the possession of those things, moveable or immoveable, which are believed to render it hostile to the welfare of all. Normally, after a State has come into being, it is deemed to enjoy the right to live and develop.1 In order to preserve its existence it is accorded large freedom; and to defend itself from attack it may even disregard the independence of its adversary. The rights of a State with respect to the outside world are not, however, to be ordinarily measured by what, under extraordinary circumstances, it may not unlawfully do in order to prevent its own destruction. Because a man may, in self-defense, be justified in killing another individual, he is not deemed to possess the right of homicide. Such an act is generally forbidden. Likewise, in the society of nations, the rights of the individual member are neither derived from nor manifested by conduct which is commonly prohibited and never excusable save on grounds of self-defense.2 The privileges and duties of a State which result from its right to live and develop as a member of the family of nations may be fairly observed in connection with problems pertaining, respectively, to political independence, property and control, and matters of jurisdiction. 4 RIGHTS OF INDEPENDENCE DURING EXISTENCE 52. In General. a An independent State as a full-fledged member of the society of nations has generally the right, as Hall expressed it: to live its life in its own way, so long as it keeps itself rigidly to itself, and refrains from interfering with the equal right of other States to live their life in the manner which commends itself to them, either by its own action, or by lending the shelter of its independence to persons organising armed attack upon the political or social order elsewhere established.3 The practice of States has not thus far reflected a general opinion that international necessity demands the further restriction 1 "Since States exist, and are independent beings, possessing property, they have the right to do whatever is necessary for the purpose of continuing and developing their existence, of giving effect to and preserving their independence, and of holding and acquiring property, subject to the qualification that they are bound correlatively to respect these rights in others." Hall, Higgins 7 ed., 44. 2 Certain Non-Political Acts of Self-Defense, in General, infra, § 65. Higgins' 7 ed., 45. IN GENERAL [§ 52 of the individual State which observes the conditions thus prescribed. It must, however, be recognized, that the society of nations may at any time conclude that acts which the individual State was previously deemed to possess the right to commit without external interference, are so injurious to the world at large as to justify the imposition of fresh restrictions. The singleness of the interest of all enlightened States, increasing in intensity according to the growth of international intercourse and the development of international trade, quickens the perception of this fundamental principle, and also tends to produce a changing view of what it requires. For that reason, in the endeavor to enunciate sound applications of it, care must be taken to distinguish between forms of State conduct which, although theoretically adverse to the general welfare, are not in practice regarded as having attained international significance, from those which foreign offices commonly treat as sufficiently injurious to the family of nations to justify interference. The trend of international law must not be mistaken for what in the light of practice that law may at any particular time be fairly deemed to proscribe. The extent of the freedom from external control which, according to American opinion, the individual State is believed to possess, will be examined with reference to what are commonly described as domestic affairs, as distinct from those designated as foreign affairs. In the course of such an examination it needs. to be borne in mind that the revolutionary origin of the United States together with the intolerance of external control characteristic of the race to which the people who overcame British domination in the eighteenth century belonged, bred a devotion to principles of independence which there has happily been no disposition on the part of the Republic to relinquish. This circumstance accounts for the caution with which American opinion still greets any proposal for the restriction by general convention of rights long acknowledged to be the usual and common incidents of political independence. It is only when the sacrifice demanded in behalf of the international society is deemed to enhance the safety of each member thereof by processes which, having regard for the requirements of justice, appear to be conducive to the preservation of the general peace, that any yielding on the part of the United States is to be anticipated. 1 The International Organization of States, supra, § 34. b In Domestic Affairs $53. Form of Government. (1) A State is acknowledged to possess, as has been observed, the right to adopt whatever form of government or constitution it may see fit, and incidentally the right to change either at will.1 The exercise of freedom of choice does not endanger the existence of the State as such. The international society is not concerned unless the form of government adopted be of a kind notoriously opposed to the existing order of affairs in that society, and calculated, therefore, to render the State impotent to perform its common foreign obligations as a member thereof. § 54. Legislation. (2) A State enjoys the right generally to enact such laws as it may see fit. The exercise of the legislative function may, however, be productive of the violation of international obligations imposed either by the law of nations or by treaty. The circumstance that an aggrieved State may with reason demand the repeal of laws serving directly to cause the breach of an international duty merely indicates that there may be an abuse of legislative power. Because the legislative department of a government may prove to be the particular means by which a State violates its duty toward another, it is not to be inferred that that department is subject to special restraint. The law of nations is concerned with the State itself rather than with the instrumentality through which it operates, and so simply demands that no act of the former partake of an