International Law Part 4

(1) The most numerous instances are in consequence of _division_ which involves the recognition of the existence of more than one state within the limits which had formerly been under a single jurisdiction. This may be preceded by recognition of the belligerency of a revolted community within the jurisdiction of an existing state, or may be preceded by division of an existing state into two or more states.[56] In the first case recognition is a question of national policy, in the second case recognition is usually readily accorded.

(2) In modern times a new state has frequently been formed by the _union_ of two or more existing states.[57] The recognition in such a case usually follows immediately.

(3) A state _after existence for a period of years_ may be formally admitted into the family of states. j.a.pan, for centuries a _de facto_ state, was only recently fully admitted to international statehood.[58]

Turkey, so long the dread of Europe, was formally received by the Treaty of Paris, 1856.

(4) New states may be formed in _territory hitherto outside_ any _de facto_ state jurisdiction, or within regions _hitherto considered savage_. The examples of this cla.s.s are mainly Africans, as in the creation of the Congo Free State under the International a.s.sociation of the Congo. The United States recognized the Congo Free State by acknowledging its flag, April 22, 1884. Liberia, originally established by the American colonization Society in 1821, as a refuge for negroes from America since 1847, has been recognized as an independent republic.

(5) From another point of view _recognition may be individual or collective_. Recognition is individual when a state, independently of any other, acknowledges the international statehood of a new state. This was the method of recognition of the United States. Collective recognition is by the concerted action of several states at the same time. This has taken place most often in the admission of minor states to the European family of states, as in the cases of Greece by the powers at the Conference of London, 1880; Belgium, 1831; Montenegro, Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free State was acknowledged by the International Congo Conference at Berlin, 1885.

(_c_) =The act const.i.tuting recognition= of a new state may be formal, as by a declaration, proclamation, treaty, sending and receiving amba.s.sadors, salute of flag, etc., or informal, by implication through the grant of an _exequatur_ to a consul from the new state, or other act which indicates an acknowledgment of international rights and obligations.[59] It should be observed, however, that the appointment by, or reception within, an existing state of agents to carry on necessary intercourse between the existing state, and the aspirant for recognition does not const.i.tute recognition. It may be essential to have relations with a community the statehood of which is not established, because of commercial and other matters pertaining to the rights of the citizens of the existing state whose interests, or who in person may be within the jurisdiction of the unrecognized community.[60] The definite act of recognition is, however, in accord with the decision of the internal authority to which this function is by state law ascribed. As foreign states usually take cognizance of the acts of the executive department only, it is the common custom to consider recognition as an executive function, or as a function residing in the head of the state.

In the United States, the President is for foreign affairs the head of the state, and has the authority to recognize new states in any manner other than by those acts, which by the Const.i.tution require the advice and consent of the Senate, as in the conclusion of treaties, and appointment of amba.s.sadors, other public ministers, and consuls.

President Grant, in his second annual message, Dec 5, 1870, said, "As soon as I learned that a republic had been proclaimed at Paris, and that the people of France had acquiesced in the change, the minister of the United States was directed by telegraph to recognize it, and to tender my congratulations and those of the people of the United States."[61] As President Jackson had in his message in December, 1831, and in the official correspondence with Buenos Ayres denied that country's jurisdiction over the Falkland Islands, Justice McLean said, in rendering his opinion in Williams _v._ Suffolk Insurance Company, "And can there be any doubt that when the executive branch of the government which is charged with our foreign relations, shall, in its correspondence with foreign nations, a.s.sume a fact in regard to sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his const.i.tutional functions he has decided the question."[62] "The President is the executive department."[63]

(_d_) Recognition may be =premature= and the recognized community may not be able to maintain its place in the international circle, or in case of a struggle with another state may be defeated. The recognizing state must a.s.sume in such case whatever consequences may come from its misjudgment, and the parent state may justly question the right of the recognizing state in its action, _e.g._ the recognition by France of the United States in 1778 could justly be regarded by England as premature and as a hostile act.

(_e_) The recognition of a new state is the recognition of the existence of certain political =conditions=. This recognition of the state carries with it the acknowledgment of sovereignty, independence, equality, etc.

It is an essential condition to just recognition that the new aspirant possess these qualifications absolutely or potentially to a reasonable extent.

