PERSONS IN INTERNATIONAL LAW
CHAPTER V
STATES
A State is a sovereign political unity. It is of the relations of states that public international law mainly treats. From the nature of its subject-matter it is a juridical, historical, and philosophical science.[51] These sovereign political unities may vary greatly. The unity however
(a) Must be political, i.e. organized for public ends as understood in the family of nations and not for private ends as in the case of a commercial company, a band of pirates, or a religious organization.
(b) Must possess sovereignty, i.e. supreme political power beyond and above which there is no political power. It is not inconsistent with sovereignty, that a state should voluntarily take upon itself obligations to other states, even though the obligations be assumed under stress of war, or fear of evil.
§ 20. Nature
From the nature of the state as a sovereign political unity it must be self-sufficient, and certain conditions are therefore generally recognized as necessary for its existence from the standpoint of international law.[52]
(a) Moral. In order that a state may be regarded as within the "family of nations," and within the pale of international Law, it must recognize the rights of other states and acquiesce in its obligations toward them. This is considered a moral condition of state existence.
(b) Physical. A state must also possess those physical resources which enable it to exist as territory, etc.
(c) Communal. A state must possess a body of men so related as to warrant the belief in the continued existence of the unity. Each state may be its own judge as to the time when these relations are established in a given body of men, and the recognition of a new state is fitting.
That such conditions are recognized as prerequisites of state existence from the point of view of international law is not due to the essential nature of the state, but rather to the course of development of international law; as Hall says, "The degree to which the doctrines of international law are based upon the possession of land must in the main be attributed to the association of rights of sovereignty or supreme control over human beings with that of territorial property in the minds of jurists at the period when the foundations of international law were being laid."[53]
(d) External Conditions. The external relationship of the state rather than the internal nature is the subject of consideration in international law. For local law a community may enter upon state existence long before this existence is recognized by other nations, as in the case of Switzerland before 1648. Until recognition by other states of its existence becomes general, a new state cannot acquire full status in international law; and this recognition is conditioned by the policy of the recognizing states.
§ 21. Recognition of New States
(a) State existence de facto is not a question of international law but depends upon the existence of a sovereign political unity with the attributes which necessarily appertain to it. This de facto existence is not dependent upon the will of any other state or states.[54] The entrance of the state into the international statehood, however, depends entirely upon the recognition by those states already within this circle. Whatever advantages membership in this circle may confer, and whatever duties it may impose, do not fall upon the new state until its existence is generally recognized by the states already within the international circle. These advantages and duties, as between the recognizing and recognized state, immediately follow recognition but do not necessarily extend to other states than those actually party to the recognition. The basis of this family of nations or international circle which admits other states to membership is historical, resting on the polity of the older European states. These states, through the relations into which they were brought by reason of proximity and intercourse, developed among themselves a system of action in their mutual dealings; and international law in its beginning proposed to set forth what this system was and should be.[55] This family of states could not permit new accessions to its membership unless these new states were properly constituted to assume the mutual relationships, and as to the proper qualifications for admission in each case, the states already within the family claim and exercise the right to judge.
(b) The circumstances of recognition vary.
(1) The most numerous instances are in consequence of division which involves the recognition of the existence of more than one state within the limits which had formerly been under a single jurisdiction. This may be preceded by recognition of the belligerency of a revolted community within the jurisdiction of an existing state, or may be preceded by division of an existing state into two or more states.[56] In the first case recognition is a question of national policy, in the second case recognition is usually readily accorded.
(2) In modern times a new state has frequently been formed by the union of two or more existing states.[57] The recognition in such a case usually follows immediately.
(3) A state after existence for a period of years may be formally admitted into the family of states. Japan, for centuries a de facto state, was only recently fully admitted to international statehood.[58] Turkey, so long the dread of Europe, was formally received by the Treaty of Paris, 1856.
(4) New states may be formed in territory hitherto outside any de facto state jurisdiction, or within regions hitherto considered savage. The examples of this class are mainly Africans, as in the creation of the Congo Free State under the International Association of the Congo. The United States recognized the Congo Free State by acknowledging its flag, April 22, 1884. Liberia, originally established by the American colonization Society in 1821, as a refuge for negroes from America since 1847, has been recognized as an independent republic.
