bulgaria, Montenegro, Servia, and Roumania, that these States should not impose any religious disability upon their subjects, the latter did not thereby acquire any international rights. Another instructive example[599] is furnished by article 5 of the Peace Treaty of Prague, 1866, between Prussia and Austria, which stipulated that the northern district of Schleswig should be ceded by Prussia to Denmark in case the inhabitants should by a plebiscite vote in favour of such cession.

Austria, no doubt, intended to secure by this stipulation for the inhabitants of North Schleswig the opportunity of voting in favour of their union with Denmark. But these inhabitants did not thereby acquire any international right. Austria herself acquired only a right to insist upon Prussia granting to the inhabitants the opportunity of voting for the union with Denmark. Prussia, however, intentionally neglected her duty, Austria did not insist upon her right, and finally relinquished it by the Treaty of Vienna of 1878.[600]

[Footnote 599: See Heilborn, "System," p. 67.]

[Footnote 600: It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by Kaufmann, "Die Rechtskraft des internationalen Rechtes" (1899), ---- 1-4, and a few others.]

Now it is maintained[601] that, although individuals cannot be subjects of International Law, they can nevertheless acquire rights and duties from International Law. But it is impossible to find a basis for the existence of such rights and duties. International rights and duties they cannot be, for international rights and duties can only exist between States. Likewise they cannot be munic.i.p.al rights, for munic.i.p.al rights and duties can only be created by Munic.i.p.al Law. The opponents answer that such rights and duties nevertheless exist, and quote for example articles 4 and 5 of Convention XII. (concerning the establishment of an International Prize Court) of the second Hague Peace Conference, according to which individuals have a right to bring an appeal before the International Prize Court. But is this a real right?

Is it not more correct to say that the home States of the individuals concerned have a right to demand that these individuals can bring the appeal before the Court? Wherever International Law creates an independent organisation, such as the International Prize Court at the Hague or the European Danube Commission and the like, certain powers and claims must be given to the Courts and Commissions and the individuals concerned, but these powers and claims, and the obligations deriving therefrom, are neither international nor munic.i.p.al rights and duties: they are powers, claims, and obligations existing only within the organisations concerned. To call them rights and duties--as indeed the respective treaties frequently do--is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Munic.i.p.al Law.

[Footnote 601: See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in Z.V. I. (1908), pp. 53 and 614; Liszt, -- 5; Kohler in Z.V. II.

(1909), pp. 209-230.]

[Sidenote: Individuals Objects of the Law of Nations.]

-- 290. But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are _objects_ of the Law of Nations. They appear as such from many different points of view. When, for instance, the Law of Nations recognises the personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the States does in consequence of the recognised territorial supremacy of the States. When, secondly, the recognised territorial supremacy of every State comprises certain powers over foreign subjects within its boundaries without their home State's having a right to interfere, these individuals appear again as objects of the Law of Nations. And, thirdly, when according to the Law of Nations any State may seize and punish foreign pirates on the Open Sea, or when belligerents may seize and punish neutral blockade-runners and carriers of contraband on the Open Sea without their home State's having a right to interfere, individuals appear here too as objects of the Law of Nations.[602]

[Footnote 602: Westlake, Chapters, p. 2, maintains that in these cases individuals appear as _subjects_ of International Law; but I cannot understand upon what argument this a.s.sertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland, "Jurisprudence," p. 341.]

[Sidenote: Nationality the Link between Individuals and the Law of Nations.]

-- 291. If, as stated, individuals are never subjects but always objects of the Law of Nations, then nationality is the link between this law and individuals. It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations.

