Chapter I: International Persons (3)

§ 106. The Law of Guaranty is not International but Italian Municipal Law, and the members of the Family of Nations have hitherto not made any special arrangements with regard to the International position of the Holy See and the Pope. And, further, there can be no doubt that since the extinction of the Papal States the Pope is no longer a monarch whose sovereignty is derived from his position as the head of a State. For these reasons many writers[175] maintain that the Holy See and the Pope have no longer any international position whatever according to the Law of Nations, since States only and exclusively are International Persons. But if the facts of international life and the actual condition of things in every-day practice are taken into consideration, this opinion has no basis to stand upon. Although the Holy See is not a State, the envoys sent by her to foreign States are treated by the latter on the same footing with diplomatic envoys as regards exterritoriality, inviolability, and ceremonial privileges, and those foreign States which send envoys to the Holy See claim for them from Italy all the privileges and the position of diplomatic envoys. Further, although the Pope is no longer the head of a State, the privileges due to the head of a monarchical State are still granted to him by foreign States. Of course, through this treatment the Holy See does not acquire the character of an International Person, nor does the Pope thereby acquire the character of a head of a monarchical State. But for some points the Holy See is actually treated as though she were an International Person, and the Pope is treated actually in every point as though he were the head of a monarchical State. It must therefore be maintained that by custom, by tacit consent of the members of the Family of Nations, the Holy See has a _quasi_ international position. This position allows her to claim against all the States treatment on some points as though she were an International Person, and further to claim treatment of the Pope in every point as though he were the head of a monarchical State. But it must be emphasised that, although the envoys sent and received by the Holy See must be treated as diplomatic envoys,[176] they are not such in fact, for they are not agents for international affairs of States, but exclusively agents for the affairs of the Roman Catholic Church. And it must further be emphasised that the Holy See cannot conclude international treaties or claim a vote at international congresses and conferences. The so-called Concordats--that is, treaties between the Holy See and States with regard to matters of the Roman Catholic Church--are not international treaties, although analogous treatment is usually given to them. Even formerly, when the Pope was the head of a State, such Concordats were not concluded with the Papal States, but with the Holy See and the Pope as representatives of the Roman Catholic Church.

[Footnote 175: Westlake, I. p. 38, now joins the ranks of these writers.]

[Footnote 176: The case of Montagnini, which occurred in December 1906, cannot be quoted against this assertion, for Montagnini was not at the time a person enjoying diplomatic privileges. Diplomatic relations between France and the Holy See had come to an end in 1905 by France recalling her envoy at the Vatican and at the same time sending the passports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who remained at the nunciature in Paris, did not possess any diplomatic character after the departure of the Nuncio. Neither his arrest and his expulsion in December 1906, nor the seizure of his papers at the nunciature amounted therefore to an international delinquency on the part of the French Government. The papers left by the former Papal Nuncio Lorenzelli were not touched and remained in the archives of the former nunciature until the Austrian ambassador in Paris, in February 1907, asked the French Foreign Office to transfer them to him for the purpose of handing them on to the Holy See. It must be specially mentioned that the seizure of his papers and the arrest and expulsion of Montagnini took place because he conspired against the French Government by encouraging the clergy to refuse obedience to French laws. And it must further be mentioned that Lorenzelli, when he left the nunciature, did not, contrary to all precedent, place the archives of the nunciature under seals and confide them to the protection of another diplomatic envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX. (1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.]

[Sidenote: Violation of the Holy See and the Pope.]

§ 107. Since the Holy See has no power whatever to protect herself and the person of the Pope against violations, the question as to the protection of the Holy See and the person of the Pope arises. I believe that, since the present international position of the Holy See rests on the tacit consent of the members of the Family of Nations, many a Roman Catholic Power would raise its voice in case Italy or any other State should violate the Holy See or the person of the Pope, and an intervention for the purpose of protecting either of them would have the character of an intervention by right. Italy herself would certainly make such a violation by a foreign Power her own affair, although she has no more than any other Power the legal duty to do so, and although she is not responsible to other Powers for violations of the Personality of the latter by the Holy See and the Pope.

XI

INTERNATIONAL PERSONS OF THE PRESENT DAY

[Sidenote: European States.]

§ 108. All the seventy-four European States are, of course, members of the Family of Nations. They are the following:

Great Powers are:

Austria-Hungary.
France.
Germany.
Great Britain.
Italy.
Russia.

Smaller States are:

Bulgaria.
Denmark.
Greece.
Holland.
Montenegro.
Norway.
Portugal.
Roumania.
Servia.
Spain.
Sweden.
Turkey.

Very small, but nevertheless full-Sovereign, States are:

Monaco and Lichtenstein.

Neutralised States are:

Switzerland, Belgium, and Luxemburg.

Half-Sovereign States are:

Andorra (under the protectorate of France and Spain).
San Marino (under the protectorate of Italy).
Crete (under the suzerainty of Turkey).

Part-Sovereign States are:

(_a_) Member-States of Germany:

Kingdoms: Prussia, Bavaria, Saxony, Würtemberg.

Grand-Duchies: Baden, Hesse, Mecklenburg-Schwerin,
Mecklenburg-Strelitz, Oldenburg.

Dukedoms: Anhalt, Brunswick, Saxe-Altenburg, Saxe-Coburg-Gotha,
Saxe-Meiningen, Saxe-Weimar.

Principalities: Reuss Elder Line, Reuss Younger Line, Lippe,
Schaumburg-Lippe, Schwarzburg-Rudolstadt,
Schwarzburg-Sondershausen Waldeck.

Free Towns are: Bremen, Lübeck, Hamburg.

(_b_) Member-States of Switzerland:

Zurich, Berne, Lucerne, Uri, Schwyz, Unterwalden (ob und nid dem
Wald), Glarus, Zug, Fribourg, Soleure, Basle (Stadt und
Landschaft), Schaffhausen, Appenzell (beider Rhoden), St. Gall,
Grisons, Aargau, Thurgau, Tessin, Vaud, Valais, Neuchâtel, Geneva.

[Sidenote: American States.]

§ 109. In America there are twenty-one States which are members of the Family of Nations, but it must be emphasised that the member-States of the five Federal States on the American continent, although they are part-Sovereign, have no footing within the Family of Nations, because the American Federal States, in contradistinction to Switzerland and Germany, absorb all possible international relations of their member-States.

In North America there are:

The United States of America.
The United States of Mexico.

In Central America there are:

Costa Rica.
Cuba.
San Domingo.
Guatemala.
Hayti.
Honduras.
Nicaragua.
Panama (since 1903).
San Salvador.

In South America there are:

The United States of Argentina.
Bolivia.
The United States of Brazil.
Chili.
Colombia.
Ecuador.
Paraguay.
Peru.
Uruguay.
The United States of Venezuela.

[Sidenote: African States.]

§ 110. In Africa the Negro Republic of Liberia is the only real and full member of the Family of Nations. Egypt and Tunis are half-Sovereign, the one under Turkish suzerainty, the other under French protectorate. Morocco and Abyssinia are both full-Sovereign States, but for some parts only within the Family of Nations. The Soudan has an exceptional position; being under the _condominium_ of Great Britain and Egypt, a footing of its own within the Family of Nations the Soudan certainly has not.

[Sidenote: Asiatic States.]

§ 111. In Asia only Japan is a full and real member of the Family of Nations. Persia, China, Siam, Tibet, and Afghanistan are for some parts only within that family.