Powers both in American 1 affairs and in affairs of other States. But it is evident that the Monroe Doctrine, as the guiding star of the policy of the United States, is of the greatest political importance. And it ought not to be maintained that this policy is in any way inconsistent with the Law of Nations. In the interest of the balance of power in the world, the United States considers it a necessity that European Powers should not acquire more territory on the American continent than they actually possess. She considers, further, her own welfare so intimately connected with that of the other American States, that she thinks it necessary, in the interest of self-preservation, to watch closely the relations of these States with Europe and also the relations between these States themselves, and, if need be, to intervene in conflicts. Since every State must decide for itself whether and where vital interests of its own are at stake, and whether the balance of power is endangered to its disadvantage, and since, as explained above (§ 138), intervention is therefore de facto a matter of policy, there is no legal impediment to the United States carrying out a policy in conformity with the Monroe Doctrine. This policy was a necessity in order to establish and maintain the independence of the South American States, which, while the Monroe Doctrine remains in force, are somewhat hampered by it. But with their growing strength it will gradually disappear. For, whenever some of these States become Great Powers themselves, they will no longer submit to the political hegemony of the United States, and the Monroe Doctrine will have played its part. 1 Many American writers, however, assert that the Monroe Doctrine could be established as a rule of American' International Law. See, for instance, Alvarez in R. G., xx. (1913), p. 50, and Anderson in the Proceedings of the American Society of International Law, vi. (1912), p. 81. It is very much to be regretted that Kraus, whose excellent mono graph ought to be read by every student of International Law, maintains that the Monroe Doctrine is inconsistent with International Law. The author was of opinion that Article 21 of the Covenant of the League of Nations (see below, § 167 does not make the doctrine a rule of International Law. VII INTERCOURSE Grotius, ii. c. 2, §§ 13-17—Vattel, ii. §§ 21-26-Hall, § 13—Taylor, § 160— Hershey, No. 148-Bluntschli, § 381 and p. 26-Hartmann, § 15— Heffter, §§ 26 and 33-Holtzendorff in Holtzendorff, ii. pp. 60-64-Gareis, § 27-Liszt, § 7-Ullmann, § 38-Bonfils, Nos. 285-289-Despagnet, No. 183-Mérignhac, i. pp. 256-258-Pradier-Fodéré, iv. Nos. 18991904-Rivier, i. pp. 262-264-Nys, ii. pp. 263-274-Calvo, iii. §§ 13031305-Fiore, i. No. 370-Martens, i. § 79. Presup of Inter Person ality. § 141. Many adherents of the doctrine of funda- Intermental rights include therein also a right of intercourse course a for every State with all others. This right of intercourse position is said to comprise a right of diplomatic, commercial, national postal, telegraphic intercourse, of intercourse by railway, a right for foreigners to travel and reside on the territory of every State, and the like. But if the real facts of international life are taken into consideration, it becomes at once apparent that such a fundamental right of intercourse does not exist. All the consequences which are said to follow from the right of intercourse are not at all consequences of a right, but nothing else than consequences of the fact that intercourse between the States is a condition without which a Law of Nations would not and could not exist. The civilised States make a community of States because they are knit together through their common interests, and the manifold intercourse which serves these interests. Through intercourse with one another, and with the growth of their common interests, the Law of Nations has grown up among the civilised States. Where there is no intercourse, there cannot be a community and a law for such community. A State cannot be a member of the Family of Nations and an International Person, if it has no intercourse whatever with Conse quences of Inter course as a Presup position of International Personality. at least one or more other States. Varied intercourse with other States is a necessity for every civilised State. The mere fact that a State is a member of the Family of Nations shows that it has various intercourse with other States, for otherwise it would never have become a member of that family. Intercourse is therefore one of the characteristics of the position of the States within the Family of Nations, and it may be maintained that intercourse is a presupposition of the International Personality of every State. But no special right or rights of intercourse between the States exist according to the Law of Nations. It is because such special rights of intercourse