International Law. A Treatise Volume I Part 20

[Footnote 188: In contradistinction to the generally recognised political hegemony of the Great Powers, Lawrence (---- 113 and 114) and Taylor (-- 69) maintain that the position of the Great Powers is _legally_ superior to that of the smaller States, being a "Primacy" or "Overlordship." This doctrine, which professedly seeks to abolish the universally recognised rule of the equality of States, has no sound basis, and confounds political with legal inequality. I cannot agree with Lawrence when he says (-- 114, p. 276):--"... in a system of rules depending, like International Law, for their validity on general consent, what is political is legal also, if it is generally accepted and acted on." The Great Powers are _de facto_, by the smaller States, recognised as political leaders, but this recognition does not involve recognition of legal superiority.]

[Sidenote: Rank of States.]

-- 117. Although the States are equals as International Persons, they are nevertheless not equals as regards rank. The differences as regards rank are recognised by International Law, but the legal equality of States within the Family of Nations is thereby as little affected as the legal equality of the citizens is within a modern State where differences in rank and t.i.tles of the citizens are recognised by Munic.i.p.al 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 preseance_ or _questions de preseance_.

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 cla.s.ses--namely, States with and States without royal honours. To the first cla.s.s 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 cla.s.s. 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 cla.s.s[189]--namely, amba.s.sadors; and their monarchs address one another as "brothers" in their official letters. States with royal honours always precede other States.

[Footnote 189: See below, -- 365.]

(2) Full-Sovereign States always precede those under suzerainty or protectorate.

(3) Among themselves States of the same rank do not precede one another.

Empires do not precede kingdoms, and since the time of Cromwell and the first French Republic monarchies do not precede republics. But the Roman Catholic States always concede precedence to the Holy See, and the monarchs recognise among themselves a difference with regard to ceremonials between emperors and kings on the one hand, and, on the other, grand dukes and other monarchs.

[Sidenote: The "Alternat."]

-- 118. To avoid questions of precedence, on signing a treaty, States of the same rank observe a conventional usage which is called the "Alternat." According to that usage the signatures of the signatory States of a treaty alternate in a regular order or in one determined by lot, the representative of each State signing first the copy which belongs to his State. But sometimes that order is not observed, and the States sign either in the alphabetical order of their names in French or in no order at all (_pele-mele_).

[Sidenote: t.i.tles of States.]

-- 119. At the present time, States, save in a few exceptional instances, have no t.i.tles, although formerly such t.i.tles 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 t.i.tles 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 t.i.tles they like on their heads.

Thus, according to the German Const.i.tution of 1871, the Kings of Prussia have the t.i.tle "German Emperor"; the Kings of England have since 1877 borne the t.i.tle "Emperor of India"; the Prince of Servia a.s.sumed in 1881, that of Roumania in 1882, that of Bulgaria in 1908, and that of Montenegro in 1910, the t.i.tle "King." But no foreign State is obliged to recognise such a new t.i.tle, especially when a higher rank would accrue to the respective State in consequence of such a new t.i.tle of its head.

In practice such recognition will regularly be given when the new t.i.tle really corresponds with the size and the importance of the respective State.[191] Servia, Roumania, Bulgaria, and Montenegro had therefore no difficulty in obtaining recognition as kingdoms.

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

[Footnote 191: History, however, reports several cases where recognition was withheld for a long time. Thus the t.i.tle "Emperor of Russia,"

a.s.sumed 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 t.i.tle of Prussia, a.s.sumed in 1701, till 1786.]

With the t.i.tles 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" (_Sanct.i.tas_). 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-Fodere, II. Nos. 451-483--Rivier, I. pp.

260-262--Nys, II. pp. 212-214--Calvo, III. ---- 1300-1302--Fiore, I.

Nos. 439-451--Martens, I. -- 78.

[Sidenote: Dignity a Quality.]

-- 120. The majority of text-book writers maintain that there is a fundamental right of reputation and of good name belonging to every State. Such a right, however, does not exist, because no duty corresponding to it can be traced within the Law of Nations. Indeed, the reputation of a State depends just as much upon behaviour as that of every citizen within its boundaries. A State which has a corrupt government and behaves unfairly and perfidiously in its intercourse with other States will be looked down upon and despised, whereas a State which has an uncorrupt government and behaves fairly and justly in its international dealings will be highly esteemed. No law can give a good name and reputation to a rogue, and the Law of Nations does not and cannot give a right to reputation and good name to such a State as has not acquired them through its att.i.tude. There are some States--_nomina sunt odiosa!_--which indeed justly possess a bad reputation.

On the other hand, a State as a member of the Family of Nations possesses dignity as an International Person. Dignity is a quality recognised by other States, and it adheres to a State from the moment of its recognition till the moment of its extinction, whatever behaviour it displays. Just as the dignity of every citizen within a State commands a certain amount of consideration on the part of fellow-citizens, so the dignity of a State commands a certain amount of consideration on the part of other States, since otherwise the different States could not live peaceably in the community which is called the Family of Nations.

[Sidenote: Consequences of the Dignity of States.]

-- 121. Since dignity is a recognised quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. These are chiefly the rights to demand--that their heads shall not be libelled and slandered; that their heads and likewise their diplomatic envoys shall be granted exterritoriality and inviolability when abroad, and at home and abroad in the official intercourse with representatives of foreign States shall be granted certain t.i.tles; 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 Munic.i.p.al 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 att.i.tude of States and their rulers, utterances of moral indignation condemning immoral acts of foreign Governments and their monarchs need neither be suppressed nor punished.

