I. INTERNATIONAL PERSONS
I
SOVEREIGN STATES AS INTERNATIONAL PERSONS
Vattel, I. §§ 1-12--Hall, § 1--Lawrence, § 42--Phillimore, I. §§ 61-69--Twiss, I. §§ 1-11--Taylor, § 117--Walker, § 1--Westlake, I. pp. 1-5, 20-21--Wheaton, §§ 16-21--Ullmann, § 19--Heffter, § 15--Holtzendorff in Holtzendorff, II. pp. 5-11--Bonfils, Nos. 160-164--Despagnet, Nos. 69-74--Pradier-Fodéré, I. Nos. 43-81--Nys, I. pp. 329-356--Rivier, I. § 3--Calvo, I. §§ 39-41--Fiore, I. Nos. 305-309, and Code, Nos. 51-77--Martens, I. §§ 53-54--Mérignhac, I. pp. 114-231, and II. pp. 5, 154-221--Moore, I. § 3.
[Sidenote: Real and apparent International Persons.]
§ 63. The conception of International Persons is derived from the conception of the Law of Nations. As this law is the body of rules which the civilised States consider legally binding in their intercourse, every State which belongs to the civilised States, and is, therefore, a member of the Family of Nations, is an International Person. Sovereign States exclusively are International Persons--i.e. subjects of International Law. There are, however, as will be seen, full and not-full Sovereign States. Full Sovereign States are perfect, not-full Sovereign States are imperfect International Persons, for not-full Sovereign States are for some parts only subjects of International Law.
In contradistinction to Sovereign States which are real, there are also apparent, but not real, International Persons--namely, Confederations of States, insurgents recognised as a belligerent Power in a civil war, and the Holy See. All these are not, as will be seen,[87] real subjects of International Law, but in some points are treated as though they were International Persons, without thereby becoming members of the Family of Nations.
[Footnote 87: See below, § 88 (Confederations of States), § 106 (Holy See), and vol. II. §§ 59 and 76 (Insurgents).]
It must be specially mentioned that the character of a subject of the Law of Nations and of an International Person can be attributed neither to monarchs, diplomatic envoys, private individuals, or churches, nor to chartered companies, nations, or races after the loss of their State (as, for instance, the Jews or the Poles), and organised wandering tribes.[88]
[Footnote 88: Most jurists agree with this opinion, but there are some who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the character of subjects of the Law of Nations; Lawrence (§ 42) claims that character for corporations; and Westlake, Chapters, p. 2, and Fiore, Code, Nos. 51, 61-64, claim it for individuals. The matter will be discussed below in §§ 288, 290, 344, 384.]
[Sidenote: Conception of the State.]
§ 64. A State proper--in contradistinction to so-called Colonial States--is in existence when a people is settled in a country under its own Sovereign Government. The conditions which must obtain for the existence of a State are therefore four:
There must, first, be a people. A people is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.
There must, secondly, be a country in which the people has settled down. A wandering people, such as the Jews were whilst in the desert for forty years before their conquest of the Holy Land, is not a State. But it matters not whether the country is small or large; it may consist, as with City States, of one town only.
There must, thirdly, be a Government--that is, one or more persons who are the representatives of the people and rule according to the law of the land. An anarchistic community is not a State.
There must, fourthly and lastly, be a Sovereign Government. Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term includes, therefore, independence all round, within and without the borders of the country.
[Sidenote: Not-full Sovereign States.]
§ 65. A State in its normal appearance does possess independence all round and therefore full sovereignty. Yet there are States in existence which certainly do not possess full sovereignty, and are therefore named not-full Sovereign States. All States which are under the suzerainty or under the protectorate of another State or are member States of a so-called Federal State, belong to this group. All of them possess supreme authority and independence with regard to a part of the tasks of a State, whereas with regard to another part they are under the authority of another State. Hence it is that the question is disputed whether such not-full Sovereign States can be International Persons and subjects of the Law of Nations at all.[89]
[Footnote 89: The question will be discussed again below, §§ 89, 91, 93, with regard to each kind of not-full Sovereign States. The object of discussion here is the question whether such States can be considered as International Persons at all. Westlake, I. p. 21, answers it affirmatively by stating: "It is not necessary for a State to be independent in order to be a State of International Law."]
That they cannot be full, perfect, and normal subjects of International Law there is no doubt. But it is wrong to maintain that they can have no international position whatever and can never be members of the Family of Nations at all. If we look at the matter as it really stands, we observe that they actually often enjoy in many points the rights and fulfil in other points the duties of International Persons. They often send and receive diplomatic envoys or at least consuls. They often conclude commercial or other international treaties. Their monarchs enjoy the privileges which according to the Law of Nations the Municipal Laws of the different States must grant to the monarchs of foreign States. No other explanation of these and similar facts can be given except that these not-full Sovereign States are in some way or another International Persons and subjects of International Law. Such imperfect International Personality is, of course, an anomaly; but the very existence of States without full sovereignty is an anomaly in itself. And history teaches that States without full sovereignty have no durability, since they either gain in time full sovereignty or disappear totally as separate States and become mere provinces of other States. So anomalous are these not-full Sovereign States that no hard-and-fast general rule can be laid down with regard to their position within the Family of Nations, since everything depends upon the special case. What may be said in general concerning all the States without full sovereignty is that their position within the Family of Nations, if any, is always more or less overshadowed by other States. But their partial character of International Persons comes clearly to light when they are compared with so-called Colonial States, such as the Dominion of Canada or the Commonwealth of Australia. Colonial States have no international position[90] whatever; they are, from the standpoint of the Law of Nations, nothing else than colonial portions of the mother-country, although they enjoy perfect self-government, and may therefore in a sense be called States. The deciding factor is that their Governor, who has a veto, is appointed by the mother-country, and that the Parliament of the mother-country could withdraw self-government from its Colonial States and legislate directly for them.
[Footnote 90: Therefore treaties concluded by Canada with foreign States are not Canadian treaties, but treaties concluded by Great Britain for Canada. Should Colonial States ever acquire the right to conclude treaties directly with foreign States without the consent of the mother-country, they would become internationally part-sovereign and thereby obtain a certain international position.]
[Sidenote: Divisibility of Sovereignty contested.]
§ 66. The distinction between States full Sovereign and not-full Sovereign is based upon the opinion that sovereignty is divisible, so that the powers connected with sovereignty need not necessarily be united in one hand. But many jurists deny the divisibility of sovereignty and maintain that a State is either sovereign or not. They deny that sovereignty is a characteristic of every State and of the membership of the Family of Nations. It is therefore necessary to face the conception of sovereignty more closely. And it will be seen that there exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.[91]
[Footnote 91: The literature upon sovereignty is extensive. The following authors give a survey of the opinions of the different writers:--Dock, "Der Souveränitäts-begriff von Bodin bis zu Friedrich dem Grossen," 1897; Merriam, "History of the Theory of Sovereignty since Rousseau," 1900; Rehm, "Allgemeine Staatslehre," 1899, §§ 10-16. See also Maine, "Early Institutions," pp. 342-400.]
[Sidenote: Meaning of Sovereignty in the Sixteenth and Seventeenth Centuries.]
§ 67. The term Sovereignty was introduced into political science by Bodin in his celebrated work, "De la république," which appeared in 1577. Before Bodin, at the end of the Middle Ages, the word souverain[92] was used in France for an authority, political or other, which had no other authority above itself. Thus the highest courts were called Cours Souverains. Bodin, however, gave quite a new meaning to the old conception. Being under the influence and in favour of the policy of centralisation initiated by Louis XI. of France (1461-1483), the founder of French absolutism, he defined sovereignty as "the absolute and perpetual power within a State." Such power is the supreme power within a State without any restriction whatever except the Commandments of God and the Law of Nature. No constitution can limit sovereignty, which is an attribute of the king in a monarchy and of the people in a democracy. A Sovereign is above positive law. A contract only is binding upon the Sovereign, because the Law of Nature commands that a contract shall be binding.[93]
[Footnote 92: Souverain is derived either from the Latin superanus or from suprema potestas.]
[Footnote 93: See Bodin, "De la république," I. c. 8.]
The conception of sovereignty thus introduced was at once accepted by writers on politics of the sixteenth century, but the majority of these writers taught that sovereignty could be restricted by a constitution and by positive law. Thus at once a somewhat weaker conception of sovereignty than that of Bodin made its appearance. On the other hand, in the seventeenth century, Hobbes went even beyond Bodin, maintaining[94] that a Sovereign was not bound by anything and had a right over everything, even over religion. Whereas a good many publicists followed Hobbes, others, especially Pufendorf, denied, in contradistinction to Hobbes, that sovereignty includes omnipotence. According to Pufendorf, sovereignty is the supreme power in a State, but not absolute power, and sovereignty may well be constitutionally restricted.[95] Yet in spite of all the differences in defining sovereignty, all authors of the sixteenth and seventeenth centuries agree that sovereignty is indivisible and contains the centralisation of all power in the hands of the Sovereign, whether a monarch or the people itself in a republic. Yet the way for another conception of sovereignty is prepared by Locke, whose "Two Treatises on Government" appeared in 1689, and paved the way for the doctrine that the State itself is the original Sovereign, and that all supreme powers of the Government are derived from this sovereignty of the State.
[Footnote 94: See Hobbes, "De cive," c. 6, §§ 12-15.]
[Footnote 95: See Pufendorf, "De jure naturae et gentium," VII. c. 6, §§ 1-13.]
[Sidenote: Meaning of Sovereignty in the Eighteenth Century.]
§ 68. In the eighteenth century matters changed again. The fact that the several hundred reigning princes of the member-States of the German Empire had practically, although not theoretically, become more or less independent since the Westphalian Peace enforced the necessity upon publicists to recognise a distinction between an absolute, perfect, full sovereignty, on the one hand, and, on the other, a relative, imperfect, not-full or half-sovereignty. Absolute and full sovereignty was attributed to those monarchs who enjoyed an unqualified independence within and without their States. Relative and not-full sovereignty, or half-sovereignty, was attributed to those monarchs who were, in various points of internal or foreign affairs of State, more or less dependent upon other monarchs. By this distinction the divisibility of sovereignty was recognised. And when in 1787 the United States of America turned from a Confederation of States into a Federal State, the division of sovereignty between the Sovereign Federal State and the Sovereign member-States appeared. But it cannot be maintained that divisibility of sovereignty was universally recognised in the eighteenth century. It suffices to mention Rousseau, whose "Contrat Social" appeared in 1762 and defended again the indivisibility of sovereignty. Rousseau's conception of sovereignty is essentially that of Hobbes, since it contains absolute supreme power, but he differs from Hobbes in so far as, according to Rousseau, sovereignty belongs to the people only and exclusively, is inalienable, and therefore cannot be transferred from the people to any organ of the State.
[Sidenote: Meaning of Sovereignty in the Nineteenth Century.]
§ 69. During the nineteenth century three different factors of great practical importance have exercised their influence on the history of the conception of sovereignty.
The first factor is that, with the exception of Russia, all civilised Christian monarchies during this period turned into constitutional monarchies. Thus identification of sovereignty with absolutism belongs practically to the past, and the fact was during the nineteenth century generally recognised that a sovereign monarch may well be restricted in the exercise of his powers by a Constitution and positive law.
The second factor is, that the example of a Federal State set by the United States has been followed by Switzerland, Germany, and others. The Constitution of Switzerland as well as that of Germany declares decidedly that the member-States of the Federal State remain Sovereign States, thus indirectly recognising the divisibility of sovereignty between the member-States and the Federal State according to different matters.
The third and most important factor is, that the science of politics has learned to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The majority of publicists teach henceforth that neither the monarch, nor Parliament, nor the people is originally Sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. The organ or organs which exercise for the State powers connected with sovereignty are said to be sovereign themselves, yet it is obvious that this sovereignty of the organ is derived from the sovereignty of the State. And it is likewise obvious that the sovereignty of a State may be exercised by the combined action of several organs, as, for instance, in Great Britain, King and Parliament are the joint administrators of the sovereignty of the State. And it is, thirdly, obvious that a State can, as regards certain matters, have its sovereignty exercised by one organ and as regards other matters by another organ.
In spite of this condition of things, the old controversy regarding divisibility of sovereignty has by no means died out. It acquired a fresh stimulus, on the one hand, through Switzerland and Germany turning into Federal States, and, on the other, through the conflict between the United States of America and her Southern member-States. The theory of the concurrent sovereignty of the Federal State and its member-States, as defended by "The Federalist" (Alexander Hamilton, James Madison, and John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous publicists followed. The theory of the indivisibility of sovereignty was defended by Calhoun,[97] and many European publicists followed him in time.
[Footnote 96: Politik, 1862.]
[Footnote 97: A Disquisition on Government, 1851.]
[Sidenote: Result of the Controversy regarding Sovereignty.]
§ 70. From the foregoing sketch of the history of the conception of sovereignty it becomes apparent that there is not and never was unanimity regarding this conception. It is therefore no wonder that the endeavour has been made to eliminate the conception of sovereignty from the science of politics altogether, and likewise to eliminate sovereignty as a necessary characteristic of statehood, so that States with and without sovereignty would in consequence be distinguishable. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs. As there can be no doubt about the fact that there are semi-independent States in existence, it may well be maintained that sovereignty is divisible.
II
RECOGNITION OF STATES AS INTERNATIONAL PERSONS
Hall, §§ 2 and 26--Lawrence, §§ 44-47--Phillimore, II. §§ 10-23--Taylor, §§ 153-160--Walker, § 1--Westlake, I. pp. 49-58--Wheaton, § 27--Moore, §§ 27-75--Bluntschli, §§ 28-38--Hartmann, § 11--Heffter, § 23--Holtzendorff in Holtzendorff, II. pp. 18-33--Liszt, § 5--Ullmann, §§ 29-30--Bonfils, Nos. 195-213--Despagnet, Nos. 79-85--Pradier-Fodéré, I. Nos. 136-145--Nys, I. pp. 69-115--Mérignhac, I. pp. 320-329--Rivier, I. § 3--Calvo, I. §§ 87-98--Fiore, I. Nos. 311-320, and Code, Nos. 160-177--Martens, I. §§ 63-64--Le Normand, "La reconnaissance internationale et ses diverses applications" (1899).
[Sidenote: Recognition a condition of Membership of the Family of Nations.]
§ 71. As the basis of the Law of Nations is the common consent of the civilised States, statehood alone does not include membership of the Family of Nations. There are States in existence, although their number decreases gradually, which are not, or not fully, members of that family, because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born.[98] For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is and becomes an International Person through recognition only and exclusively.
[Footnote 98: See above, §§ 27 and 28.]
Many writers do not agree with this opinion. They maintain that, if a new civilised State comes into existence either by breaking off from an existing recognised State, as Belgium did in 1831, or otherwise, such new State enters of right into the Family of Nations and becomes of right an International Person.[99] They do not deny that practically such recognition is necessary to enable every new State to enter into official intercourse with other States. Yet they assert that theoretically every new State becomes a member of the Family of Nations ipso facto by its rising into existence, and that recognition supplies only the necessary evidence for this fact.
[Footnote 99: See, for instance, Hall, §§ 2 and 26; Ullmann, § 29; Gareis, p. 64; Rivier, I. p. 57.]
If the real facts of international life are taken into consideration, this opinion cannot stand. It is a rule of International Law that no new State has a right towards other States to be recognised by them, and that no State has the duty to recognise a new State. It is generally agreed that a new State before its recognition cannot claim any right which a member of the Family of Nations has towards other members. It can, therefore, not be seen what the function of recognition could be if a State entered at its birth really of right into the membership of the Family of Nations. There is no doubt that statehood itself is independent of recognition. International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.
[Sidenote: Mode of Recognition.]
§ 72. Recognition is the act through which it becomes apparent that an old State is ready to deal with a new State as an International Person and a member of the Family of Nations. Recognition is given either expressly or tacitly. If a new State asks formally for recognition and receives it in a formal declaration of any kind, it receives express recognition. On the other hand, recognition is tacitly and indirectly given when an old State enters officially into intercourse with the new, be it by sending or receiving a diplomatic envoy,[100] or by concluding a treaty, or by any other act through which it becomes apparent that the new State is actually treated as an International Person.
[Footnote 100: Whether the sending of a consul includes recognition is discussed below, § 428.]
But no new State has by International Law a right to demand recognition, although practically such recognition cannot in the long run be withheld, because without it there is no possibility of entering into intercourse with the new State. The interests of the old States must suffer quite as much as those of the new State, if recognition is for any length of time refused, and practically these interests in time enforce either express or tacit recognition. History nevertheless records many cases of deferred recognition,[101] and, apart from other proof, it becomes thereby apparent that the granting or the denial of recognition is not a matter of International Law but of international policy.
[Footnote 101: See the cases enumerated by Rivier, I. p. 58.]
It must be specially mentioned that recognition by one State is not at all binding upon other States, so that they must follow suit. But in practice such an example, if set by one or more Great Powers and at a time when the new State is really established on a sound basis, will make many other States at a later period give their recognition too.
[Sidenote: Recognition under Conditions.]
§ 73. Recognition will as a rule be given without any conditions whatever, provided the new State is safely and permanently established. Since, however, the granting of recognition is a matter of policy, and not of law, nothing prevents an old State from making the recognition of a new State dependent upon the latter fulfilling certain conditions. Thus the Powers assembled at the Berlin Congress in 1878 recognised Bulgaria, Montenegro, Servia, and Roumania under the condition only that these States did not[102] impose any religious disabilities on any of their subjects.[103] The meaning of such conditional recognition is not that recognition can be withdrawn in case the condition is not complied with. The nature of the thing makes recognition, if once given, incapable of withdrawal. But conditional recognition, if accepted by the new State, imposes the internationally legal duty upon such State of complying with the condition; failing which a right of intervention is given to the other party for the purpose of making the recognised State comply with the imposed condition.
[Footnote 102: This condition contains a restriction on the personal supremacy of the respective States. See below, § 128.]
[Footnote 103: See arts. 5, 25, 35, and 44 of the Treaty of Berlin of 1878, in Martens, N.R.G. 2nd Ser. III. p. 449.]
[Sidenote: Recognition timely and precipitate.]
§ 74. Recognition is of special importance in those cases where a new State tries to establish itself by breaking off from an existing State in the course of a revolution. And here the question is material whether a new State has really already safely and permanently established itself or only makes efforts to this end without having already succeeded. That in every case of civil war a foreign State can recognise the insurgents as a belligerent Power if they succeed in keeping a part of the country in their hands and set up a Government of their own, there is no doubt. But between this recognition as a belligerent Power and the recognition of these insurgents and their part of the country as a new State, there is a broad and deep gulf. And the question is precisely at what exact time recognition of a new State may be given instead of the recognition as a belligerent Power. For an untimely and precipitate recognition as a new State is a violation of the dignity[104] of the mother-State, to which the latter need not patiently submit.
[Footnote 104: It is frequently maintained that such untimely recognition contains an intervention. But this is not correct, since intervention is (see below, § 134) dictatorial interference in the affairs of another State. The question of recognition of the belligerency of insurgents is exhaustively treated by Westlake, I. pp. 50-57.]
In spite of the importance of the question, no hard-and-fast rule can be laid down as regards the time when it can be said that a State created by revolution has established itself safely and permanently. The characteristic of such safe and permanent establishment may be found either in the fact that the revolutionary State has utterly defeated the mother-State, or that the mother-State has ceased to make efforts to subdue the revolutionary State, or even that the mother-State, in spite of its efforts, is apparently incapable of bringing the revolutionary back under its sway.[105] Of course, as soon as the mother-State itself recognises the new State, there is no reason for other States to withhold any longer their recognition, although they have even then no legal obligation to grant it.
