VIII

In consequence of the difficulty of determining which rights CHAP. are properly to be regarded as fundamental and which as secondary, many writers have discarded the two terms altogether, and have been satisfied with deriving all rights, without distinction, from the single comprehensive right of existence.1 This attitude. has the advantage of avoiding the technicalities of jurisprudence in a field of law as yet only partly developed. The argument for the retention of the distinction, at least as part of the scientific background of international law, is that nations do as a matter of fact draw a rough distinction between the two groups, and that the forms of redress resorted to in one case are as a rule more drastic than those resorted to in the other case. While international law has not as yet recognized any clear distinction between crime and tort, such as exists in municipal law, it does distinguish between the methods of procedure proper when certain vital rights are violated and the more conciliatory procedure proper on other occasions. In consequence it would seem probable that the distinction between fundamental and secondary rights, under whatever designations, will continue in use by nations until such time as judicial agencies may be established having jurisdiction over all conflicts of claims without exception.3

imperfect

A distinction, popularized by Vattel, between perfect and im- Perfect and perfect rights has likewise obtained a foothold in international rights law, though it is no longer so well recognized as formerly. "Perfect rights," said Vattel, "are those which carry with them the right of compelling fulfilment of the corresponding obligations; imperfect rights cannot so compel." " The former group included states. See, for example, Bonfils, Droit International, § 237. This definition is more restricted than general use. The term "secondary rights" is sometimes used in general jurisprudence to describe ❝remedial rights" or "rights of redress.'' See below, p. 379. This use of the term has not yet found its way into international law.

4

Oppenheim, for example, agrees with those who ask "that the fundamental rights of States should totally disappear from the treatises on the Law of Nations."' (International Law, I, § 112.) It may be observed that some writers have gone to the further extent of denying that there is any distinction between one right and another; but this raises an issue as to the sanctions of the law rather than the character of rights.

2 See below, p. 380.

It should be noted that it is within the field of fundamental rights and their immediate derivatives that states are said to take "political" as distinct from legal action. Political action covers the arbitrary decisions of a state under circumstances not governed by concrete rules, so that each state must determine for itself what claims it may assert on the basis of the general principles of the law. Compare the distinction between justiciable and non-justiciable disputes, below, p. 407.

Droit des Gens (Eng. trans.), introduction, § 17.

CHAP.
VIII

Rights not absolute but relative

The distinction between the substantive and the adjective law

the rights which belonged to nations by a clear inference from the law of nature, and which therefore created an absolute obligation upon the other party. In the case of the latter group, the inference from the law of nature was not so clear as to give rise to the right to compel performance. The theoretical basis of the distinction has now been abandoned, but its influence upon international law can still be seen in the correspondence of foreign offices where reference is made to certain policies or conduct of a state which if persisted in, would be regarded by the other party as "an unfriendly act," i.e., an act which would be met by the use of force if not desisted from.1

In international law, as in municipal law, rights are not absolute but relative; that is to say, the right of one state must be exercised with due consideration for the exercise of a similar right on the part of other states. The secondary rights of one state must, in case of conflict, give way to the fundamental rights of another state; and at times where the fundamental rights of different states are in conflict, it may be necessary that one right yield temporarily to the more urgent exercise of another. The right of free intercourse may be denied in cases where the security of a state requires the establishment of a temporary quarantine or a permanent exclusion. The right of self-defense may justify, as in the case of the Caroline,2 the temporary invasion of the territory of a neighboring state. For every right possessed by one state there is a correlative duty on the part of other states, which in turn restricts the free exercise of the rights of the latter. The belligerent right of blockade, for example, gives rise to a corresponding obligation on the part of neutrals, which restricts the normal right of the neutral to protect its citizens in their commercial activities. The adjustment of these conflicting rights and their correlative duties is, as has been seen, the primary function of international law.

In municipal jurisprudence a distinction is made between substantive law and adjective or precedural law. Substantive law, as shown above, is that larger part of the law defining the rights of the individual which the state stands ready to maintain.

1 The distinction, when reduced to practical terms, differs little from that between fundamental and secondary rights. Publicists of the Austinian school of positive jurisprudence could not, however, fail to point out the logical inconsistency of an imperfect right." Compare Westlake's use of the term "imperfect rights" with the distinction between fundamental and secondary rights given above. International Law, 2nd ed., I, 301.

'See below, pp. 143-144.

