Chapter XLIV: Appendix: Treaty of VIVI (3)

3. According to the practice of international law, at this day, the recognition of one to whom sovereignty has been conceded, as a sovereign, can even follow of itself, in certain cases. Almost all governments, especially Great Britain and the United States of America[84] have adopted the rule of considering _de facto_ governments as legitimate, as far as they themselves are concerned. (See Heffter, pars. 51, 53, pp. 101-105.)

Let us suppose a European nation had concluded a treaty of friendship or commerce with the chief of a savage tribe, inhabiting a fixed territory. This treaty is supposed to be concluded, and is effectively concluded with the State which the chief represents. The chief had ceded his rights of sovereignty to a European individual or a European association, who are put in real possession of the sovereignty. Could the European nation deny the legitimacy of this new Government if it was a government _de facto_, according to international usages? No. At least, Great Britain and the United States would recognise it, and probably other States also. And if the preceding chief had been displaced by internal revolution—which can break out among blacks as among whites—and if the black chief had ceded his sovereignty to another Negro, a relation or even a stranger to his family, would that be a reason for refusing recognition to the new sovereign? And if the chief of the tribe had ceded his sovereignty to a white man, in place of choosing for his successor a black man, or an association composed of whites, certainly the difference of colour could not be a reason for refusing recognition to the new sovereign.

Thus it is seen that in wandering away from true and simple principles difficulties of every kind are encountered.

Therefore I am of opinion that independent chiefs of savage tribes can validly cede to a private individual the whole or part of their State, with the sovereign rights which belong to them, and conformably to the traditional customs of the country.

BRUSSELS, December 15, 1883.

OTHER AUTHORITIES CITED

(Extract from the _Droit international codifié_, by M. Bluntschli.)

(Page 68, paragraph 35): A new State has the right to enter into the international association of States, and to be recognised by other powers when its existence cannot be put in doubt and is assured. It has the right because it exists, because international law unites existing States by common laws and principles based upon justice and humanity.

Recognition by other sovereign States is a voluntary act on a part of these latter. It is not, nevertheless, an absolutely arbitrary act, because international law unites, even against their will, diverse existing States, and makes of them a kind of political association.

The opinion is frequently advanced by the older publicists that it depends upon the good pleasure of each State to recognise or not to recognise another, outside of the necessary and absolute line of international law. If this law rested solely upon the arbitrary will of States, it would not be just that it should be simply a conventional law.

(Page 164): A State has evidently the right to constitute itself without the ratification of another State. This would be the case when emigrants, for example, found a State upon an uninhabited island, as did the Norwegians in Iceland in the middle ages. A number of new States of North America were founded by individuals; it was only later that they were recognised by England, and to this day they proceed in the same manner in the United States. If new states can in this way constitute themselves, by still stronger reasoning analogous extensions of territory already existing should be recognised.

ANOTHER MANNER OF ACQUIRING THE SOVEREIGNTY OF A FREE COUNTRY

(From Vattel, _Le droit des gens_, vol. i., page 489, par. 206.)

If free families, scattered over an independent country, unite to form themselves into a nation or a State, they acquire the sovereignty over the whole State which they inhabit, for they possess already the domain; and since they wish to form a political society and to establish a public authority to which all will owe obedience, it is quite manifest that their intention is to confer upon this public authority the right of sovereignty of the whole country.

(From Heffter, _Le droit international publique de l’Europe_.)

(Pages 32 and 33): The existence of a state supposes the following conditions, to wit:

I. A society capable of existing by itself and independently.

II. A collective will regularly organised, or a public authority charged with the direction of society for the end which we have just indicated.

III. A permanent status of society, the natural base of a free and permanent development, and which depends essentially on the fixity of the tenure of real estate and the intellectual and moral tendencies of its members.

We regard as idle the questions discussed by the schools, such as, What is the number of persons necessary to form a state? or, If one or three persons are sufficient? The distinctive characteristics of a state which we have just indicated sufficiently answer these questions.

(Page 42): A state exists _de facto_ so soon as it unites the necessary elements indicated above; that is to say, will, united to the indispensable means and strength to defend its independence.

(Page 43): The entry of a new state upon the political scene depends in no wise upon an express preliminary recognition by foreign powers. It is fully accomplished the day when it commences to exist. On the other hand, political reasons alone may decide foreign powers to recognise or enter into direct relations with it. Recognition only confirms what legally exists by admitting the new member into the grand European family.

(From the _Commentary upon the Elements of International Law, and
History of the Progress of International Law_, by William Beach
Lawrence.)

(Page 162): It is not necessary that there should be a determined number of persons to form a state.

(Page 197): Texas was recognised by England in 1839, when its population was not more than 60,000 souls. Lord Palmerston said on that occasion to Mr. O’Connell that “the principle of the Government was to recognise every state which had a _de facto_ independence.”

(Chamber of Commerce of the State of New York. Founded A.D. 1768.)

