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CHAPTER XIII.

MUTUAL DUTIES OF STATES.

1. All international rights have their corresponding duties-2. Classification of the duties of States-3. Duties corresponding to perfect rights-4. State responsible for acts of its rulers-5. Acts of subordinate officers-6. Acts of private citizens-7. If such acts be ratified -8. General conduct of citizens-9. Pretended emigration and expatriation 10. Duties of mutual respect-11. Failure in respect not always an insult-12. Right to trade-13. Mutual duty of commerce -14. Declining commercial intercourse-15. Total prohibition of China and Japan-16. Imperfect duties-17. Duty of mutual assistance-18. In case of famine-19. In case of floods, fires, etc.-20. For the preservation of others-21. Duties of humanity-22. Offices of humanity may be asked but not required—23. Each one to determine whether it will grant them-24. Rule and measure of such offices25. Duty of international friendship.

§ 1. HAVING discussed the general rights of sovereign and independent States, with respect to their relations with each other, it is proposed here to consider briefly the duties resulting from, or corresponding to, such rights. Every right has its correlative duty. As the international rights of States are divided into perfect and imperfect rights, so the corresponding international obligations may be also divided into perfect and imperfect duties. It will be remembered that any right of a sovereign State is none the less a right because it is classed as imperfect in international jurisprudence, or because it cannot be absolutely demanded and enforced under the positive law of nations; so, the corresponding obligation, although imperfect, is, nevertheless, a duty binding upon the conscience of the nation which owes it. Some writers have objected to the use of the terms imperfect rights and imperfect duties, considering all rights as perfect, or stricti juris, and their corresponding duties as absolute; while what Vattel calls imperfect rights and duties, are classed as usages of comity,—comitas gentium, -or laws of convenience,-droit de convenance. The distinctions made by Vattel are well founded, and his terms, although perhaps not well chosen, are now thoroughly incorporated into

the technical vocabulary of international science, and their meaning is well understood.'

§ 2. In discussing the mutual duties of States, we will consider: First, those perfect duties which one State is absolutely bound to perform, and which others have a perfect right to demand, such as the obligations to render justice to others, and to permit to them the enjoyment of the rights of independence, of quality, of property, of legislation and jurisdiction, of legation and treaty, etc.; second, those imperfect duties which are recognised by international jurisprudence as binding obligations, but which those to whom they are due cannot claim and enforce as absolute rights, such as the ordinary duties of comity, of diplomatic and commercial intercourse, etc.; and third, those imperfect duties which rest solely upon the law of nature, and are not taken cognisance of by the positive law of nations, such as the offices of humanity, of friendships, of reciprocal kindness, etc.

§3. The obligation of a State to render justice to all others is a perfect obligation, of strictly binding force, at all times and under all circumstances. No State can relieve itself from this obligation, under any pretext whatever. It is an obligation, according to Vattel, 'more necessary still between nations than between individuals; because injustice has more terrible consequences in the quarrels of these powerful bodies politic, and it is more difficult to obtain redress.' The same rule applies to all the duties of a State which result from the perfect international rights of others, for whatever one nation has a perfect right to demand of another, that other is absolutely bound to render. The rule is absolute, and cannot be evaded under any technicality, sophistry, or other pretext. Whatever one State can claim as its perfect right, it is the absolute duty of every other to concede. To refuse it, under whatsoever pretext, would be a violation of the positive rule and fundamental principle of international jurisprudence. And no civilised nation can now be found to refuse to another an acknowledged and indisputable right. They may dispute the right itself, and deny its existence as a right, but there are none so low and debased in moral character as to deny their duty and obligation to respect the manifest and acknowledged international rights of others. Moreover, this obligation of

1 Vattel, Droit des Gens, prelim.

the State is equally binding upon all its rulers, officers, and citizens, in fine, upon each and every individual member which composes the State or body politic.'

§ 4. The question here arises, how far a State is responsible for the acts of its rulers, officers, and private citizens, or, in other words, what are to be considered as the acts of the State, and what as the acts of individuals. There can be no doubt with respect to its responsibility for the acts of its rulers, whether they belong to the executive, legislative, or judicial department of the government, so far as the acts are done in their official capacity. States have relations with each other only through their respective governments, and, in international jurisprudence, the government is the State, no matter what may be its form or duration, whether it be a despotism, or a pure republic; whether it be a mere de facto government, organised for a temporary purpose, or one deriving its authority from long ages of legitimate descent.2

5. The question, however, assumes a different aspect when we consider the acts of the subordinate officers of a State. A State is undoubtedly responsible for all the acts of its ambassadors and other public ministers furnished with full power, and also of all its diplomatic agents, within the limits of their presumed powers and duties, until such acts are ex

1 Vattel, Droit des Gens, liv. ii. ch. v. § 63.

2 In the case of the Cherokee Nation v. State of Georgia (5 Peters, 1), it was held by the Supreme Court that the Cherokee nation of Indians, dwelling within the jurisdictional limits of the United States, was not a foreign State in the sense in which the term is used by the Constitution, nor entitled as such to proceed in that court against the State of Georgia, but it was admitted that the Cherokees formed a State or distinct political society, capable of managing its own affairs and governing itself. The numerous treaties made with them by the United States recognise them as a people capable of maintaining the relations of peace and war. They were domestic dependent nations; their relation to the United States was peculiar, and resembled that of a ward to his guardian, and they had an unquestionable right to the lands they occupied, until that right should be extinguished by a voluntary cession.

