It is to be hoped that in time all the Powers will accede to this Additional Convention, for its stipulation is of great importance in cases of shipwreck. If ships at sea can refuse to exchange radio-telegrams, it is impossible for them to render one another assistance. It ought not to be possible for the following case[590] to occur, to which attention was drawn at the Berlin Conference by the delegate of the United States of America:—The American steamer Lebanon had received orders to search the Atlantic for a wrecked vessel which offered great danger to navigation. The Lebanon came within communicating reach of the liner Vaderland, and inquired by wireless telegraphy whether the Vaderland had seen the wreck. The Vaderland refused to reply to this question, on the ground that she was not permitted to enter into communication with a ship provided with a wireless apparatus other than the Marconi.

IX THE SUBSOIL BENEATH THE SEA BED

§ 287c. The subsoil beneath the bed of the Open Sea requires special consideration on account of coal or other mines, tunnels, and the like, for the question is whether such buildings can be driven into that subsoil at all, and, if this can be done, whether they can be under the territorial supremacy of a particular State. The answer depends entirely upon the character in law of such subsoil. If the rules concerning the territorial subsoil[591] would have analogously to be applied to the subsoil beneath the bed of the Open Sea, all rules concerning the Open Sea would necessarily have to be applied to the subsoil beneath its bed, and no part of this subsoil could ever come under the territorial supremacy of any State. It is, however, submitted[592] that it would not be rational to consider the subsoil beneath the bed of the Open Sea an inseparable appurtenance of the latter, such as the subsoil beneath the territorial land and water is. The rationale of the Open Sea being free and for ever excluded from occupation on the part of any State is that it is an international highway which connects distant lands and thereby secures freedom of communication, and especially of commerce, between such States as are separated by the sea.[593] There is no reason whatever for extending this freedom of the Open Sea to the subsoil beneath its bed. On the contrary, there are practical reasons—taking into consideration the building of mines, tunnels, and the like—which compel the recognition of the fact that this subsoil can be acquired through occupation. The following five rules recommend themselves concerning this subject:—

(1) The subsoil beneath the bed of the Open Sea is no man's land, and it can be acquired on the part of a littoral State through occupation, starting from the subsoil beneath the bed of the territorial maritime belt.

(2) This occupation takes place ipso facto by a tunnel or a mine being driven from the shore through the subsoil of the maritime belt into the subsoil of the Open Sea.

(3) This occupation of the subsoil of the Open Sea can be extended up to the boundary line of the subsoil of the territorial maritime belt of another State, for no State has an exclusive claim to occupy such part of the subsoil of the Open Sea as is adjacent to the subsoil of its territorial maritime belt.

(4) An occupation of the subsoil beneath the bed of the Open Sea for a purpose which would endanger the freedom of the Open Sea is inadmissible.

(5) It is likewise inadmissible to make such arrangements in a part of the subsoil beneath the Open Sea which has previously been occupied for a legitimate purpose as would indirectly endanger the freedom of the Open Sea.

If these five rules are correct, there is nothing in the way of coal and other mines which are being exploited on the shore of a littoral State being extended into the subsoil beneath the Open Sea up to the boundary line of the subsoil beneath the territorial maritime belt of another State. Further, a tunnel which might be built between such two parts of the same State—for instance, between Ireland and Scotland—as are separated by the Open Sea would fall entirely under the territorial supremacy of the State concerned. On the other hand, for a tunnel between two different States separated by the Open Sea special arrangements by treaty would have to be made concerning the territorial supremacy over that part of the tunnel which runs under the bed of the Open Sea.

§ 287d. Since there is as yet no submarine tunnel in existence, it is of interest to give some details concerning the project of a Channel Tunnel[594] between Dover and Calais, and the preliminary arrangements between France and England concerning it. Already some years before the Franco-German War the possibility of such a tunnel was discussed, but it was not until 1874 that the first preliminary steps were taken. The subsoil of the Channel was geologically explored, plans were worked out, and a shaft of more than a mile long was tentatively bored from the English shore. And in 1876 an International Commission, appointed by the English and French Governments, and comprising three French and three English members, made a report on the construction and working of the proposed tunnel.[595] The report enclosed a memorandum, recommended by the Commissioners to be adopted as the basis of a treaty between Great Britain and France concerning the tunnel, the juridically important articles of which are the following:—

(Article 1) The boundary between England and France in the tunnel shall be half-way between low-water mark (above the tunnel) on the coast of England, and low-water mark (above the tunnel) on the coast of France. The said boundary shall be ascertained and marked out under the direction of the International Commission to be appointed, as mentioned in article 4, before the Submarine Railway is opened for public traffic. The definition of boundary provided for by this article shall have reference to the tunnel and Submarine Railway only, and shall not in any way affect any question of the nationality of, or any rights of navigation, fishing, anchoring, or other rights in, the sea above the tunnel, or elsewhere than in the tunnel itself.

