Volume I Part 46 (1/2)

310-314, and Heilborn, ”System,” pp. 58-138.]

Again, in those rare cases in which States stipulate by international treaties certain favours for individuals other than their own subjects, these individuals do not acquire any international rights under these treaties. The latter impose the duty only upon the State whose subjects these individuals are of calling those favours into existence by its Munic.i.p.al Law. Thus, for example, when articles 5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition of the recognition of Bulgaria, Montenegro, Servia, and Roumania, that these States should not impose any religious disability upon their subjects, the latter did not thereby acquire any international rights. Another instructive example[599] is furnished by article 5 of the Peace Treaty of Prague, 1866, between Prussia and Austria, which stipulated that the northern district of Schleswig should be ceded by Prussia to Denmark in case the inhabitants should by a plebiscite vote in favour of such cession.

Austria, no doubt, intended to secure by this stipulation for the inhabitants of North Schleswig the opportunity of voting in favour of their union with Denmark. But these inhabitants did not thereby acquire any international right. Austria herself acquired only a right to insist upon Prussia granting to the inhabitants the opportunity of voting for the union with Denmark. Prussia, however, intentionally neglected her duty, Austria did not insist upon her right, and finally relinquished it by the Treaty of Vienna of 1878.[600]

[Footnote 599: See Heilborn, ”System,” p. 67.]

[Footnote 600: It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by Kaufmann, ”Die Rechtskraft des internationalen Rechtes” (1899), ---- 1-4, and a few others.]

Now it is maintained[601] that, although individuals cannot be subjects of International Law, they can nevertheless acquire rights and duties from International Law. But it is impossible to find a basis for the existence of such rights and duties. International rights and duties they cannot be, for international rights and duties can only exist between States. Likewise they cannot be munic.i.p.al rights, for munic.i.p.al rights and duties can only be created by Munic.i.p.al Law. The opponents answer that such rights and duties nevertheless exist, and quote for example articles 4 and 5 of Convention XII. (concerning the establishment of an International Prize Court) of the second Hague Peace Conference, according to which individuals have a right to bring an appeal before the International Prize Court. But is this a real right?

Is it not more correct to say that the home States of the individuals concerned have a right to demand that these individuals can bring the appeal before the Court? Wherever International Law creates an independent organisation, such as the International Prize Court at the Hague or the European Danube Commission and the like, certain powers and claims must be given to the Courts and Commissions and the individuals concerned, but these powers and claims, and the obligations deriving therefrom, are neither international nor munic.i.p.al rights and duties: they are powers, claims, and obligations existing only within the organisations concerned. To call them rights and duties--as indeed the respective treaties frequently do--is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Munic.i.p.al Law.

[Footnote 601: See Diena in R.G. XVI. (1909), pp. 57-76; Rehm and Adler in Z.V. I. (1908), pp. 53 and 614; Liszt, -- 5; Kohler in Z.V. II.

(1909), pp. 209-230.]

[Sidenote: Individuals Objects of the Law of Nations.]

-- 290. But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are _objects_ of the Law of Nations. They appear as such from many different points of view. When, for instance, the Law of Nations recognises the personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the States does in consequence of the recognised territorial supremacy of the States. When, secondly, the recognised territorial supremacy of every State comprises certain powers over foreign subjects within its boundaries without their home State's having a right to interfere, these individuals appear again as objects of the Law of Nations. And, thirdly, when according to the Law of Nations any State may seize and punish foreign pirates on the Open Sea, or when belligerents may seize and punish neutral blockade-runners and carriers of contraband on the Open Sea without their home State's having a right to interfere, individuals appear here too as objects of the Law of Nations.[602]

[Footnote 602: Westlake, Chapters, p. 2, maintains that in these cases individuals appear as _subjects_ of International Law; but I cannot understand upon what argument this a.s.sertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland, ”Jurisprudence,” p. 341.]

[Sidenote: Nationality the Link between Individuals and the Law of Nations.]

-- 291. If, as stated, individuals are never subjects but always objects of the Law of Nations, then nationality is the link between this law and individuals. It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations.

