International Law. A Treatise Volume I Part 14

-- 82. When a State merges voluntarily into another State--as, for instance, Korea in 1910 did into j.a.pan--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 j.a.pan, 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. .h.i.therto concluded by Korea with foreign Powers ceasing to be operative, j.a.pan'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 j.a.pan proper, and the protection of their legally acquired rights subject in all cases to the jurisdiction of j.a.pan. The Imperial Government of j.a.pan 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 j.a.pan 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 j.a.pan or exported from Korea to j.a.pan and j.a.panese vessels entering any of the open ports of Korea.

3. The Imperial Government of j.a.pan will also permit for a period of ten years vessels under flags of the Powers having treaties with j.a.pan to engage in the coasting trade between the open ports of Korea and between those ports and any open port of j.a.pan.

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 j.a.panese, 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 c.u.m 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, x.x.xI. (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 a.s.sertion 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-Fodere, I. Nos. 117-123--Merignhac, 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 souverainete de l'Etat federatif" (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 federal et confederation 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 s.p.a.ce 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 Bluthgen 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]