(5) From another point of view recognition may be individual or collective. Recognition is individual when a state, independently of any other, acknowledges the international statehood of a new state. This was the method of recognition of the United States. Collective recognition is by the concerted action of several states at the same time. This has taken place most often in the admission of minor states to the European family of states, as in the cases of Greece by the powers at the Conference of London, 1880; Belgium, 1831; Montenegro, Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free State was acknowledged by the International Congo Conference at Berlin, 1885.
(c) The act constituting recognition of a new state may be formal, as by a declaration, proclamation, treaty, sending and receiving ambassadors, salute of flag, etc., or informal, by implication through the grant of an exequatur to a consul from the new state, or other act which indicates an acknowledgment of international rights and obligations.[59] It should be observed, however, that the appointment by, or reception within, an existing state of agents to carry on necessary intercourse between the existing state, and the aspirant for recognition does not constitute recognition. It may be essential to have relations with a community the statehood of which is not established, because of commercial and other matters pertaining to the rights of the citizens of the existing state whose interests, or who in person may be within the jurisdiction of the unrecognized community.[60] The definite act of recognition is, however, in accord with the decision of the internal authority to which this function is by state law ascribed. As foreign states usually take cognizance of the acts of the executive department only, it is the common custom to consider recognition as an executive function, or as a function residing in the head of the state. In the United States, the President is for foreign affairs the head of the state, and has the authority to recognize new states in any manner other than by those acts, which by the Constitution require the advice and consent of the Senate, as in the conclusion of treaties, and appointment of ambassadors, other public ministers, and consuls. President Grant, in his second annual message, Dec 5, 1870, said, "As soon as I learned that a republic had been proclaimed at Paris, and that the people of France had acquiesced in the change, the minister of the United States was directed by telegraph to recognize it, and to tender my congratulations and those of the people of the United States."[61] As President Jackson had in his message in December, 1831, and in the official correspondence with Buenos Ayres denied that country's jurisdiction over the Falkland Islands, Justice McLean said, in rendering his opinion in Williams v. Suffolk Insurance Company, "And can there be any doubt that when the executive branch of the government which is charged with our foreign relations, shall, in its correspondence with foreign nations, assume a fact in regard to sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his constitutional functions he has decided the question."[62] "The President is the executive department."[63]
(d) Recognition may be premature and the recognized community may not be able to maintain its place in the international circle, or in case of a struggle with another state may be defeated. The recognizing state must assume in such case whatever consequences may come from its misjudgment, and the parent state may justly question the right of the recognizing state in its action, e.g. the recognition by France of the United States in 1778 could justly be regarded by England as premature and as a hostile act.
(e) The recognition of a new state is the recognition of the existence of certain political conditions. This recognition of the state carries with it the acknowledgment of sovereignty, independence, equality, etc. It is an essential condition to just recognition that the new aspirant possess these qualifications absolutely or potentially to a reasonable extent.
(f) From its nature, recognition is irrevocable and absolute, unless distinctly conditional. Even when conditional, if the recognition is prior to the fulfillment of the condition by the recognized state, the recognition cannot be withdrawn because of non-fulfillment of the condition, but the recognizing state may resort to any other means which would be admitted in international law as justifiable against any other state failing to fulfill its obligations, e.g. suspension of diplomatic relations, retorsion, reprisals, or even war.[64] In the case of Belgium, the definition of its boundaries and establishing of permanent neutralization was an act subsequent to the recognition of its international statehood, and in case of violation of the treaty stipulations, Belgium would not lose its position as a state, but would be liable to such measures of reparation as the other parties to the treaty might employ.[65] If recognition could be withdrawn, it would work injustice to the recognized state, and to other states who, as third parties, will not permit their rights to be subject to the will of the recognizing state or states.
(g) The consequences of recognition immediately touch the relations of (1) the recognizing state, (2) the recognized, (3) the parent state if the new state is formed from an existing state, and (4) in a minor degree other states.
(1) The recognizing state is bound to treat the new state in all respects as entitled to the rights and as under duties accepted in international law.
(2) The recognized state is, as related to the recognizing state, entitled to the rights, and under the obligations prescribed in international law. As it is a new person in international law, it is entitled to full personal freedom in entering into relations with other states. So far, however, as the territory within the new state was under local obligations, these obligations are transferred to the new state. The general obligations resting on the parent state, by reason of treaties and responsibilities of all kinds which have been assumed by the parent state in the capacity of a legal unity, are not transferred, because the identity of the parent state remains intact.[66]
(3) The parent state, in cases where the new state is formed by separation from one already existing, is, as regards the recognizing state, on the same international footing as the new state. Both states are entitled to equal privileges, and under like obligations. The relations to other states are not necessarily much changed.
