§ 138. Careful analysis of the rules of the Law of Nations regarding intervention and the hitherto exercised practice of intervention make it apparent that intervention is de facto a matter of policy just like war. This is the result of the combination of several factors. Since, even in the cases in which it is based on a right, intervention is not compulsory, but is solely in the discretion of the State concerned, it is for that reason alone a matter of policy. Since, secondly, every State must decide for itself whether vital interests of its own are at stake and whether a case of necessity in the interest of self-preservation has arisen, intervention is for this part again a matter of policy. Since, thirdly, the question of balance of power is so complicated and the historical development of the States involves gradually an alteration of the division of power between the States, it must likewise be left to the appreciation of every State whether or not it considers the balance of power endangered and, therefore, an intervention necessary. And who can undertake to lay down a hard-and-fast rule with regard to the amount of inhumanity on the part of a Government that would justify intervention according to the Law of Nations?

No State will ever intervene in the affairs of another if it has not some important interest in doing so, and it has always been easy for such State to find or pretend some legal justification for an intervention, be it self-preservation, balance of power, or humanity. There is no great danger to the welfare of the States in the fact that intervention is de facto a matter of policy. Too many interests are common to all the members of the Family of Nations, and too great is the natural jealousy between the Great Powers, for an abuse of intervention on the part of one powerful State without calling other States into the field. Since unjustified intervention violates the very principles of the Law of Nations, and since, as I have stated above (§ 135), in case of a violation of these principles on the part of a State every other State has a right to intervene, any unjustifiable intervention by one State in the affairs of another gives a right of intervention to all other States. Thus it becomes apparent here, as elsewhere, that the Law of Nations is intimately connected with the interests of all the States, and that they must themselves secure the maintenance and realisation of this law. This condition of things tends naturally to hamper more the ambitions of weaker States than those of the several Great Powers, but it seems unalterable.

§ 139. The de facto political character of the whole matter of intervention becomes clearly apparent through the so-called Monroe doctrine[223] of the United States of America. This doctrine, at its first appearance, was indirectly a product of the policy of intervention in the interest of legitimacy which the Holy Alliance pursued in the beginning of the nineteenth century after the downfall of Napoleon. The Powers of this alliance were inclined to extend their policy of intervention to America and to assist Spain in regaining her hold over the former Spanish colonies in South America which had declared and maintained their independence, and which were recognised as independent Sovereign States by the United States of America. To meet and to check the imminent danger, President James Monroe delivered his celebrated Message to Congress on December 2, 1823. This Message contains two quite different, but nevertheless equally important, declarations.

(1) In connection with the unsettled boundary lines in the north-west of the American continent, the Message declared "that the American continents, by the free and independent condition which they have assumed and maintained, are henceforth not to be considered as subjects for future colonisation by any European Power." This declaration was never recognised by the European Powers, and Great Britain and Russia protested expressly against it. In fact, however, no occupation of American territory has since then taken place on the part of a European State.

(2) In regard to the contemplated intervention of the Holy Alliance between Spain and the South American States, the Message declared that the United States had not intervened, and never would intervene, in wars in Europe, but could not, on the other hand, in the interest of her own peace and happiness, allow the allied European Powers to extend their political system to any part of America and try to intervene in the independence of the South American republics.

(3) Since the time of President Monroe, the Monroe doctrine has been gradually somewhat extended in so far as the United States claims a kind of political hegemony over all the States of the American continent. Whenever a conflict occurs between such an American State and a European Power, the United States is ready to exercise intervention. Through the civil war her hands were to a certain extent bound in the sixties of the last century, and she could not prevent the occupation of Mexico by the French army, but she intervened[224] in 1865. Again, she did not intervene in 1902 when Great Britain, Germany, and Italy took combined action against Venezuela, because she was cognisant of the fact that this action intended merely to make Venezuela comply with her international duties. But she intervened in 1896 in the boundary conflict between Great Britain and Venezuela when Lord Salisbury had sent an ultimatum to Venezuela, and she retains the Monroe doctrine as a matter of principle.

