Chapter I: International Persons (2)

[Footnote 126: I cannot agree with Westlake (I. p. 37) that "the space 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 Blüthgen 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]

[Footnote 129: This is not universally recognised. Phillimore, I. § 74, maintains that there was a Personal Union between Sweden and Norway, and Twiss, I. § 40, calls it a Federal Union.]

[Footnote 130: See above, § 50, p. 75.]

[Sidenote: Confederated States (Staatenbund).]

§ 88. Confederated States (Staatenbund) are a number of full Sovereign States linked together for the maintenance of their external and internal independence by a recognised international treaty into a union with organs of its own, which are vested with a certain power over the member-States, but not over the citizens of these States. Such a union of Confederated States is not any more itself a State than a Real Union is; it is merely an International Confederation of States, a society of international character, since the member-States remain full Sovereign States and separate International Persons. Consequently, the union of Confederated States is not an International Person, although it is for some parts so treated on account of its representing the compound power of the full Sovereign member-States. The chief and sometimes the only organ of the union is a Diet, where the member-States are represented by diplomatic envoys. The power vested in the Diet is an International Power which does not in the least affect the full sovereignty of the member-States. That power is essentially nothing else than the right of the body of the members to make war against such a member as will not submit to those commandments of the Diet which are in accordance with the Treaty of Confederation, war between the member-States being prohibited in all other cases.

History has shown that Confederated States represent an organisation which in the long run gives very little satisfaction. It is for that reason that the three important unions of Confederated States of modern times--namely, the United States of America, the German, and the Swiss Confederation--have turned into unions of Federal States. Notable historic Confederations are those of the Netherlands from 1580 to 1795, the United States of America from 1778 to 1787, Germany from 1815 to 1866, Switzerland from 1291 to 1798 and from 1815 to 1848, and the Confederation of the Rhine (Rheinbund) from 1806 to 1813. At present there is no union of Confederated States. The last in existence, the major Republic of Central America,[131] which comprised the three full Sovereign States of Honduras, Nicaragua, and San Salvador, and was established in 1895, came to an end in 1898.

[Footnote 131: See N.R.G. 2nd Ser. XXXII. pp. 276-292.]

[Sidenote: Federal States (Bundesstaaten).]

§ 89. A Federal State[132] is a perpetual union of several Sovereign States which has organs of its own and is invested with power, not only over the member-States, but also over their citizens. The union is based, first, on an international treaty of the member-States, and, secondly, on a subsequently accepted constitution of the Federal State. A Federal State is said to be a real State side by side with its member-States because its organs have a direct power over the citizens of those member-States. This power was established by American[133] jurists of the eighteenth century as a characteristic distinction of a Federal State from Confederated States, and Kent as well as Story, the two later authorities on the Constitutional Law of the United States, adopted this distinction, which is indeed kept up until to-day by the majority of writers on politics. Now if a Federal State is recognised as a State of its own, side by side with its member-States, it is evident that sovereignty must be divided between the Federal State on the one hand, and, on the other, the member-States. This division is made in this way, that the competence over one part of the objects for which a State is in existence is handed over to the Federal State, whereas the competence over the other part remains with the member-States. Within its competence the Federal State can make laws which bind the citizens of the member-States directly without any interference of these member-States. On the other hand, the member-States are totally independent as far as _their_ competence reaches.

[Footnote 132: The distinction between Confederated States and a Federal State is not at all universally recognised, and the terminology is consequently not at all the same with all writers on International Law.]

[Footnote 133: When in 1787 the draft of the new Constitution of the United States, which had hitherto been Confederated States only, was under consideration by the Congress at Philadelphia, three members of the Congress--namely, Alexander Hamilton, James Madison, and John Jay--made up their minds to write newspaper articles on the draft Constitution with the intention of enlightening the nation which had to vote for the draft. For this purpose they divided the different points among themselves and treated them separately. All these articles, which were not signed with the names of their authors, appeared under the common title "The Federalist." They were later on collected into book-form and have been edited several times. It is especially Nos. 15 and 16 of "The Federalist" which establish the difference between Confederated States and a Federal State in the way mentioned in the text above.]

