CHAPTER VIII THE RIGHTS OF INTERNATIONAL PERSONS of inter rights The primary function of law as a rule of conduct consists in Character defining rights and prescribing the duties corresponding to them. national These rights and duties, as defined by the law, constitute what is called in the terminology of municipal jurisprudence the "substantive law," as distinct from the law of procedure, which prescribes the methods by which legally recognized rights and duties are made effective. Looking upon law as a positive system, consisting of rules actually observed, without reference to their abstract justice or injustice, a legal right is the power possessed by a person to act in a given way with the support and protection of the community. A legal duty is the corresponding obligation of a person to submit to the exercise of another's right. Borrowing the terminology of municipal jurisprudence, substantive international law may be said to consist in the rights and duties defined by the law, apart from the procedure by which redress may be obtained for violation of them. Since in the eye of international law states are moral or juristic persons, they are held to have rights and duties which bear in many respects a close analogy to the rights and duties of citizens under municipal law. Comparisons and contrasts may therefore be made between the two classes of rights for purposes of illustration and elucidation.1 But in so doing the error must be avoided of attempting to deduce 1 An elaborate comparison between international law and municipal law is contained in a resolution, followed by a "Declaration of the Rights and Duties of Nations, ,"adopted by the American Institute of International Law on January 6, 1916, at its meeting at Washington. The text of the resolution and of the accompanying Declaration is as follows: "Whereas, the municipal law of civilized nations recognizes and protects the right to life, the right to liberty, the right to the pursuit of happiness, as added by the Declaration of Independence of the United States of America, the right to legal equality, the right to property, and the right to the enjoyment of the aforesaid rights; and "Whereas, these fundamental rights, thus universally recognized, create a duty on the part of the peoples of all nations to observe them; and "Whereas, according to the political philosophy of the Declaration of Independence of the United States, and the universal practice of the American Republics, nations or governments are regarded as created by the people, deriving their just powers from the consent of the governed, and are instituted CHAP. certain rights as necessarily belonging to states because they have come to be regularly associated with the rights possessed by citi among men to promote their safety and happiness and to secure to the people the enjoyment of their fundamental rights; and "Whereas, the nation is a moral or juristic person, the creature of law, and subordinated to law as is the natural person in political society; and "Whereas, we deem that these fundamental rights can be stated in terms of international law and applied to the relations of the members of the society of nations, one with another, just as they have been applied in the relations of the citizens or subjects of the states forming the Society of Nations; and "Whereas, these fundamental rights of national jurisprudence, namely, the right to life, the right to liberty, the right to the pursuit of happiness, the right to equality before the law, the right to property, and the right to the observance thereof are, when stated in terms of international law, the right of the nation to exist and to protect and to conserve its existence; the right of independence and the freedom to develop itself without interference or control from other nations; the right of equality in law and before law; the right to territory within defined boundaries and to exclusive jurisdiction therein; and the right to the observance of these fundamental rights; and "Whereas, the rights and the duties of nations are, by virtue of membership in the society thereof, to be exercised and performed in accordance with the exigencies of their mutual interdependence expressed in the preamble to the Convention for the Pacific Settlement of International Disputes of the First and Second Hague Peace Conferences, recognizing the solidarity which unites the members of the society of civilized nations; "Therefore, The American Institute of International Law, at its first session, held in the City of Washington, in the United States of America, on the sixth day of January, 1916, adopts the following six articles, together with the commentary thereon, to be known as its Declaration of the Rights and Duties of Nations: "I. Every nation has the right to exist, and to protect and to conserve its existence; but this right neither implies the right nor justifies the act of the state to protect itself or to conserve its existence by the commission of unlawful acts against innocent and unoffending states. "II. Every nation has the right to independence in the sense that it has a right to the pursuit of happiness and is free to develop itself without interference or control from other states, provided that in so doing it does not interfere with or violate the rights of other states. "III. Every nation is in law and before law the equal of every other nation belonging to the society of nations, and all nations have the right to claim and according to the Declaration of Independence of the United States, 'to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them.’ "IV. Every nation has the right to territory within defined boundaries and to exercise exclusive jurisdiction over its territory, and all persons whether native or foreign found therein. "V. Every nation entitled to a right by the law of nations is entitled to have that right respected and protected by all other nations, for right and duty are correlative, and the right of one is the duty of all to observe. "VI. International law is at one and the same time both national and international: national in the sense that it is the law of the land and applicable as such to the decision of all questions involving its principles; international in the sense that it is the law of the society of nations and applicable as such to all questions between and among the members of the society of nations involv. ing its principles.'' Am. Journal, X (1916), 124. The student should investigate how far the "rights" here asserted as belonging to states correspond to the actual conditions of international relations, so as to warrant the designation of them as "law." VIII zens under national law.1 Thus the actual, and in that sense legal, CHAP. rights and duties of nations must be sharply distinguished from certain moral or "natural" rights and duties ascribed to nations by the older writers on international law. Undoubtedly states, being composed of individuals recognizing certain moral laws, have themselves a moral character and are subject to moral laws; but in so far as this moral code of conduct is not actually observed and enforced it must be kept apart from legal rights and duties and made to serve its proper function of furnishing a standard or critique by which legal rights and duties may be judged. In like manner rights and duties, ascribed to states on the basis of a rational inference from an imaginary state of nature antecedent to the establishment of an international society or community, must be set aside as of purely theoretical value.3 mental International custom has given sanction to a distinction be- Fundatween the fundamental, essential, or inherent rights of nations and rights their secondary, derived, or contingent rights. The former group includes those rights which by custom have become associated with the very fact of membership in the international community. They are, as it were, the essential conditions of state existence, and are thus so intimately bound up with the international personality of the state as to make the violation of them an offense of the gravest character. Different names have been assigned to them from time to time in international documents and in the writings of publicists, and no consistent terminology or legal classification has won acceptance. Borrowing the terminology of municipal law, these fundamental rights of states may be classified as the right of life or of state existence, the right of liberty of action or of independence, and the right of property, involving the ownership and exclusive control over the territory within the boundaries of the state. Included in these are the rights so immediately derived from them as to be practically identified with them; as, for example, the right of self-preservation or self-defense is practically identified with the right of existence, and the right to the use of This, as has been seen (above, p. 51), was the common error of the earlier writers who sought to fill up the gaps in international law by resorting to analogies drawn from municipal law and general jurisprudence. See above, pp. 34-35. 'Such a distinction, however, does not prevent consideration being given to the historical fact that certain of the actual rights and duties possessed by nations were originally attributed to them on the basis of a priori assumptions. It is to the writings of publicists that the confusion is chiefly due. Foreign offices have as a rule been more concerned with maintaining rights than with classifying them in any particular way. ОНАР. VIII Secondary or derived rights the high seas is practically identified with that of external independence. Whether or not a particular right is or is not a fundamental right is a matter of theoretical jurisprudence rather than of positive law. All that can be stated definitely, in terms of general practice, is that nations do as a matter of fact regard certain rights as being of a more fundamental character than others, and that governments regard any encroachment upon them as a matter to be resisted by every means of redress which international law puts at their disposal.1 In addition to these fundamental rights general usage recognizes a variety of other rights which lack uniform definition and classification. Writers designate them by such terms as "secondary" or "derived rights," or "accidental," "relative, or "acquired rights." The practice of foreign offices appears to be content with simply not referring to them as fundamental. In general it may be said that these rights are those which are derived by one or more degrees from a fundamental right, and are therefore not so intimately connected with the latter as to make it impossible for a state to waive them without putting at issue its position in the international community. In some cases they appear to represent the application of a fundamental right to circumstances which raise a doubt as to the existence of a concrete right in the given instance.2 Such, for example, might be the right of intervention by one state in the domestic affairs of another when believed by the former to be a necessary measure of self-defense and denied to be such by the latter. In other cases they represent rights whose objects are relatively unimportant, so that concessions may be made with regard to them, or violations of them submitted to, without raising any question of the legal personality of the state. Such, for example, might be the right of a state to regulate the internal discipline of foreign vessels in port, the right to demand specific measures of protection for citizens in foreign countries, the right of free passage through the maritime belt of foreign states, or the large body of rights acquired by treaties dealing with more or less transient interests.3 A modern statement of the doctrine of fundamental rights may be found in Root's address upon the Declaration of the Rights and Duties of Nations, cited above. Proceedings, Am. Society of Int. Law, 1916, p. 1. The declaration itself follows the traditional classification. Westlake uses the term "imperfect" to designate such rights. International Law, 2nd ed., I, 301. A number of writers on international law mean by "secondary rights'' those rights which are created by treaties or usages between two or more |