internationally illegal character. Thus it always behooves the legislature as well as the executive and the courts to take no steps which expose the State to the charge of faithlessness to an international duty. A State may by various methods restrict its own freedom with respect to legislation. Thus it may agree to adopt the legislation 1 Mr. Webster, Secy. of State, to Mr. Rives, Minister to France, Jan. 12, 1852, Senate Ex. Doc. 19, 32 Cong., 1 Sess., 19, Moore, Dig., I, 126; Mr. Fish, Secy. of State, to Mr. Bassett, Minister to Haiti, Feb. 21, 1877, MS. Inst. Haiti, II, 91, Moore, Dig., I, 250; Mr. Bayard, Secy. of State, to Mr. Buck, Minister to Peru, No. 97, Sept. 23, 1886, For. Rel. 1887, 921, Moore, Dig., I, 251; Mr. Seward, Secy. of State, to Mr. Burton, Oct. 25, 1862, MS. Inst. Colombia, XVI, 47, Moore, Dig., VI, 20. TREATMENT OF NATIONALS [§ 55 of another State,1 or to commit an act requiring legislation for (3) 55. Treatment of Nationals. A State enjoys the right normally to accord such treatment as it may see fit to its own nationals within places subject to its control, such as its own territory. The matter has been commonly regarded as one of an essentially internal character because of the unlikelihood that even harsh measures locally applied would 1 See, for example, Art. XXIX of Treaty of Berlin, July 13, 1878, concerning adoption by Montenegro of the maritime law in force in Dalmatia, Nouv. Rec. Gén., 2 ser., III, 449. 2 See, for example, Art. VI of the treaty between the United States and Also Russia of March 30, 1867, concerning the purchase of Alaska, and contemplating the payment of money to the grantor. Malloy's Treaties, II, 1523. Art. VI of convention concluded by the United States with Great Britain, Russia and Japan, for the preservation and protection of fur seals frequenting the waters of the North Pacific Ocean, July 7, 1911, Charles' Treaties, 60, 62. 3 The Panama Canal Act of Aug. 24, 1912, provided in Section 5, that "no tolls shall be levied upon vessels engaged in the coastwise trade of the United States." 37 Stat., Part I, 560, 562. President Wilson was of opinion that this exemption was at variance with the spirit of the Hay-Pauncefote Treaty. See address to the Congress, March 5, 1914. He, therefore, urged the repeal of the exemption. It was repealed by an Act of Congress of June 15, 1914. This Act contained a proviso to the effect that it should not be construed as a waiver or relinquishment of any right which the United States might have under the Hay-Pauncefote Treaty, or under its treaty with Panama, ratified Feb. 26, 1904 (concluded Nov. 18, 1903), or otherwise, "to discriminate in favor of its vessels by exempting the vessels of the United States or its citizens from the payment of tolls for passage through said canal, or as in any way waiving, impairing, or affecting any right of the United States under said treaties, or otherwise, with respect to the sovereignty over or the ownership, control, and management of said canal and the regulation of the conditions 38 Stat., Part I, 385–386. or charges of traffic through the same." See, also, correspondence with Great Britain in 1912 and 1913, contained in Diplomatic History of the Panama Canal, Senate Doc. 474, 63 Cong., 2 Sess., 82-102; speech of Hon. Elihu Root in the Senate, Jan. 21, 1913, on the obligations of the United States as to Panama Canal tolls. 87 produce international controversy or necessarily unfit a State to fulfill its obligations towards the outside world. A different practice would tend to impair the actual value of political independence and also to foment disputes. Thus the United States would doubtless resent foreign complaints respecting the existence of conditions within its territory resulting in or permitting the frequent lynching of American citizens of the African race, or relating to the political status of American Indians. The treatment by a State of its own nationals according to methods which, by the standards prevailing in enlightened countries, appear to be cruel or otherwise at variance with the dictates of humanity, always shocks the sensibilities of foreign States which not infrequently utter expressions of regret or indignation. Even in such cases, however, it has been perceived in the United States and elsewhere that the matter is primarily not one for diplomatic protest. For that reason, foreign efforts to dissuade a State from pursuing a ruthless policy deemed to be subversive of the requirements of justice have oftentimes been confined to appeals of an intercessory character, and have not taken the form of legal demands expressive of any right of interposition.2 If, however, the acts complained of directly involve or affect the special or well defined interests of outside States, there may exist the basis of a right to interfere. The United States appears on occasions to have acted on this principle. Thus Secretaries. Blaine, Gresham and Hay declared that rigorous measures adopted against the Hebrew nationals of Russia and Roumania, and which forced a numerous class of destitute persons to emigrate to the 1 Declared President Buchanan, Jan. 4, 1859, with reference to the case of Edgar Mortara: "I have long been convinced that it is neither the right nor the duty of this government to exercise a moral censorship over the conduct of other independent governments and to rebuke them for acts which we may deem arbitrary and unjust towards their own citizens or subjects. Such a practice would tend to embroil us with all nations. We ourselves would not permit any foreign power thus to interfere with our domestic concerns and enter protests against the legislation or the action of our government towards our own citizens. If such an attempt were made we should promptly advise such a government in return to confine themselves to their own affairs and not intermeddle with our concerns." Communication to Mr. Hart, 49 MS. Dom. Let. 474, Moore, Dig., VI, 350. See, also, Mr. Fish, Secy. of State, to Mr. Brown, Minister to Turkey, No. 24, Dec. 5, 1871, For. Rel. 1872, 669, Moore, Dig., VI, 334, 335; Mr. Cass, Secy. of State, to Mr. Hart, Dec. 8, 1858, 49 MS. Dom. Let. 415, Moore, Dig., VI, 348, note. 2 See, for example, Mr. Frelinghuysen, Secy. of State, to Mr. Hoffman, American Chargé d'Affaires at St. Petersburg, No. 123, April 15, 1882, House Ex. Doc. 470, 51 Cong., 1 Sess., 65, Moore, Dig., VI, 353. |