For International Law this division of competence is only of interest in so far as it concerns competence in _international_ matters. Since it is always the Federal State which is competent to declare war, make peace, conclude treaties of alliance and other political treaties, and send and receive diplomatic envoys, whereas no member-State can of itself declare war against a foreign State, make peace, conclude alliances and other political treaties, the Federal State, if recognised, is certainly an International Person of its own, with all the rights and duties of a sovereign member of the Family of Nations. On the other hand, the international position of the member-States is not so clear. It is frequently maintained that they have totally lost their position within the Family of Nations. But this opinion cannot stand if compared with the actual facts. Thus, the member-States of the Federal State of Germany have retained their competence to send and receive diplomatic envoys, not only in intercourse with one another, but also with foreign States. Further, the reigning monarchs of these member-States are still treated by the practice of the States as heads of Sovereign States, a fact without legal basis if these States were no longer International Persons. Thirdly, the member-States of Germany as well as of Switzerland have retained their competence to conclude international treaties between themselves without the consent of the Federal State, and they have also retained the competence to conclude international treaties with foreign States as regards matters of minor interest. If these facts[134] are taken into consideration, one is obliged to acknowledge that the member-States of a Federal State can be International Persons in a degree. Full subjects of International Law, International Persons with all the rights and duties regularly connected with the membership of the Family of Nations, they certainly cannot be. Their position, if any, within this circle is overshadowed by their Federal State, they are part-Sovereign States, and they are, consequently, International Persons for some parts only.

[Footnote 134: See Riess, "Auswärtige Hoheitsrechte der deutschen Einzelstaaten" (1905).]

But it happens frequently that a Federal State assumes _in every way_ the external representation of its member-States, so that, so far as international relations are concerned, the member-States do not make an appearance at all. This is the case with the United States of America and all those other American Federal States whose Constitution is formed according to the model of that of the United States. Here the member-States are sovereign too, but only with regard to _internal_[135] affairs. All their external sovereignty being absorbed by the Federal State, it is certainly a fact that they are not International Persons at all so long as this condition of things lasts.

[Footnote 135: The Courts of the United States of America have always upheld the theory that the United States are sovereign as to all powers of government actually surrendered, whereas each member-State is sovereign as to all powers reserved. See Merriam, "History of the Theory of Sovereignty since Rousseau" (1900), p. 163.]

This being so, two classes of Federal States must be distinguished[136] according to whether their member-States are or are not International Persons, although Federal States are in any case composite International Persons. And whenever a Federal State comes into existence which leaves the member-States for some parts International Persons, the recognition granted to it by foreign States must include their readiness to recognise for the future, on the one hand, the body of the member-States, the Federal State, as one composite International Person regarding all important matters, and, on the other hand, the single member-States as International Persons with regard to less important matters and side by side with the Federal State. That such a condition of things is abnormal and illogical cannot be denied, but the very existence of a Federal State side by side the member-States is quite as abnormal and illogical.

[Footnote 136: This distinction is of the greatest importance and ought to be accepted by the writers on the science of politics.]

The Federal States in existence are the following:--The United States of America since 1787, Switzerland since 1848, Germany since 1871, Mexico since 1857, Argentina since 1860, Brazil since 1891, Venezuela since 1893.

