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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 1 The subjects of international law, Ch.3 Position of the states in international law, Dignity

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 21 January 2020

Subject(s):
Diplomatic protection

(p. 379) Dignity

Dickinson, AJ, 22 (1928), pp 840–4 Quadri, Rivista, 34 (1942), pp 161–89 Satow, pp 9–11, 20–37.

§ 115  Consequences of the dignity of states

Traditional international law has ascribed certain legal consequences to the dignity of states as inherent in their international personality. These are chiefly the right to demand that their Heads of State shall not be libelled and slandered; that their Heads of State and likewise their diplomatic envoys shall be granted special treatment when abroad, and that at home and abroad in the official intercourse with representatives of foreign states they shall be granted certain titles; that their warships shall be granted certain privileges when in foreign waters; that their symbols of authority, such as flags and coats of arms, shall not be used improperly and shall not be treated with disrespect on the part of other states.1 But while a government of a state, its organs, and its servants are bound in this matter by duties of respect and restraint, it is doubtful whether, apart from obligations in such matters as the protection of diplomatic and consular property, a state is bound to prevent its subjects from committing acts which violate the dignity of foreign states, and to punish them for acts of that kind which it was unable to prevent. There is, of course, nothing to prevent a state from enacting legislation calculated to ensure respect for the dignity of other states, and many have done so.2

(p. 380) Mere criticism of policy, judgment concerning the past attitude of states and their rulers, or utterances of moral indignation condemning immoral acts of foreign governments and their Heads of State, need neither be suppressed nor punished.3 The position is different when the persons in question are in governmental service or otherwise associated with the government of the country.4 It was formerly often considered that it would be contrary to the dignity of a state for it to be subject to the jurisdiction of the courts of another state, but this is no longer the case at least as regards acts performed by states iure gestionis.5

In 1949 the General Assembly of the United Nations approved, but did not open for signature, a Convention of the International Transmission of News and the Right of Correction.6 The Convention provides for some, not altogether (p. 381) effective, remedy with regard to publication abroad of news despatches which, in the view of the complaining state, are either false and distorted or are ‘capable of injuring its relations with other States or its national prestige or dignity’. In such cases the complaining state may submit to the state where the despatch is published its own version of the facts. The obligation of the latter is limited to the transmission of the corrected version to the news agency responsible for the original publication. If the correction is not published, the Secretary-General of the United Nations is under an obligation to give publicity, through the information channels at his disposal, both to the corrected version and to the original despatch and any comment of the government where the despatch was published.7 In 1952 the General Assembly separated from this Convention the provisions relating to the right of correction, and constituted them as a separate Convention on the International Right of Correction.8

§ 116  Maritime ceremonials

Connected with the dignity of states are the maritime ceremonials1 between vessels, and between vessels and shore installations which belong to different states. In former times discord and jealousy existed between states regarding such ceremonials, since they were looked upon as means of maintaining the superiority of one state over another. Nowadays so far as the open sea is concerned, they are considered as mere acts of courtesy recognising the dignity of states. Maritime ceremonials are carried out by dipping flags or striking sails or firing guns. International law prescribes no right to such ceremonials between vessels meeting on the high seas. They are rather a matter of courtesy and international usage, in honour of the national flag; or they may result from special conventions or national laws of those states under whose flags the vessels sail. In particular no state has a right to require a salute from foreign merchant vessels for its warships on the high seas.2 But so far as concerns the territorial sea, littoral states can make laws concerning maritime ceremonials to be observed by foreign vessels.3

Footnotes:

See Hackworth, ii, § 127. See also Watts, BY, 33 (1957), at p 71, as regards respect due to the national flag flown by merchant ships. Often individuals or mobs express their disagreement with, or disapproval of, the policies or actions of a foreign state by burning its flag (sometimes in conjunction with attacks on that state’s diplomatic, consular or other property): for action taken as a result of such incidents see eg Whiteman, Digest, 5, pp 174, 178–81. As to the status of the UN flag, see UN Juridical YB (1971), p 186, and (1973), pp 136–7.

As to English law see R v Peltier, 28 St Tr 529 (1803); R v Vint, 27 St Tr 627 (1799); R v Gordon, 22 St Tr 177, 213 (1787); R v Most (1881) 7 QBD 244; R v D’Eon, 1 WB1 510 (1764). But some of these cases are exceptional. For some older Reports by the Law Officers of the Crown, see McNair, Opinions (l966), i, pp 10–14; and see also Parry, BDIL, 6, pp 69–70, and 7, pp 84–90.

As to the US, see Hackworth, ii, § 129; Whiteman, Digest, 5, § 9; Zaimi v United States (1973), ILR, 61, p 601. For legislative provisions of a number of countries, see Preuss, AJ, 28 (1934), p 650; see also Dickinson, AJ, 22 (1928), pp 840–44; Swiss Federal Code, Arts 296–7.