(Article 4) There shall be constituted an International Commission to consist of six members, three of whom shall be nominated by the British Government and three by the French Government....

The International Commission shall ... submit to the two Governments its proposals for Supplementary Conventions with respect—(a) to the apprehension and trial of alleged criminals for offences committed in the tunnel or in trains which have passed through it, and the summoning of witnesses; (b) to customs, police, and postal arrangements, and other matters which it may be found convenient so to deal with.

(Article 15) Each Government shall have the right to suspend the working of the Submarine Railway and the passage through the tunnel whenever such Government shall, in the interest of its own country, think necessary to do so. And each Government shall have power, to be exercised if and when such Government may deem it necessary, to damage or destroy[596] the works of the tunnel or Submarine Railway, or any part of them, in the territory of such Government, and also to flood the tunnel with water.

In spite of this elaborate preparation the project could not be realised, since public opinion in England was for political reasons opposed to it. And although several times since—in 1880, 1884, 1888, and 1908—steps were again taken in favour of the proposed tunnel, public opinion in England remained hostile and the project has had for the time to be abandoned. It is, however, to be hoped and expected that ultimately the tunnel will be built when the political conditions which are now standing in the way of its realisation have undergone a change.

CHAPTER III INDIVIDUALS

I POSITION OF INDIVIDUALS IN INTERNATIONAL LAW

Lawrence, § 42—Taylor, § 171—Heffter, § 58—Stoerk in Holtzendorff, II. pp. 585-592—Gareis, § 53—Liszt, §§ 5 and 11—Ullmann, § 107—Bonfils, Nos. 397-409—Despagnet, No. 328—Mérignhac, II. pp. 169-172—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)—Buonvino, "Diritto e personalità giuridica internazionale" (1910)—Rehm and Adler in Z.V. II. (1908), pp. 53-55 and 614-618—Kohler in Z.V. III. (1909), pp. 209-230—Diena in R.G. XVI. (1909), pp. 57-76.

§ 288. The importance of individuals to the Law of Nations is just as great as that of territory, for 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, form 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 compelled to provide certain rules regarding individuals.

§ 289. Now, what is the position of individuals in International Law according to these rules? Since the Law of Nations is a law between States only and exclusively, States only and exclusively[597] are subjects of the Law of Nations. How is it, then, that, 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 individual 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 to impose 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 of calling these rights into existence by their Municipal Laws.[598]

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 under these treaties. The latter impose the duty only upon the State whose subjects these individuals are of calling 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[599] 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 international 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.[600]

Now it is maintained[601] that, although individuals cannot be subjects of International Law, they can nevertheless acquire rights and duties from International Law. But it is impossible to find a basis for the existence of such rights and duties. International rights and duties they cannot be, for international rights and duties can only exist between States. Likewise they cannot be municipal rights, for municipal rights and duties can only be created by Municipal Law. The opponents answer that such rights and duties nevertheless exist, and quote for example articles 4 and 5 of Convention XII. (concerning the establishment of an International Prize Court) of the second Hague Peace Conference, according to which individuals have a right to bring an appeal before the International Prize Court. But is this a real right? Is it not more correct to say that the home States of the individuals concerned have a right to demand that these individuals can bring the appeal before the Court? Wherever International Law creates an independent organisation, such as the International Prize Court at the Hague or the European Danube Commission and the like, certain powers and claims must be given to the Courts and Commissions and the individuals concerned, but these powers and claims, and the obligations deriving therefrom, are neither international nor municipal rights and duties: they are powers, claims, and obligations existing only within the organisations concerned. To call them rights and duties—as indeed the respective treaties frequently do—is a laxity of language which is quite tolerable as long as one remembers that they neither comprise any relations between States nor any claims and obligations within the province of Municipal Law.