(_f_) From its nature, =recognition is irrevocable= and absolute, unless distinctly conditional. Even when conditional, if the recognition is prior to the fulfillment of the condition by the recognized state, the recognition cannot be withdrawn because of non-fulfillment of the condition, but the recognizing state may resort to any other means which would be admitted in international law as justifiable against any other state failing to fulfill its obligations, _e.g._ suspension of diplomatic relations, retorsion, reprisals, or even war.[64] In the case of Belgium, the definition of its boundaries and establishing of permanent neutralization was an act subsequent to the recognition of its international statehood, and in case of violation of the treaty stipulations, Belgium would not lose its position as a state, but would be liable to such measures of reparation as the other parties to the treaty might employ.[65] If recognition could be withdrawn, it would work injustice to the recognized state, and to other states who, as third parties, will not permit their rights to be subject to the will of the recognizing state or states.

(_g_) The =consequences of recognition= immediately touch the relations of (1) the recognizing state, (2) the recognized, (3) the parent state if the new state is formed from an existing state, and (4) in a minor degree other states.

(1) The _recognizing state_ is bound to treat the new state in all respects as ent.i.tled to the rights and as under duties accepted in international law.

(2) The _recognized state_ is, as related to the recognizing state, ent.i.tled to the rights, and under the obligations prescribed in international law. As it is a new person in international law, it is ent.i.tled to full personal freedom in entering into relations with other states. So far, however, as the territory within the new state was under local obligations, these obligations are transferred to the new state.

The general obligations resting on the parent state, by reason of treaties and responsibilities of all kinds which have been a.s.sumed by the parent state in the capacity of a legal unity, are not transferred, because the ident.i.ty of the parent state remains intact.[66]

(3) The _parent state_, in cases where the new state is formed by separation from one already existing, is, as regards the recognizing state, on the same international footing as the new state. Both states are ent.i.tled to equal privileges, and under like obligations. The relations to other states are not necessarily much changed.

(4) The _relations_ of the _states other than the recognizing_, _recognized_, and _parent states_ are changed to the extent that they must respect the _de facto_ relations set forth in (1), (2), and (3) above, _i.e._ while not recognizing the new state, they must accept the fact that the recognition exists for the states who are parties to it, and they are not ent.i.tled to pa.s.s judgment as to the justice of the recognition.

CHAPTER VI

LEGAL PERSONS HAVING QUALIFIED STATUS

22. +Members of Confederations and other Unions.+

23. +Neutralized States.+

24. +Protectorates, Suzerainties.+

25. +Corporations.+ (_a_) Private.

(_b_) Exercising political powers.

26. +Individuals.+

27. +Insurgents.+ (_a_) Definition.

(_b_) Effect of admission of insurgency.

28. +Belligerents.+ (_a_) Definition.

(_b_) Conditions prior to recognition.

(_c_) Grounds of recognition.

(_d_) Who may recognize.

(_e_) Consequences.

(1) Recognition by a foreign state.

(2) Recognition by the parent state.

29. +Communities not fully Civilized.+

-- 22. Members of Confederations and other Unions

A state in the sense of public law is not sovereign in the sense of international law, if there are any limitations upon its power to enter into relations with other states. Such a state may be a member of a confederation and exercise certain powers giving it a qualified international status. These loose unions may, as in the German Confederation from 1815 to 1866, leave to the local states a certain degree of autonomy in regulating international affairs while granting to the central government certain specified powers. This division of international competence is usually a temporary compromise ending in new states or in a close union. "Inasmuch as both the central and the separate states carry on diplomatic intercourse with foreign powers, they must each and all be regarded as Subjects of International Law; and inasmuch as they carry on such intercourse only in a limited degree, they cannot be regarded as fully and absolutely sovereign."[67]

In the examples of personal and real unions and the like, the nature of the state is a matter of public law and little concerns international law. As related to international law, the question is how far are such states restricted in their dealings with other states. A union, such as that existing in the case of the ruler of the United Kingdom of Great Britain and Ireland and Empire of India, is of importance to international law only in its united capacity, while for public law the nature of the union is of much significance. The same might be said of the unions of Austria-Hungary, and Sweden-Norway.