§ 140. The importance of the Monroe doctrine is of a political, not of a legal character. Since the Law of Nations is a law between all the civilised States as equal members of the Family of Nations, the States of the American continent are subjects of the same international rights and duties as the European States. The European States are, as far as the Law of Nations is concerned, absolutely free to acquire territory in America as elsewhere. And the same legal rules are valid concerning intervention on the part of European Powers both in American affairs and in affairs of other States. But it is evident that the Monroe doctrine, as the guiding star of the policy of the United States, is of the greatest political importance. And it ought not to be maintained that this policy is in any way inconsistent with the Law of Nations. In the interest of balance of power in the world, the United States considers it a necessity that European Powers should not acquire more territory on the American continent than they actually possess. She considers, further, her own welfare so intimately connected with that of the other American States that she thinks it necessary, in the interest of self-preservation, to watch closely the relations of these States with Europe and also the relations between these very States, and eventually to intervene in conflicts. Since every State must decide for itself whether and where vital interests of its own are at stake and whether the balance of power is endangered to its disadvantage, and since, as explained above (§ 138), intervention is therefore de facto a matter of policy, there is no legal impediment to the United States carrying out a policy in conformity with the Monroe doctrine. This policy hampers indeed the South American States, but with their growing strength it will gradually disappear. For, whenever some of these States become Great Powers themselves, they will no longer submit to the political hegemony of the United States, and the Monroe doctrine will have played its part.

VII INTERCOURSE

Grotius, II. c. 2, § 13—Vattel, II. §§ 21-26—Hall, § 13—Taylor, § 160—Bluntschli, § 381 and p. 26—Hartmann, § 15—Heffter, §§ 26 and 33—Holtzendorff in Holtzendorff, II. pp. 60-64—Gareis, § 27—Liszt, § 7—Ullmann, § 38—Bonfils, Nos. 285-289—Despagnet, No. 183—Mérignhac, I. pp. 256-257—Pradier-Fodéré, I. No. 184—Rivier, I. pp. 262-264—Nys, II. pp. 221-228—Calvo, III. §§ 1303-1305—Fiore, I. No. 370—Martens, I. § 79.

§ 141. Many adherents of the doctrine of fundamental rights include therein also a right of intercourse of every State with all others. This right of intercourse is said to contain a right of diplomatic, commercial, postal, telegraphic intercourse, of intercourse by railway, a right of foreigners to travel and reside on the territory of every State, and the like. But if the real facts of international life are taken into consideration, it becomes at once apparent that such a fundamental right of intercourse does not exist. All the consequences which are said to follow from the right of intercourse are not at all consequences of a right, but nothing else than consequences of the fact that intercourse between the States is a condition without which a Law of Nations would not and could not exist. The civilised States make a community of States because they are knit together through their common interests and the manifold intercourse which serves these interests. Through intercourse with one another and with the growth of their common interests the Law of Nations has grown up among the civilised States. Where there is no intercourse there cannot be a community and a law for such community. A State cannot be a member of the Family of Nations and an International Person, if it has no intercourse whatever with at least one or more other States. Varied intercourse with other States is a necessity for every civilised State. The mere fact that a State is a member of the Family of Nations shows that it has various intercourse with other States, for otherwise it would never have become a member of that family. Intercourse is therefore one of the characteristics of the position of the States within the Family of Nations, and it may be maintained that intercourse is a presupposition of the international Personality of every State. But no special right or rights of intercourse between the States exist according to the Law of Nations. It is because such special rights of intercourse do not exist that the States conclude special treaties regarding matters of post, telegraphs, telephones, railways, and commerce. On the other hand, most States keep up protective duties to exclude or hamper foreign trade in the interest of their home commerce, industry, and agriculture. And although as a rule they allow[225] aliens to travel and to reside on their territory, they can expel every foreign subject according to discretion.