In the case of Worcester v. State of Georgia (6 Peters, 515), the Supreme Court declared that the right given by European discovery was the exclusive right to purchase; but this right was not founded on a denial of the right of the Indian possessor to sell. The Cherokee nation was a distinct community, occupying its own territory with boundaries, accurately described, in which the laws of Georgia could not rightfully have any force, and into which the citizens of Georgia had no right to enter but with the assent of the Cherokees themselves, or in conformity with Treaties, and with Acts of Congress.

pressly disclaimed by the State as being unauthorised. And even then it is bound, in general, to repair the wrong and to punish the offender; for a mere disclaimer is not always satisfactory to the party aggrieved. This rule is particularly applicable to the acts of its military and naval forces. These are regarded as the peculiar guardians of the honour and dignity of the State as represented by the flag under which they serve; moreover, the rigour of military law and military discipline would, by presumption, give to the act of a military officer a much higher degree of authority and responsibility than the act of a mere civil functionary. The former are under the immediate orders and direction of the head of the State, while the latter, though supposed to be governed by the laws of the State, are not always subject to the immediate direction of its executive government, or amenable to punishment. The act of a military or naval officer, in his official capacity, is, therefore, primâ facie the act of his government, and is to be so regarded till disavowed by his government. The officer's commission is, in general, to be regarded as sufficient evidence of his authority. If the act of the officer be disavowed by his government, the latter is bound to punish him, or to surrender him for punishment by the injured party.1

§ 6. Vattel discusses, at considerable length, the question, how far the sovereign or State is responsible to another for the acts of private citizens or subjects. Whoever,' he says, 'offends the State, injures its rights, disturbs its tranquillity, or does it a prejudice in any manner whatsoever, declares himself its enemy, and puts himself in a situation to be justly punished for it. Whoever uses a citizen ill, indirectly offends the State, which ought to protect this citizen, and his sovereign should revenge the injuries, punish the aggressor, and, if possible, oblige him to make entire satisfaction; since, otherwise, the citizen would not obtain the great end of the civil association, which is safety. On the other hand, the nation, or the sovereign, ought not to suffer the citizens to do an injury to the subjects of another State, much less to offend the State itself. And that, not only because no sovereign ought to permit those who are under his command to violate the precepts

1 Leiber, Political Ethics, b. vii. § 26; De Felice, Droit de la Nat. etc., tome ii. lec. xv. See post, ch. xiv. § 19.

of the law of nature, but, also, because nations ought mutually to respect each other, to abstain from all offence, from all injury, and, in a word, from everything that may be of prejudice to others. If a sovereign, who might keep his subjects within the rules of justice and peace, suffers them to injure a foreign nation, either in its body or its members, he does no less injury to that nation than if he injured them himself. In short, the safety of the State, and that of human society, requires this attention from every sovereign.' Again, 'as it is impossible for the best regulated State, or for the most vigilant and absolute sovereign, to model, at his pleasure, all the actions of his subjects, and to confine them, on every occasion, to the most exact obedience, it would be unjust to impute to the nation, or to the sovereign, all the faults of the citizens. We ought not then to say, in general, that we have received an injury from a nation, because we have received it from one of its members.' The act of the individual is not necessarily and of consequence the act of the State, nor would it be just, in all cases, to hold a State responsible for the act of each individual member of which it is composed. The responsibility of the State results from its neglect or inability to control the conduct of its subjects, or its neglect or inability to punish the offences and crimes which they commit.1

7. But, says the same author, if a nation, or its ruler, approves and ratifies the act committed by a citizen, it makes that act its own; the offence must then be attributed to the nation as the true author of the injury, of which the citizen is, perhaps, only the instrument. So, also, the sovereign who refuses to cause a reparation to be made of the damage done by his subject, or to punish the guilty, or, in short, to deliver him up, renders himself, in some measure, an accomplice in the injury, and becomes responsible for it. If a nation should refuse or fail to pass the laws necessary to restrain its citizens from aggressions upon other States, or upon their citizens, or if, such laws being enacted, the officers of the State neglect to enforce them, and such aggressions by individuals result therefrom, the State is unquestionably responsible for the injury.

§ 8. There is another case,' he continues, 'where the

1 Vattel, Droit des Gens, liv. ii. ch. vi. § 71; Phillimore, On Int. Law, vol. i. § 218; Rutherforth, Institutes, b. 1i. ch. ix. § 12.