This is a fact which has its consequences over the whole area of International Law.[603] Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way of redress, there being no State which would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.[604] On the other hand, if individuals who possess nationality are wronged abroad, it is their home State only and exclusively which has a right to ask for redress, and these individuals themselves have no such right. It is for this reason that the question of nationality is a very important one for the Law of Nations, and that individuals enjoy benefits from this law not as human beings but as subjects of such States as are members of the Family of Nations. And so distinct is the position as subjects of these members from the position of stateless individuals and from subjects of States outside the Family of Nations, that it has been correctly characterised as a kind of international ”indigenousness,” a _Volkerrechts-Indigenat_.[605] Just as munic.i.p.al citizens.h.i.+p procures for an individual the enjoyment of the benefits of the Munic.i.p.al Laws, so this international ”indigenousness,”

which is a necessary inference from munic.i.p.al citizens.h.i.+p, procures the enjoyment of the benefits of the Law of Nations.

[Footnote 603: See below, -- 294.]

[Footnote 604: See below, -- 312.]

[Footnote 605: See Stoerk in Holtzendorff, II. p. 588.]

[Sidenote: The Law of Nations and the Rights of Mankind.]

-- 292. Several writers[606] maintain that the Law of Nations guarantees to every individual at home and abroad the so-called rights of mankind, without regarding whether an individual be stateless or not, or whether he be a subject of a member-State of the Family of Nations or not. Such rights are said to comprise the right of existence, the right to protection of honour, life, health, liberty, and property, the right of practising any religion one likes, the right of emigration, and the like. But such rights do not in fact enjoy any guarantee whatever from the Law of Nations,[607] and they cannot enjoy such guarantee, since the Law of Nations is a law between States, and since individuals cannot be subjects of this law. But there are certain facts which cannot be denied at the background of this erroneous opinion. The Law of Nations is a product of Christian civilisation and represents a legal order which binds States, chiefly Christian, into a community. It is therefore no wonder that ethical ideas which are some of them the basis of, others a development from, Christian morals, have a tendency to require the help of International Law for their realisation. When the Powers stipulated at the Berlin Congress of 1878 that the Balkan States should be recognised only under the condition that they did not impose any religious disabilities on their subjects, they lent their arm to the realisation of such an idea. Again, when the Powers after the beginning of the nineteenth century agreed to several international arrangements in the interest of the abolition of the slave trade,[608] they fostered the realisation of another of these ideas. And the innumerable treaties between the different States as regards extradition of criminals, commerce, navigation, copyright, and the like, are inspired by the idea of affording ample protection to life, health, and property of individuals. Lastly, there is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention[609] for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilisation. However, a guarantee of the so-called rights of mankind cannot be found in all these and other facts. Nor do the actual conditions of life to which certain cla.s.ses of subjects are forcibly submitted within certain States show that the Law of Nations really comprises such guarantee.[610]

[Footnote 606: Bluntschli, ---- 360-363 and 370; Martens, I. ---- 85 and 86; Fiore, I. Nos. 684-712, and Code, Nos. 614-669; Bonfils, No. 397, and others.]

[Footnote 607: The matter is treated with great lucidity by Heilborn, ”System,” pp. 83-138.]

[Footnote 608: It is incorrect to maintain that the Law of Nations has abolished slavery, but there is no doubt that the conventional Law of Nations has tried to abolish the slave trade. Three important general treaties have been concluded for that purpose during the nineteenth century, since the Vienna Congress--namely, (1) the Treaty of London, 1841, between Great Britain, Austria, France, Prussia, and Russia; (2) the General Act of the Congo Conference of Berlin, 1885, whose article 9 deals with the slave trade; (3) the General Act of the anti-slavery Conference of Brussels, 1890, which is signed by Great Britain, Austria-Hungary, Belgium, the Congo Free State, Denmark, France, (see, however, below, -- 517), Germany, Holland, Italy, Luxemburg, Persia, Portugal, Russia, Spain, Sweden, Norway, the United States, Turkey, and Zanzibar. See Queneuil, ”De la traite des noirs et de l'esclavage”

(1907).]

[Footnote 609: See above, -- 137.]

[Footnote 610: The reader may think of the sad position of the Jews within the Russian Empire. The treatment of the native Jews in Roumania, although the Powers have, according to the spirit of article 44 of the Treaty of Berlin of 1878, a right of intervention, shows even more clearly that the Law of Nations does not guarantee what are called rights of mankind. See below, -- 312.]

II

NATIONALITY