(4) The relations of the states other than the recognizing, recognized, and parent states are changed to the extent that they must respect the de facto relations set forth in (1), (2), and (3) above, i.e. while not recognizing the new state, they must accept the fact that the recognition exists for the states who are parties to it, and they are not entitled to pass judgment as to the justice of the recognition.
CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS
§ 22. Members of Confederations and other Unions
A state in the sense of public law is not sovereign in the sense of international law, if there are any limitations upon its power to enter into relations with other states. Such a state may be a member of a confederation and exercise certain powers giving it a qualified international status. These loose unions may, as in the German Confederation from 1815 to 1866, leave to the local states a certain degree of autonomy in regulating international affairs while granting to the central government certain specified powers. This division of international competence is usually a temporary compromise ending in new states or in a close union. "Inasmuch as both the central and the separate states carry on diplomatic intercourse with foreign powers, they must each and all be regarded as Subjects of International Law; and inasmuch as they carry on such intercourse only in a limited degree, they cannot be regarded as fully and absolutely sovereign."[67]
In the examples of personal and real unions and the like, the nature of the state is a matter of public law and little concerns international law. As related to international law, the question is how far are such states restricted in their dealings with other states. A union, such as that existing in the case of the ruler of the United Kingdom of Great Britain and Ireland and Empire of India, is of importance to international law only in its united capacity, while for public law the nature of the union is of much significance. The same might be said of the unions of Austria-Hungary, and Sweden-Norway.
§ 23. Neutralized States
Neutralized states are sovereign only in a qualified degree. While such states have a certain formal equality, their actual competence is limited in regard to the exercise of sovereign powers. This limitation as to neutrality may be externally imposed or externally enforced, as in the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till 1900, Samoa. This neutralization may take place for political or philanthropic reasons.[68] The degree of external sovereignty possessed by neutralized states varies. The fact that these states are not fully sovereign in the field of international law in no way affects their competence except in respect to matters covered by the conditions of neutralization. Such states are deprived of the right of offensive warfare, and have not therefore that final recourse possessed by fully sovereign states for enforcing their demands.
§ 24. Protectorates, Suzerainties
States under protectors—protectorates—usually possess all powers not specifically resigned. States fully sovereign may demand (1) that states under protectors afford reasonable protection to the subjects and to the property of subjects of fully sovereign states, and (2) that the protecting state use reasonable measures to give effect to the protection which it has assumed. Just how much responsibility the protecting state has depends upon the degree of protection exercised and assumed. The protectorate of Great Britain over the South African Republic by the agreement of 1884 was of a very moderate form. The right to veto within a certain time any treaty made with a foreign state, other than the Orange Free State and native princes, constituted practically the only restriction on the independence of the Republic. Great Britain has several other protectorates in Africa over which the degree of authority varies. In many instances protectorates easily pass into colonies, as in the case of Madagascar, which Great Britain recognized as under French protection in 1890, which protection the queen of Madagascar accepted in October, 1895, and in August, 1896, Madagascar was declared a French colony.[69]
As distinct from a state under a protectorate which possesses all competence in international affairs which it has not specifically resigned, a state under suzerainty possesses only such competence as has been specifically conferred upon it by the suzerain. The relations are usually much closer than between protecting and protected states; and in many cases only the suzerain has international status, while the vassal is merely tributary, though having a certain degree of internal independence which may be in some instances almost complete. By the first article of the Treaty of Berlin, Bulgaria is made a tributary and autonomous principality under the suzerainty of the Sultan of Turkey. Under Russian suzerainty are such vassal states as Bokhara and Khiva. Some of the states under the suzerainty of European states have no status in international law, as in the case of Bokhara and Khiva. There exist such anomalous cases as the co-suzerainty of the republic of Andorra, the collective suzerainty of the Samoan Islands till 1900,[70] and the absolute suzerainty of the United States over the "domestic dependent nations" of Indians.
§ 25. Corporations
From the point of view of international law, corporations are generally of two kinds: corporations organized for private purposes, and corporations organized for purposes involving the exercise of delegated sovereign powers.
