sure, a State might conceivably refuse all diplomatic and commercial intercourse with the outside world, but by such action it would cease to be a member of the family of nations. A member of the international community may use its taxing power to levy custom dues which are practically prohibitory; it may favor one State and discriminate against another by means of treaties of commerce and navigation; it may refuse to all foreigners or those of a particular nationality the rights of trade and settlement; it may close certain of its ports to foreign commerce or prohibit foreign trade in certain articles. But it may not refuse all trade with foreign nations or with a particular people; may not refuse the protection of its courts to foreigners whom it admits within its territory; it accords a certain measure of protection to its own nationals on foreign soil; and it must permit the passage of foreign merchantmen through its maritime belt and international passageways, as also the innocent use of its territorial waters, at least by coriparian States.

it

It will thus be seen that the right of mutual commerce or intercourse is far from absolute. It is limited by other essential and fundamental rights which take precedence or restrict its application.

it

VI. THE RIGHT OF JURISDICTION

149. The Right of Jurisdiction. One of the essential or fundamental rights of a State flowing from territorial sovereignty is that of jurisdiction over practically all things and persons on its territory 35 By virtue of its personal supremacy or sovereignty, may, in addition, exercise a limited jurisdiction over its nationals traveling or residing in foreign lands, who are thus subject to a double or concurrent jurisdiction. Some States even wrongly claim the right to punish aliens for certain crimes committed abroad.36 A State also has jurisdiction over all its vessels (including all persons and things thereon) on the high

For exceptions to this rule, see infra, §§ 166, 209, 211, 270 ff., 287 ff.

mitted in foreign countries cannot be too strongly condemned, for it is a dangerous The claim of many States to jurisdiction over aliens for certain crimes comabuse of power and cannot be justified on any theory. It is contrary to the principle of territorial sovereignty as well as that of personal supremacy. Cutting Case in 1866, the United States refused to admit the validity of the Mexican

In the famous

seas, and any State may punish piracy. Finally, in time of war, belligerent States or communities may exercise the rights of visit and search, capture and confiscate contraband goods, and institute and enforce blockades, etc. These matters will be considered more in detail in subsequent chapters.

*

BIBLIOGRAPHY

Bluntschli, Arts.

The Fundamental Rights and Duties of States. 64-94, 375-393; * Bonfils (Fauchille), Nos. 235-323; Bry, Nos. 73-94; Bulmerincq, in 1 Marquardsen, §§ 21-26; 1 and 3 Calvo, 208-359, 1300-1309; 1Chrétien, Nos. 160-302; Despagnet, Nos. 165–186; 1 Fiore, Nos. 160-302; Fontenay, Des droits et des devoirs des États entre eux (1888); Hall (5th ed.), 43-59, 210-213, 247 ff., 268-283; I Halleck (Baker's 3d ed.), 93 ff., 116-142, 186 ff.; Heffter (Geffcken), §§ 26-39; Heilborn, System, etc., 279–306 (for criticism); * Holtzendorff, in 2 Handbuch, 47-69; Klüber, §§ 36-122; Gareis, §§ 24-28; Lawrence, Principles, Pt. II, ch. 4; Ibid., Essays, 208-233; Liszt, §§ 7-8; 1 F. de Martens, §§ 72-79; Mérignhac, 233-284, 310-320; 2 Nys, 176-228; Neumann, Eléments, etc., § 8; *1 Oppenheim, §§ 112-147; 1 and 2 Phillimore, Pt. III, chs. 2, 10, 17, and Pt. V, chs. 1-3, 5; 1 Piédelièvre, liv. I, ch. 3, Nos. 201372; * Pillet, in 5 R. D. I. P. (1898), 66 ff., 236 ff., and 6 Ibid. (1899), 503 ff.; Pomeroy, §§ 76-124, 204-214; 1 and 2 Punder-Fodéré, Nos. 164–195, 211332, 442-594; 1 Rivier, §§ 9, 19–30; Snow, §7; Ullmann (2d ed.), §§ 36-38; Vattel, Prelim., §§ 13-25; liv. I, §§ 13-25, and liv. II, §§ 1-137; 1 Westlake, 236 ff., 293-304; Ibid., Chapters, 89-109; Wheaton, §§ 60-62, 77, 152-160; Wilson, ch. 2.

For references on Intervention, see supra, p. 154 n.

law under which an American citizen was convicted for a libel on a Mexican published in Texas.

On this case and subject, see Gamboa, in 22 R. D. I. (1890), 234–250; Hall (6th ed.), 207-210; Lawrence, Principles (4th ed.), § 104; 2 Moore, §§ 200-202 (including Moore's admirable Report on the Cutting Case); Rolin, in 20 R. D. I., 557-577; Snow, Cases, 172-174; Taylor, §§ 191-194; Wheaton, § 113; 1 Westlake, 251-253.

CHAPTER X

RESPONSIBILITY OF STATES

150. International Delinquencies. -For a failure to observe its international obligations, as also for a positive violation of the rights of other members of the international community, a State is internationally responsible.1 Such act of commission or omission may be called an International Delinquency.2

A State is directly responsible for its own actions or for acts of its officials and agents performed at its command or acting under its authority. State acts which violate International Law

1 Some publicists of the positive or historical school still teach the false and dangerous doctrine that a State is the sole judge of its international responsibilities. But the fact that a State is sovereign or that there is no general or permanent International Court of Justice ready to pronounce sentence for an infraction of the Law of Nations does not free a State from international responsibility or make it the sole judge of its international actions.