[Footnote 105: When, in 1903, Panama fell away from Colombia, the United States immediately recognised the new Republic as an independent State. For the motives of this quick action, see Moore, I. § 344, pp. 46 and following.]
The breaking off of the American States from their European mother-States furnishes many illustrative examples. Thus the recognition of the United States by France in 1778 was precipitate. But when in 1782 England herself recognised the independence of the United States, other States could accord recognition too without giving offence to England. Again, when the South American colonies of Spain declared their independence in 1810, no Power recognised the new States for many years. When, however, it became apparent that Spain, although she still kept up her claims, was not able to restore her sway, the United States recognised the new States in 1822, and England followed the example in 1824 and 1825.[106]
[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of the North American and South American States" (1863), and Moore, I. §§ 28-36.]
[Sidenote: State Recognition in contradistinction to other Recognitions.]
§ 75. Recognition of a new State must not be confounded with other recognitions. Recognition of insurgents as a belligerent Power has already been mentioned. Besides this, recognition of a change in the form of the government or of change in the title of an old State is a matter of importance. But the granting or refusing of these recognitions has nothing to do with recognition of the State itself. If a foreign State refuses the recognition of a change in the form of the government of an old State, the latter does not thereby lose its recognition as an International Person, although no official intercourse is henceforth possible between the two States as long as recognition is not given either expressly or tacitly. And if recognition of a new title[107] of an old State is refused, the only consequence is that such State cannot claim any privileges connected with the new title.
[Footnote 107: See below, § 119.]
III
CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS
Grotius, II. c. 9, §§ 5-13--Pufendorf, VIII. c. 12--Vattel, I. § 11--Hall, § 2--Halleck, I. pp. 89-92--Phillimore, I. §§ 124-137--Taylor, § 163--Westlake, I. pp. 58-66--Wheaton, §§ 28-32--Moore, I. §§ 76-79--Bluntschli, §§ 39-53--Hartmann, §§ 12-13--Heffter, § 24--Holtzendorff in Holtzendorff, II. pp. 21-23--Liszt, § 5--Ullmann, §§ 31 and 35--Bonfils, Nos. 214-215--Despagnet, Nos. 86-89--Pradier-Fodéré, I. Nos. 146-157--Nys, I. pp. 399-401--Rivier, I. § 3--Calvo, I. §§ 81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens, I. §§ 65-69.
[Sidenote: Important in contradistinction to Indifferent Changes.]
§ 76. The existence of International Persons is exposed to the flow of things and times. There is a constant and gradual change in their citizens through deaths and births, emigration, and immigration. There is a frequent change in those individuals who are at the head of the States, and there is sometimes a change in the form of their governments, or in their dynasties if they are monarchies. There are sometimes changes in their territories through loss or increase of parts thereof, and there are sometimes changes regarding their independence through partial or total loss of the same. Several of these and other changes in the condition and appearance of International Persons are indifferent to International Law, although they may be of great importance for the inner development of the States concerned and directly or indirectly for international policy. Those changes, on the other hand, which are, or may be, of importance to International Law must be divided into three groups according to their influence upon the character of the State concerned as an International Person. For some of these changes affect a State as an International Person, others do not; again, others extinguish a State as an International Person altogether.
[Sidenote: Changes not affecting States as International Persons.]
§ 77. A State remains one and the same International Person in spite of changes in its headship, in its dynasty, in its form, in its rank and title, and in its territory. These changes cannot be said to be indifferent to International Law. Although strictly no notification to and recognition by foreign Powers are necessary, according to the Law of Nations, in case of a change in the headship of a State or in its entire dynasty, or if a monarchy becomes a republic or vice versa, no official intercourse is possible between the Powers refusing recognition and the State concerned. Although, further, a State can assume any title it likes, it cannot claim the privileges of rank connected with a title if foreign States refuse recognition. And although, thirdly, a State can dispose according to discretion of parts of its territory and acquire as much territory as it likes, foreign Powers may intervene for the purpose of maintaining a balance of power or on account of other vital interests.
But whatever may be the importance of such changes, they neither affect a State as an International Person, nor affect the personal identity of the States concerned. France, for instance, has retained her personal identity from the time the Law of Nations came into existence until the present day, although she acquired and lost parts of her territory, changed her dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems, a republic. All her international rights and duties as an International Person remained the very same throughout the centuries in spite of these important changes in her condition and appearance. Even such loss of territory as occasions the reduction of a Great Power to a small Power, or such increase of territory and strength as turns a small State into a Great Power, does not affect a State as an International Person. Thus, although through the events of the years 1859-1861 Sardinia acquired the whole territory of the Italian Peninsula and turned into the Great Power of Italy, she remained one and the same International Person.
[Sidenote: Changes affecting States as International Persons.]
§ 78. Changes which affect States as International Persons are of different character.
(1) As in a Real Union the member-States of the union, although fully independent, make one International Person,[108] two States which hitherto were separate International Persons are affected in that character by entering into a Real Union. For through that change they appear henceforth together as one and the same International Person. And should this union be dissolved, the member-States are again affected, for they now become again separate International Persons.
[Footnote 108: See below, § 87, where the character of the Real Union is fully discussed.]
(2) Other changes affecting States as International Persons are such changes as involve a partial loss of independence on the part of the States concerned. Many restrictions may be imposed upon States without interfering with their independence proper,[109] but certain restrictions involve inevitably a partial loss of independence. Thus if a hitherto independent State comes under the suzerainty of another State and becomes thereby a half-Sovereign State, its character as an International Person is affected. The same is valid with regard to a hitherto independent State which comes under the protectorate of another State. Again, if several hitherto independent States enter into a Federal State, they transfer a part of their sovereignty to the Federal State and become thereby part-Sovereign States. On the other hand, if a vassal State or a State under protectorate is freed from the suzerainty or protectorate, it is thereby affected as an International Person, because it turns now into a full Sovereign State. And the same is valid with regard to a member-State of a Federal State which leaves the union and gains the condition of a full Sovereign State.
[Footnote 109: See below, §§ 126-127, where the different kinds of these restrictions are discussed.]
(3) States which become permanently neutralised are thereby also affected in their character as International Persons, although their independence remains untouched. But permanent neutralisation alters the condition of a State so much that it thereby becomes an International Person of a particular kind.
[Sidenote: Extinction of International Persons.]
§ 79. A State ceases to be an International Person when it ceases to exist. Theoretically such extinction of International Persons is possible through emigration or the perishing of the whole population of a State, or through a permanent anarchy within a State. But it is evident that such cases will hardly ever occur in fact. Practical cases of extinction of States are: Merger of one State into another, annexation after conquest in war, breaking up of a State into several States, and breaking up of a State into parts which are annexed by surrounding States.
By voluntarily merging into another State, a State loses all its independence and becomes a mere part of another. In this way the Duchy of Courland merged in 1795 into Russia, the two Principalities of Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910 into Japan. And the same is the case if a State is subjugated by another. In this way the Orange Free State and the South African Republic were absorbed by Great Britain in 1901. An example of the breaking up of a State into different States is the division of the Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an example of the breaking up of a State into parts which are annexed by surrounding States is the absorption of Poland by Russia, Austria, and Prussia in 1795.
IV
SUCCESSION OF INTERNATIONAL PERSONS[110]
Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, §§ 27-29--Phillimore, I. § 137--Lawrence, § 49--Halleck, I. pp. 89-92--Taylor, §§ 164-168--Westlake, I. pp. 68-83--Wharton, I. § 5--Moore, I. §§ 92-99--Wheaton, §§ 28-32--Bluntschli, §§ 47-50--Hartmann, § 12--Heffter, § 25--Holtzendorff in Holtzendorff, II. pp. 33-47--Liszt, § 23--Ullmann, § 32--Bonfils, Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodéré, I. Nos. 156-163--Nys, I. pp. 399-401--Rivier, I. § 3, pp. 69-75 and p. 438--Calvo, I. §§ 99-103--Fiore, I. Nos. 349-366--Martens, I. § 67--Appleton, "Des effets des annexions sur les dettes de l'état démembré ou annexé" (1895)--Huber, "Die Staatensuccession" (1898)--Keith, "The Theory of State Succession, with special reference to English and Colonial Law" (1907)--Cavaglieri, "La dottrina della successione di stato a stato, &c." (1910)--Richards in The Law Magazine and Review, XXVIII. (1903), pp. 129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J. V. (1911), pp. 285-297.
[Footnote 110: The following text treats only of the broad outlines of the subject, as the practice of the States has hardly settled more than general principles. Details must be studied in Huber, "Die Staatensuccession" (1898), and Keith, "The Theory of State Succession, &c." (1907); the latter writer's analysis of cases in Z.V. III. (1909), pp. 618-648, is likewise very important.]
[Sidenote: Common Doctrine regarding Succession of International Persons.]
§ 80. Although there is no unanimity among the writers on International Law with regard to the so-called succession of International Persons, nevertheless the following common doctrine can be stated to exist.
A succession of International Persons occurs when one or more International Persons take the place of another International Person, in consequence of certain changes in the latter's condition.
Universal succession takes place when one International Person is absorbed by another, either through subjugation or through voluntary merger. And universal succession further takes place when a State breaks up into parts which either become separate International Persons of their own or are annexed by surrounding International Persons.
Partial succession takes place, first, when a part of the territory of an International Person breaks off in a revolt and by winning its independence becomes itself an International Person; secondly, when one International Person acquires a part of the territory of another through cession; thirdly, when a hitherto full Sovereign State loses part of its independence through entering into a Federal State, or coming under suzerainty or under a protectorate, or when a hitherto not-full Sovereign State becomes full Sovereign; fourthly, when an International Person becomes a member of a Real Union or vice versa.
Nobody ever maintained that on the successor devolve all the rights and duties of his predecessor. But after stating that a succession takes place, the respective writers try to educe the consequences and to make out what rights and duties do, and what do not, devolve.
Several writers,[111] however, contest the common doctrine and maintain that a succession of International Persons never takes place. Their argument is that the rights and duties of an International Person disappear with the extinguished Person or become modified according to the modifications an International Person undergoes through losing part of its sovereignty.
[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with great clearness, and Liszt, § 23.]
[Sidenote: How far Succession actually takes place.]
§ 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say that succession takes place in such and such cases and to make out afterwards what rights and duties devolve, shows a wrong method of dealing with the problem. It is certain that no general succession takes place according to the Law of Nations. With the extinction of an International Person disappear its rights and duties as a person. But it is equally wrong to maintain that no succession whatever occurs. For nobody doubts that certain rights and duties actually and really devolve upon an International Person from its predecessor. And since this devolution takes place through the very fact of one International Person following another in the possession of State territory, there is no doubt that, as far as these devolving rights and duties are concerned, a succession of one International Person to the rights and duties of another really does take place. But no general rule can be laid down concerning all the cases in which a succession takes place. These cases must be discussed singly.
[Sidenote: Succession in consequence of Absorption.]
§ 82. When a State merges voluntarily into another State--as, for instance, Korea in 1910 did into Japan--or when a State is subjugated by another State, the latter remains one and the same International Person and the former becomes totally extinct as an International Person. No succession takes place, therefore, with regard to rights and duties of the extinct State arising either from the character of the latter as an International Person or from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties, and they naturally, legally, and necessarily presuppose the existence of the contracting State. But it is controversial whether treaties of commerce, extradition, and the like, of the extinct State remain valid and therefore a succession takes place. The majority of writers correctly, I think, answer the question in the negative, because such treaties, although they are non-political in a sense, possess some prominent political traits.[112]
[Footnote 112: On the whole question concerning the extinction of treaties in consequence of the absorption of a State by another, see Moore, V. § 773, and below, § 548. When, in 1910, Korea merged into Japan, the latter published a Declaration--see Martens, N.R.G. 3rd Ser. IV. p. 26--containing the following articles with regard to the treaty obligations of the extinct State of Korea:--
1. Treaties hitherto concluded by Korea with foreign Powers ceasing to be operative, Japan's existing treaties will, so far as practicable, be applied to Korea. Foreigners resident in Korea will, so far as conditions permit, enjoy the same rights and immunities as in Japan proper, and the protection of their legally acquired rights subject in all cases to the jurisdiction of Japan. The Imperial Government of Japan is ready to consent that the jurisdiction in respect of the cases actually pending in any foreign Consular Court in Korea at the time the Treaty of Annexation takes effect shall remain in such Court until final decision.
2. Independently of any conventional engagements formerly existing on the subject, the Imperial Government of Japan will for a period of ten years levy upon goods imported into Korea from foreign countries or exported from Korea to foreign countries and upon foreign vessels entering any of the open ports of Korea the same import or export duties and the same tonnage dues as under the existing schedules. The same import or export duties and tonnage dues as those to be levied upon the aforesaid goods and vessels will also for a period of ten years be applied in respect of goods imported into Korea from Japan or exported from Korea to Japan and Japanese vessels entering any of the open ports of Korea.
3. The Imperial Government of Japan will also permit for a period of ten years vessels under flags of the Powers having treaties with Japan to engage in the coasting trade between the open ports of Korea and between those ports and any open port of Japan.
4. The existing open ports of Korea, with the exemption of Masampo, will be continued as open ports, and in addition Shiwiju will be newly opened so that vessels, foreign as well as Japanese, will there be admitted and goods may be imported into and exported from these ports.]
A real succession takes place, however, first, with regard to such international rights and duties of the extinct State as are locally connected with its land, rivers, main roads, railways, and the like. According to the principle res transit cum suo onere, treaties of the extinct State concerning boundary lines, repairing of main roads, navigation on rivers, and the like, remain valid, and all rights and duties arising from such treaties of the extinct State devolve on the absorbing State.
A real succession, secondly, takes place with regard to the fiscal property and the fiscal funds of the extinct State. They both accrue to the absorbing State ipso facto by the absorption of the extinct State.[113] But the debts[114] of the extinct State must, on the other hand, also be taken over by the absorbing State.[115] The private creditor of an extinct State certainly acquires no right[116] by International Law against the absorbing State, since the Law of Nations is a law between States only and exclusively. But if he is a foreigner, the right of protection due to his home State enables the latter to exercise pressure upon the absorbing State for the purpose of making it fulfil its international duty to take over the debts of the extinct State. Some jurists[117] go so far as to maintain that the succeeding State must take over the debts of the extinct State, even when they are higher than the value of the accrued fiscal property and fiscal funds. But I doubt whether in such cases the practice of the States would follow that opinion. On the other hand, a State which has subjugated another would be compelled[118] to take over even such obligations as have been incurred by the annexed State for the immediate purpose of the war which led to its subjugation.[119]
[Footnote 113: This was recognised by the High Court of Justice in 1866 in the case of the United States v. Prioleau. See Scott, "Cases on International Law" (1902), p. 85.]
[Footnote 114: See Moore, I. § 97, and Appleton, "Des effets des annexions de territoires sur les dettes, &c." (1895).]
[Footnote 115: This is almost generally recognised by writers on International Law and the practice of the States. (See Huber, op. cit. pp. 156 and 282, note 449.) The Report of the Transvaal Concessions Commission (see British State Papers, South Africa, 1901, Cd. 623), although it declares (p. 7) that "it is clear that a State which has annexed another is not legally bound by any contracts made by the State which has ceased to exist," nevertheless agrees that "the modern usage of nations has tended in the acknowledgment of such contracts." It may, however, safely be maintained that not a usage, but a real rule of International Law, based on custom, is in existence with regard to this point. (See Hall, § 29, and Westlake in The Law Quarterly Review, XVII. (1901), pp. 392-401, XXXI. (1905), p. 335, and now Westlake, I. pp. 74-82.)]
[Footnote 116: This is the real portent of the judgment in the case of Cook v. Sprigg, L.R. (1899), A.C. 572, and in the case of the West Rand Central Gold Mining Co. v. The King (1905), 2 K.B. 391. In so far as the latter judgment denies the existence of a rule of International Law that compels a subjugator to pay the debts of the subjugated State, its arguments are in no wise decisive. An International Court would recognise such a rule.]
[Footnote 117: See Martens, I. § 67; Heffter, § 25; Huber, op. cit. p. 158.]
[Footnote 118: See the Report of the Transvaal Concession Commission, p. 9, which maintains the contrary. Westlake (I. p. 78) adopts the reasoning of this report, but his arguments are not decisive. The lending of money to a belligerent under ordinary mercantile conditions--see Barclay in The Law Quarterly Review, XXI. (1905), p. 307--is not prohibited by International Law, although the carriage of such funds in cash on neutral vessels to the enemy falls under the category of carriage of contraband, and can be punished by the belligerents. (See below, Vol. II. § 352.)]
[Footnote 119: The question how far concessions granted by a subjugated State to a private individual or to a company must be upheld by the subjugating State, is difficult to answer in its generality. The merits of each case would seem to have to be taken into consideration. See Westlake, I. p. 82; Moore, I. § 98; Gidel, "Des effets de l'annexion sur les concessions" (1904).]
The case of a Federal State arising--like the German Empire in 1871--above a number of several hitherto full Sovereign States also presents, with regard to many points, a case of State succession.[120] However, no hard-and-fast rules can be laid down concerning it, since everything depends upon the question whether the Federal State is one which--like all those of America--totally absorbs all international relations of the member-States, or whether it absorbs--like the German Empire and Switzerland--these relations to a greater extent only.[121]
[Footnote 120: See Huber, op. cit. pp. 163-169, and Keith, op. cit. pp. 92-98.]
[Footnote 121: See below, § 89.]
[Sidenote: Succession in consequence of Dismemberment.]
§ 83. When a State breaks up into fragments which themselves become States and International Persons, or which are annexed by surrounding States, it becomes extinct as an International Person, and the same rules are valid as regards the case of absorption of one State by another. A difficulty is, however, created when the territory of the extinct State is absorbed by several States. Succession actually takes place here too, first, with regard to the international rights and duties locally connected with those parts of the territory which the respective States have absorbed. Succession takes place, secondly, with regard to the fiscal property and the fiscal funds which each of the several absorbing States finds on the part of the territory it absorbs. And the debts of the extinct State must be taken over. But the case is complicated through the fact that there are several successors to the fiscal property and funds, and the only rule which can be laid down is that proportionate parts of the debts must be taken over by the different successors.
When--as in the case of Sweden-Norway in 1905--a Real Union[122] is dissolved and the members become International Persons of their own, a succession likewise takes place. All treaties concluded by the Union devolve upon the former members, except those which were concluded by the Union for one member only--e.g. by Sweden-Norway for Norway--and which, therefore, devolve upon such former member only, and, further, except those which concerned the very Union and lose all meaning by its dissolution.
[Footnote 122: See below, § 87.]
[Sidenote: Succession in case of Separation or Cession.]
§ 84. When in consequence of war or otherwise one State cedes a part of its territory to another, or when a part of the territory of a State breaks off and becomes a State and an International Person of its own, succession takes place with regard to such international rights and duties of the predecessor as are locally connected with the part of the territory ceded or broken off, and with regard to the fiscal property found on that part of the territory. It would only be just, if the successor had to take over a corresponding part of the debt of its predecessor, but no rule of International Law concerning this point can be said to exist, although many treaties have stipulated a devolution of a part of the debt of the predecessor upon the successor.[123] Thus, for instance, arts. 9, 33, 42 of the Treaty of Berlin[124] of 1878 stipulate that Bulgaria, Montenegro, and Servia should take over a part of the Turkish debt. On the other hand, the United States refused, after the cession of Cuba in 1898, to take over from Spain the so-called Cuban debt--that is, the debt which was settled by Spain on Cuba before the war.[125] Spain argued that it was not intended to transfer to the United States a proportional part of the debt of Spain, but only such debt as attached individually to the island of Cuba. The United States, however, met this argument by the correct assertion that the debt concerned was not one incurred by Cuba, but by Spain, and settled by her on Cuba.