§ 142. Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole institution of legation serves the interest of intercourse between the States, as does the consular institution. The right of legation,[226] which every full-Sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad[227] which every State possesses. The freedom of the Open Sea,[228] which has been universally recognised since the end of the first quarter of the nineteenth century, the right of every State to the passage of its merchantmen through the maritime belt[229] of all other States, and, further, freedom of navigation for the merchantmen of all nations on so-called international rivers,[230] are further examples of provisions of the Law of Nations in the interest of international intercourse.

The question is frequently discussed and answered in the affirmative whether a State has the right to require such States as are outside the Family of Nations to open their ports and allow commercial intercourse. Since the Law of Nations is a law between those States only which are members of the Family of Nations, it has certainly nothing to do with this question, which is therefore one of mere commercial policy and of morality.

VIII JURISDICTION

Hall, §§ 62, 75-80—Westlake, I. pp. 236-271—Lawrence, §§ 93-109—Phillimore, I. §§ 317-356—Twiss, I. §§ 157-171—Halleck, I. pp. 186-245—Taylor, §§ 169-171—Wheaton, §§ 77-151—Moore, II. §§ 175-249—Bluntschli, §§ 388-393—Heffter, §§ 34-39—Bonfils, Nos. 263-266—Rivier, I. § 28—Nys, II. pp. 257-263—Fiore, I. Nos. 475-588.

§ 143. Jurisdiction is for several reasons a matter of importance as regards the position of the States within the Family of Nations. States possessing independence and territorial as well as personal supremacy can naturally extend or restrict their jurisdiction as far as they like. However, as members of the Family of Nations and International Persons, the States must exercise self-restraint in the exercise of this natural power in the interest of one another. Since intercourse of all kinds takes place between the States and their subjects, the matter ought to be thoroughly regulated by the Law of Nations. But such regulation has as yet only partially grown up. The consequence of both the regulation and non-regulation of jurisdiction is that concurrent jurisdiction of several States can often at the same time be exercised over the same persons and matters. And it can also happen that matters fall under no jurisdiction because the several States which could extend their jurisdiction over these matters refuse to do so, leaving them to each other's jurisdiction.

§ 144. As all persons and things within the territory of a State fall under its territorial supremacy, every State has jurisdiction over them. The Law of Nations, however, gives a right to every State to claim so-called exterritoriality and therefore exemption from local jurisdiction chiefly for its head,[231] its diplomatic envoys,[232] its men-of-war,[233] and its armed forces[234] abroad. And partly by custom and partly by treaty obligations, Eastern non-Christian States, Japan now excepted, are restricted[235] in their territorial jurisdiction with regard to foreign resident subjects of Christian Powers.

§ 145. The Law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy. As every State can also exercise jurisdiction over aliens[236] within its boundaries, such aliens are often under two concurrent jurisdictions. And, since a State is not obliged to exercise jurisdiction for all matters over aliens on its territory, and since the home State is not obliged to exercise jurisdiction over its subjects abroad, it may and does happen that aliens are actually for some matters under no State's jurisdiction.

§ 146. As the Open Sea is not under the sway of any State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that the vessels and the things and persons thereon remain during the time they are on the Open Sea under the jurisdiction of the State under whose flag they sail.[237] It is another rule of the Law of Nations that piracy[238] on the Open Sea can be punished by any State, whether or no the pirate sails under the flag of a State. Further,[239] a general practice seems to admit the claim of every maritime State to exercise jurisdiction over cases of collision at sea, whether the vessels concerned are or are not sailing under its flag. Again, in the interest of the safety of the Open Sea, every State has the right to order its men-of-war to ask any suspicious merchantman they meet on the Open Sea to show the flag, to arrest foreign merchantmen sailing under its flag without an authorisation for its use, and to pursue into the Open Sea and to arrest there such foreign merchantmen as have committed a violation of its law whilst in its ports or maritime belt.[240] Lastly, in time of war belligerent States have the right to order their men-of-war to visit, search, and eventually capture on the Open Sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.