At an adjourned meeting of the Chamber of Commerce, held January 10, 1884, the following resolutions, presented by Mr. A. A. Low, were adopted:

WHEREAS, the President of the United States has, in his recent message, called attention to the fact that the rich and populous valley of the Congo is now being opened to commerce by the International African Association, and has especially dwelt upon the interest, for the purposes of trade and commerce, that we have, as a people, in the neutrality of that valley, free from the interference or political control of any one nation: Therefore,

_Be it resolved_, As the opinion of this Chamber that it is incumbent upon the Government of the United States, through its accredited representative, to apprise the Portuguese Government that it will not recognise, but denies the right of the latter to interfere with the free navigation of the Congo; that the discovery of this great waterway into the interior of Central Africa is not due to Portugal, but was the discovery of an explorer in the interest of no one nationality; and that the entry, 400 years ago, into the mouth of the Congo, by the Portuguese, not having been followed up by actual and continued occupation, can give that nation no territorial right to the river, or to the countries upon its banks.

_Resolved_, That the recognition by the Government of the United States of the flag of the International African Association, now extending over twenty-two settlements, in the heart of Africa, will be but an acknowledgment of the fact that that organisation, under rights ceded to it by African chiefs of independent territories, is exercising rule and authority over a large part of Africa in the protection of life and property, the extinguishment of the slave trade, the facilitating of commercial intercourse, and other attributes of sovereignty; and that it be recommended to the President to send an accredited agent of the Government to the Congo, to confer with that association in the adopting of such measures as may secure to American citizens free commercial intercourse along the course of that river, and through the various settlements or stations established by the association.

A true copy.

JAS. M. BROWN,
_President_.

GEORGE WILSON,
_Secretary_.

(From copy of correspondence of the Manchester Chamber of Commerce
and the Secretary of State for Foreign Affairs.)

His Majesty the King of the Belgians has, during the last two years, incurred considerable expense in an expedition to the Upper Congo for the purposes of opening roads, establishing stations for trade, and for communication with the vast tribes inhabiting the interior of Africa. For the result of this expedition merchants are watching with interest, believing that this river will ultimately become one of the great highways for trade in the heart of Africa.

... It is, therefore, both manifest and notorious that the African tribes who inhabit the coast-line claimed by Portugal, between 5° 12´, and 8th degree south latitude, are in reality independent, and that the right acquired by Portugal from priority of discovery at the end of the fifteenth century has for a long time been suffered to lapse, owing to the Portuguese Government not having occupied the country so discovered. In the presence of these facts the undersigned must repeat the declaration of Her Majesty’s Government that the interests of commerce imperatively required it to maintain the right of unrestricted intercourse with that part of the coast of Western Africa extending between 5°, 12´, and the 8th degree of south latitude....

I have the honour to be, my lord, your lordship’s obedient, very humble servant,

JOHN SLAGG,
_President_.

(From Earl Granville’s reply to Lord Mount Temple in the House of
Lords, March 9, 1883.)

... The labours of men like Livingstone, Stanley, and others have given us a knowledge of the physical character of Central Africa, and of the populations which inhabit it, showing that there are great capabilities for the development of trade, and of the civilising effects which are the result of commerce. The work of the philanthropic International Association, in which the King of the Belgians takes a great interest, the mission of M. de Brazza, the increasing trade in different degrees, of the English, the Portuguese, the French, the Germans, the Dutch, and the Belgians, on the Congo and its banks, are acting as a stimulus and afford grounds why no reasonable endeavours should be neglected to insure freedom of commerce and navigation, and to anticipate possible jealousies, which so easily check trade, and which, under the pretence of securing peculiar advantages to some, are really injurious to all....

FOOTNOTES:

[66] Heffter, par. 7, p. 14: “With respect to non-Christian states, which are not yet regularly admitted into the bosom of the European family, the application of the same law is entirely free, and founded upon a purely conventional reciprocity. Relations with them are formed according to the exigencies of policy and morality.”

[67] _Droit de gens moderne_, par. 20.

[68] _Einleitung in das positive europaïsche Völkerrecht_, Gottingen, 1796, p. 1.

[69] _Droit des gens moderne_, par. 21.

[70] _Droit des gens moderne_, par. 23.

[71] _Einleitung in das positive europaïsche Völkerrecht_, par. 31.

[72] _Droit des gens moderne de l’Europe_, par. 25.

[73] See Charles Calvo, _Manuel du droit international public et privé_, par. 49, p. 85; also his _Droit international theorique et pratique_, vol. i., p. 320.

[74] _Précis du droit des gens_, Paris, 1877, No. X., p. 23.

[75] See on this point, _International Law_, by Edward W. Hall, M.A., barrister-at-law, Oxford, 1880, par. 35, p. 100.

[76] Bancroft’s _History of the United States_, vol. i., pp. 342-350.

[77] Carlier, _History of the American People_, vol i., p. 300.

[78] _Elements of International Law_ (Fr. tr.), vol. i., p. 50.

[79] Vol. xii., p. 12.

[80] See the histories of Bancroft and Carlier.

[81] Heffter, _Le droit international publique_, par. 52, p. 104.

[82] Wheaton, vol. i., par. 12, p. 25; Heffter, par. 8, p. 16.

[83] _Revue de droit international_, vol. xi., pp. 258, 259.

