CHAPTER IX

RELATION BETWEEN STATES

§ 131. Mutual Concessions by States.

Having considered the legal relation subsisting between the state and its citizen abroad and between a particular state and resident aliens, the ground has been laid for a consideration of the relationship between the two states themselves, the national state and the state of residence.

It has been observed that by the weight of authority international law is obligatory upon states only, and that the individual is not the subject of international rights or duties, either in the sense of possessing an independent power to enforce his rights internationally or of being internationally liable for a failure to perform his duties. His rights and duties arise from municipal subjection to the personal sovereignty of his home state and to the territorial sovereignty of the state of residence. The latter's municipal law and administration in its application to the alien must conform with that indefinite standard of civilized justice created by international law and custom, subject to international responsibility to the alien's home state. Hence the citizen abroad, though deriving his rights from municipal law, brings about international legal relations of a complicated character between the states exercising control over him.

Membership in the international community is predicated, as has been observed, upon the possession by a state of certain legal characteristics, notably personal sovereignty over its subjects, and territorial independence or jurisdiction. The control which, by virtue of its sovereignty, the state possesses over its national at home and abroad, and that which, by virtue of its territorial independence, it possesses

3

2 Heilborn, System, 75 et seq.; Despagnet, 4th ed., § 316.

3 Supra, pp. 21, 25.

over all persons on its territory would, if unconditionally and strictly exercised, constitute mutually conflicting and irreconcilable forces. As a matter of fact, the impossibility of a state existing in rigid isolation, and the necessity of entering into relations with other states in the international community, has compelled on the part of each state certain restrictions upon its freedom of action and a modification of any theoretical claim it may have had to absolute authority over its subjects abroad or over all the inhabitants of its territory.

It has already been observed that the bond which exists between the state and its citizen is not severed by his departure from the national territory, but that the state, for most practical purposes, yields control over its citizen abroad to the state in which he resides.1 This is the case at least among countries of advanced civilization. The territorial independence by virtue of which the state prescribes the rights and duties of persons within its territory, is itself, however, limited in two ways: indirectly, by the obligation, imposed by international law, of not permitting its municipal law and administration to fall below the indefinite standard set by international law and custom, a result which, as to substantive law, practically never occurs in countries not subject to extraterritoriality; and directly, by conceding or being compelled to concede to foreign states certain rights, e. g., the immunity of foreign sovereigns and public vessels from the territorial jurisdiction, the right of foreign consuls to exercise a limited jurisdiction over their national merchant vessels, the application of his national law to many private legal relations of the alien, and other rights and immunities which have become customary.2 The citizen abroad is thus ! subject to a certain control of both the personal and the territorial sovereign, each requiring forbearances on the part of the other. Personal sovereignty or control and territorial independence or jurisdiction, therefore, are not absolute, but relative, terms and are mutually complementary with respect to citizens abroad.

The numerous spheres in which custom has instituted derogations 1 Supra, p. 21; Hall, W. E., Foreign powers and jurisdiction of the British Crown, Oxford, 1894, p. 2 et seq.

2 On the limitations upon independence, see Pillet, A., Recherches sur les droits fondamentaux des états, Paris, 1899, p. 13; and Rougier in 17 R. G. D. I. P. (1910),

from the fullness of local jurisdiction in favor of foreigners, foreign consuls and foreign property, such as ships, are traceable not merely to comity but to a mutual recognition that in certain matters the interests of individuals are more satisfactorily protected by giving jurisdiction or other powers to their national sovereign, in other words, the indirect operation of the protective function has resulted in certain derogations from complete territorial jurisdiction. In countries in which extraterritoriality prevails, these derogations assume wide proportions, and are the outgrowth of compulsory concession rather than voluntary grant on a basis of reciprocity.

$132. Diplomatic Protection a Limitation on Territorial Jurisdiction. In the mutual relation of states in international intercourse, the home state of a citizen abroad yields the exercise of its personal control or sovereignty over its citizen in favor of the territorial sovereignty of the state of residence, on the condition that the latter's system of law and administration is in its application to aliens within the standards prescribed by international law and recognized custom. If its laws are arbitrarily unreasonable and out of harmony with the standard of civilized states, or if the administration of the laws transgresses the prescriptions of civilized justice, or if in any respect there is an abuse of the rights of territorial jurisdiction as provided by treaties or established custom, the personal sovereignty of the home state reasserts itself and emerges in the form of diplomatic protection. This potential right, which the home state always reserves, acts as a check upon the state of residence and as a corrective against the excessive or abusive application of the territorial jurisdiction. In its operation, it prevents invasions of the rights of citizens abroad or exacts reparation for injuries or unlawful oppression which they may have suffered. In states of the European type there is less occasion for the employment of this protective right than in states of less stable organization. The application of the right of diplomatic protection increases in rigor in direct ratio with the weakness of the local protection accorded by the state of residence. In countries like Turkey and China, this protective right has actually assumed the form of foreign jurisdiction. In the absence of any central authority over states having power to enforce the principles of international law,

the right of diplomatic protection has self-help for its sanction, and as it is most often resorted to by strong against weak states, it is readily apparent how the rights of the weaker states have been liable to abuse; so that the complaints of Calvo, Pradier-Fodéré, Seijas, Lisboa and others, on behalf of the Latin-American states, are undoubtedly, in large degree, justified. The undue enforcement of the right of protection has often served to give aliens who are the subjects of strong states, when resident in weak states, a privileged position, not enjoyed by natives or the nationals of weak countries.

All civilized states admit that in order to live in the society of states, they must yield some share of their absolute liberty of action and that their rights must be reconciled with the reciprocal rights of other states. Various forces thus interact to bring about the existing rules of international intercourse. Among these mutual concessions, the one of present interest is the fact that the territorial sovereignty or jurisdiction of a state has to be reconciled with the right of other states to protect their nationals abroad, an outgrowth of principle and practice, rather than the subject of formal written admission.