CHAPTER VI. INTERNAL LIMITATIONS UPON THE EQUALITY OF STATES

I

THE NATURE OF INTERNAL LIMITATIONS

It has been pointed out that equality among members of

the society of nations is a matter of capacity.

Limitations

upon capacity may be either internal or external, internal as they are the result of the state's organic constitution, and external as they are the consequence of relations with

other members of international society.

Internal limitations upon equality are imposed by the
Before it can

fundamental organization of the state.

acquire personality in the law of nations the state must have de facto existence. This existence requires a considerable population, occupying a definite territory, having a separate political organization or government, and capable of entering into relations, by means of its government, with members of the society of nations. The de facto entity thus constituted acquires de jure personality through recognition by members of the international community.

As a juristic person in the society of nations the state can express itself only through its government, which is

defined and limited in its organic constitution. As Despagnet says:

The relations of the constitutional law of each country to international law are easy enough to understand. We know indeed that by the very necessity of things states can enter into relations among themselves only by means of an agency which is invested, from this point of view, with the powers of the state, and which represents the latter, considered as a moral person, either as it acquires rights or attempts to enforce rights previously acquired, or as it is obliged to respond to its obligations.1

Publicists frequently assert that the law of nations

has no concern with the constitution of a state.

more says:

Philli

It is a sound general principle, and one to be laid
down at the threshhold of the science of which we are
treating, that International Law has no concern with
the form, character, or power of the constitution or
government of a State, with the religion of its inhabi-
tants, the extent of its domain, or the importance of
its position and influence in the commonwealth of
nations.2

This must be taken to mean that, so far as the law of
nations is concerned, the different peoples are free to
set up whatever constitution or government they choose.
It cannot be taken to mean that the law of nations is blind
to all variations in the constitutions and governments of
states, for certain of those variations are the source of
important capacities and incapacities with respect to inter-
national relations.

1 R.G.D.I.P. (1895), Vol. II, p. 184.

Cf.

2 Commentaries, Vol. I, p. 81. See also PradierFodéré, Droit int. pub., sec. 149, Vol. I, p. 256; Walker, Manual, p. 13; Woolsey, Int. Law, sec. 39, p. 39. Despagnet, in R.G.D.T.P. (1895), Vol. II, pp. 184-199 Pillet, in ibid. (1898), Vol. V, p. 86.

In considering the legal capacity of the state as an international person it is important to distinguish capacity for rights and for transactions. A right may be defined as a power in the state of exacting a certain act, forbearance, or benefit, on account of a particular interest, with the aid and assent of the law of nations. A transaction, on the other hand, is an act or manifestation of will on the part of the state, directed to a possible result which is permitted by the law of nations, and the intent and purpose of which is to bring about certain legal consequences. of these conceptions are included in the idea of legal capacity.

Both

Indeed, the capacity to enter into certain transactions may be quite as important to the state as capacity for rights. If the only agency through which the state can express itself internationally is incapable, under the organic law, of acquiring certain rights, entering into certain transactions, or of undertaking other transactions except according to prescribed methods of procedure, then the capacity of the state itself may be said to be organically limited.3

3 A similar view, in relation to the internal capacity of the state, has been presented by Gray in his comments on

the Austinian theory of sovereignty. . He says: "The truth

is that the ideal or fictitious entity, the State, can manifest itself only through organs, and these organs may be so limited that there are certain acts they cannot perform, and therefore there may be no one sovereign in Austin's sense, with complete powers. Such is the case in the United States of America."

180, p. 76.

Nature and Sources of the Law, sec.