do not exist that the States conclude special treaties regarding matters of post, telegraphs, telephones, railways, and commerce. On the other hand, most States keep up protective duties to exclude or hamper foreign trade in the interest of their home commerce, industry, and agriculture. And although as a rule they allow 1 aliens to travel and to reside on their territory, they can expel every foreign subject according to discretion. § 142. Intercourse being a presupposition of International Personality, the Law of Nations favours intercourse in every way. The whole institution of legation serves the interest of intercourse between the States, as does the consular institution. The right of legation,2 which every full sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad 3 which every State possesses. The freedom of the open sea, which has been universally recognised since the end of the first quarter of the nineteenth century, the right of 1 That an alien has no right to demand to be admitted to British territory was decided in the case of Musgrove v. Chun Tecong Toy, [1891] A.C. 272. * See below, § 360. See below, § 319. The right of protection over citizens abroad is frequently said to be a special right of self-preservation, but it is really & right in the interest of intercourse. See below, § 259. every State to the passage of its merchantmen through the maritime belt 1 of all other States, and, further, freedom of navigation for the merchantmen of all nations on so-called international rivers,2 are further examples of provisions of the Law of Nations in the interest of international intercourse. The question whether a State has the right to require such States as are outside the Family of Nations to open their ports and allow commercial intercourse is frequently discussed and answered in the affirmative. Since the Law of Nations is a law between those States only which are members of the Family of Nations, it has certainly nothing to do with this question, which is therefore one of mere commercial policy and of morality. VIII JURISDICTION Hall, 62, 75-80 — Westlake, i. pp. 246-281-Lawrence, §§ 93-109- portant Position within the § 143. Jurisdiction is for several reasons a matter Jurisdicof importance as regards the position of the States tion imwithin the Family of Nations. States possessing inde- for the pendence and territorial as well as personal supremacy of the can naturally extend or restrict their jurisdiction as far States as they like. However, as members of the Family of Family of Nations and International Persons, the States must exercise self-restraint in the in using this natural power. kinds takes place between the 1 See below, § 188. interest of one another Since intercourse of all States and their subjects, 2 See below, § 178. Nations. the matter ought to be thoroughly regulated by the Law of Nations. But such regulation has as yet only partially grown up. The consequence of both the regulation and non-regulation of jurisdiction is that concurrent jurisdiction of several States can often at the same time be exercised over the same persons and matters. And it can also happen that matters fall under no jurisdiction because the several States which could extend their jurisdiction over these matters refuse to do so, each leaving them to the other's jurisdiction. Restric- § 144. As all persons and things within the territory tions upon of a State fall under its territorial supremacy, every torial State has jurisdiction over them. The Law of Nations, however, gives a right to every State to claim so-called exterritoriality, and therefore exemption from local jurisdiction, chiefly for its head,1 its diplomatic envoys,2 its men-of-war,3 and its armed forces 4 abroad. And partly by custom and partly by treaty obligations, Eastern non-Christian States, Japan now excepted, are restricted 5 in their territorial jurisdiction with regard to foreign resident subjects of Christian Powers. Terri Jurisdic tion. Jurisdiction over abroad. § 145. The Law of Nations does not prevent a State Citizens from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy. As every State can also exercise jurisdiction over aliens within its boundaries, such aliens are often under two concurrent jurisdictions. And, since a State is not obliged to exercise jurisdiction for all matters over aliens on its territory, and since the home State is not obliged to exercise jurisdiction 1 Details below, $$ 348-353, and 356. The exemption of a State itself from the jurisdiction of another is not based upon a claim to exterritoriality, but upon the claim to equality; see above, § 115. 2 Details below, §§ 385-405. 3 Details below, §§ 450-451. As regards the very limited exterri toriality of merchantmen which are by distress compelled to enter foreign port, see below, § 189. Details below, § 445. 5 Details below, §§ 318 and 440. * See below, § 317. |