[Footnote 123: Many writers, however, maintain that there is such a rule of International Law. See Huber, op. cit. Nos. 125-135 and 205, where the respective treaties are enumerated.]
[Footnote 124: See Martens, N.R.G. 2nd Ser. III. p. 449.]
[Footnote 125: See Moore, III. § 97, pp. 351-385.]
V
COMPOSITE INTERNATIONAL PERSONS
Pufendorf, VII. c. 5--Hall, § 4--Westlake, I. pp. 31-37--Phillimore, I. §§ 71-74, 102-105--Twiss, I. §§ 37-60--Halleck, I. pp. 70-74--Taylor, §§ 120-130--Wheaton, §§ 39-51--Moore, I. §§ 6-11--Hartmann, § 70--Heffter, §§ 20-21--Holtzendorff in Holtzendorff, II. pp. 118-141--Liszt, § 6--Ullmann, §§ 20-24--Bonfils, Nos. 165-174--Despagnet, Nos. 109-126--Pradier-Fodéré, I. Nos. 117-123--Mérignhac, II. pp. 6-42--Nys, I. pp. 367-378--Rivier, I. §§ 5-6--Calvo, I. §§ 44-61--Fiore, I. Nos. 335-339, and Code, Nos. 96-104--Martens, I. §§ 56-59--Pufendorf, "De systematibus civitatum" (1675)--Jellinek, "Die Lehre von den Staatenverbindungen" (1882)--Borel, "Etude sur la souveraineté de l'Etat fédératif" (1886)--Brie, "Theorie der Staatenverbindungen" (1886)--Hart, "Introduction to the Study of Federal Government" in "Harvard Historical Monographs," 1891 (includes an excellent bibliography)--Le Fur, "Etat fédéral et confédération d'Etats" (1896)--Moll, "Der Bundesstaatsbegriff in den Vereinigten Staaten von America" (1905)--Ebers, "Die Lehre vom Staatenbunde" (1910).
[Sidenote: Real and apparent Composite International Persons.]
§ 85. International Persons are as a rule single Sovereign States. In such single States there is one central political authority as Government which represents the State, within its borders as well as without in the international intercourse with other International Persons. Such single States may be called simple International Persons. And a State remains a simple International Person, although it may grant so much internal independence to outlying parts of its territory that these parts become in a sense States themselves. Great Britain is a simple International Person, although the Dominion of Canada, Newfoundland, the Commonwealth of Australia, New Zealand, and the Union of South Africa, are now States of their own, because Great Britain is alone Sovereign and represents exclusively the British Empire within the Family of Nations.
Historical events, however, have created, in addition to the simple International Persons, composite International Persons. A composite International Person is in existence when two or more Sovereign States are linked together in such a way that they take up their position within the Family of Nations either exclusively or at least to a great extent as one single International Person. History has produced two different kinds of such composite International Persons--namely, Real Unions and Federal States. In contradistinction to Real Unions and Federal States, a so-called Personal Union and the union of so-called Confederated States are not International Persons.[126]
[Footnote 126: I cannot agree with Westlake (I. p. 37) that "the space which some writers devote to the distinctions between the different kinds of union between States" is "disproportioned ... to their international importance." Very important questions are connected with these distinctions. The question, for instance, whether a diplomatic envoy sent by Bavaria to this country must be granted the privileges due to a foreign diplomatic envoy depends upon the question whether Bavaria is an International Person in spite of her being a member-State of the German Empire.]
[Sidenote: States in Personal Union.]
§ 86. A Personal Union is in existence when two Sovereign States and separate International Persons are linked together through the accidental fact that they have the same individual as monarch. Thus a Personal Union existed from 1714 to 1837 between Great Britain and Hanover, from 1815 to 1890 between the Netherlands and Luxemburg, and from 1885 to 1908 between Belgium and the former Congo Free State. At present there is no Personal Union in existence. A Personal Union is not, and is in no point treated as though it were, an International Person, and its two Sovereign member-States remain separate International Persons. Theoretically it is even possible that they make war against each other, although practically this will never occur. If, as sometimes happens, they are represented by one and the same individual as diplomatic envoy, such individual is the envoy of both States at the same time, but not the envoy of the Personal Union.
[Sidenote: States in Real Union.]
§ 87. A Real Union[127] is in existence when two Sovereign States are by an international treaty, recognised by other Powers, linked together for ever under the same monarch, so that they make one and the same International Person. A Real Union is not itself a State, but merely a union of two full Sovereign States which together make one single but composite International Person. They form a compound Power, and are by the treaty of union prevented from making war against each other. On the other hand, they cannot make war separately against a foreign Power, nor can war be made against one of them separately. They can enter into separate treaties of commerce, extradition, and the like, but it is always the Union which concludes such treaties for the separate States, as they separately are not International Persons. It is, for instance, Austria-Hungary which concludes an international treaty of extradition between Hungary and a foreign Power. The only Real Union at present in existence outside the German Empire[128] is that of Austria-Hungary, that of Sweden-Norway having been dissolved in 1905.
[Footnote 127: See Blüthgen in Z.V. I. (1906), pp. 237-263.]
[Footnote 128: There is a Real Union between Saxe-Coburg and Saxe-Gotha within the German Empire.]
Austria-Hungary became a Real Union in 1723. In 1849, Hungary was united with Austria, but in 1867 Hungary became again a separate Sovereign State and the Real Union was re-established. Their army, navy, and foreign ministry are united. The Emperor-King declares war, makes peace, concludes alliances and other treaties, and sends and receives the same diplomatic envoys for both States.
Sweden-Norway became a Real Union[129] in 1814. The King could declare war, make peace, conclude alliances and other treaties, and send and receive the same diplomatic envoys for both States. The Foreign Secretary of Sweden managed at the same time the foreign affairs of Norway. Both States had, however, in spite of the fact that they made one and the same International Person, different commercial and naval flags. The Union was peacefully dissolved by the Treaty of Karlstad of October 26, 1905. Norway became a separate kingdom, the independence and integrity of which is guaranteed by Great Britain, France, Germany, and Russia by the Treaty of Christiania of November 2, 1907.[130]
[Footnote 129: This is not universally recognised. Phillimore, I. § 74, maintains that there was a Personal Union between Sweden and Norway, and Twiss, I. § 40, calls it a Federal Union.]
[Footnote 130: See above, § 50, p. 75.]
[Sidenote: Confederated States (Staatenbund).]
§ 88. Confederated States (Staatenbund) are a number of full Sovereign States linked together for the maintenance of their external and internal independence by a recognised international treaty into a union with organs of its own, which are vested with a certain power over the member-States, but not over the citizens of these States. Such a union of Confederated States is not any more itself a State than a Real Union is; it is merely an International Confederation of States, a society of international character, since the member-States remain full Sovereign States and separate International Persons. Consequently, the union of Confederated States is not an International Person, although it is for some parts so treated on account of its representing the compound power of the full Sovereign member-States. The chief and sometimes the only organ of the union is a Diet, where the member-States are represented by diplomatic envoys. The power vested in the Diet is an International Power which does not in the least affect the full sovereignty of the member-States. That power is essentially nothing else than the right of the body of the members to make war against such a member as will not submit to those commandments of the Diet which are in accordance with the Treaty of Confederation, war between the member-States being prohibited in all other cases.
History has shown that Confederated States represent an organisation which in the long run gives very little satisfaction. It is for that reason that the three important unions of Confederated States of modern times--namely, the United States of America, the German, and the Swiss Confederation--have turned into unions of Federal States. Notable historic Confederations are those of the Netherlands from 1580 to 1795, the United States of America from 1778 to 1787, Germany from 1815 to 1866, Switzerland from 1291 to 1798 and from 1815 to 1848, and the Confederation of the Rhine (Rheinbund) from 1806 to 1813. At present there is no union of Confederated States. The last in existence, the major Republic of Central America,[131] which comprised the three full Sovereign States of Honduras, Nicaragua, and San Salvador, and was established in 1895, came to an end in 1898.
[Footnote 131: See N.R.G. 2nd Ser. XXXII. pp. 276-292.]
[Sidenote: Federal States (Bundesstaaten).]
§ 89. A Federal State[132] is a perpetual union of several Sovereign States which has organs of its own and is invested with power, not only over the member-States, but also over their citizens. The union is based, first, on an international treaty of the member-States, and, secondly, on a subsequently accepted constitution of the Federal State. A Federal State is said to be a real State side by side with its member-States because its organs have a direct power over the citizens of those member-States. This power was established by American[133] jurists of the eighteenth century as a characteristic distinction of a Federal State from Confederated States, and Kent as well as Story, the two later authorities on the Constitutional Law of the United States, adopted this distinction, which is indeed kept up until to-day by the majority of writers on politics. Now if a Federal State is recognised as a State of its own, side by side with its member-States, it is evident that sovereignty must be divided between the Federal State on the one hand, and, on the other, the member-States. This division is made in this way, that the competence over one part of the objects for which a State is in existence is handed over to the Federal State, whereas the competence over the other part remains with the member-States. Within its competence the Federal State can make laws which bind the citizens of the member-States directly without any interference of these member-States. On the other hand, the member-States are totally independent as far as their competence reaches.
[Footnote 132: The distinction between Confederated States and a Federal State is not at all universally recognised, and the terminology is consequently not at all the same with all writers on International Law.]
[Footnote 133: When in 1787 the draft of the new Constitution of the United States, which had hitherto been Confederated States only, was under consideration by the Congress at Philadelphia, three members of the Congress--namely, Alexander Hamilton, James Madison, and John Jay--made up their minds to write newspaper articles on the draft Constitution with the intention of enlightening the nation which had to vote for the draft. For this purpose they divided the different points among themselves and treated them separately. All these articles, which were not signed with the names of their authors, appeared under the common title "The Federalist." They were later on collected into book-form and have been edited several times. It is especially Nos. 15 and 16 of "The Federalist" which establish the difference between Confederated States and a Federal State in the way mentioned in the text above.]
For International Law this division of competence is only of interest in so far as it concerns competence in international matters. Since it is always the Federal State which is competent to declare war, make peace, conclude treaties of alliance and other political treaties, and send and receive diplomatic envoys, whereas no member-State can of itself declare war against a foreign State, make peace, conclude alliances and other political treaties, the Federal State, if recognised, is certainly an International Person of its own, with all the rights and duties of a sovereign member of the Family of Nations. On the other hand, the international position of the member-States is not so clear. It is frequently maintained that they have totally lost their position within the Family of Nations. But this opinion cannot stand if compared with the actual facts. Thus, the member-States of the Federal State of Germany have retained their competence to send and receive diplomatic envoys, not only in intercourse with one another, but also with foreign States. Further, the reigning monarchs of these member-States are still treated by the practice of the States as heads of Sovereign States, a fact without legal basis if these States were no longer International Persons. Thirdly, the member-States of Germany as well as of Switzerland have retained their competence to conclude international treaties between themselves without the consent of the Federal State, and they have also retained the competence to conclude international treaties with foreign States as regards matters of minor interest. If these facts[134] are taken into consideration, one is obliged to acknowledge that the member-States of a Federal State can be International Persons in a degree. Full subjects of International Law, International Persons with all the rights and duties regularly connected with the membership of the Family of Nations, they certainly cannot be. Their position, if any, within this circle is overshadowed by their Federal State, they are part-Sovereign States, and they are, consequently, International Persons for some parts only.
[Footnote 134: See Riess, "Auswärtige Hoheitsrechte der deutschen Einzelstaaten" (1905).]
But it happens frequently that a Federal State assumes in every way the external representation of its member-States, so that, so far as international relations are concerned, the member-States do not make an appearance at all. This is the case with the United States of America and all those other American Federal States whose Constitution is formed according to the model of that of the United States. Here the member-States are sovereign too, but only with regard to internal[135] affairs. All their external sovereignty being absorbed by the Federal State, it is certainly a fact that they are not International Persons at all so long as this condition of things lasts.
[Footnote 135: The Courts of the United States of America have always upheld the theory that the United States are sovereign as to all powers of government actually surrendered, whereas each member-State is sovereign as to all powers reserved. See Merriam, "History of the Theory of Sovereignty since Rousseau" (1900), p. 163.]
This being so, two classes of Federal States must be distinguished[136] according to whether their member-States are or are not International Persons, although Federal States are in any case composite International Persons. And whenever a Federal State comes into existence which leaves the member-States for some parts International Persons, the recognition granted to it by foreign States must include their readiness to recognise for the future, on the one hand, the body of the member-States, the Federal State, as one composite International Person regarding all important matters, and, on the other hand, the single member-States as International Persons with regard to less important matters and side by side with the Federal State. That such a condition of things is abnormal and illogical cannot be denied, but the very existence of a Federal State side by side the member-States is quite as abnormal and illogical.
[Footnote 136: This distinction is of the greatest importance and ought to be accepted by the writers on the science of politics.]
The Federal States in existence are the following:--The United States of America since 1787, Switzerland since 1848, Germany since 1871, Mexico since 1857, Argentina since 1860, Brazil since 1891, Venezuela since 1893.
VI
VASSAL STATES
Hall, § 4--Westlake, I. pp. 25-27--Lawrence, § 39--Phillimore, I. §§ 85-99--Twiss, I. §§ 22-36, 61-73--Taylor, §§ 140-144--Wheaton, § 37--Moore, I. § 13--Bluntschli, §§ 76-77--Hartmann, § 16--Heffter, §§ 19 and 22--Holtzendorff in Holtzendorff, II. pp. 98-117--Liszt, § 6--Ullmann, § 25--Gareis, § 15--Bonfils, Nos. 188-190--Despagnet, Nos. 127-129--Mérignhac, I. pp. 201-218--Pradier-Fodéré, I. Nos. 109-112--Nys, I. pp. 357-364--Rivier, I. § 4--Calvo, I. §§ 66-72--Fiore, I. No. 341, and Code, Nos. 105-110--Martens, I. §§ 60-61--Stubbs, "Suzerainty" (1884)--Baty, "International Law in South Africa" (1900), pp. 48-68--Boghitchévitch, "Halbsouveränität" (1903).
[Sidenote: The Union between Suzerain and Vassal State.]
§ 90. The union and the relations between a Suzerain and its Vassal State create much difficulty in the science of the Law of Nations. As both are separate States, a union of States they certainly make, but it would be wrong to say that the Suzerain State is, like the Real Union of States or the Federal State, a composite International Person. And it would be equally wrong to maintain either that a Vassal State cannot be in any way a separate International Person of its own, or that it is an International Person of the same kind as any other State. What makes the matter so complicated, is the fact that a general rule regarding the relation between the suzerain and vassal, and, further, regarding the position, if any, of the vassal within the Family of Nations, cannot be laid down, as everything depends upon the special case. What can and must be said is that there are some States in existence which, although they are independent of another State as regards their internal affairs, are as regards their international affairs either absolutely or for the most part dependent upon another State. They are called half-Sovereign[137] States because they are sovereign within their borders but not without. The full Sovereign State upon which such half-Sovereign States are either absolutely or for the most part internationally dependent, is called the Suzerain State.
[Footnote 137: In contradistinction to the States which are under suzerainty or protectorate, and which are commonly called half-Sovereign States, I call member-States of a Federal State part-Sovereign States.]
Suzerainty is a term which originally was used for the relation between the feudal lord and his vassal; the lord was said to be the suzerain of the vassal, and at that time suzerainty was a term of Constitutional Law only. With the disappearance of the feudal system, suzerainty of this kind likewise disappeared. Modern suzerainty contains only a few rights of the Suzerain State over the Vassal State which can be called constitutional rights. The rights of the Suzerain State over the Vassal are principally international rights, of whatever they may consist. Suzerainty is by no means sovereignty. If it were, the Vassal State could not be Sovereign in its domestic affairs and could never have any international relations whatever of its own. And why should suzerainty be distinguished from sovereignty if it be a term synonymous with sovereignty? One may correctly maintain that suzerainty is a kind of international guardianship, since the Vassal State is either absolutely or mainly represented internationally by the Suzerain State.
[Sidenote: International Position of Vassal States.]
§ 91. The fact that the relation between the suzerain and the vassal always depends upon the special case, excludes the possibility of laying down a general rule as regards the position of Vassal States within the Family of Nations. It is certain that a Vassal State as such need not have any position whatever within the Family of Nations. In every case in which a Vassal State has absolutely no relations whatever with other States, since the suzerain absorbs these relations entirely, such vassal remains nevertheless a half-Sovereign State on account of its internal independence, but it has no position whatever within the Family of Nations, and consequently is for no part whatever an International Person and a subject of International Law. This is the position of the Indian Vassal States of Great Britain, which have no international relations whatever either between themselves or with foreign States.[138] Yet instances can be given which demonstrate that Vassal States can have some small and subordinate position within that family, and that they must in consequence thereof in some few points be considered as International Persons. Thus Egypt can conclude commercial and postal treaties with foreign States without the consent of suzerain Turkey, and Bulgaria could, while she was under Turkish Suzerainty, conclude treaties regarding railways, post, and the like. Thus, further, Egypt can send and receive consuls as diplomatic agents, and so could Bulgaria while she was a Turkish Vassal State. Thus, thirdly, the former South African Republic, although in the opinion of Great Britain under her suzerainty, could conclude all kinds of treaties with other States, provided Great Britain did not interpose a veto within six months after receiving a copy of the draft treaty, and was absolutely independent in concluding treaties with the neighbouring Orange Free State. Again, Egypt possesses, since 1898, together with Great Britain condominium[139] over the Soudan, which means that they exercise conjointly sovereignty over this territory. Although Vassal States have not the right to make war independently of their suzerain, Bulgaria, at the time a Vassal State, nevertheless fought a war against the full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly with Great Britain in 1898.
[Footnote 138: See Westlake, Chapters, pp. 211-219; Westlake, I. pp. 41-43, and again Westlake in The Law Quarterly Review, XXVI. (1910), pp. 312-319.--See also Lee-Warner, "The Native States of India" (1910), pp. 254-279.]
[Footnote 139: See below, § 171.]
How could all these and other facts be explained, if Vassal States could never for some small part be International Persons?
Side by side with these facts stand, of course, other facts which show that for the most part the Vassal State, even if it has some small position of its own within the Family of Nations, is considered a mere portion of the Suzerain State. Thus all international treaties concluded by the Suzerain State are ipso facto concluded for the vassal, if an exception is not expressly mentioned or self-evident. Thus, again, war of the suzerain is ipso facto war of the vassal. Thus, thirdly, the suzerain bears within certain limits a responsibility for actions of the Vassal State.
Under these circumstances it is generally admitted that the conception of suzerainty lacks juridical precision, and experience teaches that Vassal States do not remain half-Sovereign for long. They either shake off suzerainty, as Roumania, Servia, and Montenegro did in 1878, and Bulgaria[140] did in 1908, or they lose their half-Sovereignty through annexation, as in the case of the South African Republic in 1901, or through merger, as when the half-Sovereign Seignory of Kniephausen in Germany merged in 1854 into its suzerain Oldenburg.
