International Law. A Treatise Volume I Part 12

[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 Munic.i.p.al 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 Souveranitats-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 Inst.i.tutions," 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 republique," 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 G.o.d and the Law of Nature. No const.i.tution 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 _supera.n.u.s_ or from _suprema potestas_.]

[Footnote 93: See Bodin, "De la republique," 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 const.i.tution 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 const.i.tutionally 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 const.i.tutional 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 Const.i.tution 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 Const.i.tution 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 circ.u.mstances 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-Fodere, I. Nos. 136-145--Nys, I. pp.

69-115--Merignhac, 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 a.s.sert 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 a.s.sembled 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.]