International Law. A Treatise Volume I Part 26

(_a_) When the act from which they have suffered is directed against foreigners as such in general, or against them as under the jurisdiction of a certain State, or

(_b_) When the act from which they have suffered consists in closing a port without due and proper previous notification, or in retaining foreign ships in a port, or

(_c_) When the injury is the result of an act contrary to the laws committed by a government official, or

(_d_) When the obligation to compensate is established by virtue of the general principles of the law of war.

(2) The obligation is equally well established when the injury has been committed (No. 1, _a_ and _d_) on the territory of an insurrectionary government, whether by this government itself, or by one of its functionaries.

On the other hand, certain demands for indemnity may be set aside when they concern facts which occur after the government of the State to which the injured person belongs has recognised the insurrectionary government as a belligerent Power, and when the injured person has continued to keep his domicile or his habitation on the territory of the insurrectionary government.

As long as the latter is considered by the government of the person alleged to be injured as a belligerent Power, the demand may only be addressed, in the case of paragraph 1 of article 2, to the insurrectionary government and not to the legitimate government.

(3) The obligation to compensate disappears when the injured persons are themselves a cause of the event which has brought the injury.[268] Notably no obligation exists to indemnify those who have returned to the country or who wish to give themselves up to commerce or industry there, when they know, or ought to know, that troubles have broken out, nor to indemnify those who establish themselves or sojourn in a country which offers no security on account of the presence of savage tribes, unless the government of the country has given express a.s.surance to immigrants.

(4) The government of a Federal State composed of a certain number of smaller States, which it represents from an international point of view, may not plead, in order to avoid the responsibility which falls upon it, the fact that the const.i.tution of the Federal State does not give it the right to control the member-States, nor the right to exact from them the discharge of their obligations.

(5) The stipulations mutually exempting States from the duty of giving their diplomatic protection ought not to comprise the cases of refusal of justice, or of evident violation of justice or of International Law.[269]

[Footnote 267: At its meeting at Neuchatel in 1900; see Annuaire, XVIII.

p. 254.]

[Footnote 268: For example, in the case of conduct which is particularly provocative to a crowd.]

[Footnote 269: The Inst.i.tute of International Law has likewise--see Annuaire, XVIII. pp. 253 and 256--expressed the two following _voeux_:--

(_a_) The Inst.i.tute of International Law expresses the wish that the States should avoid inserting in treaties clauses of reciprocal irresponsibility. It considers that these clauses are wrong in exempting States from the fulfilment of their duty of protecting their nationals abroad and of their duty of protecting foreigners on their territory. It considers that the States which, on account of extraordinary circ.u.mstances, do not feel themselves at all in a position to a.s.sure protection in a sufficiently efficacious manner to foreigners on their territory, can only avoid the consequences of this condition of things by temporarily prohibiting foreigners to enter their territory.

(_b_) Recourse to international commissions of inquiry and to international tribunals is in general recommended for all differences which may arise on account of injury to foreigners in the course of a riot, an insurrection, or of civil war.]

PART II

THE OBJECTS OF THE LAW OF NATIONS

CHAPTER I

STATE TERRITORY

I

ON STATE TERRITORY IN GENERAL

Vattel, II. ---- 79-83--Hall, -- 30--Westlake, I. pp.

84-88--Lawrence, ---- 71-72--Phillimore, I. ---- 150-154--Twiss, I. ---- 140-144--Halleck, I. pp. 150-156--Taylor, -- 217--Wheaton, ---- 161-163--Moore, I. -- 125--Bluntschli, -- 277--Hartmann, -- 58--Holtzendorff in Holtzendorff, II. pp. 225-232--Gareis, -- 18--Liszt, -- 9--Ullmann, -- 86--Heffter, ---- 65-68--Bonfils, No.

483--Despagnet, Nos. 374-377--Pradier-Fodere, II. No.

612--Merignhac, II. pp. 356-366--Nys, I. pp. 402-412--Rivier, I.

pp. 135-142--Calvo, I. ---- 260-262--Fiore, I. Nos.

522-530--Martens, I. -- 88--Del Bon, "Proprieta territoriale degli Stati" (1867)--Fricker, "Vom Staatsgebiet" (1867).

[Sidenote: Conception of State Territory.]

-- 168. State territory is that definite portion of the surface of the globe which is subjected to the sovereignty of the State. A State without a territory is not possible, although the necessary territory may be very small, as in the case of the Free Town of Hamburg, the Princ.i.p.ality of Monaco, the Republic of San Marino, or the Princ.i.p.ality of Lichtenstein. A wandering tribe, although it has a Government and is otherwise organised, is not a State before it has settled down on a territory of its own.

