Volume I Part 21 (1/2)
[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 Was.h.i.+ngton[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.