"International Delinquencies" should be distinguished from "Crimes against the Law of Nations" and "International Crimes." "Crimes against the Law of Nations" are such acts against foreign States as are pronounced criminal by Municipal Law. The phrase "International Crimes" refers to such outrages against mankind as piracy and slave trading, which every State has the right to punish. See 1 Oppenheim, § 151.

International delinquencies should also be distinguished from unfriendly or

merely discourteous acts.

This responsibility is to States rather than to individuals. In International Law, the individual as such has neither rights nor obligations other than those belonging to him as a citizen or subject of a member of the Family of Nations. On the "Theory of International Responsibility of States for Injuries Suffered by Foreigners," see especially two articles by M. Anzilotti, in 13 R. D. I. P. (1906),

5-29 and 285-309.

and military and naval commanders. It does not fully apply to judicial functionThis principle applies particularly to diplomatic and administrative officials aries, for these are more or less independent of the executive in all well-regulated modern States. "All therefore that can be expected of a government in the case of wrongs inflicted by the courts is that compensation shall be made, and if the wrong has been caused by an imperfection in the law of such kind as to prevent a foreigner from getting equal justice with a native of the country, that a recurrence of the wrong shall be prevented by legislation." Hall (6th ed.), 215.

M

or inflict injuries upon other nations constitute serious international delinquencies, if committed wilfully or as a consequence of culpable negligence. Such acts should be promptly disavowed, an apology tendered, and their authors punished.

151. Direct versus Indirect Responsibility. In ordinary times a State is also indirectly responsible for the orderly and lawabiding conduct of all those residing or domiciled (including foreigners) within its jurisdiction and subject to its laws. It is bound to use due (i.e. reasonable) diligence or the means at its disposal to prevent injurious acts against other States on the part of its own nationals or of foreigners residing on its territory. For an international delinquency of this sort, due satisfaction and reparation should also be made. But the punishment of the offenders or payment of an indemnity to those injured is usually deemed a sufficient satisfaction in these cases.

In case of inability to agree upon proper terms of settlement, the dispute should be referred to a board or court of arbitration. If arbitration be refused or satisfaction denied, recourse may be had to one of the means of self-help described in a subsequent chapter.5

152. General Principle of Responsibility for Injuries to Foreigners. The general principle governing the responsibility of States for acts injurious to foreigners within its own jurisdiction is that a State is bound to furnish the same degree and kind of protection to foreigners and provide the same means of redress or measure of justice that it grants to its own nationals; but that ordinarily (i.e. in the absence of special privileges conferred by treaty or municipal law) foreigners are not entitled to a greater degree of protection or better guarantees of justice than are afforded to a State's own citizens or subjects."

A State is not responsible for the utterances of members of Parliament or legislative and representative bodies.

5 See infra, ch. 22.

This principle, although it is not wholly without exceptions, is generally admitted to be an undoubted rule of International Law. Upon it is based the famous Calvo Doctrine, which condemns intervention (diplomatic as well as armed) as a legitimate method of enforcing any or all private claims of a pecuniary nature, at least such as are based upon contract or are the result of civil war, insurrection, or mob violence. "To admit in such cases the responsibility of governments, i.c. the principle of indemnity, would be to create an exhorbitant and fatal privilege essentially favorable to powerful States and injurious to weaker nations, and to

153. The Rules governing the Responsibility of States in Respect to Foreigners. — In attempting to secure redress or justice, foreigners must, in the first instance, have recourse to the local or territorial tribunals of the district in which they are domiciled, or, as Vattel put it, to the "judge of the place." Judicial remedies should, as a rule, be exhausted before resorting to diplomatic interposition as a means of obtaining redress. But this rule does not apply in cases of gross perversion or evident denial of justice, where judicial action is waived, where the acts complained of are in themselves violations of treaty or of International Law, or where there is undue discrimination against foreigners on the part of the authorities." It "does not apply to countries of imperfect civilization, or to cases in which prior proceedings show gross perversions of justice.'

10

The question of the liability of a State for injuries to the persons and property of foreigners resulting from mob violence is one in which the people of the United States should be deeply interested. Whether due to the intensity of feeling engendered by race and labor problems or (as is more likely) to a lax enforcement of the law resulting from cumbrous and antiquated legal methods of trial and procedure, the American custom of lynching shows little sign of abatement and is not likely to disappear until the causes which lead to it are removed.

-

154. The Practice of the United States. The rule which has generally been verbally maintained by American statesmen

establish an unjustifiable inequality between nationals and foreigners." 3 Calvo, $1280. Cf. 1, 3, and 6 Calvo, §§ 205, 1271-1297, and § 256 of Vol. 6.

This doctrine is undoubtedly sound in principle, but subject to certain exceptions. It has been incorporated, though in too absolute a form, into some of the constitutions and into many treaties by Latin-American States.

The broader Calvo Doctrine should be distinguished from the narrower Drago Doctrine which merely forbids the forcible collection of public debts — a doctrine equally sound in principle and wise as policy, but which its author, the eminent Argentine statesman, Señor Drago, supported by the erroneous and in part obsolete contention that "it is an inherent qualification of all sovereignty that no proceedings for the execution of a judgment may be instituted or carried out against it." For references on the Calvo and Drago Doctrines, see infra, p. 331.

'Liv. II, ch. 8, § 103. Cf. ch. 6, §§ 72 and 73.

86 Moore, Digest, § 987. Cf. 2 Wharton, § 241.

For examples of such exceptions, see 6 Moore, §§ 913-914, 986-993, 1021; and 2 Wharton, §§ 230 and 242.

10 Secretary Evarts in 2 Wharton, Digest, p. 695.