International Law. A Treatise Volume I Part 16

-- 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 j.a.pan, and not Korea, granting the _exequatur_ to the Consul-general appointed by Russia for Korea, which was then a State under j.a.panese 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 Princ.i.p.ality 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--Merignhac, II. pp. 56-65--Pradier-Fodere, II. Nos.

1001-1015--Nys, I. pp. 379-398--Rivier, I. -- 7--Calvo, IV. ---- 2596-2610--Piccioni's "Essai sur la neutralite perpetuelle" (2nd ed. 1902)--Regnault, "Des effets de la neutralite perpetuelle"

(1898)--Tswettcoff, "De la situation juridique des etats neutralises" (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, ca.n.a.ls, 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 att.i.tude 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, a l'exception de la Belgique, qui est elle-meme un etat neutre."]

[Footnote 154: This is a much discussed and very controverted point. See Descamps, "La Neutralite 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] n.o.body 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 Const.i.tution, 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 a.s.sembled 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 Neutralitat," 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 Neutralite 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).]