This is a fact which has its consequences over the whole area of International Law.[603] Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way of redress, there being no State which would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.[604] On the other hand, if individuals who possess nationality are wronged abroad, it is their home State only and exclusively which has a right to ask for redress, and these individuals themselves have no such right. It is for this reason that the question of nationality is a very important one for the Law of Nations, and that individuals enjoy benefits from this law not as human beings but as subjects of such States as are members of the Family of Nations. And so distinct is the position as subjects of these members from the position of stateless individuals and from subjects of States outside the Family of Nations, that it has been correctly characterised as a kind of international "indigenousness," a _Volkerrechts-Indigenat_.[605] Just as munic.i.p.al citizens.h.i.+p procures for an individual the enjoyment of the benefits of the Munic.i.p.al Laws, so this international "indigenousness,"

which is a necessary inference from munic.i.p.al citizens.h.i.+p, procures the enjoyment of the benefits of the Law of Nations.

[Footnote 603: See below, -- 294.]

[Footnote 604: See below, -- 312.]

[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.]

[Sidenote: The Law of Nations and the Rights of Mankind.]

-- 292. Several writers[606] maintain that the Law of Nations guarantees to every individual at home and abroad the so-called rights of mankind, without regarding whether an individual be stateless or not, or whether he be a subject of a member-State of the Family of Nations or not. Such rights are said to comprise the right of existence, the right to protection of honour, life, health, liberty, and property, the right of practising any religion one likes, the right of emigration, and the like. But such rights do not in fact enjoy any guarantee whatever from the Law of Nations,[607] and they cannot enjoy such guarantee, since the Law of Nations is a law between States, and since individuals cannot be subjects of this law. But there are certain facts which cannot be denied at the background of this erroneous opinion. The Law of Nations is a product of Christian civilisation and represents a legal order which binds States, chiefly Christian, into a community. It is therefore no wonder that ethical ideas which are some of them the basis of, others a development from, Christian morals, have a tendency to require the help of International Law for their realisation. When the Powers stipulated at the Berlin Congress of 1878 that the Balkan States should be recognised only under the condition that they did not impose any religious disabilities on their subjects, they lent their arm to the realisation of such an idea. Again, when the Powers after the beginning of the nineteenth century agreed to several international arrangements in the interest of the abolition of the slave trade,[608] they fostered the realisation of another of these ideas. And the innumerable treaties between the different States as regards extradition of criminals, commerce, navigation, copyright, and the like, are inspired by the idea of affording ample protection to life, health, and property of individuals. Lastly, there is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention[609] for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilisation. However, a guarantee of the so-called rights of mankind cannot be found in all these and other facts. Nor do the actual conditions of life to which certain cla.s.ses of subjects are forcibly submitted within certain States show that the Law of Nations really comprises such guarantee.[610]

[Footnote 606: Bluntschli, ---- 360-363 and 370; Martens, I. ---- 85 and 86; Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and others.]

[Footnote 607: The matter is treated with great lucidity by Heilborn, "System," pp. 83-138.]

[Footnote 608: It is incorrect to maintain that the Law of Nations has abolished slavery, but there is no doubt that the conventional Law of Nations has tried to abolish the slave trade. Three important general treaties have been concluded for that purpose during the nineteenth century, since the Vienna Congress--namely, (1) the Treaty of London, 1841, between Great Britain, Austria, France, Prussia, and Russia; (2) the General Act of the Congo Conference of Berlin, 1885, whose article 9 deals with the slave trade; (3) the General Act of the anti-slavery Conference of Brussels, 1890, which is signed by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, however, below, -- 517), Germany, Holland, Italy, Luxemburg, Persia, Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and Zanzibar. See Queneuil, "De la traite des noirs et de l'esclavage"

(1907).]

[Footnote 609: See above, -- 137.]

[Footnote 610: The reader may think of the sad position of the Jews within the Russian Empire. The treatment of the native Jews in Roumania, although the Powers have, according to the spirit of article 44 of the Treaty of Berlin of 1878, a right of intervention, shows even more clearly that the Law of Nations does not guarantee what are called rights of mankind. See below, -- 312.]

II

NATIONALITY

Vattel, I. ---- 220-226--Hall, ---- 66 and 87--Westlake, I. pp. 213, 231-233--Halleck, I. p. 401--Taylor, ---- 172-178--Moore, III. ---- 372-376--Bluntschli, ---- 364-380--Stoerk in Holtzendorff, II. pp.

630-650--Gareis, -- 54--Liszt, -- 11--Ullmann, -- 108--Bonfils, Nos.

433-454--Despagnet, Nos. 329-333--Pradier-Fodere, III. No.

1645--Rivier, I. p. 303--Nys, II. pp. 214-220, 229-237--Calvo, II.

---- 539-540--Fiore, I. Nos. 644-658, 684-717, and Code, Nos.

638-641--Martens, I. ---- 85-87--Hall, "Foreign Powers and Jurisdiction" (1894), -- 14--Cogordan, "La nationalite au point de vue des rapports internationaux" (2nd ed. 1890)--Gargas in Z.V. V.

(1911), pp. 278-316 and [...]

[Sidenote: Conception of Nationality.]

-- 293. Nationality of an individual is his quality of being a subject of a certain State and therefore its citizen. It is not for International but for Munic.i.p.al Law to determine who is and who is not to be considered a subject. And therefore it matters not, as far as the Law of Nations is concerned, that Munic.i.p.al Laws may distinguish between different kinds of subjects--for instance, those who enjoy full political rights and are on that account named citizens, and those who are less favoured and are on that account not named citizens. Nor does it matter that according to the Munic.i.p.al Laws a person may be a subject of a part of a State, for instance of a colony, but not a subject of the mother-country, provided only such person appears as a subject of the mother-country as far as the latter's international relations are concerned. Thus, a person naturalised in a British Colony is for all international purposes a British subject, although he may not have the rights of a British subject within the United Kingdom itself.[611] For all international purposes, all distinctions made by Munic.i.p.al Laws between subjects and citizens and between different kinds of subjects have neither theoretical nor practical value, and the terms "subject"

and "citizen" are, therefore, synonymously made use of in the theory and practice of International Law.

[Footnote 611: See below, -- 307, and Hall, "Foreign Powers and Jurisdiction," -- 20, who quotes, however, a decision of the French Cour de Ca.s.sation according to which naturalisation in a British Colony does not const.i.tute a real naturalisation. But this decision is based on the Code Civil of France and has nothing to do with the Law of Nations. See also Westlake, I. pp. 231-233.]

But it must be emphasised that nationality as citizens.h.i.+p of a certain State must not be confounded with nationality as members.h.i.+p of a certain nation in the sense of a race. Thus, all Englishmen, Scotchmen, and Irishmen are, despite their different nationality as regards their race, of British nationality as regards their citizens.h.i.+p. Thus, further, although all Polish individuals are of Polish nationality _qua_ race, they have been, since the part.i.tion of Poland at the end of the eighteenth century between Russia, Austria, and Prussia, either of Russian, Austrian, or German nationality _qua_ citizens.h.i.+p.

[Sidenote: Function of Nationality.]

-- 294. It will be remembered that nationality is the link between individuals and the benefits of the Law of Nations.[612] This function of nationality becomes apparent with regard to individuals abroad, or property abroad of individuals who themselves are within the territory of their home State. Through one particular right and one particular duty of every State towards all other States this function of nationality becomes most conspicuous. The right is that of protection over its citizens abroad which every State holds and occasionally vigorously exercises towards other States; it will be discussed in detail below, -- 319. The duty, on the other hand, is that of receiving on its territory such citizens as are not allowed to remain[613] on the territory of other States. Since no State is obliged by the Law of Nations to allow foreigners to remain within its boundaries, it may, for many reasons, happen that certain individuals are expelled from all foreign countries. The home State of those expelled cannot refuse to receive them on the home territory, the expelling States having a claim on the home State that the latter do receive the expelled individuals.[614]

[Footnote 612: See above, -- 291.]

[Footnote 613: See below, -- 326.]