[Footnote 140: As regards the position of Bulgaria while she was a Vassal State under Turkish suzerainty, see Holland, "The European Concert in the Eastern Question" (1885), pp. 277-307, and Nédjmidin, "Völkerrechtliche Entwicklung Bulgariens" (1908).]
Vassal States of importance which are for some parts International Persons are, at present, Egypt,[141] and Crete.[142] They are both under Turkish suzerainty, although Egypt is actually under the administration of Great Britain. Samos,[143] which some writers consider a Vassal State under Turkish suzerainty, is not half-Sovereign, but enjoys autonomy to a vast degree.
[Footnote 141: See Holland, "The European Concert in the Eastern Question" (1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche Stellung Aegyptens" (1903); Cocheris, "Situation internationale de l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905); Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp. 36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59, the Court refused to acknowledge the half-sovereignty of Egypt; see Phillimore, I. § 99.]
[Footnote 142: See Streit in R.G. X. (1903), pp. 399-417.]
[Footnote 143: See Albrecht in Z.V. I. (1907), pp. 56-112.]
VII
STATES UNDER PROTECTORATE
Hall, §§ 4 and 38*--Westlake, I. pp. 22-24--Lawrence, § 39--Phillimore, I. 75-82--Twiss, I. §§ 22-36--Taylor, §§ 134-139--Wheaton, §§ 34-36--Moore, I. § 14--Bluntschli, § 78--Hartmann, § 9--Heffter, §§ 19 and 22--Holtzendorff in Holtzendorff, II. pp. 98-117--Gareis, § 15--Liszt, § 6--Ullmann, § 26--Bonfils, Nos. 176-187--Despagnet, Nos. 130-136--Mérignhac, II. pp. 180-220--Pradier-Fodéré, I. Nos. 94-108--Nys, I. pp. 364-366--Rivier, I. § 4--Calvo, I. §§ 62-65--Fiore, I. § 341, and Code, Nos. 111-118--Martens, I. §§ 60-61--Pillet in R.G. II. (1895), pp. 583-608--Heilborn, "Das völkerrechtliche Protectorat" (1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le protectorat international" (1896)--Despagnet, "Essai sur les protectorats" (1896)--Boghitchévitch, "Halbsouveränität" (1903).
[Sidenote: Conception of Protectorate.]
§ 92. Legally and materially different from suzerainty is the relation of protectorate between two States. It happens that a weak State surrenders itself by treaty into the protection of a strong and mighty State in such a way that it transfers the management[144] of all its more important[145] international affairs to the protecting State. Through such treaty an international union is called into existence between the two States, and the relation between them is called protectorate. The protecting State is internationally the superior of the protected State, the latter has with the loss of the management of its more important international affairs lost its full sovereignty and is henceforth only a half-Sovereign State. Protectorate is, however, a conception which, just like suzerainty, lacks exact juristic precision,[146] as its real meaning depends very much upon the special case. Generally speaking, protectorate may, again like suzerainty, be called a kind of international guardianship.
[Footnote 144: A treaty of protectorate must not be confounded with a treaty of protection in which one or more strong States promise to protect a weak State without absorbing the international relations of the latter.]
[Footnote 145: That the admittance of Consuls belongs to these affairs became apparent in 1906, when Russia, after some hesitation, finally agreed upon Japan, and not Korea, granting the exequatur to the Consul-general appointed by Russia for Korea, which was then a State under Japanese protectorate. See below, § 427.]
[Footnote 146: It is therefore of great importance that the parties should make quite clear the meaning of a clause which is supposed to stipulate a protectorate. Thus art. 17 of the Treaty of Friendship and Commerce between Italy and Abyssinia, signed at Uccialli on May 2, 1889--see Martens, N.R.G. 2nd Ser. XVIII. p. 697--was interpreted by Italy as establishing a protectorate over Abyssinia, but the latter refused to recognise it.]
[Sidenote: International position of States under Protectorate.]
§ 93. The position of a State under protectorate within the Family of Nations cannot be defined by a general rule, since it is the treaty of protectorate which indirectly specialises it by enumerating the reciprocal rights and duties of the protecting and the protected State. Each case must therefore be treated according to its own merits. Thus the question whether the protected State can conclude certain international treaties and can send and receive diplomatic envoys, as well as other questions, must be decided according to the terms of the individual treaty of protectorate. In any case, recognition of the protectorate on the part of third States is necessary to enable the superior State to represent the protected State internationally. But it is characteristic of the protectorate, in contradistinction to suzerainty, that the protected State always has and retains for some parts a position of its own within the Family of Nations, and that it is always for some parts an International Person and a subject of International Law. It is never in any respect considered a mere portion of the superior State. It is, therefore, not necessarily a party in a war[147] of the superior State against a third, and treaties concluded by the superior State are not ipso facto concluded for the protected State. And, lastly, it can at the same time be under the protectorate of two different States, which, of course, must exercise the protectorate conjointly.
[Footnote 147: This was recognised by the English Prize Courts during the Crimean War with regard to the Ionian Islands, which were then still under British protectorate; see the case of the Ionian Ships, 2 Spinks 212, and Phillimore, I. § 77.]
In Europe there are at present only two very small States under protectorate--namely, the republic of Andorra, under the joint protectorate of France and Spain,[148] and the republic of San Marino, an enclosure of Italy, which was formerly under the protectorate of the Papal States and is now under that of Italy. The Principality of Monaco, which was under the protectorate, first of Spain until 1693, afterwards of France until 1815, and then of Sardinia, has now, through custom, become a full-Sovereign State, since Italy has never[149] exercised the protectorate. The Ionian Islands, which were under British protectorate from 1815, merged into the Kingdom of Greece in 1863.
[Footnote 148: This protectorate is exercised for Spain by the Bishop of Urgel. As regards the international position of Andorra, see Vilar, "L'Andorre" (1905).]
[Footnote 149: This is a clear case of desuetudo.]
[Sidenote: Protectorates outside the Family of Nations.]
§ 94. Outside Europe there are numerous States under the protectorate of European States, but all of them are non-Christian States of such a civilisation as would not admit them to full membership of the Family of Nations, apart from the protectorate under which they are now. And it may therefore be questioned whether they have any real position within the Family of Nations at all. As the protectorate over them is recognised by third States, the latter are legally prevented from exercising any political influence in these protected States, and, failing special treaty rights, they have no right to interfere if the protecting State annexes the protected State and makes it a mere colony of its own, as, for instance, France did with Madagascar in 1896. Protectorates of this kind are actually nothing else than the first step to annexation.[150] Since they are based on treaties with real States, they cannot in every way be compared with the so-called protectorates over African tribes which European States acquire through a treaty with the chiefs of these tribes, and by which the respective territory is preserved for future occupation on the part of the so-called protector.[151] But actually they always lead to annexation, if the protected State does not succeed in shaking off by force the protectorate, as Abyssinia did in 1896 when she shook off the pretended Italian protectorate.
[Footnote 150: Examples of such non-Christian States under protectorate are Zanzibar under Great Britain and Tunis under France.]
[Footnote 151: See below, § 226, and Perrinjaquet in R.G. XVI. (1909), pp. 316-367.]
VIII
NEUTRALISED STATES
Westlake, I. pp. 27-30--Lawrence, §§ 43 and 225--Taylor, § 133--Moore, I. § 12--Bluntschli, § 745--Heffter, § 145--Holtzendorff in Holtzendorff, II. pp. 643-646--Gareis, § 15--Liszt, § 6--Ullmann, § 27--Bonfils, Nos. 348-369--Despagnet, Nos. 137-146--Mérignhac, II. pp. 56-65--Pradier-Fodéré, II. Nos. 1001-1015--Nys, I. pp. 379-398--Rivier, I. § 7--Calvo, IV. §§ 2596-2610--Piccioni's "Essai sur la neutralité perpétuelle" (2nd ed. 1902)--Regnault, "Des effets de la neutralité perpétuelle" (1898)--Tswettcoff, "De la situation juridique des états neutralisés" (1895)--Morand in R.G. I. (1894), pp. 522-537--Hagerup in R.G. XII. (1909), pp. 577-602--Nys in R.I. 2nd Ser. II. (1900), pp. 468-583, III. (1901), p. 15--Westlake in R.I. 2nd Ser. III. (1901), pp. 389-397--Winslow in A.J. II. (1908), pp. 366-386--Wicker in A.J. V. (1911), pp. 639-654.
[Sidenote: Conception of Neutralised States.]
§ 95. A neutralised State is a State whose independence and integrity are for all the future guaranteed by an international convention of the Powers, under the condition that such State binds itself never to take up arms against any other State except for defence against attack, and never to enter into such international obligations as could indirectly drag it into war. The reason why a State asks or consents to become neutralised is that it is a weak State and does not want an active part in international politics, being exclusively devoted to peaceable developments of welfare. The reason why the Powers neutralise a weak State may be a different one in different cases. The chief reasons have been hitherto the balance of power in Europe and the interest in keeping up a weak State as a so-called Buffer-State between the territories of Great Powers.
Not to be confounded with neutralisation of States is neutralisation of parts of States,[152] of rivers, canals, and the like, which has the effect that war cannot there be made and prepared.
[Footnote 152: See below, Vol. II. § 72.]
[Sidenote: Act and Condition of Neutralisation.]
§ 96. Without thereby becoming a neutralised State, every State can conclude a treaty with another State and undertake the obligation to remain neutral if such other State enters upon war. The act through which a State becomes a neutralised State for all the future is always an international treaty of the Powers between themselves and between the State concerned, by which treaty the Powers guarantee collectively the independence and integrity of the latter State. If all the Great Powers do not take part in the treaty, those which do not take part in it must at least give their tacit consent by taking up an attitude which shows that they agree to the neutralisation, although they do not guarantee it. In guaranteeing the permanent neutrality of a State the contracting Powers enter into the obligation not to violate on their part the independence of the neutral State and to prevent other States from such violation. But the neutral State becomes, apart from the guaranty, in no way dependent upon the guarantors, and the latter gain no influence whatever over the neutral State in matters which have nothing to do with the guaranty.
The condition of the neutralisation is that the neutralised State abstains from any hostile action, and further from any international engagement which could indirectly[153] drag it into hostilities against any other State. And it follows from the neutralisation that the neutralised State can, apart from frontier regulations, neither cede a part of its territory nor acquire new parts of territory without the consent of the Powers.[154]
[Footnote 153: It was, therefore, impossible for Belgium, which was a party to the treaty that neutralised Luxemburg in 1867, to take part in the guarantee of this neutralisation. See article 2 of the Treaty of London of May 11, 1867: "sous la sanction de la garantie collective des puissances signataires, à l'exception de la Belgique, qui est elle-même un état neutre."]
[Footnote 154: This is a much discussed and very controverted point. See Descamps, "La Neutralité de la Belgique" (1902), pp. 508-527; Fauchille in R.G. II. (1895), pp. 400-439; Westlake in R.I. 2nd Ser. III. (1901), p. 396; Graux in R.I. 2nd Ser. VII. (1905), pp. 33-52; Rivier, I. p. 172. See also below, § 215.]
[Sidenote: International position of Neutralised States.]
§ 97. Since a neutralised State is under the obligation not to make war against any other State, except when attacked, and not to conclude treaties of alliance, guaranty, and the like, it is frequently maintained that neutralised States are part-Sovereign only and not International Persons of the same position within the Family of Nations as other States. This opinion has, however, no basis if the real facts and conditions of the neutralisation are taken into consideration. If sovereignty is nothing else than supreme authority, a neutralised State is as fully Sovereign as any not neutralised State. It is entirely independent outside as well as inside its borders, since independence does not at all mean boundless liberty of action.[155] Nobody maintains that the guaranteed protection of the independence and integrity of the neutralised State places this State under the protectorate or any other kind of authority of the guarantors. And the condition of the neutralisation to abstain from war, treaties of alliance, and the like, contains restrictions which do in no way destroy the full sovereignty of the neutralised State. Such condition has the consequence only that the neutralised State exposes itself to an intervention by right, and loses the guaranteed protection in case it commits hostilities against another State, enters into a treaty of alliance, and the like. Just as a not-neutralised State which has concluded treaties of arbitration with other States to settle all conflicts between one another by arbitration has not lost part of its sovereignty because it has thereby to abstain from arms, so a neutralised State has not lost part of its sovereignty through entering into the obligation to abstain from hostilities and treaties of alliance. This becomes quite apparent when it is taken into consideration that a neutralised State not only can conclude treaties of all kinds, except treaties of alliance, guarantee, and the like, but can also have an army and navy[156] and can build fortresses, as long as this is done with the purpose of preparing defence only. Neutralisation does not even exercise an influence upon the rank of a State. Belgium, Switzerland, and Luxemburg are States with royal honours and do not rank behind Great Britain or any other of the guarantors of their neutralisation. Nor is it denied that neutralised States, in spite of their weakness and comparative unimportance, can nevertheless play an important part within the Family of Nations. Although she has no voice where history is made by the sword, Switzerland has exercised great influence with regard to several points of progress in International Law. Thus the Geneva Convention owes its existence to the initiative of Switzerland. The fact that a permanently neutralised State is in many questions a disinterested party makes such State fit to take the initiative where action by a Great Power would create suspicion and reservedness on the part of other Powers.
[Footnote 155: See below, § 126.]
[Footnote 156: The case of Luxemburg, which became neutralised under the condition not to keep an armed force with the exception of a police, is an anomaly.]
But neutralised States are and must always be an exception. The Family and the Law of Nations could not be what they are if ever the number of neutralised States should be much increased. It is neither in the interest of the Law of Nations, nor in that of humanity, that all the small States should become neutralised, as thereby the political influence of the few Great Powers would become still greater than it already is. The neutralised States still in existence--namely, Switzerland, Belgium, and Luxemburg--are a product of the nineteenth century only, and it remains to be seen whether neutralisation can stand the test of history.[157]
[Footnote 157: The fate of the Republic of Cracow, which was created an independent State under the joint protection of Austria, Prussia, and Russia by the Vienna Congress in 1815, and permanently neutralised, but which was annexed by Austria in 1846 (see Nys, I. pp. 383-385), cannot be quoted as an example that neutralised States have no durability. This annexation was only the last act in the drama of the absorption of Poland by her neighbours. As regards the former Congo Free State, see below, § 101.]
[Sidenote: Switzerland.]
§ 98. The Swiss Confederation,[158] which was recognised by the Westphalian Peace of 1648, has pursued a traditional policy of neutrality since that time. During the French Revolution and the Napoleonic Wars, however, she did not succeed in keeping up her neutrality. French intervention brought about in 1803 a new Constitution, according to which the single cantons ceased to be independent States and Switzerland turned from a Confederation of States into the simple State of the Helvetic Republic, which was, moreover, through a treaty of alliance linked to France. It was not till 1813 that Switzerland became again a Confederation of States, and not till 1815 that she succeeded in becoming permanently neutralised. On March 20, 1815, at the Congress at Vienna, Great Britain, Austria, France, Portugal, Prussia, Spain, and Russia signed the declaration in which the permanent neutrality of Switzerland was recognised and collectively guaranteed, and on May 27, 1815, Switzerland acceded to this declaration. Article 84 of the Act of the Vienna Congress confirmed this declaration, and an Act, dated November 20, 1815, of the Powers assembled at Paris after the final defeat of Napoleon recognised it again.[159] Since that time Switzerland has always succeeded in keeping up her neutrality. She has built fortresses and organised a strong army for that purpose, and in January 1871, during the Franco-German War, she disarmed a French army of more than 80,000 men who had taken refuge on her territory, and guarded them till after the war.
[Footnote 158: See Schweizer, "Geschichte der schweizerischen Neutralität," 2 vols. (1895).]
[Footnote 159: See Martens, N.R. II. pp. 157, 173, 419, 740.]
[Sidenote: Belgium.]
§ 99. Belgium[160] became neutralised from the moment she was recognised as an independent State in 1831. The Treaty of London, signed on November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia, and Russia, stipulates in its article 7 at the same time the independence and the permanent neutrality of Belgium, and in its article 25 the guaranty of the signatory five Great Powers.[161] And the guaranty was renewed in article 1 of the Treaty of London of April 19, 1839,[162] to which the same Powers are parties, and which is the final treaty concerning the separation of Belgium from the Netherlands.
[Footnote 160: See Descamps, "La Neutralité de la Belgique" (1902).]
[Footnote 161: See Martens, N.R. XI. pp. 394 and 404.]
[Footnote 162: See Martens, N.R. XVI. p. 790.]
Belgium has, just like Switzerland, also succeeded in keeping up her neutrality. She, too, has built fortresses and possesses a strong army.
[Sidenote: Luxemburg.]
§ 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal union with the Netherlands, but at the same time a member of the Germanic Confederation, and Prussia had since 1856 the right to keep troops in the fortress of Luxemburg. In 1866 the Germanic Confederation came to an end, and Napoleon III. made efforts to acquire Luxemburg by purchase from the King of Holland, who was at the same time Grand Duke of Luxemburg. As Prussia objected to this, it seemed advisable to the Powers to neutralise Luxemburg. A Conference met in London, at which Great Britain, Austria, Belgium, France, Holland and Luxemburg, Italy, Prussia, and Russia were represented, and on May 11, 1867, a treaty was signed for the purpose of the neutralisation, which is stipulated and collectively guaranteed by all the signatory Powers, Belgium as a neutralised State herself excepted, by article 2.[164]
[Footnote 163: See Wompach, "Le Luxembourg neutre" (1900).]
[Footnote 164: See Martens, N.R.G. XVIII. p. 448.]
The neutralisation took place, however, under the abnormal condition that Luxemburg is not allowed to keep any armed force, with the exception of a police for the maintenance of safety and order, nor to possess any fortresses. Under these circumstances Luxemburg herself can do nothing for the defence of her neutrality, as Belgium and Switzerland can.
[Sidenote: The former Congo Free State.]
§ 101. The former Congo Free State,[165] which was recognised as an independent State by the Berlin Congo Conference[166] of 1884-1885, was a permanently neutralised State from 1885-1908, but its neutralisation was imperfect in so far as it was not guaranteed by the Powers. This fact is explained by the circumstances under which the Congo Free State attained its neutralisation. Article 10 of the General Act of the Congo Conference of Berlin stipulates that the signatory Powers shall respect the neutrality of any territory within the Congo district, provided the Power then or hereafter in possession of the territory proclaims its neutrality. Accordingly, when the Congo Free State was recognised by the Congress of Berlin, the King of the Belgians, as the sovereign of the Congo State, declared[167] it permanently neutral, and this declaration was notified to and recognised by the Powers. Since the Congo Conference did not guarantee the neutrality of the territories within the Congo district, the neutralisation of the Congo Free State was not guaranteed either. In 1908[168] the Congo Free State merged by cession into Belgium.
[Footnote 165: Moynier, "La fondation de l'État indépendant du Congo" (1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III. (1909), pp. 99-118.]
[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd Ser. X. p. 353.]
[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.]
[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is doubtful, whether the guarantee of the neutrality of Belgium extends now to territory of the former Congo Free State ipso facto by its merger into Belgium.]
IX
NON-CHRISTIAN STATES
Westlake, I. p. 40--Phillimore, I. §§ 27-33--Bluntschli, §§ 1-16--Heffter, § 7--Gareis, § 10--Rivier, I. pp. 13-18--Bonfils, No. 40--Martens, § 41--Nys, I. pp. 122-125--Westlake, Chapters, pp. 114-143.
[Sidenote: No essential difference between Christian and other States.]
