Chapter I: International Persons (1)

I

SOVEREIGN STATES AS INTERNATIONAL PERSONS

Vattel, I. §§ 1-12--Hall, § 1--Lawrence, § 42--Phillimore, I. §§
61-69--Twiss, I. §§ 1-11--Taylor, § 117--Walker, § 1--Westlake, I.
pp. 1-5, 20-21--Wheaton, §§ 16-21--Ullmann, § 19--Heffter, §
15--Holtzendorff in Holtzendorff, II. pp. 5-11--Bonfils, Nos.
160-164--Despagnet, Nos. 69-74--Pradier-Fodéré, I. Nos.
43-81--Nys, I. pp. 329-356--Rivier, I. § 3--Calvo, I. §§
39-41--Fiore, I. Nos. 305-309, and Code, Nos. 51-77--Martens, I.
§§ 53-54--Mérignhac, I. pp. 114-231, and II. pp. 5,
154-221--Moore, I. § 3.

[Sidenote: Real and apparent International Persons.]

§ 63. The conception of International Persons is derived from the conception of the Law of Nations. As this law is the body of rules which the civilised States consider legally binding in their intercourse, every State which belongs to the civilised States, and is, therefore, a member of the Family of Nations, is an International Person. Sovereign States exclusively are International Persons--_i.e._ subjects of International Law. There are, however, as will be seen, full and not-full Sovereign States. Full Sovereign States are perfect, not-full Sovereign States are imperfect International Persons, for not-full Sovereign States are for some parts only subjects of International Law.

In contradistinction to Sovereign States which are real, there are also apparent, but not real, International Persons--namely, Confederations of States, insurgents recognised as a belligerent Power in a civil war, and the Holy See. All these are not, as will be seen,[87] real subjects of International Law, but in some points are treated as though they were International Persons, without thereby becoming members of the Family of Nations.

[Footnote 87: See below, § 88 (Confederations of States), § 106 (Holy See), and vol. II. §§ 59 and 76 (Insurgents).]

It must be specially mentioned that the character of a subject of the Law of Nations and of an International Person can be attributed neither to monarchs, diplomatic envoys, private individuals, or churches, nor to chartered companies, nations, or races after the loss of their State (as, for instance, the Jews or the Poles), and organised wandering tribes.[88]

[Footnote 88: Most jurists agree with this opinion, but there are some who disagree. Thus, for instance, Heffter (§ 48) claims for monarchs the character of subjects of the Law of Nations; Lawrence (§ 42) claims that character for corporations; and Westlake, Chapters, p. 2, and Fiore, Code, Nos. 51, 61-64, claim it for individuals. The matter will be discussed below in §§ 288, 290, 344, 384.]

[Sidenote: Conception of the State.]

§ 64. A State proper--in contradistinction to so-called Colonial States--is in existence when a people is settled in a country under its own Sovereign Government. The conditions which must obtain for the existence of a State are therefore four:

There must, first, be a _people_. A people is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.

There must, secondly, be a _country_ in which the people has settled down. A wandering people, such as the Jews were whilst in the desert for forty years before their conquest of the Holy Land, is not a State. But it matters not whether the country is small or large; it may consist, as with City States, of one town only.

There must, thirdly, be a _Government_--that is, one or more persons who are the representatives of the people and rule according to the law of the land. An anarchistic community is not a State.

There must, fourthly and lastly, be a _Sovereign_ Government. Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term includes, therefore, independence all round, within and without the borders of the country.

[Sidenote: Not-full Sovereign States.]

§ 65. A State in its normal appearance does possess independence all round and therefore full sovereignty. Yet there are States in existence which certainly do not possess full sovereignty, and are therefore named not-full Sovereign States. All States which are under the suzerainty or under the protectorate of another State or are member States of a so-called Federal State, belong to this group. All of them possess supreme authority and independence with regard to a part of the tasks of a State, whereas with regard to another part they are under the authority of another State. Hence it is that the question is disputed whether such not-full Sovereign States can be International Persons and subjects of the Law of Nations at all.[89]

[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 Municipal 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 Souveränitäts-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 Institutions," 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 république," 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 God and the Law of Nature. No constitution 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 _superanus_ or from _suprema potestas_.]

[Footnote 93: See Bodin, "De la république," 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 constitution 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 constitutionally 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 constitutional 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 Constitution 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 Constitution 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 circumstances 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-Fodéré, I. Nos. 136-145--Nys, I. pp.
69-115--Mérignhac, 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 assert 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 assembled 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.]