§ 147. Many States claim jurisdiction and threaten punishment for certain acts committed by a foreigner in foreign countries.[241] States which claim jurisdiction of this kind threaten punishment for certain acts either against the State itself, such as high treason, forging bank-notes, and the like, or against its citizens, such as murder or arson, libel and slander, and the like. These States cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory. But if, after the committal of such act, he enters their territory and comes thereby under their territorial supremacy, they have an opportunity of inflicting punishment. The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question must be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations, and the right of protection over citizens abroad held by every State would justify it in an intervention in case one of its citizens abroad should be required to stand his trial before the Courts of another State for criminal acts which he did not commit during the time he was under the territorial supremacy of such State.[242] In the only[243] case which is reported—namely, in the case of Cutting—an intervention took place according to this view. In 1886, one A. K. Cutting, a subject of the United States, was arrested in Mexico for an alleged libel against one Emigdio Medina, a subject of Mexico, which was published in the newspaper of El Paso in Texas. Mexico maintained that she had a right to punish Cutting, because according to her Criminal Law offences committed by foreigners abroad against Mexican subjects are punishable in Mexico. The United States, however, intervened,[244] and demanded Cutting's release. Mexico refused to comply with this demand, but nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the United States to alter her Criminal Law for the purpose of avoiding in the future a similar incident, diplomatic practice has not at all settled the subject.

CHAPTER III RESPONSIBILITY OF STATES

I ON STATE RESPONSIBILITY IN GENERAL

Grotius, II. c. 21, § 2—Pufendorf, VIII. c. 6, § 12—Vattel, II. §§ 63-78—Hall, § 65—Halleck, I. pp. 440-444—Wharton, I. § 21—Moore, VI. §§ 979-1039—Wheaton, § 32—Bluntschli, § 74—Heffter, §§ 101-104—Holtzendorff in Holtzendorff, II. pp. 70-74—Liszt, § 24—Ullmann, § 39—Bonfils, Nos. 324-332—Despagnet, No. 466—Piedelièvre, I. pp. 317-322—Pradier-Fodéré, I. Nos. 196-210—Rivier, I. pp. 40-44—Calvo, III. §§ 1261-1298—Fiore, I. Nos. 659-679, and Code, Nos. 591-610—Martens, I. § 118—Clunet, "Offenses et actes hostiles commis par particuliers contre un état étranger" (1887)—Triepel, "Völkerrecht und Landesrecht" (1899), pp. 324-381—Anzillotti, "Teoria generale della responsabilità dello stato nel diritto internazionale" (1902)—Wiese, "Le droit international appliqué aux guerres civiles" (1898), pp. 43-65—Rougier, "Les guerres civiles et le droit des gens" (1903), pp. 448-474—Baty, "International Law" (1908), pp. 91-242—Anzillotti in R.G. XIII. (1906), pp. 5-29 and 285-309—Foster in A.J. I. (1907), pp. 5-10—Bar in R.I. 2nd Ser. I. (1899), pp. 464-481.