[Footnote 192: According to the Criminal Law of England, "every one is guilty of a misdemeanour who publishes any libel tending to degrade, revile, or expose to hatred and contempt any foreign prince or potentate, amba.s.sador or other foreign dignitary, with the intent to disturb peace and friendship between the United Kingdom and the country to which any such person belongs." See Stephen, "A Digest of the Criminal Law," article 91.]

[Sidenote: Maritime Ceremonials.]

-- 122. Connected with the dignity of States are the maritime ceremonials between vessels and between vessels and forts which belong to different States. In former times discord and jealousy existed between the States regarding such ceremonials, since they were looked upon as means of keeping up the superiority of one State over another. Nowadays, so far as the Open Sea is concerned, they are considered as mere acts of courtesy recognising the dignity of States. They are the outcome of international usages, and not of International Law, in honour of the national flags. They are carried out by dipping flags or striking sails or firing guns.[193] But so far as the territorial maritime belt is concerned, littoral States can make laws concerning maritime ceremonials to be observed by foreign merchantmen.[194]

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

[Footnote 194: See below, -- 187.]

IV

INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY

Vattel, I. Preliminaires, ---- 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--Merignhac, I. pp. 233-383--Pradier-Fodere, I. Nos.

287-332--Rivier, I. -- 21--Nys, II. pp. 182-184--Calvo, I. ---- 107-109--Fiore, I. Nos. 372-427, and Code, Nos. 180-387--Martens, I. ---- 74 and 75--Westlake, Chapters, pp. 86-106.

[Sidenote: Independence and Territorial as well as Personal Supremacy as Aspects of Sovereignty.]

-- 123. Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of another State, sovereignty is _independence_. It is _external_ independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is _internal_ independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is _territorial_ supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is _personal_ supremacy.

For these reasons a State as an International Person possesses independence and territorial and personal supremacy. These three qualities are nothing else than three aspects of the very same sovereignty of a State, and there is no sharp boundary line between them. The distinction is apparent and useful, although internal independence is nothing else than sovereignty comprising territorial supremacy, but viewed from a different point of view.

[Sidenote: Consequences of Independence and Territorial and Personal Supremacy.]

-- 124. Independence and territorial as well as personal supremacy are not rights, but recognised and therefore protected qualities of States as International Persons. The protection granted to these qualities by the Law of Nations finds its expression in the right of every State to demand that other States abstain themselves, and prevent their agents and subjects, from committing any act which contains a violation of its independence and its territorial as well as personal supremacy.

In consequence of its external independence, a State can manage its international affairs according to discretion, especially enter into alliances and conclude other treaties, send and receive diplomatic envoys, acquire and cede territory, make war and peace.

In consequence of its internal independence and territorial supremacy, a State can adopt any Const.i.tution it likes, arrange its administration in a way it thinks fit, make use of legislature as it pleases, organise its forces on land and sea, build and pull down fortresses, adopt any commercial policy it likes, and so on. According to the rule, _quidquid est in territorio est etiam de territorio_, all individuals and all property within the territory of a State are under the latter's dominion and sway, and even foreign individuals and property fall at once under the territorial supremacy of a State when they cross its frontier.

Aliens residing in a State can therefore be compelled to pay rates and taxes, and to serve in the police under the same conditions as citizens for the purpose of maintaining order and safety. But aliens may be expelled, or not received at all. On the other hand, hospitality may be granted to them whatever act they have committed abroad, provided they abstain from making the hospitable territory the basis for attempts against a foreign State. And a State can through naturalisation adopt foreign subjects residing on its territory without the consent of the home State, provided the individuals themselves give their consent.

In consequence of its personal supremacy, a State can treat its subjects according to discretion, and it retains its power even over such subjects as emigrate without thereby losing their citizenship. A State may therefore command its citizens abroad to come home and fulfil their military service, may require them to pay rates and taxes for the support of the home finances, may ask them to comply with certain conditions in case they desire marriages concluded abroad or wills made abroad recognised by the home authorities, can punish them on their return for crimes they have committed abroad.

[Sidenote: Violations of Independence and Territorial and Personal Supremacy.]

-- 125. The duty of every State itself to abstain and to prevent its agents and subjects from any act which contains a violation[195] of another State's independence or territorial and personal supremacy is correlative to the respective right of the other State. It is impossible to enumerate all such actions as might contain a violation of this duty.

But it is of value to give some ill.u.s.trative examples. Thus, in the interest of the independence of other States, a State is not allowed to interfere in the management of their international affairs nor to prevent them from doing or to compel them to do certain acts in their international intercourse. Further, in the interest of the territorial supremacy of other States, a State is not allowed to send its troops, its men-of-war, or its police forces into or through foreign territory, or to exercise an act of administration or jurisdiction on foreign territory, without permission.[196] Again, in the interest of the personal supremacy of other States, a State is not allowed to naturalise aliens residing on its territory without their consent,[197] nor to prevent them from returning home for the purpose of fulfilling military service or from paying rates and taxes to their home State, nor to incite citizens of foreign States to emigration.

[Footnote 195: See below, -- 155.]