§ 74. Recognition is of special importance in those cases where a new State tries to establish itself by breaking off from an existing State in the course of a revolution. And here the question is material whether a new State has really already safely and permanently established itself or only makes efforts to this end without having already succeeded. That in every case of civil war a foreign State can recognise the insurgents as a belligerent Power if they succeed in keeping a part of the country in their hands and set up a Government of their own, there is no doubt. But between this recognition as a belligerent Power and the recognition of these insurgents and their part of the country as a new State, there is a broad and deep gulf. And the question is precisely at what exact time recognition of a new State may be given instead of the recognition as a belligerent Power. For an untimely and precipitate recognition as a new State is a violation of the dignity[104] of the mother-State, to which the latter need not patiently submit.

[Footnote 104: It is frequently maintained that such untimely recognition contains an intervention. But this is not correct, since intervention is (see below, § 134) _dictatorial_ interference in the affairs of another State. The question of recognition of the belligerency of insurgents is exhaustively treated by Westlake, I. pp. 50-57.]

In spite of the importance of the question, no hard-and-fast rule can be laid down as regards the time when it can be said that a State created by revolution has established itself safely and permanently. The characteristic of such safe and permanent establishment may be found either in the fact that the revolutionary State has utterly defeated the mother-State, or that the mother-State has ceased to make efforts to subdue the revolutionary State, or even that the mother-State, in spite of its efforts, is apparently incapable of bringing the revolutionary back under its sway.[105] Of course, as soon as the mother-State itself recognises the new State, there is no reason for other States to withhold any longer their recognition, although they have even then no legal obligation to grant it.

[Footnote 105: When, in 1903, Panama fell away from Colombia, the United States immediately recognised the new Republic as an independent State. For the motives of this quick action, see Moore, I. § 344, pp. 46 and following.]

The breaking off of the American States from their European mother-States furnishes many illustrative examples. Thus the recognition of the United States by France in 1778 was precipitate. But when in 1782 England herself recognised the independence of the United States, other States could accord recognition too without giving offence to England. Again, when the South American colonies of Spain declared their independence in 1810, no Power recognised the new States for many years. When, however, it became apparent that Spain, although she still kept up her claims, was not able to restore her sway, the United States recognised the new States in 1822, and England followed the example in 1824 and 1825.[106]

[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of the North American and South American States" (1863), and Moore, I. §§ 28-36.]

[Sidenote: State Recognition in contradistinction to other Recognitions.]

§ 75. Recognition of a new State must not be confounded with other recognitions. Recognition of insurgents as a belligerent Power has already been mentioned. Besides this, recognition of a change in the form of the government or of change in the title of an old State is a matter of importance. But the granting or refusing of these recognitions has nothing to do with recognition of the State itself. If a foreign State refuses the recognition of a change in the form of the government of an old State, the latter does not thereby lose its recognition as an International Person, although no official intercourse is henceforth possible between the two States as long as recognition is not given either expressly or tacitly. And if recognition of a new title[107] of an old State is refused, the only consequence is that such State cannot claim any privileges connected with the new title.

[Footnote 107: See below, § 119.]

III

CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS

Grotius, II. c. 9, §§ 5-13--Pufendorf, VIII. c. 12--Vattel, I. §
11--Hall, § 2--Halleck, I. pp. 89-92--Phillimore, I. §§
124-137--Taylor, § 163--Westlake, I. pp. 58-66--Wheaton, §§
28-32--Moore, I. §§ 76-79--Bluntschli, §§ 39-53--Hartmann, §§
12-13--Heffter, § 24--Holtzendorff in Holtzendorff, II. pp.
21-23--Liszt, § 5--Ullmann, §§ 31 and 35--Bonfils, Nos.
214-215--Despagnet, Nos. 86-89--Pradier-Fodéré, I. Nos.
146-157--Nys, I. pp. 399-401--Rivier, I. § 3--Calvo, I. §§
81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens,
I. §§ 65-69.

[Sidenote: Important in contradistinction to Indifferent Changes.]