§ 148. It is often maintained that a State, as a sovereign person, can have no legal responsibility whatever. This is only correct with reference to certain acts of a State towards its subjects. Since a State can abolish parts of its Municipal Law and can make new Municipal Law, it can always avoid legal, although not moral, responsibility by a change of Municipal Law. Different from this internal autocracy is the external responsibility of a State to fulfil its international legal duties. Responsibility for such duties is, as will be remembered,[245] a quality of every State as an International Person, without which the Family of Nations could not peaceably exist. Although there is no International Court of Justice which could establish such responsibility and pronounce a fine or other punishment against a State for neglect of its international duties, State responsibility concerning international duties is nevertheless a legal responsibility. For a State cannot abolish or create new International Law in the same way as it can abolish or create new Municipal Law. A State, therefore, cannot renounce its international duties unilaterally[246] at discretion, but is and remains legally bound by them. And although there is not and never will be a central authority above the single States to enforce the fulfilment of these duties, there is the legalised self-help of the single States against one another. For every neglect of an international legal duty constitutes an international delinquency,[247] and the violated State can through reprisals or even war compel the delinquent State to comply with its international duties. It is only theorists who deny the possibility of a legal responsibility of States, the practice of the States themselves recognises it distinctly, although there may in a special case be controversy as to whether a responsibility is to be borne. And State responsibility is now in a general way recognised for the time of war by article 3 of the Hague Convention of 1907, concerning the Laws and Customs of War on Land, which stipulates: "A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to make compensation. It shall be responsible for all acts committed by persons forming part of its armed forces."

§ 149. Now if we examine the various international duties out of which responsibility of a State may rise, we find that there is a necessity for two different kinds of State responsibility to be distinguished. They may be named "original" in contradistinction to "vicarious" responsibility. I name as "original" the responsibility borne by a State for its own—that is, its Government's actions, and for such actions of the lower agents or private individuals as are performed at the Government's command or with its authorisation. But States have to bear another responsibility besides that just mentioned. For States are, according to the Law of Nations, in a sense responsible for certain acts other than their own—namely, certain unauthorised injurious acts of their agents, of their subjects, and even of such aliens as are for the time living within their territory. This responsibility of States for acts other than their own I name "vicarious" responsibility. Since the Law of Nations is a law between States only, and since States are the sole exclusive subjects of International Law, individuals are mere objects[248] of International Law, and the latter is unable to confer directly rights and duties upon individuals. And for this reason the Law of Nations must make every State in a sense responsible for certain internationally injurious acts committed by its officials, subjects, and such aliens as are temporarily resident on its territory.[249]

§ 150. It is, however, obvious that original and vicarious State responsibility are essentially different. Whereas the one is responsibility of a State for a neglect of its own duty, the other is not. A neglect of international legal duties by a State constitutes an international delinquency. The responsibility which a State bears for such delinquency is especially grave, and requires, apart from other especial consequences, a formal expiatory act, such as an apology at least, by the delinquent State to repair the wrong done. On the other hand, the vicarious responsibility which a State bears requires chiefly compulsion to make those officials or other individuals who have committed internationally injurious acts repair as far as possible the wrong done, and punishment, if necessary, of the wrongdoers. In case a State complies with these requirements, no blame falls upon it on account of such injurious acts. But of course, in case a State refuses to comply with these requirements, it commits thereby an international delinquency, and its hitherto vicarious responsibility turns ipso facto into original responsibility.

II STATE RESPONSIBILITY FOR INTERNATIONAL DELINQUENCIES

See the literature quoted above at the commencement of § 148.

§ 151. International delinquency is every injury to another State committed by the head and the Government of a State through violation of an international legal duty. Equivalent to acts of the head and Government are acts of officials or other individuals commanded or authorised by the head or Government.

International delinquencies in the technical sense of the term must not be confounded either with so-called "Crimes against the Law of Nations" or with so-called "International Crimes." "Crimes against the Law of Nations" in the wording of many Criminal Codes of the single States are such acts of individuals against foreign States as are rendered criminal by these Codes. Of these acts, the gravest are those for which the State on whose territory they are committed bears a vicarious responsibility according to the Law of Nations. "International Crimes," on the other hand, refer to crimes like piracy on the high seas or slave trade, which either every State can punish on seizure of the criminals, of whatever nationality they may be, or which every State has by the Law of Nations a duty to prevent.

An international delinquency must, further, not be confounded with discourteous and unfriendly acts. Although such acts may be met by retorsion, they are not illegal and therefore not delinquent acts.