§ 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 the 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.[602]

§ 291. If, as stated, individuals are never subjects but always objects of the Law of Nations, then nationality is the link between this law and individuals. It is through the medium of their nationality only that individuals can enjoy benefits from the existence of the Law of Nations. This is a fact which has its consequences over the whole area of International Law.[603] 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 to cause a State to abstain from maltreating to any extent such stateless individuals.[604] 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 as 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.[605] Just as municipal citizenship procures for an individual the enjoyment of the benefits of the Municipal Laws, so this international "indigenousness," which is a necessary inference from municipal citizenship, procures the enjoyment of the benefits of the Law of Nations.

§ 292. Several writers[606] maintain that the Law of Nations guarantees to every individual at home and abroad the so-called rights of mankind, without regarding whether an individual be stateless or not, or whether he be a subject of a member-State of the Family of Nations or not. Such rights are said to comprise the right of existence, the right to protection of honour, life, health, liberty, and property, the right of practising any religion one likes, the right of emigration, and the like. But such rights do not in fact enjoy any guarantee whatever from the Law of Nations,[607] and they cannot enjoy such guarantee, since the Law of Nations is a law between States, and since individuals cannot be subjects of this law. But there are certain facts which cannot be denied at the background of this erroneous opinion. The Law of Nations is a product of Christian civilisation and represents a legal order which binds States, chiefly Christian, into a community. It is therefore no wonder that ethical ideas which are some of them the basis of, others a development from, Christian morals, have a tendency to require the help of International Law for their realisation. When the Powers stipulated at the Berlin Congress of 1878 that the Balkan States should be recognised only under the condition that they did not impose any religious disabilities on their subjects, they lent their arm to the realisation of such an idea. Again, when the Powers after the beginning of the nineteenth century agreed to several international arrangements in the interest of the abolition of the slave trade,[608] they fostered the realisation of another of these ideas. And the innumerable treaties between the different States as regards extradition of criminals, commerce, navigation, copyright, and the like, are inspired by the idea of affording ample protection to life, health, and property of individuals. Lastly, there is no doubt that, should a State venture to treat its own subjects or a part thereof with such cruelty as would stagger humanity, public opinion of the rest of the world would call upon the Powers to exercise intervention[609] for the purpose of compelling such State to establish a legal order of things within its boundaries sufficient to guarantee to its citizens an existence more adequate to the ideas of modern civilisation. However, a guarantee of the so-called rights of mankind cannot be found in all these and other facts. Nor do the actual conditions of life to which certain classes of subjects are forcibly submitted within certain States show that the Law of Nations really comprises such guarantee.[610]

II NATIONALITY

Vattel, I. §§ 220-226—Hall, §§ 66 and 87—Westlake, I. pp. 213, 231-233—Halleck, I. p. 401—Taylor, §§ 172-178—Moore, III. §§ 372-376—Bluntschli, §§ 364-380—Stoerk in Holtzendorff, II. pp. 630-650—Gareis, § 54—Liszt, § 11—Ullmann, § 108—Bonfils, Nos. 433-454—Despagnet, Nos. 329-333—Pradier-Fodéré, III. No. 1645—Rivier, I. p. 303—Nys, II. pp. 214-220, 229-237—Calvo, II. §§ 539-540—Fiore, I. Nos. 644-658, 684-717, and Code, Nos. 638-641—Martens, I. §§ 85-87—Hall, "Foreign Powers and Jurisdiction" (1894), § 14—Cogordan, "La nationalité au point de vue des rapports internationaux" (2nd ed. 1890)—Gargas in Z.V. V. (1911), pp. 278-316 and....

§ 293. Nationality of an individual is his quality of being a subject of a certain State and therefore its citizen. It is not for International but for Municipal Law to determine who is and who is not to be considered a subject. And therefore it matters not, as far as the Law of Nations is concerned, that Municipal Laws may distinguish between different kinds of subjects—for instance, those who enjoy full political rights and are on that account named citizens, and those who are less favoured and are on that account not named citizens. Nor does it matter that according to the Municipal Laws a person may be a subject of a part of a State, for instance of a colony, but not a subject of the mother-country, provided only such person appears as a subject of the mother-country as far as the latter's international relations are concerned. Thus, a person naturalised in a British Colony is for all international purposes a British subject, although he may not have the rights of a British subject within the United Kingdom itself.[611] For all international purposes, all distinctions made by Municipal Laws between subjects and citizens and between different kinds of subjects have neither theoretical nor practical value, and the terms "subject" and "citizen" are, therefore, synonymously made use of in the theory and practice of International Law.

