Page images




conditions of recognition, non-interference may be enunciated as the primary duty which separate communities, simply as such, owe to each other. That, in the normal relations of jural entities, the negative takes precedence of the positive principle, is a maxim of universal application in jurisprudence, which follows as a corollary from the subjective origin which we have assigned both to rights and duties. As the first subjective right of every separate rational entity is the right to the unfettered exercise of the powers which God has conferred on him, and his first subjective duty is to exercise these powers in his own behalf, so, in like manner, the first objective right which this entity must acknowledge is the right of others to be relieved by his personal efforts of the burden of his support, and the first objective duty towards him is the duty of permitting him to energize for this purpose. Now separate States are such rational and responsible entities. It is on this ground, as we have seen, that their right to recognition rests, and in their case, consequently, just as in the case of individuals that are sui juris, the rule must be in favour of non-interference. As time rolls on, and the experience of ages accumulates, the importance of this rule, not only for the sake of those in behalf of whose liberties it is invoked, but of those on whose ambition, or philanthropy, or restlessness, its restrictions are imposed, comes to be more and more clearly admitted. The interest of each is felt to be the interest of all; and the interest of each, with few and often doubtful exceptions, will be better promoted by leaving him to follow the bent of his own genius than by any rules that we can impose upon him, or even by any aid that we can afford him.” *

* PROF. LORIMER. The Institutes of the Law of Nations, Vol. I. p. 230, et seq. IDEM. Institutes of Law. p. 101, et seq. 212 and 235,

The interdependence of States.


As explained above, in Chapter III, with regard to States as well as with regard to individuals, every right implies a correlative duty. Accordingly all international rights are bound up with corresponding obligations. Hence proceeds the interdependence of States. *

From the point of view of humanity and civilization, the normal condition of Nations appears to be a relationship of mutual goodwill and peace. From the necessity and the desire to secure this natural relationship, devolve various measures, including even war, when the state of equilib rium is disturbed and all peaceable means are exhausted.

The obligation of a State to render justice to all others, says Halleck, is a perfect obligation, of strictly binding force, at all times and under all circumstances. No State can relieve itself from this obligation, under any pretext whatever. It is an obligation, according to Vattel, 'more necessary still between Nations than between individuals; because injustice has more terrible consequences in the quarrels of these powerful bodies politic and it is more difficult to obtain redress." The same rule applies to all the duties of a State which result from the perfect international rights of others, for whatever one. Nation has a perfect right to demand of another, that is the other absolutely bound to surrender. The rule is absolute, and cannot be evaded by any technicality, sophistry, or under any other pretext. Whatever one State can claim as its perfect right, that it is the absolute duty of the other to concede. To refuse it, under any pretext whatsoever,

Souveränität ist nicht absolute Unabhängigkeit, noch absolute Freiheit eines Staates, denn die Staaten sind keine absolute Wesen. sondern rechtlich beschränkte Personen. BLUNTSCHLI. Völkerrecht. § 65. Prof. LORIMER. The Institutes of the Law of Nations. Book III. Chapt. I.



would be a violation of the positive rule and fundamental principle of international jurisprudence, and no civilized Nation can now be found to refuse to another an acknowledged and indisputable right. They may dispute the right itself, and deny its existence as a right, but there is none so low and debased in moral character as to deny the duty and obligation to respect what is a manifest and acknowledged international right of another. Moreover, this obligation of the State is equally binding upon all its rulers, officers, and citizens,-in short upon each and every individual member that belongs to a State or body politic.

* VATTEL. Droit des Gens. Liv. II. Ch. V. § 63. HALLECK. Intern. Law. Edit. Sir Sherston Baker. Vol. I. p. 392.

Right of presentation and legation.



§ 129. The measures generally resorted to in order to secure international relationship are in the first place those by which regular international communication is established between the respective Governments as the national organs of the States. This necessity establishes the right of presentation and of legation combined with that of negotiation and treaty.

The institution of permanent diplomatic missions between different States is the natural result of the progress of civilization. Among the ancient classical nations ambassadors were often employed and thus also in the Middle Ages, but permanent missions were first established in Europe after the peace of Westphalia. This is the era par excellence, and the starting point of the recognition accorded to permanent international intercourse which, growing more and more indispensable in proportion with the growing commercial and political interests of European States, caused the right of legation to become an established right in International Law. Thus it is now admitted that every independent State has both the right to send a public Minister to any other State with which it wishes to entertain amicable relations, and the duty to receive the public Ministers of other States. This right



is however modified in proportion to the means of individual States and the nature of their reciprocal relations. *

of dependent

With regard to the right of legation (jus lega- Right of embassy tionis), Sir Robert Phillimore makes the following States. remarks. "The principal rights and duties incident to embassies have been recognized by all communities at all removed from the condition of

savages. Every Nation, so far sui juris as to be capable of negotiating, in its own name, with another Nation, has the right of sending an embassy (droit actif, Actives Gesandtschaftsrecht). Therefore, not only independent States have this, among other jura majestatis, but dependent States which have not an entire sovereignty, may possess this right if the nature of their connexion with the protecting State allows them the liberty of conducting their foreign relations with other States." †

The same necessity and reasons have very generally caused the jus legationis to be granted to the European governors of American or Asiatic dependencies. The cases of the Governor-General of British India, the GovernorGeneral of Netherlands India and the Spanish Governor-General of the Philippines are examples which readily occur. The great companies of European States, such as the Dutch, the French, and the British East India Companies, have often possessed this power. But this authority cannot be presumed; it must be conferred by the special and express grant of the respective Governments.

of insurgents or

"International Law, strictly speaking," says Right of embassy Sir Robert Phillimore further, "is not concerned rebels. with cases of rebellion. There is no doubt that

* VATTEL. Droit des Gens. Liv. IV. Chap. V. § 55-65. † PHILLIMORE. Comm. Intern. Law. Vol. II. p. 156.

« PreviousContinue »