VIII

Adjective or procedural law is the body of rules providing the CHAP. means or procedure by which the rights defined by the substantive law may be enforced by the aid of the state. The same distinction holds good in international law, although it is not generally recognized in the terminology of foreign offices. On the one hand there is the body of rights attributed to a sovereign and independent state as such, by virtue of which certain acts may be done or certain claims advanced with the support and sanction of the international community. On the other hand, if these rights should be violated, the international community recognizes a method of procedure for their enforcement, however inadequate it may be.1 A number of modern writers have confined themselves to a distinction between the "law of peace" and the "law of war," the former embracing the substantive and the latter the adjective rules of international law. This classification, however, makes it necessary to treat peaceful methods of procedure either as an appendix to the law of peace or as a preamble to the law of war. It has had, moreover, the effect of attributing to the laws of war the importance of substantive rules of conduct. It would appear that as a result of the World War greater emphasis is now being placed upon the substantive law as concerned with the normal relations of a state of peace; the rights recognized by that law are being more carefully analyzed, and the defects and gaps in the law are receiving greater attention. On the other hand, the procedure of war is being placed in sharper contrast with the alternative methods of peaceful procedure, and the term "law" as applied to the laws of war is being shown to have a distinctly different connotation from the term "law" as regulating the relations of peace.3

The analogies between municipal law and international law are of the greatest constructive value in this connection. See below, Chap. XXII, a.

This was generally the case with the older writers on international law in whose time the procedure of war met with less competition from the procedure of arbitration.

* See below, p. 429. The writer is indebted to Dr. J. B. Scott for valuable personal suggestions in this connection. See also, Scott, "The Evolution of a Permanent International Judiciary," in Am. Journal, VI (1912), 316-358.

a. Equality a characteristic of

international

persons

Fundamental rights

CHAPTER IX

THE EQUALITY OF INTERNATIONAL PERSONS

1

In no respect has the science of international law more signally failed to keep in touch with the facts of modern international life than in the principles and usages that have developed in connection with the status of international persons before the law. It is a fundamental principle of international law that states are legally equal. But as to the basis upon which this principle rests, the scope of its application, the inferences that may be drawn from it, and its practical consequences, there are few clear rules of law to be deduced from international practice and little agreement among publicists and writers. Two primary aspects of the legal equality of states can, however, be distinguished. The one relates to the substance of the rights possessed by states, and is described in the statement that "all states have the same rights and the same obligations"; "the other relates to the protection given by international law to those rights and is the equality referred to when it is said that "all states are equal before the law." By keeping these two aspects of equality separate, it becomes possible to discern somewhat clearly the essential features of the present international situation.

3

The principle of the sovereignty and independence of states which forms the basis of modern international law, while not inevitably necessitating, as it did not with Grotius, an international community in which each state was the legal equal of every other, naturally led to that conclusion. Where no common superior

1 The divergent views of modern publicists are presented at length in Dickinson, The Equality of States in International Law, Chap. IV.

The author is using the phrase as it obtained acceptance in international practice and in the works of publicists generally. Professor Dickinson speaks of this form of equality as an equal capacity for rights," denying that it means that all have the same rights. (Op. cit., 4.) The apparent contradiction between the two positions may, it is suggested, be resolved by observing the distinction between abstract and applied rights or between a right considered as a legal power to do a thing and a right as a legal claim over a particular object. See above, pp. 127-128.

* See Dickinson, op. cit., Chap. II, where the frequently repeated statement that Grotius was responsible for the formulation of the equality of states as a principle of international law is shown to be unfounded.

IX

was recognized, it followed that all were upon an equal footing. CHAP. This inference, however, was as a matter of historical fact anticipated by theories of the natural law, by which rights held to belong to men in a state of nature were by analogy applied to nations, which were regarded as still in the state of nature from which individual men had emerged when states were formed.1 But whether by deduction from a theoretical state of nature or by inference from the principle of sovereignty, since the end of the eighteenth century it has been an accepted principle of international law that all states have the same fundamental rights.2 + The right of existence is as sacred to one as to another. The right/ to determine domestic and foreign policies without interference, to exercise exclusive jurisdiction within fixed boundaries, to use freely the high seas, is the same for one and all. The terms upon which territory is acquired and held, the conditions upon which treaties are entered into, the binding force of such contracts, allow for no difference between state and state.3

redress

The rule that states are equal before the law implies that all Rights of states alike may, when they consider their rights violated, appeal to such redress as international law affords. In principle, the sanctions of international law hold good for the protection of the weak as well as of the strong. But here international law has proved itself unable to translate a principle of law into a concrete rule of conduct. In the absence of an international executive agency competent to bring physical pressure to bear to protect the rights of weak states, history has witnessed numerous cases of high-handed action on the part of strong states which have at times reduced the principle of equal rights to an empty formula. The violation of the neutrality of China during the Russo-Japanese War was passed over by international public opinion as being of relatively little consequence. Nor was any protection offered by international law to Korea in 1910 when that state was deprived of its very right of existence as an international person. Yet the equal protection of the law is that aspect of the

The argument appears, for example, in Vattel, Droit des Gens (Eng. trans.), Introd., §§ 18-21.

There are many who claim, as, for example, Hicks, in Proceedings, Am. Society of Int. Law, 1909, p. 246, that the equality of states is a mere "legal fiction"; but that assertion bears not so much upon the recognition of the general principle of equality as upon the reconciliation of that principle with certain concrete facts. See below, pp. 135-136.

An exception is to be noted in the case of states having only qualified full membership in the family of nations. See above, p. 87.