VI

VASSAL STATES

Hall, § 4--Westlake, I. pp. 25-27--Lawrence, § 39--Phillimore, I.
§§ 85-99--Twiss, I. §§ 22-36, 61-73--Taylor, §§ 140-144--Wheaton,
§ 37--Moore, I. § 13--Bluntschli, §§ 76-77--Hartmann, §
16--Heffter, §§ 19 and 22--Holtzendorff in Holtzendorff, II. pp.
98-117--Liszt, § 6--Ullmann, § 25--Gareis, § 15--Bonfils, Nos.
188-190--Despagnet, Nos. 127-129--Mérignhac, I. pp.
201-218--Pradier-Fodéré, I. Nos. 109-112--Nys, I. pp.
357-364--Rivier, I. § 4--Calvo, I. §§ 66-72--Fiore, I. No. 341,
and Code, Nos. 105-110--Martens, I. §§ 60-61--Stubbs, "Suzerainty"
(1884)--Baty, "International Law in South Africa" (1900), pp.
48-68--Boghitchévitch, "Halbsouveränität" (1903).

[Sidenote: The Union between Suzerain and Vassal State.]

§ 90. The union and the relations between a Suzerain and its Vassal State create much difficulty in the science of the Law of Nations. As both are separate States, a union of States they certainly make, but it would be wrong to say that the Suzerain State is, like the Real Union of States or the Federal State, a composite International Person. And it would be equally wrong to maintain either that a Vassal State cannot be in any way a separate International Person of its own, or that it is an International Person of the same kind as any other State. What makes the matter so complicated, is the fact that a general rule regarding the relation between the suzerain and vassal, and, further, regarding the position, if any, of the vassal within the Family of Nations, cannot be laid down, as everything depends upon the special case. What can and must be said is that there are some States in existence which, although they are independent of another State as regards their internal affairs, are as regards their international affairs either absolutely or for the most part dependent upon another State. They are called half-Sovereign[137] States because they are sovereign within their borders but not without. The full Sovereign State upon which such half-Sovereign States are either absolutely or for the most part internationally dependent, is called the Suzerain State.

[Footnote 137: In contradistinction to the States which are under suzerainty or protectorate, and which are commonly called _half_-Sovereign States, I call member-States of a Federal State _part_-Sovereign States.]

Suzerainty is a term which originally was used for the relation between the feudal lord and his vassal; the lord was said to be the suzerain of the vassal, and at that time suzerainty was a term of Constitutional Law only. With the disappearance of the feudal system, suzerainty of this kind likewise disappeared. Modern suzerainty contains only a few rights of the Suzerain State over the Vassal State which can be called constitutional rights. The rights of the Suzerain State over the Vassal are principally international rights, of whatever they may consist. Suzerainty is by no means sovereignty. If it were, the Vassal State could not be Sovereign in its domestic affairs and could never have any international relations whatever of its own. And why should suzerainty be distinguished from sovereignty if it be a term synonymous with sovereignty? One may correctly maintain that _suzerainty is a kind of international guardianship_, since the Vassal State is either absolutely or mainly represented internationally by the Suzerain State.

[Sidenote: International Position of Vassal States.]

§ 91. The fact that the relation between the suzerain and the vassal always depends upon the special case, excludes the possibility of laying down a general rule as regards the position of Vassal States within the Family of Nations. It is certain that a Vassal State as such need not have any position whatever within the Family of Nations. In every case in which a Vassal State has absolutely no relations whatever with other States, since the suzerain absorbs these relations entirely, such vassal remains nevertheless a half-Sovereign State on account of its internal independence, but it has no position whatever within the Family of Nations, and consequently is for no part whatever an International Person and a subject of International Law. This is the position of the Indian Vassal States of Great Britain, which have no international relations whatever either between themselves or with foreign States.[138] Yet instances can be given which demonstrate that Vassal States can have some small and subordinate position within that family, and that they must in consequence thereof in some few points be considered as International Persons. Thus Egypt can conclude commercial and postal treaties with foreign States without the consent of suzerain Turkey, and Bulgaria could, while she was under Turkish Suzerainty, conclude treaties regarding railways, post, and the like. Thus, further, Egypt can send and receive consuls as diplomatic agents, and so could Bulgaria while she was a Turkish Vassal State. Thus, thirdly, the former South African Republic, although in the opinion of Great Britain under her suzerainty, could conclude all kinds of treaties with other States, provided Great Britain did not interpose a _veto_ within six months after receiving a copy of the draft treaty, and was absolutely independent in concluding treaties with the neighbouring Orange Free State. Again, Egypt possesses, since 1898, together with Great Britain _condominium_[139] over the Soudan, which means that they exercise conjointly sovereignty over this territory. Although Vassal States have not the right to make war independently of their suzerain, Bulgaria, at the time a Vassal State, nevertheless fought a war against the full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly with Great Britain in 1898.