§ 76. The existence of International Persons is exposed to the flow of things and times. There is a constant and gradual change in their citizens through deaths and births, emigration, and immigration. There is a frequent change in those individuals who are at the head of the States, and there is sometimes a change in the form of their governments, or in their dynasties if they are monarchies. There are sometimes changes in their territories through loss or increase of parts thereof, and there are sometimes changes regarding their independence through partial or total loss of the same. Several of these and other changes in the condition and appearance of International Persons are indifferent to International Law, although they may be of great importance for the inner development of the States concerned and directly or indirectly for international policy. Those changes, on the other hand, which are, or may be, of importance to International Law must be divided into three groups according to their influence upon the character of the State concerned as an International Person. For some of these changes affect a State as an International Person, others do not; again, others extinguish a State as an International Person altogether.

[Sidenote: Changes not affecting States as International Persons.]

§ 77. A State remains one and the same International Person in spite of changes in its headship, in its dynasty, in its form, in its rank and title, and in its territory. These changes cannot be said to be indifferent to International Law. Although strictly no notification to and recognition by foreign Powers are necessary, according to the Law of Nations, in case of a change in the headship of a State or in its entire dynasty, or if a monarchy becomes a republic or _vice versa_, no official intercourse is possible between the Powers refusing recognition and the State concerned. Although, further, a State can assume any title it likes, it cannot claim the privileges of rank connected with a title if foreign States refuse recognition. And although, thirdly, a State can dispose according to discretion of parts of its territory and acquire as much territory as it likes, foreign Powers may intervene for the purpose of maintaining a balance of power or on account of other vital interests.

But whatever may be the importance of such changes, they neither affect a State as an International Person, nor affect the personal identity of the States concerned. France, for instance, has retained her personal identity from the time the Law of Nations came into existence until the present day, although she acquired and lost parts of her territory, changed her dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems, a republic. All her international rights and duties as an International Person remained the very same throughout the centuries in spite of these important changes in her condition and appearance. Even such loss of territory as occasions the reduction of a Great Power to a small Power, or such increase of territory and strength as turns a small State into a Great Power, does not affect a State as an International Person. Thus, although through the events of the years 1859-1861 Sardinia acquired the whole territory of the Italian Peninsula and turned into the Great Power of Italy, she remained one and the same International Person.

[Sidenote: Changes affecting States as International Persons.]

§ 78. Changes which affect States as International Persons are of different character.

(1) As in a Real Union the member-States of the union, although fully independent, make one International Person,[108] two States which hitherto were separate International Persons are affected in that character by entering into a Real Union. For through that change they appear henceforth together as one and the same International Person. And should this union be dissolved, the member-States are again affected, for they now become again separate International Persons.

[Footnote 108: See below, § 87, where the character of the Real Union is fully discussed.]

(2) Other changes affecting States as International Persons are such changes as involve a partial loss of independence on the part of the States concerned. Many restrictions may be imposed upon States without interfering with their independence proper,[109] but certain restrictions involve inevitably a partial loss of independence. Thus if a hitherto independent State comes under the suzerainty of another State and becomes thereby a half-Sovereign State, its character as an International Person is affected. The same is valid with regard to a hitherto independent State which comes under the protectorate of another State. Again, if several hitherto independent States enter into a Federal State, they transfer a part of their sovereignty to the Federal State and become thereby part-Sovereign States. On the other hand, if a vassal State or a State under protectorate is freed from the suzerainty or protectorate, it is thereby affected as an International Person, because it turns now into a full Sovereign State. And the same is valid with regard to a member-State of a Federal State which leaves the union and gains the condition of a full Sovereign State.

[Footnote 109: See below, §§ 126-127, where the different kinds of these restrictions are discussed.]

(3) States which become permanently neutralised are thereby also affected in their character as International Persons, although their independence remains untouched. But permanent neutralisation alters the condition of a State so much that it thereby becomes an International Person of a particular kind.

[Sidenote: Extinction of International Persons.]

§ 79. A State ceases to be an International Person when it ceases to exist. Theoretically such extinction of International Persons is possible through emigration or the perishing of the whole population of a State, or through a permanent anarchy within a State. But it is evident that such cases will hardly ever occur in fact. Practical cases of extinction of States are: Merger of one State into another, annexation after conquest in war, breaking up of a State into several States, and breaking up of a State into parts which are annexed by surrounding States.

