20. In international law, the fundamental right of a state is the right of existence.

The right of a state to exist as a member of the family of nations is based for those states, members of the original family of nations, upon historical grounds, and for other states upon international recognition or agreement. facto state, in the sense of public law, may exist prior to this acquisition of international status; but existence as a member of the international family is the fundamental right, from which the other rights recognized in international law are derived. The recognition of the right to exist would imply the possession of the power to exercise those rights generally exercised by the states constituting the family of nations. These rights have been variously classified, and with the rights corresponding duties and obligations have been grouped.1

RIGHT OF SELF-PRESERVATION.

21. The right of self-preservation is an absolute right, based upon the right of existence, and is limited in its exercise by the rights of other states.

A state may take measures necessary to maintain the conditions essential to its being, as in the protection of land and people and the development of national life and resources.

1 Pradier-Fodéré, §§ 164–210.

Under the right of self-preservation states have taken action to increase the national dominion, population, and resources; to strengthen the means of defense and offense; to regulate commerce and other intercourse with foreign states; and, in general, to maintain the national security and well-being.

Of action necessary for national development or security the state is itself the judge, and for its action it must be responsible. The range of action is conditioned by the right of existence as possessed by other states, as in time of war the rights of the belligerents are conditioned by the rights of neutrals. Authorities do not agree as to what action may be taken under stress of necessity on the ground of self-preservation. As each state is the judge of what endangers its own existence and what measures may be necessary for its preservation, the action to be taken under given conditions is determined by policy, rather than by principles of law, and such action is usually tempered by the fear of war or other measures of redress.

RIGHT OF INDEPENDENCE.

22. The right of independence or freedom from external political control is derived from the nature of the state as sovereign.

The right of independence is implied in the recognition of existence of a state. Upon this right of independence of a state are based the exercise of internal political supremacy, the control over territory and population, and the regulation of relations with other states. The exercise of internal political supremacy carries the right to adopt a constitution and to establish the government. Action in accord with the laws, made under the constitution, may give rise to international complications, as when citizens or property of one state are

2 "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves." Underhill v. Hernandez,

168 U. S. 250, 18 Sup. Ct. 83, 42 L. Ed. 456.

within another. Many of these questions belong to the field of conflict of laws, rather than to public international law. The exercise of the right of independence in making laws in regard to commercial relations was one of the earliest matters giving rise to conflicts which made international agreements desirable and necessary. The field of uniformity in the domestic laws upon matters of common interest has rapidly broadened. Very many of the important questions upon which uniformity in legislation in different states is desirable have been discussed by official international conferences. Such conferences averaged more than two for each year during the last quarter of the nineteenth century, and have been even more frequent during the twentieth century. The results of the conferences have tended to enlarge the range of possible independent action, while removing to a considerable degree the probability of arbitrary action on the part of the states participating in the conferences. Thus there has been an attempt to secure the advantages of internal sovereignty without the possible disagreements and friction naturally consequent upon the closer relation between different states and the citizens of different states.

The principle of independence is in no wise denied in the voluntary engagements to which states may become parties. Treaties and conventions are made with a view to benefit all who ratify them, and such agreements do not create a power superior to the contracting parties.

DUTY OF NONINTERVENTION.

23. Correlative with the right of independence is the duty of nonintervention by one state in affairs which solely concern another state or other states.

While a state is under obligation not to intervene in the affairs of other states, yet intervention is sometimes regarded as justifiable on the ground of the fundamental right of selfpreservation of the state, for the maintenance of conditions necessary for the existence of international relations, for the

* Intervention took place in China in 1900 in consequence of the Boxer uprising, which shut up in Pekin diplomatic representatives

fulfillment of a treaty of guarantee, on invitation of a party to a civil war, under sanction of a body of states, as a matter of national policy, or upon grounds clearly outside the field of international law.

In theory, intervention for self-preservation would involve the intervening state in no more serious consequences than would follow nonintervention. The existence of the state is threatened in either case. The determination of a line of action, therefore, becomes a question of policy. The action will

and other foreigners. The several powers sent armed forces to their rescue. The United States defined its purposes and policy in the following circular note to the co-operating powers:

"Department of State, Washington, July 3, 1900. "In this critical posture of affairs in China, it is deemed appropriate to define the attitude of the United States as far as present circumstances permit this to be done. We adhere to the policy initiated by us in 1857 of peace with the Chinese nation, of furtherance of lawful commerce, and of protection of lives and property of our citizens by all means guaranteed under extraterritorial treaty rights and by the law of nations. If wrong be done to our citizens, we pro pose to hold the responsible authors to the uttermost accountability. We regard the condition at Pekin as one of virtual anarchy, whereby power and responsibility are practically devolved upon the local provincial authorities. So long as they are not in overt collusion with rebellion, and use their power to protect foreign life and property, we regard them as representing the Chinese people, with whom we seek to remain in peace and friendship. The purpose of the President is, as it has been heretofore, to act concurrently with the other powers, first, in opening up communication with Pekin and rescuing the American officials, missionaries, and other Americans who are in danger; secondly, in affording all possible protection everywhere in China to American life and property; thirdly, in guarding and protecting all legitimate American interests; and, fourthly, in aiding to prevent a spread of the disorders to the other provinces of the Empire and a recurrence of such disasters. It is, of course, too early to forecast the means of attaining this last result; but the policy of the government of the United States is to seek a solution which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese Empire.

"You will communicate the purport of this instruction to the minister for foreign affairs. Hay.”

Foreign Relations U. S., 1901, Appendix, p. 12.

naturally vary according to the strength of the state and according to the degree to which the well-being of the state is endangered. It may be by force of arms, by diplomatic negotiation, or by other means.

"Intervention takes place when a state interferes in the relations of two other states without the consent of both or either of them, or when it interferes in the domestic affairs of another state, irrespectively of the will of the latter, for the purpose of either maintaining or altering the actual condition of things within it. Primâ facie intervention is a hostile act, because it constitutes an attack upon the independence of the state subjected to it. Nevertheless its position in law is somewhat equivocal. Regarded from the point of view of the state intruded upon, it must always remain an act which, if not consented to, is an act of war. But, from the point of view of the intervening power, it is not a means of obtaining redress for a wrong done, but a measure of prevention or of police, undertaken sometimes for the express purpose of avoiding The right of independence is so fundamental a part of international law, and respect for it is so essential to the existence of legal restraint, that any action tending to place it in a subordinate position must be looked upon with disfavor, and any general grounds of intervention pretending to be sufficient, no less than their application in particular cases, may properly be judged with an adverse bias."

war.

Intervention has often been justified on the ground that citizens of one state have been denied ordinary justice while in another state. While it may be admitted in principle that states must respect ordinary justice in their international dealings, in practice it has been found difficult to reconcile the ideas of justice as held in different states. Unreasonable delays in trial, discrimination against the foreigner on trial, or refusal of rights usually granted to accused in civilized states, have been held as grounds justifying intervention, and upon

4 Hall, Int. Law (5th Ed.) pp. 284, 285.

5 Secretary Bayard maintained, in a communication to the United States minister to Mexico in 1886, that:

"By the law of nations no punishment can be inflicted by a sover