[Footnote 138: See Westlake, Chapters, pp. 211-219; Westlake, I. pp. 41-43, and again Westlake in _The Law Quarterly Review_, XXVI. (1910), pp. 312-319.--See also Lee-Warner, "The Native States of India" (1910), pp. 254-279.]

[Footnote 139: See below, § 171.]

How could all these and other facts be explained, if Vassal States could never for some small part be International Persons?

Side by side with these facts stand, of course, other facts which show that for the most part the Vassal State, even if it has some small position of its own within the Family of Nations, is considered a mere portion of the Suzerain State. Thus all international treaties concluded by the Suzerain State are _ipso facto_ concluded for the vassal, if an exception is not expressly mentioned or self-evident. Thus, again, war of the suzerain is _ipso facto_ war of the vassal. Thus, thirdly, the suzerain bears within certain limits a responsibility for actions of the Vassal State.

Under these circumstances it is generally admitted that the conception of suzerainty lacks juridical precision, and experience teaches that Vassal States do not remain half-Sovereign for long. They either shake off suzerainty, as Roumania, Servia, and Montenegro did in 1878, and Bulgaria[140] did in 1908, or they lose their half-Sovereignty through annexation, as in the case of the South African Republic in 1901, or through merger, as when the half-Sovereign Seignory of Kniephausen in Germany merged in 1854 into its suzerain Oldenburg.

[Footnote 140: As regards the position of Bulgaria while she was a Vassal State under Turkish suzerainty, see Holland, "The European Concert in the Eastern Question" (1885), pp. 277-307, and Nédjmidin, "Völkerrechtliche Entwicklung Bulgariens" (1908).]

Vassal States of importance which are for some parts International Persons are, at present, Egypt,[141] and Crete.[142] They are both under Turkish suzerainty, although Egypt is actually under the administration of Great Britain. Samos,[143] which some writers consider a Vassal State under Turkish suzerainty, is not half-Sovereign, but enjoys autonomy to a vast degree.

[Footnote 141: See Holland, "The European Concert in the Eastern Question" (1885), pp. 89-205; Grünau, "Die staats- und völkerrechtliche Stellung Aegyptens" (1903); Cocheris, "Situation internationale de l'Egypte et du Soudan" (1903); Freycinet, "La question d'Egypte" (1905); Moret in R.J. XIV. (1907), pp. 405-416; Lamba in R.G. XVII. (1910), pp. 36-55. In the case of the "Charkieh," 1873, L.R. 4 Adm. and Eccl. 59, the Court refused to acknowledge the half-sovereignty of Egypt; see Phillimore, I. § 99.]

[Footnote 142: See Streit in R.G. X. (1903), pp. 399-417.]

[Footnote 143: See Albrecht in Z.V. I. (1907), pp. 56-112.]

