Volume I Part 19 (1/2)

CHAPTER II

POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS

I

INTERNATIONAL PERSONALITY

Vattel, I. ---- 13-25--Hall, -- 7--Westlake, I. pp.

293-296--Lawrence, -- 57--Phillimore, I. ---- 144-147--Twiss, I. -- 106--Wharton, -- 60--Moore, I. -- 23--Bluntschli, ---- 64-81--Hartmann, -- 15--Heffter, -- 26--Holtzendorff in Holtzendorff, II. pp. 47-51--Gareis, ---- 24-25--Liszt, -- 7--Ullmann, -- 38--Bonfils, Nos. 235-241--Despagnet, Nos.

165-166--Nys, II. pp. 176-181--Pradier-Fodere, I. Nos.

165-195--Merignhac, I. pp. 233-238--Rivier, I. -- 19--Fiore, I.

Nos. 367-371--Martens, I. -- 72--Fontenay, ”Des droits et des devoirs des etats entre eux” (1888)--Pillet in R.G. V. (1898), pp. 66 and 236, VI. (1899), p. 503--Cavaglieri, ”I diritti fondamentali degli Stati nella Societa Intern.a.z.ionale” (1906).

[Sidenote: The so-called Fundamental Rights.]

-- 112. Until the last two decades of the nineteenth century all jurists agreed that the members.h.i.+p of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. It was and is maintained that these fundamental rights are a matter of course and self-evident, since the Family of Nations consists of Sovereign States. But no unanimity exists with regard to the number, the names, and the contents of these alleged fundamental rights. A great confusion exists in this matter, and hardly two text-book writers agree in details with regard to it. This condition of things has led to a searching criticism of the whole matter, and several writers[177] have in consequence thereof asked that the fundamental rights of States should totally disappear from the treatises on the Law of Nations. I certainly agree with this.

Yet it must be taken into consideration that under the wrong heading of fundamental rights a good many correct statements have been made for hundreds of years, and that numerous real rights and duties are customarily recognised which are derived from the very members.h.i.+p of the Family of Nations. They are rights and duties which do not rise from international treaties between a mult.i.tude of States, but which the States customarily hold as International Persons, and which they grant and receive reciprocally as members of the Family of Nations. They are rights and duties connected with the position of the States within the Family of Nations, and it is therefore only adequate to their importance to discuss them in a special chapter under that heading.

[Footnote 177: See Stoerk in Holtzendorff's ”Encyklopadie der Rechtswissenschaft,” 2nd ed. (1890), p. 1291; Jellinek, ”System der subjectiven offentlichen Rechte” (1892), p. 302; Heilborn, ”System,” p.

279; and others. The arguments of these writers have met, however, considerable resistance, and the existence of fundamental rights of States is emphatically defended by other writers. See, for instance, Pillet, l.c., Liszt, -- 7, and Gareis, ---- 24 and 25. Westlake, I. p. 293, now joins the ranks of those writers who deny the existence of fundamental rights.]

[Sidenote: International Personality a Body of Qualities.]

-- 113. International Personality is the term which characterises fitly the position of the States within the Family of Nations, since a State acquires International Personality through its recognition as a member.

What it really means can be ascertained by going back to the basis[178]

of the Law of Nations. Such basis is the common consent of the States that a body of legal rules shall regulate their intercourse with one another. Now a legally regulated intercourse between Sovereign States is only possible under the condition that a certain liberty of action is granted to every State, and that, on the other hand, every State consents to a certain restriction of action in the interest of the liberty of action granted to every other State. A State that enters into the Family of Nations retains the natural liberty of action due to it in consequence of its sovereignty, but at the same time takes over the obligation to exercise self-restraint and to restrict its liberty of action in the interest of that of other States. In entering into the Family of Nations a State comes as an equal to equals[179]; it demands that certain consideration be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy. Recognition of a State as a member of the Family of Nations contains recognition of such State's equality, dignity, independence, and territorial and personal supremacy. But the recognised State recognises in turn the same qualities in other members of that family, and thereby it undertakes responsibility for violations committed by it. All these qualities const.i.tute as a body the International Personality of a State, and International Personality may therefore be said to be the fact, given by the very members.h.i.+p of the Family of Nations, that equality, dignity, independence, territorial and personal supremacy, and the responsibility of every State are recognised by every other State. The States are International Persons because they recognise these qualities in one another and recognise their responsibility for violations of these qualities.

[Footnote 178: See above, -- 12.]

[Footnote 179: See above, -- 14.]

[Sidenote: Other Characteristics of the position of the States within the Family of Nations.]

-- 114. But the position of the States within the Family of Nations is not exclusively characterised by these qualities. The States make a community because there is constant intercourse between them.

Intercourse is therefore a condition without which the Family of Nations would not and could not exist. Again, there are exceptions to the protection of the qualities which const.i.tute the International Personality of the States, and these exceptions are likewise characteristic of the position of the States within the Family of Nations. Thus, in time of war belligerents have a right to violate one another's Personality in many ways; even annihilation of the vanquished State, through subjugation after conquest, is allowed. Thus, further, in time of peace as well as in time of war, such violations of the Personality of other States are excused as are committed in self-preservation or through justified intervention. And, finally, jurisdiction is also important for the position of the States within the Family of Nations. Intercourse, self-preservation, intervention, and jurisdiction must, therefore, likewise be discussed in this chapter.

II

EQUALITY, RANK, AND t.i.tLES

Vattel, II. ---- 35-48--Westlake, I. pp. 308-312--Lawrence, ---- 112-119--Phillimore, I. -- 147, II. ---- 27-43--Twiss, I. -- 12--Halleck, I. pp. 116-140--Taylor, -- 160--Wheaton, ---- 152-159--Moore, I. -- 24--Bluntschli, ---- 81-94--Hartmann, -- 14--Heffter, ---- 27-28--Holtzendorff in Holtzendorff, II. pp.

11-14--Ullmann, ---- 36 and 37--Bonfils, Nos. 272-278--Despagnet, Nos. 167-171--Pradier-Fodere, II. Nos. 484-594--Merignhac, I. pp.

310-320--Rivier, I. -- 9--Nys, II. pp. 194-199, 208-218--Calvo, I.

---- 210-259--Fiore, I. Nos. 428-451, and Code, Nos.

388-421--Martens, I. ---- 70-71--Lawrence, Essays, pp.

191-213--Westlake, Chapters, pp. 86-109--Huber, ”Die Gleichheit der Staaten” (1909)--Streit in R.I. 2nd Ser. II. pp. 5-27--Hicks in A.J. II. (1908), pp. 530-561.