But it must be emphasised that nationality as citizenship of a certain State must not be confounded with nationality as membership of a certain nation in the sense of a race. Thus, all Englishmen, Scotchmen, and Irishmen are, despite their different nationality as regards their race, of British nationality as regards their citizenship. Thus, further, although all Polish individuals are of Polish nationality qua race, they have been, since the partition of Poland at the end of the eighteenth century between Russia, Austria, and Prussia, either of Russian, Austrian, or German nationality qua citizenship.

§ 294. It will be remembered that nationality is the link between individuals and the benefits of the Law of Nations.[612] This function of nationality becomes apparent with regard to individuals abroad, or property abroad of individuals who themselves are within the territory of their home State. Through one particular right and one particular duty of every State towards all other States this function of nationality becomes most conspicuous. The right is that of protection over its citizens abroad which every State holds and occasionally vigorously exercises towards other States; it will be discussed in detail below, § 319. The duty, on the other hand, is that of receiving on its territory such citizens as are not allowed to remain[613] on the territory of other States. Since no State is obliged by the Law of Nations to allow foreigners to remain within its boundaries, it may, for many reasons, happen that certain individuals are expelled from all foreign countries. The home State of those expelled cannot refuse to receive them on the home territory, the expelling States having a claim on the home State that the latter do receive the expelled individuals.[614]

§ 295. Although nationality alone is the regular means through which individuals can derive benefit from the Law of Nations, there are two exceptional cases in which individuals may come under the international protection of a State without these individuals being really its subjects. It happens, first, that a State undertakes by an international agreement the diplomatic protection of another State's citizens abroad, and in this case the protected foreign subjects are named "protégés" of the protecting States. Such agreements are either concluded for a permanency as in the case of a small State, Switzerland for instance, having no diplomatic envoy in a certain foreign country where many of its subjects reside, or in time of war only, a belligerent handing over the protection of its subjects in the enemy State to a neutral State.

It happens, secondly, that a State promises diplomatic protection within the boundaries of Turkey and other Oriental countries to certain natives. Such protected natives are likewise named protégés, but they are also called "de facto subjects" of the protecting State. The position of these protégés is quite anomalous, it is based on custom and treaties, and no special rules of the Law of Nations itself are in existence concerning such de facto subjects. Every State which takes such de facto subjects under its protection can act according to its discretion, and there is no doubt that as soon as these Oriental States have reached a level of civilisation equal to that of the Western members of the Family of Nations, the whole institution of the de facto subjects will disappear.

Concerning the exercise of protection in Morocco, a treaty[615] was concluded at Madrid on July 3, 1880, signed by Morocco, Great Britain, Austria-Hungary, Belgium, France, Germany, Holland, Italy, Portugal, Spain, Sweden-Norway, and the United States of America, which sanctions the stipulations of the treaty of 1863 between France and Morocco concerning the same subject. According to this treaty the term "protégé" embraces[616] in relation to States of Capitulations only the following classes of persons:—(1) Persons being subjects of a country which is under the protectorate of the Power whose protection they claim; (2) individuals corresponding to the classes enumerated in the treaties with Morocco of 1863 and 1880 and in the Ottoman law of 1863; (3) persons, who under a special treaty have been recognised as protégés like those enumerated by article 4 of the French Muscat Convention of 1844; and (4) those individuals who can establish that they had been considered and treated as protégés by the Power in question before the year in which the creation of new protégés was regulated and limited—that is to say, before the year 1863, these individuals not having lost the status they had once legitimately acquired.

§ 296. As emigration comprises the voluntary removal of an individual from his home State with the intention of residing abroad, but not necessarily with the intention of renouncing his nationality, it is obvious that emigrants may well retain their nationality. Emigration is in fact entirely a matter of internal legislation of the different States. Every State can fix for itself the conditions under which emigrants lose or retain their nationality, as it can also prohibit emigration altogether, or can at any moment request those who have emigrated to return to their former home, provided the emigrants have retained their nationality of birth. And it must be specially emphasised that the Law of Nations does not and cannot grant a right of emigration to every individual, although it is frequently maintained that it is a "natural" right of every individual to emigrate from his own State.[617]