VII

STATES UNDER PROTECTORATE

Hall, §§ 4 and 38*--Westlake, I. pp. 22-24--Lawrence, §
39--Phillimore, I. 75-82--Twiss, I. §§ 22-36--Taylor, §§
134-139--Wheaton, §§ 34-36--Moore, I. § 14--Bluntschli, §
78--Hartmann, § 9--Heffter, §§ 19 and 22--Holtzendorff in
Holtzendorff, II. pp. 98-117--Gareis, § 15--Liszt, § 6--Ullmann, §
26--Bonfils, Nos. 176-187--Despagnet, Nos. 130-136--Mérignhac, II.
pp. 180-220--Pradier-Fodéré, I. Nos. 94-108--Nys, I. pp.
364-366--Rivier, I. § 4--Calvo, I. §§ 62-65--Fiore, I. § 341, and
Code, Nos. 111-118--Martens, I. §§ 60-61--Pillet in R.G. II.
(1895), pp. 583-608--Heilborn, "Das völkerrechtliche Protectorat"
(1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le
protectorat international" (1896)--Despagnet, "Essai sur les
protectorats" (1896)--Boghitchévitch, "Halbsouveränität" (1903).

[Sidenote: Conception of Protectorate.]

§ 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 Japan, and not Korea, granting the _exequatur_ to the Consul-general appointed by Russia for Korea, which was then a State under Japanese 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 Principality 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--Mérignhac, II. pp. 56-65--Pradier-Fodéré, II. Nos.
1001-1015--Nys, I. pp. 379-398--Rivier, I. § 7--Calvo, IV. §§
2596-2610--Piccioni's "Essai sur la neutralité perpétuelle" (2nd
ed. 1902)--Regnault, "Des effets de la neutralité perpétuelle"
(1898)--Tswettcoff, "De la situation juridique des états
neutralisés" (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, canals, 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 attitude 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, à l'exception de la Belgique, qui est elle-même un état neutre."]

[Footnote 154: This is a much discussed and very controverted point. See Descamps, "La Neutralité 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] Nobody 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 Constitution, 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 assembled 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 Neutralität," 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 Neutralité 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).]

[Footnote 164: See Martens, N.R.G. XVIII. p. 448.]

The neutralisation took place, however, under the abnormal condition that Luxemburg is not allowed to keep any armed force, with the exception of a police for the maintenance of safety and order, nor to possess any fortresses. Under these circumstances Luxemburg herself can do nothing for the defence of her neutrality, as Belgium and Switzerland can.

[Sidenote: The former Congo Free State.]

§ 101. The former Congo Free State,[165] which was recognised as an independent State by the Berlin Congo Conference[166] of 1884-1885, was a permanently neutralised State from 1885-1908, but its neutralisation was imperfect in so far as it was not guaranteed by the Powers. This fact is explained by the circumstances under which the Congo Free State attained its neutralisation. Article 10 of the General Act of the Congo Conference of Berlin stipulates that the signatory Powers shall respect the neutrality of any territory within the Congo district, provided the Power then or hereafter in possession of the territory proclaims its neutrality. Accordingly, when the Congo Free State was recognised by the Congress of Berlin, the King of the Belgians, as the sovereign of the Congo State, declared[167] it permanently neutral, and this declaration was notified to and recognised by the Powers. Since the Congo Conference did not guarantee the neutrality of the territories within the Congo district, the neutralisation of the Congo Free State was not guaranteed either. In 1908[168] the Congo Free State merged by cession into Belgium.

[Footnote 165: Moynier, "La fondation de l'État indépendant du Congo" (1887); Hall, § 26; Westlake, I. p., 30; Navez, "Essai historique sur l'État Indépendant du Congo," Vol. I. (1905); Reeves in A.J. III. (1909), pp. 99-118.]

[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd Ser. X. p. 353.]

[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.]

[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is doubtful, whether the guarantee of the neutrality of Belgium extends now to territory of the former Congo Free State _ipso facto_ by its merger into Belgium.]

IX

NON-CHRISTIAN STATES

Westlake, I. p. 40--Phillimore, I. §§ 27-33--Bluntschli, §§
1-16--Heffter, § 7--Gareis, § 10--Rivier, I. pp. 13-18--Bonfils,
No. 40--Martens, § 41--Nys, I. pp. 122-125--Westlake, Chapters,
pp. 114-143.

[Sidenote: No essential difference between Christian and other States.]

