tion of A distribution of the subject upon these lines, rather than CHAP. XVII. in accordance with the method which, originated by Klüber, Classificahas since become traditional, especially on the other side of topics. the Atlantic, has been elsewhere advocated by the present writer in the following terms:-'The law of nations is but private law "writ large." It is an application to political communities of those legal ideas which were originally applied to the relations of individuals. Its leading distinctions are therefore naturally those with which private law has long ago rendered us familiar. In international, as in private law, we are concerned with the Persons for whose sake rights are recognised; with the Rights thus recognised; and with the Protection by which those rights are made effective. We have a law of Persons; a Substantive law which sets forth and explains the rights of those persons; and an Adjective law, which describes the procedure by which redress is to be obtained when those rights are violated. The international law of persons consists of an investigation into the nature of a sovereign State and of the deviations from it. The substantive law of nations enquires into the character, origin, and termination of the rights which States may enjoy; while the adjective law of nations describes the procedure by which redress is obtained for international wrong-doing. This lastmentioned department is subdivided into the law which regulates the relations of the belligerents to one another, and the law which regulates the relations of each belligerent with States which take no part in the war. The whole science is thus divisible into four great chapters, which may be shortly described as treating respectively of international Status; of Peace; of Belligerency ; and of Neutrality 1.' I. The Persons known to International law are States. 1 From an Oxford lecture, which appeared under the title 'Les Débats diplomatiques récents dans leur rapport avec le Système du Droit international,' in the Revue de Droit International for 1878, p. 167. Y Inter national persons. CHAP. XVII. enjoys full external sovereignty, but is also a recognised member of the family of nations. States which vary from this type either by being defective in sovereignty, or by having no place in the family of nations, are abnormal international persons. Normal and 6 The characteristics of a State, as distinguished from nonabnormal. political societies, have been necessarily touched upon in an earlier chapter; where also will be found an explanation of the differences between a State which possesses full 'external sovereignty' and one which is 'mi-souverain,'' protected,' or otherwise dependent on another1. The family of nations' is an aggregate of States which, as the result of their historical antecedents, have inherited a common civilisation, and are at a similar level of moral and political opinion. The term may be said to include the Christian nations of Europe and their offshoots in America, with the addition of the Ottoman Empire, which was declared by the treaty of Paris of 1856 to be admitted to the concert Européen.' Within this charmed circle, according to the theory of International law, all States are equal. Without it, no State, be it as powerful and as civilised as China or Japan, can be regarded as a normal international person. Origin of 6 The topics of semi-sovereignty and protection present considerable analogies to those of infancy, coverture, and tutelage in Private law. It may also be remarked that as individual human beings are born, attain the age of majority, and die, so States come into existence, obtain full international recognition, and cease to be. A new State arises either: Originally, where no State existed previously, a case now necessarily of infrequent occurrence; or derivatively, by separation from a previously existing State, and this either by agreement with the older State, or against its wishes. It is in the last-mentioned case that other nations often feel a difficulty in deciding upon the reception which should be given to the new claimant for national 1 Supra, p. 43. honours. In any case the existence of the new State is, CHAP. XVII. according to the strict theory of international law, a matter of fact which is wholly independent of foreign recognition. tion. The question at what moment a State ceases to exist is Terminathe same with the enquiry as to what constitutes its identity. The identity of a State is admittedly not affected by any change of constitution or dynasty, or diminution or extension of territory, but only by the merger of one State in another, as when Poland was divided between the neighbouring Powers, or by such a dissolution of the political bond as has happened in the case of the Jews. cedent in rights. II. The rights of a State, like those of an individual, are Ante' antecedent,' as subsisting independently of any wrong-doing, ternational or 'remedial,' as given by way of compensation for an injury sustained1. Rights of the former class may be available either in rem,' against all other States, or in personam,' against a given State only; while rights