International Law. A Treatise Volume I Part 21

[Footnote 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.]

[Footnote 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.]

[Sidenote: 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 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.

[Footnote 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]

[Footnote 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.

[Footnote 200: See Martens, N.R.G. 2nd Ser. x.x.xII. (1905), p. 79. As regards the international position of Cuba, see Whitcomb, "La situation internationale de Cuba" (1905).]

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.

[Footnote 201: See Martens, N.R.G. 2nd Ser. x.x.xI. (1905), p. 601.]

[Sidenote: 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 pa.s.s 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 pa.s.sing 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]

[Footnote 202: Great Britain would seem to uphold an exception to this rule, for Lord Reay, one of her delegates, declared--see "Deuxieme Conference Internationale de la Paix, Actes et Doc.u.ments," vol. III. p.

41--the following at the second Hague Peace Conference of 1907: "Nous reconnaissons qu'en regle generale le neutre est exempt de tout service militaire dans l'Etat ou il reside. 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 entiere, sans distinction de nationalite, peut etre appelee sous les armes pour defendre leurs foyers menaces."]

[Footnote 203: See below, -- 178 _a_.]

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

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

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

[Sidenote: 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 Munic.i.p.al 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 in so far as these States are thereby obliged not to impose any religious disabilities on any of their subjects.[206]

[Footnote 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--Merignhac, I.

pp. 239-245--Pradier-Fodere, 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.

[Sidenote: 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 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.

[Footnote 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.]

[Sidenote: 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 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 circ.u.mstances and conditions of the special case, and it is therefore of value to give some historical examples.

[Sidenote: 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, sh.e.l.led Copenhagen, and seized the Danish fleet.

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

[Sidenote: 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 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]

[Footnote 209: See Wharton, -- 50 a, and Moore, II. -- 216.]

[Sidenote: 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]

[Footnote 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.]

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--Merignhac, I. pp. 284-310--Pradier-Fodere, 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.