§ 102. It will be remembered from the previous discussion of the dominion[169] of the Law of Nations that this dominion extends beyond the Christian and includes now the Mahometan State of Turkey and the Buddhistic State of Japan. As all full-Sovereign International Persons are equal to one another, no essential difference exists within the Family of Nations between Christian and non-Christian States. That foreigners residing in Turkey are still under the exclusive jurisdiction of their consuls, is an anomaly based on a restriction on territorial supremacy arising partly from custom and partly from treaties. If Turkey could ever succeed, as Japan did, in introducing such reforms as would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.
[Footnote 169: See above, § 28.]
[Sidenote: International position of non-Christian States except Turkey and Japan.]
§ 103. Doubtful is the position of all non-Christian States except Turkey and Japan, such as China, Morocco, Siam, Persia, and further Abyssinia, although the latter is a Christian State, and although China, Persia, and Siam took part in the Hague Peace Conferences of 1899 and 1907. Their civilisation is essentially so different from that of the Christian States that international intercourse with them of the same kind as between Christian States has been hitherto impossible. And neither their governments nor their populations are at present able to fully understand the Law of Nations and to take up an attitude which is in conformity with all the rules of this law. There should be no doubt that these States are not International Persons of the same kind and the same position within the Family of Nations as Christian States. But it is equally wrong to maintain that they are absolutely outside the Family of Nations, and are for no part International Persons. Since they send and receive diplomatic envoys and conclude international treaties, the opinion is justified that such States are International Persons only in some respects--namely, those in which they have expressly or tacitly been received into the Family of Nations. When Christian States begin such intercourse with these non-Christian States as to send diplomatic envoys to them and receive their diplomatic envoys, and when they enter into treaty obligations with them, they indirectly declare that they are ready to recognise them for these parts as International Persons and subjects of the Law of Nations. But for other parts such non-Christian States remain as yet outside the circle of the Family of Nations, especially with regard to war, and they are for those parts treated by the Christian Powers according to discretion. This condition of things will, however, not last very long. It may be expected that with the progress of civilisation these States will become sooner or later International Persons in the full sense of the term. They are at present in a state of transition, and some of them are the subjects of international arrangements of great political importance. Thus by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia,[170] and the General Act of the Conference of Algeciras of April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, Belgium, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress anarchy in Morocco and to introduce reforms in its internal administration. This Act,[172] which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities in that country for all nations, contains:--(1) A Declaration concerning the organisation of the Moroccan police; (2) Regulations concerning the detection and suppression of the illicit trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A Declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) Regulations respecting customs and the suppression of fraud and smuggling; (6) A Declaration concerning the public services and public works.
[Footnote 170: See Martens, N.R.G. 2nd Ser. XXXV. p. 556.]
[Footnote 171: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.]
[Footnote 172: It has been mentioned above, p. 76, that the Moroccan question has been reopened, and that fresh negotiations are taking place for its settlement.]
X
THE HOLY SEE
Hall, § 98--Westlake, I. pp. 37-39--Phillimore, I. §§ 278-440--Twiss, I. §§ 206-207--Taylor, §§ 277, 278, 282--Wharton, I. § 70, p. 546--Moore, I. § 18--Bluntschli, § 172--Heffter, §§ 40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, § 13--Liszt, § 5--Ullmann, § 28--Bonfils, Nos. 370-396--Despagnet, Nos. 147-164--Mérignhac, II. pp. 119-153--Nys, II. pp. 297-324--Rivier, I. § 8--Fiore, I. Nos. 520, 521--Martens, I. § 84--Fiore, "Della condizione giuridica internazionale della chiesa e del Papa" (1887)--Bombard, "Le Pape et le droit des gens" (1888)--Imbart-Latour, "La papauté en droit international" (1893)--Olivart, "Le Pape, les états de l'église et l'Italie" (1897)--Chrétien in R.G. VI. (1899) pp. 281-291--Bompart in R.G. VII. (1900), pp. 369-387--Higgins in _The Journal of the Society for Comparative Legislation_, New Series, IX. (1907), pp. 252-264.
[Sidenote: The former Papal States.]
§ 104. When the Law of Nations began to grow up among the States of Christendom, the Pope was the monarch of one of those States--namely, the so-called Papal States. This State owed its existence to Pepin-le-Bref and his son Charlemagne, who established it in gratitude to the Popes Stephen III. and Adrian I., who crowned them as Kings of the Franks. It remained in the hands of the Popes till 1798, when it became a republic for about three years. In 1801 the former order of things was re-established, but in 1809 it became a part of the Napoleonic Empire. In 1814 it was re-established, and remained in existence till 1870, when it was annexed to the Kingdom of Italy. Throughout the existence of the Papal States, the Popes were monarchs and, as such, equals of all other monarchs. Their position was, however, even then anomalous, as their influence and the privileges granted to them by the different States were due, not alone to their being monarchs of a State, but to their being the head of the Roman Catholic Church. But this anomaly did not create any real difficulty, since the privileges granted to the Popes existed within the province of precedence only.
[Sidenote: The Italian Law of Guaranty.]
§ 105. When, in 1870, Italy annexed the Papal States and made Rome her capital, she had to undertake the task of creating a position for the Holy See and the Pope which was consonant with the importance of the latter to the Roman Catholic Church. It seemed impossible that the Pope should become an ordinary Italian subject and that the Holy See should be an institution under the territorial supremacy of Italy. For many reasons no alteration was desirable in the administration by the Holy See of the affairs of the Roman Catholic Church or in the position of the Pope as the inviolable head of that Church. To meet the case the Italian Parliament passed an Act regarding the guaranties granted to the Pope and the Holy See, which is commonly called the "Law of Guaranty." According to this the position of the Pope and the Holy See is in Italy as follows:--
The person of the Pope is sacred and inviolable (article 1), although he is subjected to the Civil Courts of Italy.[173] An offence against his person is to be punished in the same way as an offence against the King of Italy (article 2). He enjoys all the honours of a sovereign, retains the privileges of precedence conceded to him by Roman Catholic monarchs, has the right to keep an armed body-guard of the same strength as before the annexation for the safety of his person and of his palaces (article 3), and receives an allowance of 3,225,000 francs (article 4). The Vatican, the seat of the Holy See, and the palaces where a conclave for the election of a new Pope or where an Oecumenical Council meets, are inviolable, and no Italian official is allowed to enter them without consent of the Holy See (articles 5-8). The Pope is absolutely free in performing all the functions connected with his mission as head of the Roman Catholic Church, and so are his officials (articles 9 and 10). The Pope has the right to send and to receive envoys, who enjoy all the privileges of the diplomatic envoys sent and received by Italy (article 11). The freedom of communication between the Pope and the entire Roman Catholic world is recognised, and the Pope has therefore the right to a post and telegraph office of his own in the Vatican or any other place of residence and to appoint his own post-office clerks (article 12). And, lastly, the colleges and other institutions of the Pope for the education of priests in Rome and the environments remain under his exclusive supervision, without any interference on the part of the Italian authorities.
[Footnote 173: See Bonfils, No. 379.]
No Pope has as yet recognised this Italian Law of Guaranty, nor had foreign States an opportunity of giving their express consent to the position of the Pope in Italy created by that law. But practically foreign States as well as the Popes themselves, although the latter have never ceased to protest against the condition of things created by the annexation of the Papal States, have made use of the provisions[174] of that law. Several foreign States send side by side with their diplomatic envoys accredited to Italy special envoys to the Pope, and the latter sends envoys to several foreign States.
[Footnote 174: But the Popes have hitherto never accepted the allowance provided by the Law of Guaranty.]
[Sidenote: International position of the Holy See and the Pope.]
§ 106. The Law of Guaranty is not International but Italian Municipal Law, and the members of the Family of Nations have hitherto not made any special arrangements with regard to the International position of the Holy See and the Pope. And, further, there can be no doubt that since the extinction of the Papal States the Pope is no longer a monarch whose sovereignty is derived from his position as the head of a State. For these reasons many writers[175] maintain that the Holy See and the Pope have no longer any international position whatever according to the Law of Nations, since States only and exclusively are International Persons. But if the facts of international life and the actual condition of things in every-day practice are taken into consideration, this opinion has no basis to stand upon. Although the Holy See is not a State, the envoys sent by her to foreign States are treated by the latter on the same footing with diplomatic envoys as regards exterritoriality, inviolability, and ceremonial privileges, and those foreign States which send envoys to the Holy See claim for them from Italy all the privileges and the position of diplomatic envoys. Further, although the Pope is no longer the head of a State, the privileges due to the head of a monarchical State are still granted to him by foreign States. Of course, through this treatment the Holy See does not acquire the character of an International Person, nor does the Pope thereby acquire the character of a head of a monarchical State. But for some points the Holy See is actually treated as though she were an International Person, and the Pope is treated actually in every point as though he were the head of a monarchical State. It must therefore be maintained that by custom, by tacit consent of the members of the Family of Nations, the Holy See has a quasi international position. This position allows her to claim against all the States treatment on some points as though she were an International Person, and further to claim treatment of the Pope in every point as though he were the head of a monarchical State. But it must be emphasised that, although the envoys sent and received by the Holy See must be treated as diplomatic envoys,[176] they are not such in fact, for they are not agents for international affairs of States, but exclusively agents for the affairs of the Roman Catholic Church. And it must further be emphasised that the Holy See cannot conclude international treaties or claim a vote at international congresses and conferences. The so-called Concordats--that is, treaties between the Holy See and States with regard to matters of the Roman Catholic Church--are not international treaties, although analogous treatment is usually given to them. Even formerly, when the Pope was the head of a State, such Concordats were not concluded with the Papal States, but with the Holy See and the Pope as representatives of the Roman Catholic Church.
[Footnote 175: Westlake, I. p. 38, now joins the ranks of these writers.]
[Footnote 176: The case of Montagnini, which occurred in December 1906, cannot be quoted against this assertion, for Montagnini was not at the time a person enjoying diplomatic privileges. Diplomatic relations between France and the Holy See had come to an end in 1905 by France recalling her envoy at the Vatican and at the same time sending the passports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who remained at the nunciature in Paris, did not possess any diplomatic character after the departure of the Nuncio. Neither his arrest and his expulsion in December 1906, nor the seizure of his papers at the nunciature amounted therefore to an international delinquency on the part of the French Government. The papers left by the former Papal Nuncio Lorenzelli were not touched and remained in the archives of the former nunciature until the Austrian ambassador in Paris, in February 1907, asked the French Foreign Office to transfer them to him for the purpose of handing them on to the Holy See. It must be specially mentioned that the seizure of his papers and the arrest and expulsion of Montagnini took place because he conspired against the French Government by encouraging the clergy to refuse obedience to French laws. And it must further be mentioned that Lorenzelli, when he left the nunciature, did not, contrary to all precedent, place the archives of the nunciature under seals and confide them to the protection of another diplomatic envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX. (1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.]
[Sidenote: Violation of the Holy See and the Pope.]
§ 107. Since the Holy See has no power whatever to protect herself and the person of the Pope against violations, the question as to the protection of the Holy See and the person of the Pope arises. I believe that, since the present international position of the Holy See rests on the tacit consent of the members of the Family of Nations, many a Roman Catholic Power would raise its voice in case Italy or any other State should violate the Holy See or the person of the Pope, and an intervention for the purpose of protecting either of them would have the character of an intervention by right. Italy herself would certainly make such a violation by a foreign Power her own affair, although she has no more than any other Power the legal duty to do so, and although she is not responsible to other Powers for violations of the Personality of the latter by the Holy See and the Pope.
XI
INTERNATIONAL PERSONS OF THE PRESENT DAY
[Sidenote: European States.]
§ 108. All the seventy-four European States are, of course, members of the Family of Nations. They are the following:
Great Powers are:
Austria-Hungary. France. Germany. Great Britain. Italy. Russia.
Smaller States are:
Bulgaria. Denmark. Greece. Holland. Montenegro. Norway. Portugal. Roumania. Servia. Spain. Sweden. Turkey.
Very small, but nevertheless full-Sovereign, States are:
Monaco and Lichtenstein.
Neutralised States are:
Switzerland, Belgium, and Luxemburg.
Half-Sovereign States are:
Andorra (under the protectorate of France and Spain). San Marino (under the protectorate of Italy). Crete (under the suzerainty of Turkey).
Part-Sovereign States are:
(a) Member-States of Germany:
Kingdoms: Prussia, Bavaria, Saxony, Würtemberg.
Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin, Mecklenburg-Strelitz, Oldenburg.
Dukedoms: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha, Saxe-Meiningen, Saxe-Weimar.
Principalities: Reuss Elder Line, Reuss Younger Line, Lippe, Schaumburg-Lippe, Schwarzburg-Rudolstadt, Schwarzburg-Sondershausen Waldeck.
Free Towns are: Bremen, Lübeck, Hamburg.
(b) Member-States of Switzerland:
Zurich, Berne, Lucerne, Uri, Schwyz, Unterwalden (ob und nid dem Wald), Glarus, Zug, Fribourg, Soleure, Basle (Stadt und Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall, Grisons, Aargau, Thurgau, Tessin, Vaud, Valais, Neuchâtel, Geneva.
[Sidenote: American States.]
§ 109. In America there are twenty-one States which are members of the Family of Nations, but it must be emphasised that the member-States of the five Federal States on the American continent, although they are part-Sovereign, have no footing within the Family of Nations, because the American Federal States, in contradistinction to Switzerland and Germany, absorb all possible international relations of their member-States.
In North America there are:
The United States of America. The United States of Mexico.
In Central America there are:
Costa Rica. Cuba. San Domingo. Guatemala. Hayti. Honduras. Nicaragua. Panama (since 1903). San Salvador.
In South America there are:
The United States of Argentina. Bolivia. The United States of Brazil. Chili. Colombia. Ecuador. Paraguay. Peru. Uruguay. The United States of Venezuela.
[Sidenote: African States.]
§ 110. In Africa the Negro Republic of Liberia is the only real and full member of the Family of Nations. Egypt and Tunis are half-Sovereign, the one under Turkish suzerainty, the other under French protectorate. Morocco and Abyssinia are both full-Sovereign States, but for some parts only within the Family of Nations. The Soudan has an exceptional position; being under the condominium of Great Britain and Egypt, a footing of its own within the Family of Nations the Soudan certainly has not.
[Sidenote: Asiatic States.]
§ 111. In Asia only Japan is a full and real member of the Family of Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts only within that family.
II. POSITION OF THE STATES WITHIN THE FAMILY OF NATIONS
I
INTERNATIONAL PERSONALITY
Vattel, I. §§ 13-25--Hall, § 7--Westlake, I. pp. 293-296--Lawrence, § 57--Phillimore, I. §§ 144-147--Twiss, I. § 106--Wharton, § 60--Moore, I. § 23--Bluntschli, §§ 64-81--Hartmann, § 15--Heffter, § 26--Holtzendorff in Holtzendorff, II. pp. 47-51--Gareis, §§ 24-25--Liszt, § 7--Ullmann, § 38--Bonfils, Nos. 235-241--Despagnet, Nos. 165-166--Nys, II. pp. 176-181--Pradier-Fodéré, I. Nos. 165-195--Mérignhac, I. pp. 233-238--Rivier, I. § 19--Fiore, I. Nos. 367-371--Martens, I. § 72--Fontenay, "Des droits et des devoirs des États entre eux" (1888)--Pillet in R.G. V. (1898), pp. 66 and 236, VI. (1899), p. 503--Cavaglieri, "I diritti fondamentali degli Stati nella Società Internazionale" (1906).
[Sidenote: The so-called Fundamental Rights.]
§ 112. Until the last two decades of the nineteenth century all jurists agreed that the membership of the Family of Nations includes so-called fundamental rights for States. Such rights are chiefly enumerated as the right of existence, of self-preservation, of equality, of independence, of territorial supremacy, of holding and acquiring territory, of intercourse, and of good name and reputation. It was and is maintained that these fundamental rights are a matter of course and self-evident, since the Family of Nations consists of Sovereign States. But no unanimity exists with regard to the number, the names, and the contents of these alleged fundamental rights. A great confusion exists in this matter, and hardly two text-book writers agree in details with regard to it. This condition of things has led to a searching criticism of the whole matter, and several writers[177] have in consequence thereof asked that the fundamental rights of States should totally disappear from the treatises on the Law of Nations. I certainly agree with this. Yet it must be taken into consideration that under the wrong heading of fundamental rights a good many correct statements have been made for hundreds of years, and that numerous real rights and duties are customarily recognised which are derived from the very membership of the Family of Nations. They are rights and duties which do not rise from international treaties between a multitude of States, but which the States customarily hold as International Persons, and which they grant and receive reciprocally as members of the Family of Nations. They are rights and duties connected with the position of the States within the Family of Nations, and it is therefore only adequate to their importance to discuss them in a special chapter under that heading.
[Footnote 177: See Stoerk in Holtzendorff's "Encyklopädie der Rechtswissenschaft," 2nd ed. (1890), p. 1291; Jellinek, "System der subjectiven öffentlichen Rechte" (1892), p. 302; Heilborn, "System," p. 279; and others. The arguments of these writers have met, however, considerable resistance, and the existence of fundamental rights of States is emphatically defended by other writers. See, for instance, Pillet, l.c., Liszt, § 7, and Gareis, §§ 24 and 25. Westlake, I. p. 293, now joins the ranks of those writers who deny the existence of fundamental rights.]
[Sidenote: International Personality a Body of Qualities.]
§ 113. International Personality is the term which characterises fitly the position of the States within the Family of Nations, since a State acquires International Personality through its recognition as a member. What it really means can be ascertained by going back to the basis[178] of the Law of Nations. Such basis is the common consent of the States that a body of legal rules shall regulate their intercourse with one another. Now a legally regulated intercourse between Sovereign States is only possible under the condition that a certain liberty of action is granted to every State, and that, on the other hand, every State consents to a certain restriction of action in the interest of the liberty of action granted to every other State. A State that enters into the Family of Nations retains the natural liberty of action due to it in consequence of its sovereignty, but at the same time takes over the obligation to exercise self-restraint and to restrict its liberty of action in the interest of that of other States. In entering into the Family of Nations a State comes as an equal to equals[179]; it demands that certain consideration be paid to its dignity, the retention of its independence, of its territorial and its personal supremacy. Recognition of a State as a member of the Family of Nations contains recognition of such State's equality, dignity, independence, and territorial and personal supremacy. But the recognised State recognises in turn the same qualities in other members of that family, and thereby it undertakes responsibility for violations committed by it. All these qualities constitute as a body the International Personality of a State, and International Personality may therefore be said to be the fact, given by the very membership of the Family of Nations, that equality, dignity, independence, territorial and personal supremacy, and the responsibility of every State are recognised by every other State. The States are International Persons because they recognise these qualities in one another and recognise their responsibility for violations of these qualities.
[Footnote 178: See above, § 12.]
[Footnote 179: See above, § 14.]
[Sidenote: Other Characteristics of the position of the States within the Family of Nations.]
§ 114. But the position of the States within the Family of Nations is not exclusively characterised by these qualities. The States make a community because there is constant intercourse between them. Intercourse is therefore a condition without which the Family of Nations would not and could not exist. Again, there are exceptions to the protection of the qualities which constitute the International Personality of the States, and these exceptions are likewise characteristic of the position of the States within the Family of Nations. Thus, in time of war belligerents have a right to violate one another's Personality in many ways; even annihilation of the vanquished State, through subjugation after conquest, is allowed. Thus, further, in time of peace as well as in time of war, such violations of the Personality of other States are excused as are committed in self-preservation or through justified intervention. And, finally, jurisdiction is also important for the position of the States within the Family of Nations. Intercourse, self-preservation, intervention, and jurisdiction must, therefore, likewise be discussed in this chapter.