of the latter class are usually available only in personam.' i. Antecedent international rights in rem,' i. e. those which 'In rem.' do not result from wrong-doing, and are enjoyed by a State as against all others, present many analogies to the corresponding topics of Private law. They may be classified as having reference to (1) Safety; (2) Reputation; (3) Ownership; (4) Jurisdiction; and (5) the protection of subjects in foreign countries. Other classes of rights are mentioned in some books upon International law, which, if they ought to be treated as separate heads of right at all, would be species of rights in rem.' Such are the so-called rights of Equality, of Legation, and of Negotiation and Treaty-making; which according to our system should be rather discussed under the law of international status, being, as they are, mere corollaries from the conception of a Sovereign State as an artificial person. 1 Cf. supra, p. 123. 2 Supra, p. 143. 3 Klüber, Droit des gens moderne, §§ 89, 141, 166; Wheaton, Elements, Pt. ii. c. 2, Pt. iii, cc. 1, 2. CHAP. XVII. (1) The right of a State to exist in safety calls for no remark. Its violation or threatened violation gives rise to the remedial right of self-preservation. (2) Of the right to a good name, it has been well said that 'the glory of a nation is intimately connected with its power, of which it is a considerable part. It is this distinction which attracts to it the consideration of other peoples, which makes it respectable in the eyes of its neighbours. A nation the reputation of which is well established, and especially one the glory of which is striking, finds itself sought by all sovereigns. They desire its friendship and fear to offend it. Its friends, and those who wish to become such, favour its enterprises, and its detractors do not venture to show their ill-will1' (3) International ownership, Dominium,' though it applies to property of all kinds, is chiefly important with reference to the territory,' which is, according to modern conceptions, essential to the existence of a State. In a territory, 'universitas agrorum intra fines cuiusque civitatis,' are comprised the rivers which flow through it, and the ports and harbours, creeks and bays, by which its coasts are indented. The ownership of it may be acquired originally, or derivatively. In the former case, by 'ocupatio rei nullius 3,' by ' accession 4,' and possibly by acquisitive prescription 5;' and here difficult questions may arise as to the extent of the acquisition, for the solution of which distinctions are drawn between 'agri limitati,'' agri adsignati per universitatem,' and ' agri arcifinii.' In the latter case, by cession, succession, or conquest. 3 Besides the dominium' which a State enjoys of its own territory, it may also have rights over the territories of its neighbours. Such iura in re aliena 7' may be in the nature of feudal superiority, mortgage, or servitude. 1 Vattel, i. 186. * Cf. supra, ib. 7 Supra, p. 179. 2 Dig. 1. 16. 239. Cf. supra, ib. 3 Cf. supra, p. 174. Cf. supra, p. 175. (4) The right of Jurisdiction, 'Imperium,' is intimately CHAP. XVIL connected with that of dominion; being, like it, exercisable only within the bounds of a given space. The rights of a nation over its territory are indeed, as Vattel says, twofold :— ' 1o, le domaine, en vertu duquel la nation peut user seul de ce pays pour ses besoins, en disposer, et en tirer l'usage auquel il est propre. 2o, l'empire, ou le droit du souverain commandement, par lequel elle ordonne et dispose à sa volonté de tout ce qui se passe dans le pays1.' The personal jurisdiction which a State claims to enjoy over its own subjects, wheresoever they may be, is a matter rather of public than of international law, but the jurisdiction which it exercises over all persons, be they subjects or aliens, in respect of acts committed by them within its territory, is legitimated only by the rule of international law which obliges the State to which such aliens may belong to acquiesce in their punishment. Although the Dominion and the Jurisdiction of a State are both circumscribed by its territory, the two rights are not co-extensive, since by the custom of nations, 'territory' is, with a view to the exercise of the latter right, artificially extended in some directions and restricted in others. On the one hand, the Jurisdiction of a State is allowed to extend, beyond the bounds of its dominions, to all the ships that carry its flag upon the high seas, and, for certain purposes, to all ships, not being ships of war, whatever flag they may carry, which pass within three miles of its coasts. On the other hand, Jurisdiction is artificially restricted by what is known as the doctrine of extraterritoriality,' in accordance with which certain persons and things, notably foreign sovereigns, ambassadors and ships of war, though actually within the territory, are treated as if they were outside of it. Very extensive privileges of extraterritoriality are usually granted by Oriental nations to Christian residents by express treaty; and a nation has sometimes assumed, even without 1 Liv. i. § 204; cf. Grot. De I. B. et P. ii. 3. 4. |