International Law Part 6

-- 29. Communities not fully Civilized

While there is no agreement as to what const.i.tutes civilization, still international law is considered as binding only upon states claiming a high degree of enlightenment. Communities, whether or not politically organized and not within the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities not fully civilized should be treated as civilized states would be treated so far as the time and other circ.u.mstances permit.

Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization.

Many states not admitted to the circle of nations have now acquired such a status as ent.i.tles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded, as for many years to China, Persia, and other Asiatic states.

PART III

INTERNATIONAL LAW OF PEACE

CHAPTER VII

GENERAL RIGHTS AND OBLIGATIONS OF STATES

30. +Existence.+

31. +Independence.+

32. +Equality.+

33. +Jurisdiction.+

34. +Property.+

35. +Intercourse.+

-- 30. Existence

The most comprehensive right of a state is the _right to exist_ as a sovereign political unity. From this comprehensive right flow the general rights of _independence_, _equality_, _jurisdiction_, _property_, and _intercourse_ and the obligations which the exercise of these rights imply. There are many cla.s.sifications of the general rights of states. During the eighteenth century a cla.s.sification into perfect and imperfect rights was common. A cla.s.sification based on the essential nature of the state as a sovereign political unity, having (1) a right to existence and (2) from the point of view of international law, having relations to other states, has been widely followed. The rights based on the comprehensive right to existence were variously named as essential, fundamental, primitive, innate, absolute, permanent, etc., while the rights derived from the practice of states in their mutual relations were called accidental, derived, secondary, acquired, relative, contingent, etc. The view now most generally recognized is that from the single comprehensive right of states _to exist_, all other rights flow, and all other rights are therefore related, if not directly, at least by virtue of their common source.

-- 31. Independence

Independence from the point of view of international law is freedom from external political control. While all states possessing freedom from external political control may not be admitted to the family of states, yet in order that a state may be admitted, it is regarded as essential that it be independent. The recognition of a state carries with it the recognition of independence. However, from the fact that there are states in the world having equal rights to independence, it follows that the field of action of each state is limited by the necessity of respect for the right of independence belonging to other states.

The recognition of a state presupposes autonomy as an essential for the existence of a sovereign political unity, and autonomy implies the right to determine and pursue such lines of action as may be in accord with its policy.

-- 32. Equality

All states, the existence of which has been recognized by the family of states, are regarded as possessed of equal rights in political affairs, so far as legal competence is concerned.

This does not imply an equality of territorial area, population, wealth, rank, and influence, etc., or that a given state may not voluntarily limit the exercise of its powers.

-- 33. Jurisdiction

The right of jurisdiction is the right to exercise state authority. The right of jurisdiction is in general coextensive with the dominion of the state. It may be "laid down as a general proposition that all persons and property within the territorial jurisdiction of a sovereign are amenable to the jurisdiction of himself or his courts; and that the exceptions to this rule are such only as by common usage and public policy have been allowed, in order to preserve the peace and harmony of nations, and to regulate their intercourse in a manner best suited to their dignity and rights."[89]

-- 34. Property

In international law, as against other states, a given state has the right of property or domain in the territory and fixtures within its limits. This right of property is not the right in the old feudal sense, for in the public law of the state the t.i.tle of owners.h.i.+p may vest in the state only in a limited sense as over territory to which none of its subjects have t.i.tle, and over such other forms it has owners.h.i.+p in corporate capacity, as public buildings, forts, a.r.s.enals, vessels, lighthouses, libraries, museums, etc. The right of eminent domain as a domestic right may also vest in the state. While from the point of view of international law, a state has the right of property over all territorial and non-territorial possessions within its limits as against other states, yet the effect of this right is somewhat modified by the fact of public or private owners.h.i.+p, particularly as regards the laws of war, neutrality, and intercourse.

-- 35. Intercourse

In early periods of history intercourse among states was very limited and sometimes even prohibited. At the present time the necessities of state existence presuppose, in international law, the recognition of the right of intercourse in order that state business may be transacted. The principles upon which this intercourse is carried on are well established, and form the basis of diplomatic practice.

CHAPTER VIII

EXISTENCE

36. +Application of the Right in General.+

37. +Extension of the Right to Subjects of the State.+

-- 36. Application of the Right

Besides the general rights of _independence_, _equality_, _jurisdiction_, _property_, and _intercourse_, the right of existence in its exercise may lead to certain acts for which the general principles of international law do not provide rules.[90]

(_a_) In face of actual dangers immediately threatening its existence, a state may take such measures as are necessary for self-preservation, even though not sanctioned by international law. Such measures, however, must be from "a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation," and further "must be limited by that necessity and kept clearly within it."[91] The wide discussion of the case of the _Virginius_ involved the principle of the limits of the right of self-defense.[92]

(_b_) The right to act in a manner which international law does not sanction or denies, even though it may be strictly to preserve the existence of the state so acting, cannot be upheld as freeing it from responsibility for such acts, and these acts may be regarded as hostile by states affected by them.

(_c_) As the domestic acts of a state are not within the province of international law, a state has the right to administer its internal affairs in such manner as it may determine fit to secure and further its existence. It may adopt any form of government; may plan for its growth by developing its resources, by encouraging immigration; may strengthen defenses and forces; may regulate trade, commerce, and travel. While acts of this character may work injury to other states, they are not in general just grounds for war, but may properly be met by like acts on the part of other states.

-- 37. Extension of the Right to Subjects of the State

As the subjects of a state are necessary for its existence, the right of self-preservation has been held to justify certain acts of states to secure to their subjects in their relations with foreign states such rights as the foreign states would accord to their own subjects under similar circ.u.mstances. That a local tribunal within a purely domestic division of a state cannot secure to foreigners rights to which they are ent.i.tled, in no way frees that state, whose sovereignty extends over such domestic division, from responsibility for violation of the foreigner's right. International law recognizes only the personality of the sovereign political unity, and cannot cognize the administrative and other subdivisions. Hall says, "States possess a right of protecting their subjects abroad which is correlative to their responsibility in respect of injuries inflicted upon foreigners within their dominions."[93] "Fundamentally, however, there is no difference in principle between wrongs inflicted by breach of a monetary agreement and other wrongs for which the state, as itself the wrong-doer, is immediately responsible. The difference which is made in practice is in no sense obligatory; and it is open to governments to consider each case by itself, and to act as seems well to them on its merits."[94]

CHAPTER IX