[84] See manifesto of President Monroe, of December 2, 1823.

GENERAL ACT OF THE BERLIN CONFERENCE

In the name of Almighty God,—

His Majesty the German Emperor, King of Prussia; His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary; His Majesty the King of the Belgians; His Majesty the King of Denmark; His Majesty the King of Spain; the President of the United States of America; the President of the French Republic; Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; His Majesty the King of Italy; His Majesty the King of the Netherlands, Grand Duke of Luxembourg, etc.; His Majesty the King of Portugal and the Algarves, etc.; His Majesty the Emperor of All the Russias; His Majesty the King of Sweden and Norway, etc.; and His Majesty the Emperor of the Ottomans,

Wishing, in a spirit of good and mutual accord, to regulate the conditions most favourable to the development of trade and civilisation in certain regions of Africa, and to assure to all nations the advantages of free navigation on the two chief rivers of Africa flowing into the Atlantic Ocean; being desirous, on the other hand, to obviate the misunderstandings and disputes which might in future arise from new acts of occupation (_prises de possession_) on the coast of Africa; and concerned, at the same time, as to the means of furthering the moral and material well-being of the native populations: Have resolved, on the invitation addressed to them by the Imperial Government of Germany, in agreement with the Government of the French Republic, to meet for those purposes in Conference at Berlin, and have appointed as their Plenipotentiaries, to wit:—

His Majesty the German Emperor, King of Prussia, Otho, Prince von Bismarck, his President of the Prussian Council of Ministers, Chancellor of the Empire; Paul, Count von Hatzfeldt, his Minister of State and Secretary of State for Foreign Affairs; Auguste Busch, his Acting Privy Councillor of Legation and Under-Secretary of State for Foreign Affairs; and Henri von Kusserow, Privy Councillor of Legation in the Department for Foreign Affairs;

His Majesty the Emperor of Austria, King of Bohemia, etc., and Apostolic King of Hungary, Emeric, Count Széchényi de Sárvári Felső-Vidék, Chamberlain and Acting Privy Councillor, his Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of the Belgians, Gabriel Auguste Count Van der Straten Ponthoz, Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia; and Auguste, Baron Lambermont, Minister of State, Envoy Extraordinary and Minister Plenipotentiary;

His Majesty the King of Denmark, Emile de Vind, Chamberlain, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Spain, Don Francisco Merry y Colom, Count Benomar, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

The President of the United States of America, John A. Kasson, Envoy Extraordinary and Minister Plenipotentiary of the United States of America at the Court of His Majesty the German Emperor, King of Prussia; and Henry S. Sanford, ex-Minister;

The President of the French Republic, Alphonse, Baron de Courcel, Ambassador Extraordinary and Plenipotentiary of France at the Court of His Majesty the German Emperor, King of Prussia;

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India, Sir Edward Baldwin Malet, her Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Italy, Edward, Count de Launay, his Ambassador Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of the Netherlands, Grand Duke of Luxembourg, Frederic Philippe, Jonkheer Van der Hoeven, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the King of Portugal and the Algarves, etc., Da Serra Gomes, Marquis de Penafiel, Peer of the Realm, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia; and Antoine de Serpa Pimentel, Councillor of State and Peer of the Realm;

His Majesty the Emperor of all the Russias, Pierre, Count Kapnist, Privy Councillor, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the King of the Netherlands;

His Majesty the King of Sweden and Norway, etc., Gillis, Baron Bildt, Lieutenant-General, his Envoy Extraordinary and Minister Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

His Majesty the Emperor of the Ottomans, Méhemed Saïd Pasha, Vézir and High Dignitary, his Envoy Extraordinary and Plenipotentiary at the Court of His Majesty the German Emperor, King of Prussia;

Who, being provided with full powers, which have been found in good and due form, have successively discussed and adopted:—

1. A Declaration relative to freedom of trade in the basin of the Congo, its embouchures and circumjacent regions, with other provisions connected therewith.

2. A Declaration relative to the Slave Trade, and the operations by sea or land which furnish slaves to that trade.

3. A Declaration relative to the neutrality of the territories comprised in the Conventional Basin of the Congo.

4. An Act of Navigation for the Congo, which, while having regard to local circumstances, extends to this river, its affluents, and the waters in its system (_eaux qui leur sont assimilées_), the general principles enunciated in Articles CVIII. and CXVI. of the Final Act of the Congress of Vienna, and intended to regulate, as between the Signatory Powers of that Act, the free navigation of the waterways separating or traversing several States—these said principles having since then been applied by agreement to certain rivers of Europe and America, but especially to the Danube, with the modifications stipulated by the Treaties of Paris (1856), of Berlin (1878), and of London (of 1871 and 1883).

5. An Act of Navigation for the Niger, which, while likewise having regard to local circumstances, extends to this river and its affluents the same principles as set forth in Articles CVIII. and CXVI. of the Final Act of the Congress of Vienna.

6. A Declaration introducing into international relations certain uniform rules with reference to future occupations on the coasts of the African Continent.

And deeming it expedient that all these several documents should be combined into one single instrument, they (the Signatory Powers) have collected them into one General Act, composed of the following Articles: