International Law Part 3

-- 16. Treaties and State Papers

Treaties and state papers of whatever form[49] indicate the state of opinion, at a given time, in regard to the matters of which they speak.

Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. The principles may be so well established by successive treaties as to need no further treaty specification.

Treaties and state papers vary greatly in value as sources of international law, however.

(_a_) Treaties and state papers may lay down new rules or outline the operation of old rules. As instances of those laying down new rules may be taken the Clayton-Bulwer Treaty of April 19, 1850, the convention for the protection of Submarine Cables, March 14, 1884, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances, the most numerous in the treaties in regard to maritime affairs and consuls.

(_b_) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Declaration of the Conference of London, Jan. 17, 1871, to which the major European states were parties, announces that the signatory powers "recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement."[50]

(_c_) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856, agreed as to certain principles and rules of maritime international law, which should be held as binding the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Declaration, and during the same year Spain acquiesced in its principles.

(_d_) Most treaties and state papers, however, deal with matters of interstate politics, and are not in any sense sources of international law. They are in most cases little more than interstate compacts.

-- 17. Text Writers

During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of nations, deduced the principles for such cases as might arise.

This latter method was especially common among the early writers, such as Victoria and Suarez in the sixteenth century. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authoritative sources. The prolific Moser, in the middle of the eighteenth century, made the historical method more prominent by giving less attention to the natural law, and by founding his system on usage and treaties. Bynkershoek (1673-1763) had antic.i.p.ated him in this method in special lines, but Moser extended the system and made it most ample.

Succeeding writers mingled the two systems, inclining to the one or the other. In the early days of the modern period, the writers upon the law of nations, outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and principles which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value.

-- 18. Diplomatic Papers

The diplomatic papers, as distinct from the state papers to which more than one state becomes a party, are simply papers issued by a state for the guidance of its own representatives in international intercourse.

The papers are sometimes named state papers or included among the papers to which other states are parties,--in the United States, in the series known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations"

since 1870; and in Great Britain in the "British and Foreign State Papers."

These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of information upon the att.i.tude of states toward questions still formally unsettled. The simple expression to state agents in the way of instructions or information as to the position of the state on a given matter may, if continued and long accepted, give to the principle involved the force of international sanction. This was almost the case in the so-called Monroe Doctrine. In these papers may often be found an indication of the line which the principles of international law will subsequently follow and a general consensus by several states in diplomatic instructions may be considered strong evidence of what the law is on a given point.

PART II

PERSONS IN INTERNATIONAL LAW

CHAPTER V

STATES

19. +Definition.+ (_a_) Political.

(_b_) Sovereign.

20. +Nature.+ (_a_) Moral.

(_b_) Physical.

(_c_) Communal.

(_d_) External conditions.

21. +Recognition of New States.+ (_a_) _De facto_ existence.

(_b_) Circ.u.mstances of recognition.

(1) By division.

(2) By union.

(3) By admission of old states.

(4) By admission of former barbarous communities.

(5) Individual and collective recognition.

(_c_) Act of recognition.

(_d_) Premature recognition.

(_e_) Conditions.

(_f_) Recognition irrevocable.

(_g_) Consequences.

(1) The recognizing state.

(2) The recognized state.

(3) The parent state.

(4) Other states.

-- 19. Definition

A State is a sovereign political unity. It is of the relations of states that public international law mainly treats. From the nature of its subject-matter it is a juridical, historical, and philosophical science.[51] These sovereign political unities may vary greatly. The unity however

(_a_) Must be =political=, _i.e._ organized for public ends as understood in the family of nations and not for private ends as in the case of a commercial company, a band of pirates, or a religious organization.

(_b_) Must possess =sovereignty=, _i.e._ supreme political power beyond and above which there is no political power. It is not inconsistent with sovereignty, that a state should voluntarily take upon itself obligations to other states, even though the obligations be a.s.sumed under stress of war, or fear of evil.

-- 20. Nature

From the nature of the state as a sovereign political unity it must be self-sufficient, and certain conditions are therefore generally recognized as necessary for its existence from the standpoint of international law.[52]

(_a_) =Moral.= In order that a state may be regarded as within the "family of nations," and within the pale of international Law, it must recognize the rights of other states and acquiesce in its obligations toward them. This is considered a moral condition of state existence.

(_b_) =Physical.= A state must also possess those physical resources which enable it to exist as territory, etc.

(_c_) =Communal.= A state must possess a body of men so related as to warrant the belief in the continued existence of the unity. Each state may be its own judge as to the time when these relations are established in a given body of men, and the recognition of a new state is fitting.

That such conditions are recognized as prerequisites of state existence from the point of view of international law is not due to the essential nature of the state, but rather to the course of development of international law; as Hall says, "The degree to which the doctrines of international law are based upon the possession of land must in the main be attributed to the a.s.sociation of rights of sovereignty or supreme control over human beings with that of territorial property in the minds of jurists at the period when the foundations of international law were being laid."[53]

(_d_) =External Conditions.= The external relationship of the state rather than the internal nature is the subject of consideration in international law. For local law a community may enter upon state existence long before this existence is recognized by other nations, as in the case of Switzerland before 1648. Until recognition by other states of its existence becomes general, a new state cannot acquire full status in international law; and this recognition is conditioned by the policy of the recognizing states.

-- 21. Recognition of New States

(_a_) =State existence de facto= is not a question of international law but depends upon the existence of a sovereign political unity with the attributes which necessarily appertain to it. This _de facto_ existence is not dependent upon the will of any other state or states.[54] The entrance of the state into the international statehood, however, depends entirely upon the recognition by those states already within this circle. Whatever advantages membership in this circle may confer, and whatever duties it may impose, do not fall upon the new state until its existence is generally recognized by the states already within the international circle. These advantages and duties, as between the recognizing and recognized state, immediately follow recognition but do not necessarily extend to other states than those actually party to the recognition. The basis of this family of nations or international circle which admits other states to membership is historical, resting on the polity of the older European states. These states, through the relations into which they were brought by reason of proximity and intercourse, developed among themselves a system of action in their mutual dealings; and international law in its beginning proposed to set forth what this system was and should be.[55] This family of states could not permit new accessions to its membership unless these new states were properly const.i.tuted to a.s.sume the mutual relationships, and as to the proper qualifications for admission in each case, the states already within the family claim and exercise the right to judge.

(_b_) =The circ.u.mstances of recognition vary.=