CHAPTER III

INDIVIDUALS

I

POSITION OF INDIVIDUALS IN INTERNATIONAL LAW

Lawrence, § 55-Taylor, § 171-Heffter, § 58-Stoerk in Holtzendorff, II. pp. 585-592-Gareis, § 53-Liszt, § 11-Ullmann, § 96-Bonfils. Nos. 397-409-Despagnet, No. 328-Pradier-Fodéré, I. Nos. 43-49 -Fiore, II. Nos. 568-712-Martens, I. §§ 85-86-Jellinek, "System der subjectiven öffentlichen Rechte" (1892), pp. 310–314 -Heilborn, System, pp. 58-138-Kaufmann, "Die Rechtskraft des Internationalen Rechtes" (1899).

ance of

viduals to

the Law of

Nations.

§ 288. The importance of individuals to the Law Importof Nations is just as great as that of territory, for the Indi individuals are the personal basis of every State. Just as a State cannot exist without a territory, so it cannot exist without a multitude of individuals who are its subjects and who, as a body, make the people or the nation. The individuals belonging to a State can and do come in various ways in contact with foreign States in time of peace as well as of war. The Law of Nations is therefore obliged to provide certain rules regarding the individuals.

viduals

§ 289. Now, what is the position of indviduals in Indi International Law according to these rules? Since the Law of Nations is a law between States only and exclusively, States only and exclusively are subjects of the Law of Nations. How is it, then, that,

1 See above, §§ 13 and 63.

never Subjects of the Nations.

Law of

although individuals are not subjects of the Law of Nations, they have certain rights and duties in conformity with or according to International Law? Have not monarchs and other heads of States, diplomatic envoys, and even simple citizens certain rights according to the Law of Nations whilst on foreign territory? If we look more closely into these rights, it becomes quite obvious that they are not given to the favoured individuals by the Law of Nations directly. For how could International Law, which is a law between States, give rights to individuals concerning their relations to a State? What the Law of Nations really does concerning individuals, is that it imposes the duty upon all the members of the Family of Nations to grant certain privileges to such foreign heads of States and diplomatic envoys and certain rights to such foreign citizens as are on their territory. And, corresponding to this duty, every State has by the Law of Nations a right to demand that its head, its diplomatic envoys, and its simple citizens be granted certain rights by foreign States when on their territory. Foreign States granting these rights to foreign individuals do this by their Municipal Laws, and these rights are, therefore, not international rights, but rights derived from Municipal Laws. International Law is indeed the background of these rights in so far as the duty to grant them is imposed upon the single States by International Law. It is therefore quite correct to say that the individuals have these rights in conformity with or according to International Law, if it is only remembered that these rights would not exist had the single States not created them by their Municipal Law.

And the same is valid as regards special rights of

individuals in foreign countries according to special international treaties between two or more Powers. Although such treaties mostly speak of rights which individuals shall have as derived from the treaties themselves, this is nothing more than an inaccuracy of language. In fact, such treaties do not create these rights, but they impose the duty upon the contracting States to call these rights into existence by their Municipal Laws.1

Again, in those rare cases in which States stipulate by international treaties certain favours for individuals other than their own subjects, these individuals do not acquire any international rights out of these treaties. The latter impose the duty only upon the State whose subjects these individuals are to call those favours into existence by its Municipal Law. Thus, for example, when articles 5, 25, 35, and 44 of the Treaty of Berlin, 1878, made it a condition of the recognition of Bulgaria, Montenegro, Servia, and Roumania, that these States should not impose any religious disability upon their subjects, the latter did not thereby acquire any international rights. Another instructive example 2 is furnished by article 5 of the Peace Treaty of Prague, 1866, between Prussia and Austria, which stipulated that the northern district of Schleswig should be ceded by Prussia to Denmark in case the inhabitants should by a plebiscite vote in favour of such cession. Austria, no doubt, intended to secure by this stipulation for the inhabitants of North Schleswig the opportunity of voting in favour of their union with Denmark. But these inhabitants did not thereby acquire any inter

1 The whole matter is treated with great lucidity by Jellinek, System der subjectiven öffent

lichen Rechte (1892), pp. 310-314, and Heilborn, System, pp. 58-138. 2 See Heilborn, System, p. 67.

Individuals Objects of the Law

of Nations.

national right. Austria herself acquired only a right to insist upon Prussia granting to the inhabitants the opportunity of voting for the union with Denmark. Prussia, however, intentionally neglected her duty, Austria did not insist upon her right, and finally relinquished it by the Treaty of Vienna of 1878.1

§ 290. But what is the real position of individuals in International Law, if they are not subjects thereof? The answer can only be that they are objects of the Law of Nations. They appear as such from many different points of view. When, for instance, the Law of Nations recognises personal supremacy of every State over its subjects at home and abroad, these individuals appear just as much objects of the Law of Nations as the territory of the States does in consequence of the recognised territorial supremacy of the States. When, secondly, the recognised territorial supremacy of every State comprises certain powers over foreign subjects within its boundaries without their home State's having a right to interfere, these individuals appear again as objects of the Law of Nations. And, thirdly, when according to the Law of Nations any State may seize and punish foreign pirates on the Open Sea, or when belligerents may seize and punish neutral blockade-runners and carriers of contraband on the Open Sea without their home State's having a right to interfere, individuals appear here too as objects of the Law of Nations.2.

It ought to be mentioned that the opinion presented in the text concerning the impossibility for individuals to be subjects of International Law, which is now mostly upheld, is vigorously opposed by Kaufmann, Die Rechtskraft des internationalen Rechtes (1899),

§§ 1-4. His arguments have, however, not found favour with other authors.

2 Westlake, Chapters, p. 2, and Lawrence (§ 55) maintain that in these cases individuals appear as subjects of International Law; but I cannot understand upon what

Link

Indi

and the

§ 291. If, as stated, individuals are never subjects Nationbut always objects of the Law of Nations, then ality the nationality is the link between this law and in- between dividuals. It is through the medium of their viduale nationality only that individuals can enjoy benefits Law of from the existence of the Law of Nations. This is a Nations. fact which has its consequences over the whole area of International Law.1 Such individuals as do not possess any nationality enjoy no protection whatever, and if they are aggrieved by a State they have no way of redress, there being no State which would be competent to take their case in hand. As far as the Law of Nations is concerned, apart from morality, there is no restriction whatever upon a State to abstain from maltreating to any extent such stateless individuals.2 On the other hand, if individuals who possess nationality are wronged abroad, it is their home State only and exclusively which has a right to ask for redress, and these individuals themselves have no such right. It is for this reason that the question of nationality is a very important one for the Law of Nations, and that individuals enjoy benefits from this law not as human beings but as subjects of such States as are members of the Family of Nations. And so distinct is the position of subjects of these members from the position of stateless individuals and from subjects of States outside the Family of Nations, that it has been correctly characterised as a kind of international "indigenousness," a Völkerrechts-Indigenat.3 Just as municipal citizenship procures for an individual the enjoyment of the benefits of the Municipal Laws, so this inter1 See below, § 294. 2 See below, § 312. See Stoerk in Holtzendorff, II. p. 588.

argument this assertion is based. The correct standpoint is taken up by Lorimer, II. p. 131, and Holland, Jurisprudence, p. 341.