[Footnote 614: Beyond the right of protection and the duty to receive expelled citizens at home, the powers of a State over its citizens abroad in consequence of its personal supremacy ill.u.s.trate the function of nationality. (See above, -- 124.) Thus, the home State can tax citizens living abroad in the interest of home finance, can request them to come home for the purpose of rendering military service, can punish them for crimes committed abroad, can categorically request them to come home for good (so-called _jus avocandi_). And no State has a right forcibly to retain foreign citizens called home by their home State, or to prevent them from paying taxes to their home State, and the like.]

[Sidenote: So-called _Proteges_ and _de facto_ Subjects.]

-- 295. Although nationality alone is the regular means through which individuals can derive benefit from the Law of Nations, there are two exceptional cases in which individuals may come under the international protection of a State without these individuals being really its subjects. It happens, first, that a State undertakes by an international agreement the diplomatic protection of another State's citizens abroad, and in this case the protected foreign subjects are named "_proteges_"

of the protecting States. Such agreements are either concluded for a permanency as in the case of a small State, Switzerland for instance, having no diplomatic envoy in a certain foreign country where many of its subjects reside, or in time of war only, a belligerent handing over the protection of its subjects in the enemy State to a neutral State.

It happens, secondly, that a State promises diplomatic protection within the boundaries of Turkey and other Oriental countries to certain natives. Such protected natives are likewise named _proteges_, but they are also called "_de facto_ subjects" of the protecting State. The position of these _proteges_ is quite anomalous, it is based on custom and treaties, and no special rules of the Law of Nations itself are in existence concerning such _de facto_ subjects. Every State which takes such _de facto_ subjects under its protection can act according to its discretion, and there is no doubt that as soon as these Oriental States have reached a level of civilisation equal to that of the Western members of the Family of Nations, the whole inst.i.tution of the _de facto_ subjects will disappear.

Concerning the exercise of protection in Morocco, a treaty[615] was concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, Spain, Sweden-Norway, and the United States of America, which sanctions the stipulations of the treaty of 1863 between France and Morocco concerning the same subject. According to this treaty the term "_protege_" embraces[616] in relation to States of Capitulations only the following cla.s.ses of persons:--(1) Persons being subjects of a country which is under the protectorate of the Power whose protection they claim; (2) individuals corresponding to the cla.s.ses enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special treaty have been recognised as _proteges_ like those enumerated by article 4 of the French Muscat Convention of 1844; and (4) those individuals who can establish that they had been considered and treated as _proteges_ by the Power in question before the year in which the creation of new _proteges_ was regulated and limited--that is to say, before the year 1863, these individuals not having lost the _status_ they had once legitimately acquired.

[Footnote 615: See Martens, N.R.G. 2nd Ser. VI. (1881), p. 624.]

[Footnote 616: See p. 56 of the official publication of the Award, given in 1905, of the Hague Court of Arbitration in the case of France _v._ Great Britain concerning the Muscat Dhows.

It is of interest to note that the Court considers it a fact that the Powers have no longer the right to create _proteges_ in unlimited numbers in any of the Oriental States, for the Award states on p.

56:--"Although the Powers have _expressis verbis_ resigned the exercise of the pretended right to create '_proteges_' in unlimited number only in relation to Turkey and Morocco, nevertheless the exercise of this pretended right has been abandoned also in relation to other Oriental States, a.n.a.logy having always been recognised as a means to complete the very deficient written regulations of the capitulations as far as circ.u.mstances are a.n.a.logous."]

[Sidenote: Nationality and Emigration.]

-- 296. As emigration comprises the voluntary removal of an individual from his home State with the intention of residing abroad, but not necessarily with the intention of renouncing his nationality, it is obvious that emigrants may well retain their nationality. Emigration is in fact entirely a matter of internal legislation of the different States. Every State can fix for itself the conditions under which emigrants lose or retain their nationality, as it can also prohibit emigration altogether, or can at any moment request those who have emigrated to return to their former home, provided the emigrants have retained their nationality of birth. And it must be specially emphasised that the Law of Nations does not and cannot grant a right of emigration to every individual, although it is frequently maintained that it is a "natural" right of every individual to emigrate from his own State.[617]