II
EQUALITY, RANK, AND TITLES
Vattel, II. §§ 35-48--Westlake, I. pp. 308-312--Lawrence, §§ 112-119--Phillimore, I. § 147, II. §§ 27-43--Twiss, I. § 12--Halleck, I. pp. 116-140--Taylor, § 160--Wheaton, §§ 152-159--Moore, I. § 24--Bluntschli, §§ 81-94--Hartmann, § 14--Heffter, §§ 27-28--Holtzendorff in Holtzendorff, II. pp. 11-14--Ullmann, §§ 36 and 37--Bonfils, Nos. 272-278--Despagnet, Nos. 167-171--Pradier-Fodéré, II. Nos. 484-594--Mérignhac, I. pp. 310-320--Rivier, I. § 9--Nys, II. pp. 194-199, 208-218--Calvo, I. §§ 210-259--Fiore, I. Nos. 428-451, and Code, Nos. 388-421--Martens, I. §§ 70-71--Lawrence, Essays, pp. 191-213--Westlake, Chapters, pp. 86-109--Huber, "Die Gleichheit der Staaten" (1909)--Streit in R.I. 2nd Ser. II. pp. 5-27--Hicks in A.J. II. (1908), pp. 530-561.
[Sidenote: Legal Equality of States.]
§ 115. The equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their International Personality.[180] Whatever inequality may exist between States as regards their size, population, power, degree of civilisation, wealth, and other qualities, they are nevertheless equals as International Persons. This legal equality has three important consequences:
[Footnote 180: See above, §§ 14 and 113.]
The first is that, whenever a question arises which has to be settled by the consent of the members of the Family of Nations, every State has a right to a vote, but to one vote only.
The second consequence is that legally--although not politically--the vote of the weakest and smallest State has quite as much weight as the vote of the largest and most powerful. Therefore any alteration of an existing rule or creation of a new rule of International Law by a law-making treaty has legal validity for the signatory Powers and those only who later on accede expressly or submit to it tacitly through custom.
The third consequence is that--according to the rule par in parem non habet imperium--no State can claim jurisdiction over another full-Sovereign State. Therefore, although foreign States can sue in foreign Courts,[181] they cannot as a rule be sued[182] there, unless they voluntarily accept[183] the jurisdiction of the Court concerned, or have submitted themselves to such jurisdiction by suing in such foreign Court.[184]
[Footnote 181: See Phillimore, II. § 113 A; Nys, II. pp. 288-296; Loening, "Die Gerichtsbarkeit über fremde Staaten und Souveräne" (1903); and the following cases:--The United States v. Wagner (1867), L.R. 2 Ch. App. 582; The Republic of Mexico v. Francisco de Arrangoiz, and others, 11 Howard's Practice Reports 1 (quoted by Scott, "Cases on International Law," 1902, p. 170); The Sapphire (1870), 11 Wallace, 164. See also below, § 348.]
[Footnote 182: See De Haber v. the Queen of Portugal (1851), 17 Ch. D. 171, and Vavasseur v. Krupp (1878), L.R. 9 Ch. D. 351.]
[Footnote 183: See Prioleau v. United States, &c. (1866), L.R. 2 Equity, 656.]
[Footnote 184: Provided the cross-suit is really connected with the claim in the action. As regards the German case of Hellfeld v. the Russian Government, see Köhler in Z.V. IV. (1910), pp. 309-333; the opinions of Laband, Meili, and Seuffert, ibidem, pp. 334-448; Baty in The Law Magazine and Review, XXV. (1909-1910), p. 207; Wolfman in A.J. IV. (1910), pp. 373-383.]
To the rule of equality there are three exceptions:--
First, such States as can for some parts[185] only be considered International Persons, are not equals of the full members of the Family of Nations.
[Footnote 185: See above, § 103.]
Secondly, States under suzerainty and under protectorate which are half-Sovereign and under the guardianship[186] of other States with regard to the management of external affairs, are not equals of States which enjoy full sovereignty.
[Footnote 186: See above, §§ 91 and 93.]
Thirdly, the part-sovereign member-States of a Federal State are not equals of full-Sovereign States.
It is, however, quite impossible to lay down a hard and fast general rule concerning the amount of inequality between the equal and the unequal States, as everything depends upon the circumstances and conditions of the special case.
[Sidenote: Political Hegemony of Great Powers.]
§ 116. Legal equality must not be confounded with political equality. The enormous differences between States as regards their strength are the result of a natural inequality which, apart from rank and titles, finds its expression in the province of policy. Politically, States are in no manner equals, as there is a difference between the Great Powers and others. Eight States must at present be considered as Great Powers--namely, Great Britain, Austria-Hungary, France, Germany, Italy, and Russia in Europe, the United States in America, and Japan in Asia. All arrangements made by the body of the Great Powers naturally gain the consent of the minor States, and the body of the six Great Powers in Europe is therefore called the European Concert. The Great Powers are the leaders of the Family of Nations, and every progress of the Law of Nations during the past is the result of their political hegemony, although the initiative towards the progress was frequently taken by a minor Power.
But, however important the position and the influence of the Great Powers may be, they are by no means derived from a legal basis or rule.[187] It is nothing else than powerful example which makes the smaller States agree to the arrangements of the Great Powers. Nor has a State the character of a Great Power by law. It is nothing else than its actual size and strength which makes a State a Great Power. Changes, therefore, often take place. Whereas at the time of the Vienna Congress in 1815 eight States--namely, Great Britain, Austria, France, Portugal, Prussia, Spain, Sweden, and Russia--were still considered Great Powers, their number decreased soon to five, when Portugal, Spain, and Sweden lost that character. But the so-called Pentarchy of the remaining Great Powers turned into a Hexarchy after the unification of Italy, because the latter became at once a Great Power. The United States rose as a Great Power out of the civil war in 1865, and Japan did the same out of the war with China in 1895. Any day a change may take place and one of the present Great Powers may lose its position, or one of the weaker States may become a Great Power. It is a question of political influence, and not of law, whether a State is or is not a Great Power. Whatever large-sized State with a large population gains such strength that its political influence must be reckoned with by the other Great Powers, becomes a Great Power itself.[188]
[Footnote 187: This is, however, maintained by a few writers. See, for instance, Lorimer, I. p. 170; Lawrence, §§ 113 and 114; Westlake, I. pp. 308, 309; and Pitt Cobbett, "Cases and Opinions on International Law," 2nd ed. vol. I. (1909), p. 50.]
[Footnote 188: In contradistinction to the generally recognised political hegemony of the Great Powers, Lawrence (§§ 113 and 114) and Taylor (§ 69) maintain that the position of the Great Powers is legally superior to that of the smaller States, being a "Primacy" or "Overlordship." This doctrine, which professedly seeks to abolish the universally recognised rule of the equality of States, has no sound basis, and confounds political with legal inequality. I cannot agree with Lawrence when he says (§ 114, p. 276):--"... in a system of rules depending, like International Law, for their validity on general consent, what is political is legal also, if it is generally accepted and acted on." The Great Powers are de facto, by the smaller States, recognised as political leaders, but this recognition does not involve recognition of legal superiority.]
[Sidenote: Rank of States.]
§ 117. Although the States are equals as International Persons, they are nevertheless not equals as regards rank. The differences as regards rank are recognised by International Law, but the legal equality of States within the Family of Nations is thereby as little affected as the legal equality of the citizens is within a modern State where differences in rank and titles of the citizens are recognised by Municipal Law. The vote of a State of lower rank has legally as much weight as that of a State of higher rank. And the difference in rank nowadays no longer plays such an important part as in the past, when questions of etiquette gave occasion for much dispute. It was in the sixteenth and seventeenth centuries that the rank of the different States was zealously discussed under the heading of droit de préséance or questions de préséance. The Congress at Vienna of 1815 intended to establish an order of precedence within the Family of Nations, but dropped this scheme on account of practical difficulties. Thus the matter is entirely based on custom, which recognises the following three rules:
(1) The States are divided into two classes--namely, States with and States without royal honours. To the first class belong Empires, Kingdoms, Grand Duchies, and the great Republics such as France, the United States of America, Switzerland, the South American Republics, and others. All other States belong to the second class. The Holy See is treated as though it were a State with royal honours. States with royal honours have exclusively the right to send and receive diplomatic envoys of the first class[189]--namely, ambassadors; and their monarchs address one another as "brothers" in their official letters. States with royal honours always precede other States.
[Footnote 189: See below, § 365.]
(2) Full-Sovereign States always precede those under suzerainty or protectorate.
(3) Among themselves States of the same rank do not precede one another. Empires do not precede kingdoms, and since the time of Cromwell and the first French Republic monarchies do not precede republics. But the Roman Catholic States always concede precedence to the Holy See, and the monarchs recognise among themselves a difference with regard to ceremonials between emperors and kings on the one hand, and, on the other, grand dukes and other monarchs.
[Sidenote: The "Alternat."]
§ 118. To avoid questions of precedence, on signing a treaty, States of the same rank observe a conventional usage which is called the "Alternat." According to that usage the signatures of the signatory States of a treaty alternate in a regular order or in one determined by lot, the representative of each State signing first the copy which belongs to his State. But sometimes that order is not observed, and the States sign either in the alphabetical order of their names in French or in no order at all (pêle-mêle).
[Sidenote: Titles of States.]
§ 119. At the present time, States, save in a few exceptional instances, have no titles, although formerly such titles did exist. Thus the former Republic of Venice as well as that of Genoa was addressed as "Serene Republic," and up to the present day the Republic of San Marino[190] is addressed as "Most Serene Republic." Nowadays the titles of the heads of monarchical States are in so far of importance to International Law as they are connected with the rank of the respective States. Since States are Sovereign, they can bestow any titles they like on their heads. Thus, according to the German Constitution of 1871, the Kings of Prussia have the title "German Emperor"; the Kings of England have since 1877 borne the title "Emperor of India"; the Prince of Servia assumed in 1881, that of Roumania in 1882, that of Bulgaria in 1908, and that of Montenegro in 1910, the title "King." But no foreign State is obliged to recognise such a new title, especially when a higher rank would accrue to the respective State in consequence of such a new title of its head. In practice such recognition will regularly be given when the new title really corresponds with the size and the importance of the respective State.[191] Servia, Roumania, Bulgaria, and Montenegro had therefore no difficulty in obtaining recognition as kingdoms.
[Footnote 190: See Treaty Series, 1900, No. 9.]
[Footnote 191: History, however, reports several cases where recognition was withheld for a long time. Thus the title "Emperor of Russia," assumed by Peter the Great in 1701, was not recognised by France till 1745, by Spain till 1759, nor by Poland till 1764. And the Pope did not recognise the kingly title of Prussia, assumed in 1701, till 1786.]
With the titles of the heads of States are connected predicates. Emperors and Kings have the predicate "Majesty," Grand Dukes "Royal Highness," Dukes "Highness," other monarchs "Serene Highness." The Pope is addressed as "Holiness" (Sanctitas). Not to be confounded with these predicates, which are recognised by the Law of Nations, are predicates which originally were bestowed on monarchs by the Pope and which have no importance for the Law of Nations. Thus the Kings of France called themselves Rex Christianissimus or "First-born Son of the Church," the Kings of Spain have called themselves since 1496 Rex Catholicus, the Kings of England since 1521 Defensor Fidei, the Kings of Portugal since 1748 Rex Fidelissimus, the Kings of Hungary since 1758 Rex Apostolicus.
III
DIGNITY
Vattel, II. §§ 35-48--Lawrence, § 120--Phillimore, II. §§ 27-43--Halleck, I. pp. 124-142--Taylor, § 162--Wheaton, § 160--Bluntschli, §§ 82-83--Hartmann, § 15--Heffter, §§ 32, 102, 103--Holtzendorff in Holtzendorff, II. pp. 64-69--Ullmann, § 38--Bonfils, Nos. 279-284--Despagnet, Nos. 184-186--Moore, I. pp. 310-320--Pradier-Fodéré, II. Nos. 451-483--Rivier, I. pp. 260-262--Nys, II. pp. 212-214--Calvo, III. §§ 1300-1302--Fiore, I. Nos. 439-451--Martens, I. § 78.
[Sidenote: Dignity a Quality.]
§ 120. The majority of text-book writers maintain that there is a fundamental right of reputation and of good name belonging to every State. Such a right, however, does not exist, because no duty corresponding to it can be traced within the Law of Nations. Indeed, the reputation of a State depends just as much upon behaviour as that of every citizen within its boundaries. A State which has a corrupt government and behaves unfairly and perfidiously in its intercourse with other States will be looked down upon and despised, whereas a State which has an uncorrupt government and behaves fairly and justly in its international dealings will be highly esteemed. No law can give a good name and reputation to a rogue, and the Law of Nations does not and cannot give a right to reputation and good name to such a State as has not acquired them through its attitude. There are some States--nomina sunt odiosa!--which indeed justly possess a bad reputation.
On the other hand, a State as a member of the Family of Nations possesses dignity as an International Person. Dignity is a quality recognised by other States, and it adheres to a State from the moment of its recognition till the moment of its extinction, whatever behaviour it displays. Just as the dignity of every citizen within a State commands a certain amount of consideration on the part of fellow-citizens, so the dignity of a State commands a certain amount of consideration on the part of other States, since otherwise the different States could not live peaceably in the community which is called the Family of Nations.
[Sidenote: Consequences of the Dignity of States.]
§ 121. Since dignity is a recognised quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. These are chiefly the rights to demand--that their heads shall not be libelled and slandered; that their heads and likewise their diplomatic envoys shall be granted exterritoriality and inviolability when abroad, and at home and abroad in the official intercourse with representatives of foreign States shall be granted certain titles; that their men-of-war shall be granted exterritoriality when in foreign waters; that their symbols of authority, such as flags and coats of arms, shall not be made improper use of and not be treated with disrespect on the part of other States. Every State must not only itself comply with the duties corresponding to these rights of other States, but must also prevent its subjects from such acts as violate the dignity of foreign States, and must punish them for acts of that kind which it could not prevent. The Municipal Laws of all States must therefore provide for the punishment of those who commit offences against the dignity of foreign States,[192] and, if the Criminal Law of the land does not contain such provisions, it is no excuse for failure by the respective States to punish offenders. But it must be emphasised that a State must prevent and punish such acts only as really violate the dignity of a foreign State. Mere criticism of policy, historical verdicts concerning the attitude of States and their rulers, utterances of moral indignation condemning immoral acts of foreign Governments and their monarchs need neither be suppressed nor punished.
[Footnote 192: According to the Criminal Law of England, "every one is guilty of a misdemeanour who publishes any libel tending to degrade, revile, or expose to hatred and contempt any foreign prince or potentate, ambassador or other foreign dignitary, with the intent to disturb peace and friendship between the United Kingdom and the country to which any such person belongs." See Stephen, "A Digest of the Criminal Law," article 91.]
[Sidenote: Maritime Ceremonials.]
§ 122. Connected with the dignity of States are the maritime ceremonials between vessels and between vessels and forts which belong to different States. In former times discord and jealousy existed between the States regarding such ceremonials, since they were looked upon as means of keeping up 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. They are the outcome of international usages, and not of International Law, in honour of the national flags. They are carried out by dipping flags or striking sails or firing guns.[193] But so far as the territorial maritime belt is concerned, littoral States can make laws concerning maritime ceremonials to be observed by foreign merchantmen.[194]
[Footnote 193: See Halleck, I. pp. 124-142, where the matter is treated with all details. See also below, § 257.]
[Footnote 194: See below, § 187.]
IV
INDEPENDENCE AND TERRITORIAL AND PERSONAL SUPREMACY
Vattel, I. Préliminaires, §§ 15-17--Hall, § 10--Westlake, I. pp. 308-312--Lawrence, §§ 58-61--Phillimore, I. §§ 144-149--Twiss, I. § 20--Halleck, I. pp. 93-113--Taylor, § 160--Wheaton, §§ 72-75--Bluntschli, §§ 64-69--Hartmann, § 15--Heffter, §§ 29 and 31--Holtzendorff in Holtzendorff, II. pp. 36-60--Gareis, §§ 25-26--Ullmann, § 38--Bonfils, Nos. 253-271--Despagnet, Nos. 187-189--Mérignhac, I. pp. 233-383--Pradier-Fodéré, I. Nos. 287-332--Rivier, I. § 21--Nys, II. pp. 182-184--Calvo, I. §§ 107-109--Fiore, I. Nos. 372-427, and Code, Nos. 180-387--Martens, I. §§ 74 and 75--Westlake, Chapters, pp. 86-106.
[Sidenote: Independence and Territorial as well as Personal Supremacy as Aspects of Sovereignty.]
§ 123. Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy.
For these reasons a State as an International Person possesses independence and territorial and personal supremacy. These three qualities are nothing else than three aspects of the very same sovereignty of a State, and there is no sharp boundary line between them. The distinction is apparent and useful, although internal independence is nothing else than sovereignty comprising territorial supremacy, but viewed from a different point of view.
[Sidenote: Consequences of Independence and Territorial and Personal Supremacy.]
§ 124. Independence and territorial as well as personal supremacy are not rights, but recognised and therefore protected qualities of States as International Persons. The protection granted to these qualities by the Law of Nations finds its expression in the right of every State to demand that other States abstain themselves, and prevent their agents and subjects, from committing any act which contains a violation of its independence and its territorial as well as personal supremacy.
In consequence of its external independence, a State can manage its international affairs according to discretion, especially enter into alliances and conclude other treaties, send and receive diplomatic envoys, acquire and cede territory, make war and peace.
In consequence of its internal independence and territorial supremacy, a State can adopt any Constitution it likes, arrange its administration in a way it thinks fit, make use of legislature as it pleases, organise its forces on land and sea, build and pull down fortresses, adopt any commercial policy it likes, and so on. According to the rule, quidquid est in territorio est etiam de territorio, all individuals and all property within the territory of a State are under the latter's dominion and sway, and even foreign individuals and property fall at once under the territorial supremacy of a State when they cross its frontier. Aliens residing in a State can therefore be compelled to pay rates and taxes, and to serve in the police under the same conditions as citizens for the purpose of maintaining order and safety. But aliens may be expelled, or not received at all. On the other hand, hospitality may be granted to them whatever act they have committed abroad, provided they abstain from making the hospitable territory the basis for attempts against a foreign State. And a State can through naturalisation adopt foreign subjects residing on its territory without the consent of the home State, provided the individuals themselves give their consent.
In consequence of its personal supremacy, a State can treat its subjects according to discretion, and it retains its power even over such subjects as emigrate without thereby losing their citizenship. A State may therefore command its citizens abroad to come home and fulfil their military service, may require them to pay rates and taxes for the support of the home finances, may ask them to comply with certain conditions in case they desire marriages concluded abroad or wills made abroad recognised by the home authorities, can punish them on their return for crimes they have committed abroad.
[Sidenote: Violations of Independence and Territorial and Personal Supremacy.]
