CHAPTER XXII REMEDIAL RIGHTS as distinct from ante cedent The rules of international law under discussion thus far have a Remedial rights dealt with what may be called in the terminology of general jurisprudence the "antecedent" or "primary" rights of states; that is to say, those rights which deal with acts or objects which are due to the possessor of the right for their own sake. They are rights which represent the enjoyment on the part of the possessor of certain positive advantages, or of a certain power or control over his own acts and those of others and over particular material objects. Accompanying these antecedent or primary rights are what may be called, in the same terminology of general jurisprudence, "remedial" rights, or rights recognized by the law as entitling their possessor to use due and proper means to enforce his antecedent rights or to obtain redress in case of their violation.1 Ubi jus, ibi remedium. Where there is a right there is likewise a remedy. Whether the remedies offered by the law are in all cases practically effective would seem to be a question distinct from the recognition of the rights themselves. In the municipal law of modern democratic states remedial rights adequately supplement on the whole the rights they are intended to protect, although failing on occasion to do so. By contrast, international law, being deficient in the judicial and executive agencies which are the sanction of municipal law, offers remedies which, while effective to secure the enjoyment of rights under normal circumstances, break down at times under stress of arbitrary conduct by one or more of the stronger powers. under A fundamental characteristic of municipal law is that in con- Remedial sequence of the establishment of agencies defining the rights of rights individual citizens and providing means for their enforcement, municipal any recourse to self-help is, excepting only the urgent case of 'See Holland, Elements of Jurisprudence, 8th ed., p. 130. The newer terminology introduced by Hohfeld and others, while logically superior to the older terminology here used, is not yet sufficiently well established in municipal jurisprudence to offer a satisfactory basis for analogies to be drawn from it. See above, p. 43, n. 1. CHAP. Absence of international agencies of redress defense against attack, absolutely denied to the injured party. Such redress as may be obtained must be sought through the courts set up by the state for the express purpose of adjusting conflicts of individual rights. On occasion it is possible for the citizen to obtain in advance an injunction to prevent the commission of threatened wrongs for which pecuniary redress would be inadequate. But whether the remedy anticipate or follow the wrong done, the citizen is forbidden to take the law in his own hands. Violence is an offense against the law, irrespective of the justice of the cause in which it is employed. Municipal law does, indeed, draw a distinction between crime and tort, between the more serious wrongs which the state is directly interested in punishing and for which it undertakes therefore to prosecute the offender in its own name, and lesser wrongs for the redress of which the injured individual is left to his own initiative to institute a suit in court for pecuniary damages. In both cases, however, the law requires that, apart from immediate self-defense, redress be obtained through the established agencies of justice. If punishment is to be meted out for the offense it must be meted out by the state; the individual can secure compensation for his loss only through the mediation of, and to the extent to which such loss is estimated by, the judicial tribunals constituted by the community. By contrast with the organization of the modern state, the international community is lacking in agencies for the complete definition of international rights, and for the enforcement even of such rights as are clearly recognized by the law. In the first place the scope of the rules of international law is so limited within certain fields that many of the wrongs alleged to have been committed by one state against another do not fall within the category of legal offenses. Political offenses, as distinct from legal, are wrongs committed by one state against another in matters in regard to which there is no clear rule as to the respective rights of the parties. Such offenses include, moreover, practically all those of a serious character which are regarded by the parties as involving vital national interests, and which are the actual causes of war.2 The distinction of municipal law between crime and tort does not hold in international law. No matter what the offense, the inter 1 See above, p. 129, n. 3. 3 'See above, p. 128. It should be observed that the term "international crimes," frequently used in the text-books, refers not to acts of a state, but to acts of individual citizens, such as piracy and the slave trade, which have been condemned by the nations collectively and which may be punished by any one of them if the XXII national community accepts no direct responsibility for the main- CHAP. tenance of law and order through the punishment of the offender. Neither is it competent to prevent wrongs in advance of commission, upon the appeal of a state whose rights are threatened by another.1 Nor is there a court of compulsory jurisdiction before which the injured state may bring suit in its own name to obtain redress for the wrong alleged to have been done it. To some extent the last two conditions have been modified by the adoption of the Covenant of the League of Nations, which creates a qualified and limited collective responsibility of the League as a body for the maintenance of law,2 and provides that any war or threat of war shall be a matter of concern to the whole League, and that the League shall take any action that may be deemed wise and effective to safeguard the general peace. In regard to injuries already inflicted, the Covenant undertakes to lay down the first principles of a right of action to obtain redress by providing that disputes not submitted to arbitration shall be submitted to the Council, or, failing settlement by the Council, to the Assembly of the League.3 Subject to the restrictions noted above with respect to the obli- b. The right gations assumed by the member states under the Covenant of the League of Nations, international law recognizes the right of selfhelp on the part of individual states as a sanction for the protection of alleged rights. Failing to obtain redress upon demand, each state may take the law in its own hands and prosecute the offender in its own name and in its own interest. In so doing it may or may not have the support of the public opinion of the international community; and consequently it runs the risk that if its action be too arbitrary not only