By voluntarily merging into another State, a State loses all its independence and becomes a mere part of another. In this way the Duchy of Courland merged in 1795 into Russia, the two Principalities of Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910 into Japan. And the same is the case if a State is subjugated by another. In this way the Orange Free State and the South African Republic were absorbed by Great Britain in 1901. An example of the breaking up of a State into different States is the division of the Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an example of the breaking up of a State into parts which are annexed by surrounding States is the absorption of Poland by Russia, Austria, and Prussia in 1795.

IV

SUCCESSION OF INTERNATIONAL PERSONS[110]

Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, §§
27-29--Phillimore, I. § 137--Lawrence, § 49--Halleck, I. pp.
89-92--Taylor, §§ 164-168--Westlake, I. pp. 68-83--Wharton, I. §
5--Moore, I. §§ 92-99--Wheaton, §§ 28-32--Bluntschli, §§
47-50--Hartmann, § 12--Heffter, § 25--Holtzendorff in
Holtzendorff, II. pp. 33-47--Liszt, § 23--Ullmann, § 32--Bonfils,
Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodéré, I. Nos.
156-163--Nys, I. pp. 399-401--Rivier, I. § 3, pp. 69-75 and p.
438--Calvo, I. §§ 99-103--Fiore, I. Nos. 349-366--Martens, I. §
67--Appleton, "Des effets des annexions sur les dettes de l'état
démembré ou annexé" (1895)--Huber, "Die Staatensuccession"
(1898)--Keith, "The Theory of State Succession, with special
reference to English and Colonial Law" (1907)--Cavaglieri, "La
dottrina della successione di stato a stato, &c." (1910)--Richards
in _The Law Magazine and Review_, XXVIII. (1903), pp.
129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J.
V. (1911), pp. 285-297.

[Footnote 110: The following text treats only of the broad outlines of the subject, as the practice of the States has hardly settled more than general principles. Details must be studied in Huber, "Die Staatensuccession" (1898), and Keith, "The Theory of State Succession, &c." (1907); the latter writer's analysis of cases in Z.V. III. (1909), pp. 618-648, is likewise very important.]

[Sidenote: Common Doctrine regarding Succession of International Persons.]

§ 80. Although there is no unanimity among the writers on International Law with regard to the so-called succession of International Persons, nevertheless the following common doctrine can be stated to exist.

A succession of International Persons occurs when one or more International Persons take the place of another International Person, in consequence of certain changes in the latter's condition.

Universal succession takes place when one International Person is absorbed by another, either through subjugation or through voluntary merger. And universal succession further takes place when a State breaks up into parts which either become separate International Persons of their own or are annexed by surrounding International Persons.

Partial succession takes place, first, when a part of the territory of an International Person breaks off in a revolt and by winning its independence becomes itself an International Person; secondly, when one International Person acquires a part of the territory of another through cession; thirdly, when a hitherto full Sovereign State loses part of its independence through entering into a Federal State, or coming under suzerainty or under a protectorate, or when a hitherto not-full Sovereign State becomes full Sovereign; fourthly, when an International Person becomes a member of a Real Union or _vice versa_.

Nobody ever maintained that on the successor devolve all the rights and duties of his predecessor. But after stating that a succession takes place, the respective writers try to educe the consequences and to make out what rights and duties do, and what do not, devolve.

Several writers,[111] however, contest the common doctrine and maintain that a succession of International Persons never takes place. Their argument is that the rights and duties of an International Person disappear with the extinguished Person or become modified according to the modifications an International Person undergoes through losing part of its sovereignty.

[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with great clearness, and Liszt, § 23.]

[Sidenote: How far Succession actually takes place.]

§ 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say that succession takes place in such and such cases and to make out afterwards what rights and duties devolve, shows a wrong method of dealing with the problem. It is certain that no _general_ succession takes place according to the Law of Nations. With the extinction of an International Person disappear its rights and duties as a person. But it is equally wrong to maintain that no succession whatever occurs. For nobody doubts that certain rights and duties actually and really devolve upon an International Person from its predecessor. And since this devolution takes place through the very fact of one International Person following another in the possession of State territory, there is no doubt that, as far as these devolving rights and duties are concerned, a succession of one International Person to the rights and duties of another really does take place. But no general rule can be laid down concerning all the cases in which a succession takes place. These cases must be discussed singly.

[Sidenote: Succession in consequence of Absorption.]

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

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

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 Japanese, 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 cum 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, XXXI. (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 assertion 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-Fodéré, I. Nos. 117-123--Mérignhac, 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 souveraineté de l'Etat fédératif" (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 fédéral et
confédération 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]