§ 125. The duty of every State itself to abstain and to prevent its agents and subjects from any act which contains a violation[195] of another State's independence or territorial and personal supremacy is correlative to the respective right of the other State. It is impossible to enumerate all such actions as might contain a violation of this duty. But it is of value to give some illustrative examples. Thus, in the interest of the independence of other States, a State is not allowed to interfere in the management of their international affairs nor to prevent them from doing or to compel them to do certain acts in their international intercourse. Further, in the interest of the territorial supremacy of other States, a State is not allowed to send its troops, its men-of-war, or its police forces into or through foreign territory, or to exercise an act of administration or jurisdiction on foreign territory, without permission.[196] Again, in the interest of the personal supremacy of other States, a State is not allowed to naturalise aliens residing on its territory without their consent,[197] nor to prevent them from returning home for the purpose of fulfilling military service or from paying rates and taxes to their home State, nor to incite citizens of foreign States to emigration.
[Footnote 195: See below, § 155.]
[Footnote 196: But neighbouring States very often give such permission to one another. Switzerland, for instance, allows German Custom House officers to be stationed on two railway stations of Basle for the purpose of examining the luggage of travellers from Basle to Germany.]
[Footnote 197: See, however, below (§ 299), where the fact is stated that some States naturalise an alien through the very fact of his taking domicile on their territory.]
[Sidenote: Restrictions upon Independence.]
§ 126. Independence is not boundless liberty of a State to do what it likes without any restriction whatever. The mere fact that a State is a member of the Family of Nations restricts its liberty of action with regard to other States because it is bound not to intervene in the affairs of other States. And it is generally admitted that a State can through conventions, such as a treaty of alliance or neutrality and the like, enter into many obligations which hamper it more or less in the management of its international affairs. Independence is a question of degree, and it is therefore also a question of degree whether the independence of a State is destroyed or not by certain restrictions. Thus it is generally admitted that States under suzerainty or under protectorate are so much restricted that they are not fully independent, but half-Sovereign. And the same is the case with the member-States of a Federal State which are part-Sovereign. On the other hand, the restriction connected with the neutralisation of States does not, according to the correct opinion,[198] destroy their independence, although they cannot make war except in self-defence, cannot conclude alliances, and are in other ways hampered in their liberty of action.
[Footnote 198: See above, § 97.]
From a political and a legal point of view it is of great importance that the States imposing and those accepting restrictions upon independence should be clear in their intentions. For the question may arise whether these restrictions make the respective State a dependent one.
Thus through article 4 of the Convention of London of 1884 between Great Britain and the former South African Republic stipulating that the latter should not conclude any treaty with any foreign State, the Orange Free State excepted, without approval on the part of Great Britain, the Republic was so much restricted that Great Britain considered herself justified in defending the opinion that the Republic was not an independent State, although the Republic itself and many writers were of a different opinion.[199]
[Footnote 199: It is of interest to state the fact that, before the last phase of the conflict between Great Britain and the Republic, influential Continental writers stated the suzerainty of Great Britain over the Republic. See Rivier, I. p. 89, and Holtzendorff in Holtzendorff, II. p. 115.]
Thus, to give another example, through article 1 of the Treaty of Havana[200] of May 22, 1903, between the United States of America and Cuba, stipulating that Cuba shall never enter into any such treaty with a foreign Power as will impair, or tend to impair, the independence of Cuba, and shall abstain from other acts, the Republic of Cuba is so much restricted that some writers maintain--wrongly, I believe--that Cuba is under an American protectorate and only a half-Sovereign State.
[Footnote 200: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79. As regards the international position of Cuba, see Whitcomb, "La situation internationale de Cuba" (1905).]
Again, the Republic of Panama is, by the Treaty of Washington[201] of 1904, likewise burdened with some restrictions in favour of the United States, but here, too, it would be wrong to maintain that Panama is under an American protectorate.
[Footnote 201: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 601.]
[Sidenote: Restrictions upon Territorial Supremacy.]
§ 127. Just like independence, territorial supremacy does not give a boundless liberty of action. Thus, by customary International Law every State has a right to demand that its merchantmen can pass through the maritime belt of other States. Thus, further, navigation on so-called international rivers in Europe must be open to merchantmen of all States. Thus, thirdly, foreign monarchs and envoys, foreign men-of-war, and foreign armed forces must be granted exterritoriality. Thus, fourthly, through the right of protection over citizens abroad which is held by every State according to customary International Law, a State cannot treat foreign citizens passing through or residing on its territory arbitrarily according to discretion as it might treat its own subjects; it cannot, for instance, compel them to serve[202] in its army or navy. Thus, to give another and fifth example, a State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighbouring State--for instance, to stop or to divert the flow of a river which runs from its own into neighbouring territory.[203]
[Footnote 202: Great Britain would seem to uphold an exception to this rule, for Lord Reay, one of her delegates, declared--see "Deuxième Conférence Internationale de la Paix, Actes et Documents," vol. III. p. 41--the following at the second Hague Peace Conference of 1907: "Nous reconnaissons qu'en règle générale le neutre est exempt de tout service militaire dans l'Etat où il réside. Cependant dans les colonies britanniques et, dans une certaine mesure, dans tous les pays en voie de formation, la situation est tout autre et la population toute entière, sans distinction de nationalité, peut être appelée sous les armes pour défendre leurs foyers menacés."]
[Footnote 203: See below, § 178 a.]
In contradistinction to these restrictions by the customary Law of Nations, a State can through treaties enter into obligations of many a kind without thereby losing its internal independence and territorial supremacy. Thus France by three consecutive treaties of peace--namely, that of Utrecht of 1713, that of Aix-la-Chapelle of 1748, and that of Paris of 1763--entered into the obligation to pull down and not to rebuild the fortifications of Dunkirk.[204] Napoleon I. imposed by the Peace Treaty of Tilsit of 1807 upon Prussia the restriction not to keep more than 42,000 men under arms. Again, article 29 of the Treaty of Berlin of 1878 imposed upon Montenegro the restriction not to possess a navy.[205] There is hardly a State in existence which is not in one point or another restricted in its territorial supremacy by treaties with foreign Powers.
[Footnote 204: This restriction was abolished by article 17 of the Treaty of Paris of 1783.]
[Footnote 205: It is doubtful whether this restriction is still in force; see below, § 258.]
[Sidenote: Restrictions upon Personal Supremacy.]
§ 128. Personal Supremacy does not give a boundless liberty of action either. Although the citizens of a State remain under its power when abroad, such State is restricted in the exercise of this power with regard to all those matters in which the foreign State on whose territory these citizens reside is competent in consequence of its territorial supremacy. The duty to respect the territorial supremacy of a foreign State must prevent a State from doing all acts which, although they are according to its personal supremacy within its competence, would violate the territorial supremacy of this foreign State. Thus, for instance, a State is prevented from requiring such acts from its citizens abroad as are forbidden to them by the Municipal Law of the land in which they reside.
But a State may also by treaty obligation be for some parts restricted in the liberty of action with regard to its citizens. Thus articles 5, 25, 35, and 44 of the Treaty of Berlin of 1878 restrict the personal supremacy of Bulgaria, Montenegro, Servia, and Roumania in so far as these States are thereby obliged not to impose any religious disabilities on any of their subjects.[206]
[Footnote 206: See above, § 73.]
V
SELF-PRESERVATION
Vattel, II. §§ 49-53--Hall, §§ 8, 83-86--Westlake, I. pp. 296-304--Phillimore, I. §§ 210-220--Twiss, I. §§ 106-112--Halleck, I. pp. 93-113--Taylor, §§ 401-409--Wheaton, §§ 61-62--Moore, II. §§ 215-219--Hartmann, § 15--Heffter, § 30--Holtzendorff in Holtzendorff, II. pp. 51-56--Gareis, § 25--Liszt, § 7--Ullmann, § 38--Bonfils, Nos. 242-252--Despagnet, Nos. 172-175--Mérignhac, I. pp. 239-245--Pradier-Fodéré, I. Nos. 211-286--Rivier, I. § 20--Nys, II. pp. 178-181--Calvo, I. §§ 208-209--Fiore, I. Nos. 452-466--Martens, I. § 73--Westlake, Chapters, pp. 110-125.
[Sidenote: Self-preservation an excuse for violations.]
§ 129. From the earliest time of the existence of the Law of Nations self-preservation was considered sufficient justification for many acts of a State which violate other States. Although, as a rule, all States have mutually to respect one another's Personality and are therefore bound not to violate one another, as an exception, certain violations of another State committed by a State for the purpose of self-preservation are not prohibited by the Law of Nations. Thus, self-preservation is a factor of great importance for the position of the States within the Family of Nations, and most writers maintain that every State has a fundamental right of self-preservation.[207] But nothing of the kind is actually the case, if the real facts of the law are taken into consideration. If every State really had a right of self-preservation, all the States would have the duty to admit, suffer, and endure every violation done to one another in self-preservation. But such duty does not exist. On the contrary, although self-preservation is in certain cases an excuse recognised by International Law, no State is obliged patiently to submit to violations done to it by such other State as acts in self-preservation, but can repulse them. It is a fact that in certain cases violations committed in self-preservation are not prohibited by the Law of Nations. But, nevertheless, they remain violations and can therefore be repulsed. Self-preservation is consequently an excuse, because violations of other States are in certain exceptional cases not prohibited when they are committed for the purpose and in the interest of self-preservation, although they need not patiently be suffered and endured by the States concerned.
[Footnote 207: This right was formerly frequently called droit de convenance, and was said to exist in the right of every State to act in favour of its interests in case of a conflict between its own and the interests of another State. See Heffter, § 26.]
[Sidenote: What acts of self-preservation are excused.]
§ 130. It is frequently maintained that every violation is excused so long as it was caused by the motive of self-preservation, but it becomes more and more recognised that violations of other States in the interest of self-preservation are excused in cases of necessity only. Such acts of violence in the interest of self-preservation are exclusively excused as are necessary in self-defence, because otherwise the acting State would have to suffer or have to continue to suffer a violation against itself. If an imminent violation or the continuation of an already commenced violation can be prevented and redressed otherwise than by a violation of another State on the part of the endangered State, this latter violation is not necessary, and therefore not excused and justified. When, to give an example, a State is informed that on neighbouring territory a body of armed men is being organised for the purpose of a raid into its own territory, and when the danger can be removed through an appeal to the authorities of the neighbouring country, no case of necessity has arisen. But if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading the neighbouring country and disarming the intending raiders.
The reason of the thing, of course, makes it necessary for every State to judge for itself when it considers a case of necessity has arisen, and it is therefore impossible to lay down a hard-and-fast rule regarding the question when a State can or cannot have recourse to self-help which violates another State. Everything depends upon the circumstances and conditions of the special case, and it is therefore of value to give some historical examples.
[Sidenote: Case of the Danish Fleet (1807).]
§ 131. After the Peace of Tilsit of 1807 the British Government[208] was cognisant of the provision of some secret articles of this treaty that France should be at liberty to seize the Danish fleet and to make use of it against Great Britain. This plan, when carried out, would have endangered the position of Great Britain, which was then waging war against France. As Denmark was not capable of defending herself against an attack of the French army in North Germany under Bernadotte and Davoust, who had orders to invade Denmark, the British Government requested Denmark to deliver up her fleet to the custody of Great Britain, and promised to restore it after the war. And at the same time the means of defence against French invasion and a guaranty of her whole possessions were offered to Denmark by England. The latter, however, refused to comply with the British demands, whereupon the British considered a case of necessity in self-preservation had arisen, shelled Copenhagen, and seized the Danish fleet.
[Footnote 208: I follow Hall's (§ 86) summary of the facts.]
[Sidenote: Case of Amelia Island.]
§ 132. "Amelia Island, at the mouth of St. Mary's River, and at that time in Spanish territory, was seized in 1817 by a band of buccaneers, under the direction of an adventurer named McGregor, who in the name of the insurgent colonies of Buenos Ayres and Venezuela preyed indiscriminately on the commerce of Spain and of the United States. The Spanish Government not being able or willing to drive them off, and the nuisance being one which required immediate action, President Monroe called his Cabinet together in October 1817, and directed that a vessel of war should proceed to the island and expel the marauders, destroying their works and vessels."[209]
[Footnote 209: See Wharton, § 50 a, and Moore, II. § 216.]
[Sidenote: Case of the Caroline.]
§ 133. In 1837, during the Canadian rebellion, several hundreds of insurgents got hold of an island in the river Niagara, on the territory of the United States, and with the help of American subjects equipped a boat called the Caroline, with the purpose of crossing into Canadian territory and bringing material help to the insurgents. The Canadian Government, timely informed of the imminent danger, sent a British force over into the American territory, which obtained possession of the Caroline, seized her arms, and then sent her adrift down the falls of the Niagara. The United States complained of this British violation of her territorial supremacy, but Great Britain was in a position to prove that her act was necessary in self-preservation, since there was not sufficient time to prevent the imminent invasion of her territory through application to the United States Government.[210]
[Footnote 210: See Wharton, I. § 50 c, Moore, II. § 217, and Hall, § 84. With the case of the Caroline is connected the case of Macleod, which will be discussed below, § 446. Hall (§ 86), Martens (I. § 73), and others quote also the case of the Virginius (1873) as an example of necessity of self-preservation, but it seems that the Spanish Government did not plead self-preservation but piracy as justification of the capture of the vessel (see Moore, II. § 309, pp. 895-903). That a vessel sailing under another State's flag can nevertheless be seized on the high seas in case she is sailing to a port of the capturing State for the purpose of an invasion or bringing material help to insurgents, there is no doubt. No better case of necessity of self-preservation could be given, since the danger is imminent and can be frustrated only by capture of the vessel.]
VI
INTERVENTION
Vattel, II. §§ 54-62--Hall, §§ 88-95--Westlake, I. pp. 304-308--Lawrence, §§ 62-70--Phillimore, I. §§ 390-415A--Halleck, I. pp. 94-109--Taylor, §§ 410-430--Walker, § 7--Wharton, I. §§ 45-72--Moore, VI. §§ 897-926--Wheaton, §§ 63-71--Bluntschli, §§ 474-480--Hartmann, § 17--Heffter, §§ 44-46--Geffcken in Holtzendorff, II. pp. 131-168--Gareis, § 26--Liszt, § 7--Ullmann, §§ 163-164--Bonfils, Nos. 295-323--Despagnet, Nos. 193-216--Mérignhac, I. pp. 284-310--Pradier-Fodéré, I. Nos. 354-441--Rivier, I. § 31--Nys, II. pp. 185-193, 200-205--Calvo, I. §§ 110-206--Fiore, I. Nos. 561-608, and Code, Nos. 543-557--Martens, I. § 76--Bernard, "On the Principle of non-Intervention" (1860)--Hautefeuille, "Le principe de non-intervention" (1863)--Stapleton, "Intervention and Non-intervention, or the Foreign Policy of Great Britain from 1790 to 1865" (1866)--Geffcken, "Das Recht der Intervention" (1887)--Kebedgy, "De l'intervention" (1890)--Floecker, "De l'intervention en droit international" (1896)--Drago, "Cobro coercitivo de deudas publicas" (1906)--Moulin, "La doctrine de Drago" (1908).
[Sidenote: Conception and character of Intervention.]
§ 134. Intervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things. Such intervention can take place by right or without a right, but it always concerns the external independence or the territorial or personal supremacy of the respective State, and the whole matter is therefore of great importance for the position of the States within the Family of Nations. That intervention is, as a rule, forbidden by the Law of Nations which protects the International Personality of the States, there is no doubt. On the other hand, there is just as little doubt[211] that this rule has exceptions, for there are interventions which take place by right, and there are others which, although they do not take place by right, are nevertheless admitted by the Law of Nations and are excused in spite of the violation of the Personality of the respective States they involve.
[Footnote 211: The so-called doctrine of non-intervention as defended by some Italian writers (see Fiore, I. No. 565), who deny that intervention is ever justifiable, is a political doctrine without any legal basis whatever.]
Intervention can take place in the external as well as in the internal affairs of a State. It concerns in the first case the external independence, and in the second either the territorial or the personal supremacy. But it must be emphasised that intervention proper is always dictatorial interference, not interference pure and simple.[212] Therefore intervention must neither be confounded with good offices, nor with mediation, nor with intercession, nor with co-operation, because none of these imply a dictatorial interference. Good offices is the name for such acts of friendly Powers interfering in a conflict between two other States as tend to call negotiations into existence for the peaceable settlement of the conflict, and mediation is the name for the direct conduct on the part of a friendly Power of such negotiations.[213] Intercession is the name for the interference consisting in friendly advice given or friendly offers made with regard to the domestic affairs of another State. And, lastly, co-operation is the appellation of such interference as consists in help and assistance lent by one State to another at the latter's request for the purpose of suppressing an internal revolution. Thus, for example, Russia sent troops in 1849, at the request of Austria, into Hungary to assist Austria in suppressing the Hungarian revolt.
[Footnote 212: Many writers constantly commit this confusion.]
[Footnote 213: See below, vol. II. § 9.]
[Sidenote: Intervention by Right.]
§ 135. It is apparent that such interventions as take place by right must be distinguished from others. Wherever there is no right of intervention, although it may be admissible and excused, an intervention violates either the external independence or the territorial or the personal supremacy. But if an intervention takes place by right, it never contains such a violation, because the right of intervention is always based on a legal restriction upon the independence or territorial or personal supremacy of the State concerned, and because the latter is in duty bound to submit to the intervention. Now a State may have a right of intervention against another State, mainly for six reasons:[214]
[Footnote 214: The enumeration is not intended to be exhaustive.]
(1) A Suzerain State has a right to intervene in many affairs of the Vassal, and a State which holds a protectorate has a right to intervene in all the external affairs of the protected State.
(2) If an external affair of a State is at the same time by right an affair of another State, the latter has a right to intervene in case the former deals with that affair unilaterally. The events of 1878 provide an illustrative example. Russia had concluded the preliminary Peace of San Stefano with defeated Turkey; Great Britain protested because the conditions of this peace were inconsistent with the Treaty of Paris of 1856 and the Convention of London of 1871, and Russia agreed to the meeting of the Congress of Berlin for the purpose of arranging matters. Had Russia persisted in carrying out the preliminary peace, Great Britain as well as other signatory Powers of the Treaty of Paris and the Convention of London doubtless possessed a right of intervention.
(3) If a State which is restricted by an international treaty in its external independence or its territorial or personal supremacy does not comply with the restrictions concerned, the other party or parties have a right to intervene. Thus the United States of America, in 1906, exercised intervention in Cuba in conformity with article 3 of the Treaty of Havana[215] of 1903, which stipulates: "The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a Government adequate for the protection of life, property, and individual liberty...." And likewise the United States of America, in 1904, exercised intervention in Panama in conformity with article 7 of the Treaty of Washington[216] in 1903, which stipulates: "The same right and authority are granted to the United States for the maintenance of public order in the cities of Panama and Colon and the territories and harbours adjacent thereto in case the Republic of Panama should not be, in the judgment of the United States, able to maintain such order."
[Footnote 215: See Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 79.--Even if no special right of intervention is stipulated, it nevertheless exists in such cases. Thus--see below, § 574--those Powers which have guaranteed the integrity of Norway under the condition that she does not cede any part of her territory to any foreign Power would have a right to intervene in case such a cession were contemplated, although the treaty concerned does not stipulate this.]
[Footnote 216: See Martens, N.R.G. 2nd Ser. XXXI. (1905), p. 599.]
(4) If a State in time of peace or war violates such rules of the Law of Nations as are universally recognised by custom or are laid down in law-making treaties, other States have a right to intervene and to make the delinquent submit to the rules concerned. If, for instance, a State undertook to extend its jurisdiction over the merchantmen of another State on the high seas, not only would this be an affair between the two States concerned, but all other States would have a right to intervene because the freedom of the open sea is a universally recognised principle. Or if a State which is a party to the Hague Regulations concerning Land Warfare were to violate one of these Regulations, all the other signatory Powers would have a right to intervene.