§ 102. It will be remembered from the previous discussion of the dominion[169] of the Law of Nations that this dominion extends beyond the Christian and includes now the Mahometan State of Turkey and the Buddhistic State of Japan. As all full-Sovereign International Persons are equal to one another, no essential difference exists within the Family of Nations between Christian and non-Christian States. That foreigners residing in Turkey are still under the exclusive jurisdiction of their consuls, is an anomaly based on a restriction on territorial supremacy arising partly from custom and partly from treaties. If Turkey could ever succeed, as Japan did, in introducing such reforms as would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.

[Footnote 169: See above, § 28.]

[Sidenote: International position of non-Christian States except Turkey and Japan.]

§ 103. Doubtful is the position of all non-Christian States except Turkey and Japan, such as China, Morocco, Siam, Persia, and further Abyssinia, although the latter is a Christian State, and although China, Persia, and Siam took part in the Hague Peace Conferences of 1899 and 1907. Their civilisation is essentially so different from that of the Christian States that international intercourse with them of the same kind as between Christian States has been hitherto impossible. And neither their governments nor their populations are at present able to fully understand the Law of Nations and to take up an attitude which is in conformity with all the rules of this law. There should be no doubt that these States are not International Persons of the same kind and the same position within the Family of Nations as Christian States. But it is equally wrong to maintain that they are absolutely outside the Family of Nations, and are for no part International Persons. Since they send and receive diplomatic envoys and conclude international treaties, the opinion is justified that such States are International Persons only in some respects--namely, those in which they have expressly or tacitly been received into the Family of Nations. When Christian States begin such intercourse with these non-Christian States as to send diplomatic envoys to them and receive their diplomatic envoys, and when they enter into treaty obligations with them, they indirectly declare that they are ready to recognise them for these parts as International Persons and subjects of the Law of Nations. But for other parts such non-Christian States remain as yet outside the circle of the Family of Nations, especially with regard to war, and they are for those parts treated by the Christian Powers according to discretion. This condition of things will, however, not last very long. It may be expected that with the progress of civilisation these States will become sooner or later International Persons in the full sense of the term. They are at present in a state of transition, and some of them are the subjects of international arrangements of great political importance. Thus by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia,[170] and the General Act of the Conference of Algeciras of April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, Belgium, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress anarchy in Morocco and to introduce reforms in its internal administration. This Act,[172] which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities in that country for all nations, contains:--(1) A Declaration concerning the organisation of the Moroccan police; (2) Regulations concerning the detection and suppression of the illicit trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A Declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) Regulations respecting customs and the suppression of fraud and smuggling; (6) A Declaration concerning the public services and public works.

[Footnote 170: See Martens, N.R.G. 2nd Ser. XXXV. p. 556.]

[Footnote 171: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.]

[Footnote 172: It has been mentioned above, p. 76, that the Moroccan question has been reopened, and that fresh negotiations are taking place for its settlement.]

X

THE HOLY SEE

Hall, § 98--Westlake, I. pp. 37-39--Phillimore, I. §§
278-440--Twiss, I. §§ 206-207--Taylor, §§ 277, 278, 282--Wharton,
I. § 70, p. 546--Moore, I. § 18--Bluntschli, § 172--Heffter, §§
40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, §
13--Liszt, § 5--Ullmann, § 28--Bonfils, Nos. 370-396--Despagnet,
Nos. 147-164--Mérignhac, II. pp. 119-153--Nys, II. pp.
297-324--Rivier, I. § 8--Fiore, I. Nos. 520, 521--Martens, I. §
84--Fiore, "Della condizione giuridica internazionale della chiesa
e del Papa" (1887)--Bombard, "Le Pape et le droit des gens"
(1888)--Imbart-Latour, "La papauté en droit international"
(1893)--Olivart, "Le Pape, les états de l'église et l'Italie"
(1897)--Chrétien in R.G. VI. (1899) pp. 281-291--Bompart in R.G.
VII. (1900), pp. 369-387--Higgins in _The Journal of the Society
for Comparative Legislation_, New Series, IX. (1907), pp. 252-264.