Art 8(2) of the Lateran Treaty 1929 provides for the punishment of offences in Italy against the Pope, by speech, act or in writing: for some cases arising under that provision, see RG, 63 (1959), pp 102–4. For a distinction between insulting Adolf Hitler as Head of the German State and insulting him as Leader of the National Socialist Party, see Public Prosecutor v G (AD, 8 (1935–37), No 11); Public Prosecutor v B (ibid, p 25); the decision of the Spanish Supreme Court referred to in the Note at AD, 9 (1938–40), p 9; and Public Prosecutor v O, AD, 11 (1919–42), No 5. See also Public Prosecutor v TJ, ILR, 21 (1954), p 10. In Monaco v Monaco the court rejected the submission that it would be contrary to the dignity of the Head of a State to award him costs in an action in which he has been successful: (1937) 157 TLR 231; ibid, No 9. See also Defamation (Spain) Case, AD, 9 (1938–40), No 3; Re Rivera Calmet, ILR, 18 (1951), No 10; JAM v Public Prosecutor (1969), ILR, 73, p 387; Kolingba v Delpey (1985), AFDI, 32 (1986), p 951 (dismissing a complaint against a libel on a Head of State). See also RG, 72 (1968), p 204, as to slogans insulting a foreign Head of State; ibid, pp 1086–7, as to a film critical of a foreign Head of State; and RG, 92 (1988), pp 730–1, for action taken by Switzerland to prevent the publication of offensive criticism of President Mobutu of Zaire. See also § 451, n. 4.

The use of a foreign state’s, or foreign Head of State’s, coat of arms or flag as part of a commercial trade mark by private traders has sometimes been the subject of protest or legal proceedings to prevent such use. See eg Trade Mark (Heads of Foreign States) Case, AD, 8 (1935–37), No 10 (holding there to be ‘a rule of international law according to which images of heads of foreign States may not be used for commercial purposes’); Manufactura de Tábacos Piccardo v Amministrazione Autonoma dei Monopoli di Stato, AD, 10 (1941–42), No 3; Piccardo y Cia, Ltda, SA v Tabacchi Italiani SA, AD, 12 (1943–45), No 1.

See Lauterpacht, AJ, 22 (1928), pp 114, 115, and Grotius Society, 13 (1928), pp 143–63, and R v Antonelli and Barberi (1905) 70 JP 4; Fleischmann, Liszt, § 13 (n 19); and Wright, AJ, 48 (1954), pp 616–26. See also Fiscal v Zamora, AD, 9 (1938–40), No 5; and, for a distinction between criticism and intentional insult, JAM v Public Prosecutor (1969), ILR, 73, p 387.

Thus, when in January 1931 General Butler, of the US Army, made at a banquet disparaging statements concerning the Italian Prime Minister, Italy complained. The US Government thereupon expressed their regret at this unauthorised action on the part of an officer on active duty and reprimanded General Butler. See on this incident Stowell, AJ, 25 (1931), pp 321–24.

For a number of similar incidents, as well as incidents involving mere criticism of foreign states and their policies, see Whiteman, Digest, 5, pp 154–70. See also RG, 82 (1978), p 893, for a protest by Finland to Sweden regarding the circulation in Sweden of pamphlets criticising the President of Finland.

See eg the observations of the Italian Court of Cassation (United Chambers) in Borga v Russian Trade Delegation, ILR, 22 (1955), pp 235, 238; and the observations of Denning LJ in Rahintoola v Nizam of Hyderabad [1958] AC 379, 418. See generally § 110.

GA Res 277 (III).

See Whitton, AJ, 44 (1950), pp 141–5.

GA Res 630 (VII). The Convention entered into force on 24 August 1962. The remaining provisions have not yet been reconstituted into a convention dealing with the gathering and international transmission of news.

See generally § 122, n 61ff, on the use of broadcasting for propaganda purposes subversive of the interests of other states. See also Art 14(1) of the American Convention on Human Rights 1969 (§ 443), which provides that anyone injured by inaccurate or offensive statements or ideas disseminated by a legally regulated medium of communication has the right to reply or make a correction; on this provision, see the Advisory Opinion of the Inter-American Court of Human Rights on Enforceability of the Right to Reply or Correction (1986), ILR, 79, p 336.

See Satow, pp 36–7; Colombos, International Law of the Sea (6th ed, 1967), pp 53–5, 166–7; and below, § 285.

That warships can on the open sea ask suspicious foreign merchant vessels to show their flags has nothing to do with ceremonials, but with the supervision of the open sea in the interest of its safety. See § 293.

See § 200.