(5) A State that has guaranteed by treaty the form of government of a State or the reign of a certain dynasty over the same has a right[217] to intervene in case of change of form of government or of dynasty, provided the respective treaty of guaranty was concluded between the respective States and not between their monarchs personally.
[Footnote 217: But this is not generally recognised; see, for instance, Hall, § 93, who denies the existence of such a right. I do not see the reason why a State should not be able to undertake the obligation to retain a certain form of government or dynasty. That historical events can justify such State in considering itself no longer bound by such treaty according to the principle rebus sic stantibus (see below, § 539) is another matter.]
(6) The right of protection[218] over citizens abroad, which a State holds, may cause an intervention by right to which the other party is legally bound to submit. And it matters not whether protection of the life, security, honour, or property of a citizen abroad is concerned.
[Footnote 218: See below, § 319.]
The so-called Drago[219] doctrine, which asserts the rule that intervention is not allowed for the purpose of making a State pay its public debts, is unfounded, and has not received general recognition, although Argentina and some other South American States tried to establish this rule at the second Hague Peace Conference of 1907. But this Conference adopted, on the initiative of the United States of America, a "Convention[220] respecting the Limitation of the Employment of Force for the Recovery of Contract Debts." According to article 1 of this Convention, the contracting Powers agree not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. This undertaking is, however, not applicable when the debtor State refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, renders the settlement of the compromis impossible, or, after the arbitration, fails to submit to the award.--It must be emphasised that the stipulations of this Convention concern the recovery of all contract debts, whether or no they arise from public loans.
[Footnote 219: The Drago doctrine originates from Louis M. Drago, sometime Foreign Secretary of the Republic of Argentina. See Drago, "Cobro coercitivo de deudas publicas" (1906); Barclay, "Problems of International Practice, &c." (1907), pp. 115-122; Moulin, "La Doctrine de Drago" (1908); Higgins, "The Hague Peace Conferences, &c." (1909), pp. 184-197; Scott, "The Hague Peace Conferences" (1909), vol. I. pp. 415-422; Calvo in R.I. 2nd Ser. V. (1903), pp. 597-623; Drago in R.G. XIV. (1907), pp. 251-287; Moulin in R.G. XIV. (1907), pp. 417-472; Hershey in A.J. I. (1907), pp. 26-45; Drago in A.J. I. (1907), pp. 692-726.]
[Footnote 220: See Scott in A.J. II. (1908), pp. 78-94.]
[Sidenote: Admissibility of Intervention in default of Right.]
§ 136. In contradistinction to intervention by right, there are other interventions which must be considered admissible, although they violate the independence or the territorial or personal supremacy of the State concerned, and although such State has by no means any legal duty to submit patiently and suffer the intervention. Of such interventions in default of right there are two kinds generally admitted and excused--namely, such as are necessary in self-preservation and such as are necessary in the interest of the balance of power.
(1) As regards interventions for the purpose of self-preservation, it is obvious that, if any necessary violation committed in self-preservation of the International Personality of other States is, as shown above (§ 130), excused, such violation must also be excused as is contained in an intervention. And it matters not whether such an intervention exercised in self-preservation is provoked by an actual or imminent intervention on the part of a third State, or by some other incident.
(2) As regards intervention in the interest of the balance of power, it is likewise obvious that it must be excused. An equilibrium between the members of the Family of Nations is an indispensable[221] condition of the very existence of International Law. If the States could not keep one another in check, all Law of Nations would soon disappear, as, naturally, an over-powerful State would tend to act according to discretion instead of according to law. Since the Westphalian Peace of 1648 the principle of balance of power has played a preponderant part in the history of Europe. It found express recognition in 1713 in the Treaty of Peace of Utrecht, it was the guiding star at the Vienna Congress in 1815 when the map of Europe was rearranged, at the Congress of Paris in 1856, the Conference of London in 1867, and the Congress of Berlin in 1878. The States themselves and the majority of writers agree upon the admissibility of intervention in the interest of balance of power. Most of the interventions exercised in the interest of the preservation of the Turkish Empire must, in so far as they are not based on treaty rights, be classified as interventions in the interest of balance of power. Examples of this are supplied by collective interventions exercised by the Powers in 1886 for the purpose of preventing the outbreak of war between Greece and Turkey, and in 1897 during the war between Greece and Turkey with regard to the island of Crete.
[Footnote 221: A survey of the opinions concerning the value of the principle of balance of power is given by Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 40-50, but Bulmerincq himself rejects the principle. See also Donnadieu, "Essai sur la théorie de l'équilibre" (1900) where the matter is exhaustively treated, and Dupuis, "Le principe d'équilibre et le concert européen" (1909), pp. 90-108, and 494-513. It is necessary to emphasise that the principle of the balance of power is not a legal principle and therefore not one of International Law, but one of International policy; it is a political principle indispensable to the existence of International Law in its present condition.]
[Sidenote: Intervention in the interest of Humanity.]
§ 137. Many jurists maintain that intervention is likewise admissible, or even has a basis of right, when exercised in the interest of humanity for the purpose of stopping religious persecution and endless cruelties in time of peace and war. That the Powers have in the past exercised intervention on these grounds, there is no doubt. Thus Great Britain, France, and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey, because public opinion was horrified at the cruelties committed during this struggle. And many a time interventions have taken place to stop the persecution of Christians in Turkey. But whether there is really a rule of the Law of Nations which admits such interventions may well be doubted. Yet, on the other hand, it cannot be denied that public opinion and the attitude of the Powers are in favour of such interventions, and it may perhaps be said that in time the Law of Nations will recognise the rule that interventions in the interests of humanity are admissible provided they are exercised in the form of a collective intervention of the Powers.[222]
[Footnote 222: See Hall, §§ 91 and 95, where the merits of the problem are discussed from all sides. See also below, § 292, and Rougier in R.G. XVII. (1910), pp. 468-526.]
[Sidenote: Intervention de facto a Matter of Policy.]
§ 138. Careful analysis of the rules of the Law of Nations regarding intervention and the hitherto exercised practice of intervention make it apparent that intervention is de facto a matter of policy just like war. This is the result of the combination of several factors. Since, even in the cases in which it is based on a right, intervention is not compulsory, but is solely in the discretion of the State concerned, it is for that reason alone a matter of policy. Since, secondly, every State must decide for itself whether vital interests of its own are at stake and whether a case of necessity in the interest of self-preservation has arisen, intervention is for this part again a matter of policy. Since, thirdly, the question of balance of power is so complicated and the historical development of the States involves gradually an alteration of the division of power between the States, it must likewise be left to the appreciation of every State whether or not it considers the balance of power endangered and, therefore, an intervention necessary. And who can undertake to lay down a hard-and-fast rule with regard to the amount of inhumanity on the part of a Government that would justify intervention according to the Law of Nations?
No State will ever intervene in the affairs of another if it has not some important interest in doing so, and it has always been easy for such State to find or pretend some legal justification for an intervention, be it self-preservation, balance of power, or humanity. There is no great danger to the welfare of the States in the fact that intervention is de facto a matter of policy. Too many interests are common to all the members of the Family of Nations, and too great is the natural jealousy between the Great Powers, for an abuse of intervention on the part of one powerful State without calling other States into the field. Since unjustified intervention violates the very principles of the Law of Nations, and since, as I have stated above (§ 135), in case of a violation of these principles on the part of a State every other State has a right to intervene, any unjustifiable intervention by one State in the affairs of another gives a right of intervention to all other States. Thus it becomes apparent here, as elsewhere, that the Law of Nations is intimately connected with the interests of all the States, and that they must themselves secure the maintenance and realisation of this law. This condition of things tends naturally to hamper more the ambitions of weaker States than those of the several Great Powers, but it seems unalterable.
[Sidenote: The Monroe Doctrine.]
§ 139. The de facto political character of the whole matter of intervention becomes clearly apparent through the so-called Monroe doctrine[223] of the United States of America. This doctrine, at its first appearance, was indirectly a product of the policy of intervention in the interest of legitimacy which the Holy Alliance pursued in the beginning of the nineteenth century after the downfall of Napoleon. The Powers of this alliance were inclined to extend their policy of intervention to America and to assist Spain in regaining her hold over the former Spanish colonies in South America which had declared and maintained their independence, and which were recognised as independent Sovereign States by the United States of America. To meet and to check the imminent danger, President James Monroe delivered his celebrated Message to Congress on December 2, 1823. This Message contains two quite different, but nevertheless equally important, declarations.
[Footnote 223: Wharton, § 57; Dana's Note No. 36 to Wharton, p. 36; Tucker, "The Monroe Doctrine" (1885); Moore, "The Monroe Doctrine" (1895), and Digest, VI. §§ 927-968; Cespedès, "La doctrine de Monroe" (1893); Mérignhac, "La doctrine de Monroe à la fin du XIXe siècle" (1896); Beaumarchais, "La doctrine de Monroe" (1898); Redaway, "The Monroe Doctrine" (1898); Pékin, "Les États-Unis et la doctrine de Monroe" (1900).]
(1) In connection with the unsettled boundary lines in the north-west of the American continent, the Message declared "that the American continents, by the free and independent condition which they have assumed and maintained, are henceforth not to be considered as subjects for future colonisation by any European Power." This declaration was never recognised by the European Powers, and Great Britain and Russia protested expressly against it. In fact, however, no occupation of American territory has since then taken place on the part of a European State.
(2) In regard to the contemplated intervention of the Holy Alliance between Spain and the South American States, the Message declared that the United States had not intervened, and never would intervene, in wars in Europe, but could not, on the other hand, in the interest of her own peace and happiness, allow the allied European Powers to extend their political system to any part of America and try to intervene in the independence of the South American republics.
(3) Since the time of President Monroe, the Monroe doctrine has been gradually somewhat extended in so far as the United States claims a kind of political hegemony over all the States of the American continent. Whenever a conflict occurs between such an American State and a European Power, the United States is ready to exercise intervention. Through the civil war her hands were to a certain extent bound in the sixties of the last century, and she could not prevent the occupation of Mexico by the French army, but she intervened[224] in 1865. Again, she did not intervene in 1902 when Great Britain, Germany, and Italy took combined action against Venezuela, because she was cognisant of the fact that this action intended merely to make Venezuela comply with her international duties. But she intervened in 1896 in the boundary conflict between Great Britain and Venezuela when Lord Salisbury had sent an ultimatum to Venezuela, and she retains the Monroe doctrine as a matter of principle.
[Footnote 224: See Moore, VI. § 957.]
[Sidenote: Merits of the Monroe Doctrine.]
§ 140. The importance of the Monroe doctrine is of a political, not of a legal character. Since the Law of Nations is a law between all the civilised States as equal members of the Family of Nations, the States of the American continent are subjects of the same international rights and duties as the European States. The European States are, as far as the Law of Nations is concerned, absolutely free to acquire territory in America as elsewhere. And the same legal rules are valid concerning intervention on the part of European Powers both in American 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 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 very States, and eventually 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 hampers indeed the South American States, 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.
VII
INTERCOURSE
Grotius, II. c. 2, § 13--Vattel, II. §§ 21-26--Hall, § 13--Taylor, § 160--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. 256-257--Pradier-Fodéré, I. No. 184--Rivier, I. pp. 262-264--Nys, II. pp. 221-228--Calvo, III. §§ 1303-1305--Fiore, I. No. 370--Martens, I. § 79.
[Sidenote: Intercourse a presupposition of International Personality.]
§ 141. Many adherents of the doctrine of fundamental rights include therein also a right of intercourse of every State with all others. This right of intercourse is said to contain a right of diplomatic, commercial, postal, telegraphic intercourse, of intercourse by railway, a right of 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 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[225] aliens to travel and to reside on their territory, they can expel every foreign subject according to discretion.
[Footnote 225: That an alien has no right to demand to be admitted to British territory was decided in the case of Musgrove v. Chun Teeong Toy, L.R. (1891), App. Cas. 272.]
[Sidenote: Consequences of Intercourse as a Presupposition of International Personality.]
§ 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,[226] which every full-Sovereign State undoubtedly holds, is held in the interest of intercourse, as is certainly the right of protection over citizens abroad[227] which every State possesses. The freedom of the Open Sea,[228] which has been universally recognised since the end of the first quarter of the nineteenth century, the right of every State to the passage of its merchantmen through the maritime belt[229] of all other States, and, further, freedom of navigation for the merchantmen of all nations on so-called international rivers,[230] are further examples of provisions of the Law of Nations in the interest of international intercourse.
[Footnote 226: See below, § 360.]
[Footnote 227: 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 a right in the interest of intercourse.]
[Footnote 228: See below, § 259.]
[Footnote 229: See below, § 188.]
[Footnote 230: See below, § 178.]
The question is frequently discussed and answered in the affirmative 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. 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. 236-271--Lawrence, §§ 93-109--Phillimore, I. §§ 317-356--Twiss, I. §§ 157-171--Halleck, I. pp. 186-245--Taylor, §§ 169-171--Wheaton, §§ 77-151--Moore, II. §§ 175-249--Bluntschli, §§ 388-393--Heffter, §§ 34-39--Bonfils, Nos. 263-266--Rivier, I. § 28--Nys, II. pp. 257-263--Fiore, I. Nos. 475-588.
[Sidenote: Jurisdiction important for the position of the States within the Family of Nations.]
§ 143. Jurisdiction is for several reasons a matter of importance as regards the position of the States within the Family of Nations. States possessing independence and territorial as well as personal supremacy can naturally extend or restrict their jurisdiction as far as they like. However, as members of the Family of Nations and International Persons, the States must exercise self-restraint in the exercise of this natural power in the interest of one another. Since intercourse of all kinds takes place between the States and their subjects, 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, leaving them to each other's jurisdiction.
[Sidenote: Restrictions upon Territorial Jurisdiction.]
§ 144. As all persons and things within the territory of a State fall under its territorial supremacy, every 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,[231] its diplomatic envoys,[232] its men-of-war,[233] and its armed forces[234] abroad. And partly by custom and partly by treaty obligations, Eastern non-Christian States, Japan now excepted, are restricted[235] in their territorial jurisdiction with regard to foreign resident subjects of Christian Powers.
[Footnote 231: 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.]
[Footnote 232: Details below, §§ 385-405.]
[Footnote 233: Details below, §§ 450-451.]
[Footnote 234: Details below, § 445.]
[Footnote 235: Details below, §§ 318 and 440.]
[Sidenote: Jurisdiction over Citizens abroad.]
§ 145. The Law of Nations does not prevent a State 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[236] 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 over its subjects abroad, it may and does happen that aliens are actually for some matters under no State's jurisdiction.
[Footnote 236: See below, § 317.]
[Sidenote: Jurisdiction on the Open Sea.]
§ 146. As the Open Sea is not under the sway of any State, no State can exercise its jurisdiction there. But it is a rule of the Law of Nations that the vessels and the things and persons thereon remain during the time they are on the Open Sea under the jurisdiction of the State under whose flag they sail.[237] It is another rule of the Law of Nations that piracy[238] on the Open Sea can be punished by any State, whether or no the pirate sails under the flag of a State. Further,[239] a general practice seems to admit the claim of every maritime State to exercise jurisdiction over cases of collision at sea, whether the vessels concerned are or are not sailing under its flag. Again, in the interest of the safety of the Open Sea, every State has the right to order its men-of-war to ask any suspicious merchantman they meet on the Open Sea to show the flag, to arrest foreign merchantmen sailing under its flag without an authorisation for its use, and to pursue into the Open Sea and to arrest there such foreign merchantmen as have committed a violation of its law whilst in its ports or maritime belt.[240] Lastly, in time of war belligerent States have the right to order their men-of-war to visit, search, and eventually capture on the Open Sea all neutral vessels for carrying contraband, breach of blockade, or unneutral services to the enemy.
[Footnote 237: See below, § 260.]
[Footnote 238: See below, § 278.]
[Footnote 239: See below, § 265.]
[Footnote 240: See below, §§ 265-266.]
[Sidenote: Criminal Jurisdiction over Foreigners in Foreign States.]
§ 147. Many States claim jurisdiction and threaten punishment for certain acts committed by a foreigner in foreign countries.[241] States which claim jurisdiction of this kind threaten punishment for certain acts either against the State itself, such as high treason, forging bank-notes, and the like, or against its citizens, such as murder or arson, libel and slander, and the like. These States cannot, of course, exercise this jurisdiction as long as the foreigner concerned remains outside their territory. But if, after the committal of such act, he enters their territory and comes thereby under their territorial supremacy, they have an opportunity of inflicting punishment. The question is, therefore, whether States have a right to jurisdiction over acts of foreigners committed in foreign countries, and whether the home State of such an alien has a duty to acquiesce in the latter's punishment in case he comes into the power of these States. The question must be answered in the negative. For at the time such criminal acts are committed the perpetrators are neither under the territorial nor under the personal supremacy of the States concerned. And a State can only require respect for its laws from such aliens as are permanently or transiently within its territory. No right for a State to extend its jurisdiction over acts of foreigners committed in foreign countries can be said to have grown up according to the Law of Nations, and the right of protection over citizens abroad held by every State would justify it in an intervention in case one of its citizens abroad should be required to stand his trial before the Courts of another State for criminal acts which he did not commit during the time he was under the territorial supremacy of such State.[242] In the only[243] case which is reported--namely, in the case of Cutting--an intervention took place according to this view. In 1886, one A. K. Cutting, a subject of the United States, was arrested in Mexico for an alleged libel against one Emigdio Medina, a subject of Mexico, which was published in the newspaper of El Paso in Texas. Mexico maintained that she had a right to punish Cutting, because according to her Criminal Law offences committed by foreigners abroad against Mexican subjects are punishable in Mexico. The United States, however, intervened,[244] and demanded Cutting's release. Mexico refused to comply with this demand, but nevertheless Cutting was finally released, as the plaintiff withdrew his action for libel. Since Mexico likewise refused to comply with the demand of the United States to alter her Criminal Law for the purpose of avoiding in the future a similar incident, diplomatic practice has not at all settled the subject.
[Footnote 241: See Hall, § 62; Westlake, I. pp. 251-253; Lawrence, § 104; Taylor, § 191; Moore, II. §§ 200 and 201; Phillimore, I. § 334.]
[Footnote 242: The Institute of International Law has studied the question at several meetings and in 1883, at its meeting at Munich (see Annuaire, VII. p. 156), among a body of fifteen articles concerning the conflict of the Criminal Laws of different States, adopted the following (article 8):--"Every State has a right to punish acts committed by foreigners outside its territory and violating its penal laws when those acts contain an attack upon its social existence or endanger its security and when they are not provided against by the Criminal Law of the territory where they take place." But it must be emphasised that this resolution has value de lege ferenda only.]
[Footnote 243: The case of Cirilo Pouble--see Moore, II. § 200, pp. 227-228--concerning which the United States at first were inclined to intervene, proved to be a case of a crime committed within Spanish jurisdiction. The case of John Anderson--see Moore, I. § 174, p. 933--is likewise not relevant, as he claimed to be a British subject.]
[Footnote 244: See Westlake, I. p. 252; Taylor, § 192; Calvo, VI. §§ 171-173; Moore, II. § 201, and "Report on Extraterritorial Crime and the Cutting Case" (1887); Rolin in R.I. XX. (1888), pp. 559-577. The case is fully discussed and the American claim is disputed by Mendelssohn Bartholdy, "Das räumliche Herrschaftsgebiet des Strafgesetzes" (1908), pp. 135-143.]