[Sidenote: The former Papal States.]

§ 104. When the Law of Nations began to grow up among the States of Christendom, the Pope was the monarch of one of those States--namely, the so-called Papal States. This State owed its existence to Pepin-le-Bref and his son Charlemagne, who established it in gratitude to the Popes Stephen III. and Adrian I., who crowned them as Kings of the Franks. It remained in the hands of the Popes till 1798, when it became a republic for about three years. In 1801 the former order of things was re-established, but in 1809 it became a part of the Napoleonic Empire. In 1814 it was re-established, and remained in existence till 1870, when it was annexed to the Kingdom of Italy. Throughout the existence of the Papal States, the Popes were monarchs and, as such, equals of all other monarchs. Their position was, however, even then anomalous, as their influence and the privileges granted to them by the different States were due, not alone to their being monarchs of a State, but to their being the head of the Roman Catholic Church. But this anomaly did not create any real difficulty, since the privileges granted to the Popes existed within the province of precedence only.

[Sidenote: The Italian Law of Guaranty.]

§ 105. When, in 1870, Italy annexed the Papal States and made Rome her capital, she had to undertake the task of creating a position for the Holy See and the Pope which was consonant with the importance of the latter to the Roman Catholic Church. It seemed impossible that the Pope should become an ordinary Italian subject and that the Holy See should be an institution under the territorial supremacy of Italy. For many reasons no alteration was desirable in the administration by the Holy See of the affairs of the Roman Catholic Church or in the position of the Pope as the inviolable head of that Church. To meet the case the Italian Parliament passed an Act regarding the guaranties granted to the Pope and the Holy See, which is commonly called the "Law of Guaranty." According to this the position of the Pope and the Holy See is in Italy as follows:--

The person of the Pope is sacred and inviolable (article 1), although he is subjected to the Civil Courts of Italy.[173] An offence against his person is to be punished in the same way as an offence against the King of Italy (article 2). He enjoys all the honours of a sovereign, retains the privileges of precedence conceded to him by Roman Catholic monarchs, has the right to keep an armed body-guard of the same strength as before the annexation for the safety of his person and of his palaces (article 3), and receives an allowance of 3,225,000 francs (article 4). The Vatican, the seat of the Holy See, and the palaces where a conclave for the election of a new Pope or where an Oecumenical Council meets, are inviolable, and no Italian official is allowed to enter them without consent of the Holy See (articles 5-8). The Pope is absolutely free in performing all the functions connected with his mission as head of the Roman Catholic Church, and so are his officials (articles 9 and 10). The Pope has the right to send and to receive envoys, who enjoy all the privileges of the diplomatic envoys sent and received by Italy (article 11). The freedom of communication between the Pope and the entire Roman Catholic world is recognised, and the Pope has therefore the right to a post and telegraph office of his own in the Vatican or any other place of residence and to appoint his own post-office clerks (article 12). And, lastly, the colleges and other institutions of the Pope for the education of priests in Rome and the environments remain under his exclusive supervision, without any interference on the part of the Italian authorities.

[Footnote 173: See Bonfils, No. 379.]

No Pope has as yet recognised this Italian Law of Guaranty, nor had foreign States an opportunity of giving their express consent to the position of the Pope in Italy created by that law. But practically foreign States as well as the Popes themselves, although the latter have never ceased to protest against the condition of things created by the annexation of the Papal States, have made use of the provisions[174] of that law. Several foreign States send side by side with their diplomatic envoys accredited to Italy special envoys to the Pope, and the latter sends envoys to several foreign States.

[Footnote 174: But the Popes have hitherto never accepted the allowance provided by the Law of Guaranty.]

[Sidenote: International position of the Holy See and the Pope.]