State territory is also named territorial property of a State. Yet it must be borne in mind that territorial property is a term of Public Law and must not be confounded with private property. The territory of a State is not the property of the monarch, or of the Government, or even of the people of a State; it is the country which is subjected to the territorial supremacy or the _imperium_ of a State. This distinction has, however, in former centuries not been sharply drawn.[270] In spite of the _dictum_ of Seneca, "Omnia rex imperio possidet, singuli dominio," the _imperium_ of the monarch and the State over the State territory has very often been identified with private property of the monarch or the State. But with the disappearance of absolutism this identification has likewise disappeared. It is for this reason that nowadays, according to the Const.i.tutional Law of most countries, neither the monarch nor the Government is able to dispose of parts of the State territory at will and without the consent of Parliament.[271]

[Footnote 270: And some writers refuse to draw it even nowadays, as, for instance, Lawrence, -- 71.]

[Footnote 271: In English Const.i.tutional Law this point is not settled.

The cession of the Island of Heligoland to Germany in 1890 was, however, made conditional on the approval of Parliament.]

It must, further, be emphasised that the territory of a State is totally independent of the racial character of the inhabitants of the State. The territory is the public property of the State, and not of a nation in the sense of a race. The State community may consist of different nations, as, for instance, the British or the Swiss or the Austrians.

[Sidenote: Different kinds of Territory.]

-- 169. The territory of a State may consist of one piece of the surface of the globe only, such as that of Switzerland. Such kind of territory is named "integrate territory" (_territorium clausum_). But the territory of a State may also be dismembered and consist of several pieces, such as that of Great Britain. All States with colonies have a "dismembered territory."

If a territory or a piece of it is absolutely surrounded by the territory of another State, it is named an "enclosure." Thus the Republic of San Marino is an enclosure of Italy, and Birkenfeld, a piece of the territory of the Grand Duchy of Oldenburg situated on the river Rhine, is an enclosure of Prussia.

Another distinction is that between motherland and colonies. Colonies rank as territory of the motherland, although they may enjoy complete self-government and therefore be called Colonial States. Thus, if viewed from the standpoint of the Law of Nations, the Dominion of Canada, the Commonwealth of Australia, New Zealand, and the Union of South Africa are British territory.

As regards the relation between the Suzerain and the Va.s.sal State, it is certain that the va.s.sal is not, in the strict sense of the term, a part of the territory of the suzerain. Crete and Egypt are not Turkish territory, although under Turkish suzerainty. But no general rule can be laid down, as everything depends on the merits of the special case, and as the va.s.sal, even if it has some footing of its own within the Family of Nations, is internationally for the most part considered a mere portion of the Suzerain State.[272]

[Footnote 272: See above, -- 91.]

[Sidenote: Importance of State Territory.]

-- 170. The importance of State territory lies in the fact that it is the s.p.a.ce within which the State exercises its supreme authority. State territory is an object of the Law of Nations because the latter recognises the supreme authority of every State within its territory.

Whatever person or thing is on or enters into that territory, is _ipso facto_ subjected to the supreme authority of the respective State according to the old rules, _Quidquid est in territorio, est etiam de territorio_ and _Qui in territorio meo est, etiam meus subditus est_. No foreign authority has any power within the boundaries of the home territory, although foreign Sovereigns and diplomatic envoys enjoy the so-called privilege of exterritoriality, and although the Law of Nations does, and international treaties may, restrict[273] the home authority in many points in the exercise of its sovereignty.

[Footnote 273: See above, ---- 126-128.]

[Sidenote: One Territory, one State.]

-- 171. The supreme authority which a State exercises over its territory makes it apparent that on one and the same territory can exist one full-Sovereign State only. Two or more full-Sovereign States on one and the same territory are an impossibility. The following five cases, of which the Law of Nations is cognisant, are apparent, but not real, exceptions to this rule.

(1) There is, first, the case of the so-called _condominium_. It happens sometimes that a piece of territory consisting of land or water is under the joint _tenancy_ of two or more States, these several States exercising sovereignty conjointly over such piece and the individuals living thereon. Thus Schleswig-Holstein and Lauenburg from 1864 till 1866 were under the _condominium_ of Austria and Prussia. Thus, further, Moresnet (Kelmis), on the frontier of Belgium and Prussia, is under the _condominium_ of these two States[274] because they have not yet come to an agreement regarding the interpretation of a boundary treaty of 1815 between the Netherlands and Prussia. And since 1898 the Soudan is under the _condominium_ of Great Britain and Egypt. It is easy to show that in such cases[275] there are not two States on one and the same territory, but pieces of territory, the destiny of which is not decided, and which are kept separate from the territories of the interested States[276]

under a separate administration. Until a final settlement the interested States do not exercise each an individual sovereignty over these pieces, but they agree upon a joint administration under their conjoint sovereignty.

[Footnote 274: See Schroder, "Das grenzstreitige Gebiet von Moresnet"

(1902).]