-- 23. Neutralized States

Neutralized states are sovereign only in a qualified degree. While such states have a certain formal equality, their actual competence is limited in regard to the exercise of sovereign powers. This limitation as to neutrality may be externally imposed or externally enforced, as in the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till 1900, Samoa. This neutralization may take place for political or philanthropic reasons.[68] The degree of external sovereignty possessed by neutralized states varies. The fact that these states are not fully sovereign in the field of international law in no way affects their competence except in respect to matters covered by the conditions of neutralization. Such states are deprived of the right of offensive warfare, and have not therefore that final recourse possessed by fully sovereign states for enforcing their demands.

-- 24. Protectorates, Suzerainties

States under protectors--_protectorates_--usually possess all powers not specifically resigned. States fully sovereign may demand (1) that states under protectors afford reasonable protection to the subjects and to the property of subjects of fully sovereign states, and (2) that the protecting state use reasonable measures to give effect to the protection which it has a.s.sumed. Just how much responsibility the protecting state has depends upon the degree of protection exercised and a.s.sumed. The protectorate of Great Britain over the South African Republic by the agreement of 1884 was of a very moderate form. The right to veto within a certain time any treaty made with a foreign state, other than the Orange Free State and native princes, const.i.tuted practically the only restriction on the independence of the Republic.

Great Britain has several other protectorates in Africa over which the degree of authority varies. In many instances protectorates easily pa.s.s into colonies, as in the case of Madagascar, which Great Britain recognized as under French protection in 1890, which protection the queen of Madagascar accepted in October, 1895, and in August, 1896, Madagascar was declared a French colony.[69]

As distinct from a state under a protectorate which possesses all competence in international affairs which it has not specifically resigned, a state under _suzerainty_ possesses only such competence as has been specifically conferred upon it by the suzerain. The relations are usually much closer than between protecting and protected states; and in many cases only the suzerain has international status, while the va.s.sal is merely tributary, though having a certain degree of internal independence which may be in some instances almost complete. By the first article of the Treaty of Berlin, Bulgaria is made a tributary and autonomous princ.i.p.ality under the suzerainty of the Sultan of Turkey.

Under Russian suzerainty are such va.s.sal states as Bokhara and Khiva.

Some of the states under the suzerainty of European states have no status in international law, as in the case of Bokhara and Khiva. There exist such anomalous cases as the co-suzerainty of the republic of Andorra, the collective suzerainty of the Samoan Islands till 1900,[70]

and the absolute suzerainty of the United States over the "domestic dependent nations" of Indians.

-- 25. Corporations

From the point of view of international law, corporations are generally of two kinds: corporations organized for private purposes, and corporations organized for purposes involving the exercise of delegated sovereign powers.

(_a_) Corporations organized for =private purposes= come within the field of international law, when in time of war their property or other rights are impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law.

(_b_) Corporations organized for purposes involving the =exercise of political powers= have from time to time, for several centuries, been chartered and have often acquired a quasi-international status. While restricted to the performance of functions intrusted to them by their charters, the home governments have often sanctioned acts for which their charters gave no warrant. The companies that early entered America, India, Africa, and the later African companies, are of this kind. The development of the late doctrine of "the sphere of influence"

has given an important position to these companies organized within those states desirous to share in "the part.i.tion of Africa."

Among the most notable of the earlier companies was the English East India Company,[71] which received its first charter in 1600. During more than two hundred and fifty years this company exercised practically sovereign powers, until by the act of Aug. 2, 1858, the government heretofore exercised by the company was transferred to the crown, and was henceforth to be exercised in its name.

In recent years the African companies chartered by the European states seeking African dominions have had very elastic charters in which the home governments have generally reserved the right to regulate the exercise of authority as occasion might demand. These companies advance and confirm the spheres of influence of the various states, govern under slight restrictions great territories, and treat with native states with full authority. The British South Africa Company, chartered in 1889, was granted liberal powers of administration and full capacity, subject to the approval of the Secretary of State for the Colonies, to treat with the native states. The field of operations of this company was extended in 1891, so that it now includes over six hundred thousand square miles of territory. Of this company Lawrence says: "Clearly then it is no independent authority in the eye of British law, but a subordinate body controlled by the appropriate departments of the supreme government.