The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER X
THE ESSENTIAL RIGHTS AND DUTIES OF STATES

131. Their Nature. -- Until recently, authorities were generally agreed that there exist certain essential or fundamental rights and duties of States which underly the positive rules and customs of International Law. These rights (to which are attached corresponding duties) are usually described as primary, inherent, absolute, fundamental, essential, permanent, etc. They were formerly identified with natural rights and formed part of the socalled law of nature. Some publicists now regard them as moral rather than legal principles, and a few even deny them altogether.1 But these rights have, in fact, a broader

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1
For example, Brown, in 26 Yale Law Rev. ( 1916), 85-93, and in 9 A. J. ( 1915), 305-35; Cavaglieri, in 18 R. D. I. P. ( 1911), 261; * Heilborn, System des Völkerrechts ( 1896), 279-306; Jellinek, System der subjectiven öffendichen, Rechte ( 1892), 302 ff.; I Oppenheim, § 112; and I Westlake, 306 ff.

Jellinek considers the fundamental rights of States tautological, and Heilborn's main argument appears to be that they lack sanction or are included under other categories. But the lack of sanction is not greater than in the case of many of the more positive rules of International Law. The fact that authorities are not fully agreed on the content and meaning of the fundamental rights and duties of States is no proof of their non-existence. Oppenheim says he agrees with the publicists cited above, but he admits these rights and duties under a different name.

The most suggestive treatment of this question is by Pillet, in 5 and 6 R. D. I. P. ( 1898 and 1899), 66 ff., 236 ff., and 503 ff.; but many of his suggestions are too tentative for acceptance in a textbook.

Some of the older publicists adopted the Thomasian classification of perfect and imperfect rights and duties. This division is now generally abandoned. See 1 Westlake (153, 285, 288) for modern instances of adherence to the doctrine of imperfect rights.

At its first session, held in 1916, the American Institute of International Law adopted the following "Declaration of the Rights and Duties of Nations":

"I. Every nation has the right to exist, and to protect and conserve its existence; but this right neither implies the right nor justifies the act of the state to protect itself or to conserve its existence by the commission of unlawful acts against innocent and unoffending states.
"II. Every nation has the right to independence in the sense that it has a right to the pursuit of happiness and is free to develop itself without interference or control from other states, provided that in so doing it does not interfere with or violate the rights of other states.

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