will it incur ill repute, but the community, or certain more powerful members of it, may intervene in behalf of the state against which force is being exercised. But subject to this unreliable sanction, the effectiveness of offenders, of whatever nationality, should fall into its hands. (See above, p. 204.) In like manner, "crimes against the law of nations' refer not to acts of a state, but to acts of individuals in violation of municipal laws enacted by a state for the prevention of acts within its territory for which the state might incur international responsibility. (See below, p. 390.) For a suggestion as to the desirability of an international agreement designating a limited group of injuries to individuals as international torts, see J. S. Wise, Tort at International Law," Am. Journal, XVII (1923), 245. A limited form of process by injunction is provided for by the treaty of arbitration between the United States and France of September 15, 1914. (See below, p. 416, n. 5.) The same process was incorporated into the Draft Convention for the Permanent Court of International Justice, but was eliminated from the final statute. * See above, p. 48. See below, p. 417. of self-help which can only be forecasted as a possibility,' the individual state is authorized to seek its remedy for itself, by such means as it may have at its command, and on such occasion as it believes it to be expedient to take action. Since the right of self-help may, when more moderate measures have failed to secure satisfaction for the wrong done, take the form of war upon the offending party, international law has come to include a number of restraints upon the application of so drastic a remedy. In the first place, international law recognizes that not all offenses are of sufficient gravity to warrant a resort to force to redress them. This principle would appear to be accepted in general terms, quite apart from the practical issue as to whether the injured staté finds it expedient to adopt such formidable measures where minor interests only are at stake. Setting aside offenses against international comity, which cannot be considered as legal wrongs, custom has worked out a rough discrimination between lesser wrongs, for which an apology or an indemnity is an adequate remedy, and graver wrongs which may be redressed, if necessary, by a resort to war. In the former class are such wrongs as a breach of unimportant treaty obligations, insults offered to diplomatic agents, and injuries inflicted upon aliens. In the latter class are such wrongs as arise out of the conflict of national policies, where the safety of the state is alleged to be at stake. 2 The decision as to the class within which a particular dispute falls rests, however, with the individual state. Writers of the eighteenth century drew a distinction between "perfect" and "imperfect" rights, the former being such as carried with them the right of compelling the fulfilment of the corresponding obligations, and the latter being such as did not warrant compulsion. The distinction later gave way to that between fundamental and secondary rights, which omitted direct reference to the right of 'The ineffectiveness under existing conditions of the sanction of public opinion and of possible intervention is the uncertainty of its operation. Violence is not forbidden between states, as it is forbidden to citizens under municipal law. It is only violence without "just cause" that is illegal; and upon the question of just cause public opinion has often been able to express itself only after the war has been begun. The real effectiveness of public opinion as a sanction could only be tested by the adoption of a general agreement not to resort to war over a dispute until after a period for investigation of the facts and discussion of the law. See below, p. 416. 2 3 See above, p. 35. Compare the distinction between fundamental and secondary rights, above, pp. 127-128. See, for example, Vattel, Droit des Gens (Eng. trans.), Introduction, § 17. XXII compulsion, but implied a justification of all effective measures CHAP. of self-help. Neither distinction, however, succeeded in drawing an exact line between the two groups of rights, so that both fell short of a rule of positive law. Further, it should be observed that owing to the lack of an international executive agency for the protection of the fundamental rights of existence and of independence, states have been led to regard as grave many wrongs which in a community organized for mutual protection might be regarded as of little or no consequence. Hence what would be regarded by one state as a serious injury might be regarded by another state, or by the same state under different conditions, as sufficiently trivial to make a determined demand for redress seem inexpedient. The dispute, for example, between France and Germany in 1870 over the succession to the throne of Spain could doubtless not have formed even a pretext for war, had the international community been organized on a basis of collective responsibility for the maintenance of peace instead of on the basis of alliances and counter-alliances.1 of war The principle that the right of self-help, in the extreme form Just causes of war, may not be resorted to for the redress of all wrongs indiscriminately has more often been discussed in connection with the question of the "just causes of war." Publicists both before and after Grotius attempted to lay down general rules defining the wrongs which might properly be regarded as just causes of war.2 National defense was an obvious ground of war; but it proved difficult to draw the line between defense which took the form of anticipation of attack and an act of aggression itself." Defense of property was a further justifying ground of war; but in the absence of a method of determining the just titles of property it was impossible to distinguish the defense of what was one's own 1See above, p. 46. We "Grotius compared the sources of war to the sources of actions at law, but the elaborate analogies which he worked out between private and public law advanced the question little beyond the stage of general principles. "Most writers," he said, "state three just causes of war: defense, recovery of property, and punishment of wrong. (De Jure Belli et Pacis (Eng. trans.), Bk. II, Chap. I, II.) Vattel elaborated upon the same general principles: may say, therefore, in general, that the foundation or cause of every just war is an injury, either already received or threatened." His practical analysis of this generalization, however, together with the distinction which he introduced between perfect and imperfect rights (see above, p. 129), left numerous loopholes for evasion. Droit des Gens (Eng. trans.), Bk. III, § 26. 'A modern instance might be found in the declaration of war against Russia by Japan in 1904. |