(a) Corporations organized for private purposes come within the field of international law, when in time of war their property or other rights are impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law.
(b) Corporations organized for purposes involving the exercise of political powers have from time to time, for several centuries, been chartered and have often acquired a quasi-international status. While restricted to the performance of functions intrusted to them by their charters, the home governments have often sanctioned acts for which their charters gave no warrant. The companies that early entered America, India, Africa, and the later African companies, are of this kind. The development of the late doctrine of "the sphere of influence" has given an important position to these companies organized within those states desirous to share in "the partition of Africa."
Among the most notable of the earlier companies was the English East India Company,[71] which received its first charter in 1600. During more than two hundred and fifty years this company exercised practically sovereign powers, until by the act of Aug. 2, 1858, the government heretofore exercised by the company was transferred to the crown, and was henceforth to be exercised in its name.
In recent years the African companies chartered by the European states seeking African dominions have had very elastic charters in which the home governments have generally reserved the right to regulate the exercise of authority as occasion might demand. These companies advance and confirm the spheres of influence of the various states, govern under slight restrictions great territories, and treat with native states with full authority. The British South Africa Company, chartered in 1889, was granted liberal powers of administration and full capacity, subject to the approval of the Secretary of State for the Colonies, to treat with the native states. The field of operations of this company was extended in 1891, so that it now includes over six hundred thousand square miles of territory. Of this company Lawrence says: "Clearly then it is no independent authority in the eye of British law, but a subordinate body controlled by the appropriate departments of the supreme government. Like Janus of old, it has two faces. On that which looks towards the native tribes all the lineaments and attributes of sovereignty are majestically outlined. On that which is turned towards the United Kingdom is written subordination and submission."[72] The acts of these companies become the basis of subsequent negotiations among the various European states, and the companies have a very important influence in molding the character of African development.
§ 26. Individuals
Without entering into discussion of "the doctrine of the separability of the individual from the state," it is safe to affirm that individuals have a certain degree of competence under exceptional circumstances, and may come under the cognizance of international law. By the well-established dictum of international law a pirate may be captured by any vessel, whatever its nationality. General admiralty and maritime procedure against a person admit the legal status of an individual from the point of view of international law. The extension of trade and commerce has made this necessary. This is particularly true in time of war, when individuals wholly without state authorization, or even in contravention of state regulations, commit acts putting them within the jurisdiction held to be covered by international law, as in the case of persons brought before Prize Courts. The principles of private international law cover a wide range of cases directly touching individuals.
§ 27. Insurgents
(a) Definition. Insurgents are organized bodies of men who, for public political purposes, are in a state of armed hostility to an established government.
(b) Effect of Admission of Insurgency. The practice of tacitly admitting insurgent rights has become common when the hostilities have assumed such proportions as to jeopardize the sovereignty of the parent state over the rebelling community, or seriously to interfere with customary foreign intercourse.[73] The general effect of the admission is shown as follows:[74]
(1) Insurgent rights cannot be claimed by those bodies seeking other than political ends.[75]
(2) Insurgent acts are not piratical, as they imply the pursuit of "public as contrasted with private ends."[76]
(3) The admission of insurgent rights does not carry the rights of a belligerent, nor admit official recognition of insurgent body.[77]
(4) The admission of insurgent rights does not relieve the parent state of its responsibilities for acts committed within its jurisdiction.[78]
(5) When insurgents act in a hostile manner toward foreign states, they may be turned over to the parent state, or may be punished by the foreign state.[79]
(6) A foreign state must in general refrain from interference in the hostilities between parent state and insurgents, i.e. cannot extend hospitality of its ports to insurgents, extradite insurgents, etc.[80]
(7) When insurgency exists, the armed forces of the insurgents must observe and are entitled to the advantages of the laws of war in their relations to the parent state.[81]
Note. During the struggles between the parties in the United States of Colombia in 1885, the President of Colombia decreed: (1) That certain Carribean ports held by the opposing party should be regarded as closed to foreign commerce, and trade with these ports would be considered illicit and contraband, and that vessels, crews, etc., involved in such trade would be liable to the penalties of Colombian laws. (2) That as the vessels of the opposing party in the port of Cartagena were flying the Colombian flag, it was in violation of right, and placed that party beyond the pale of international law.[82]
The United States refused to recognize the validity of the first decree unless Colombia should support it by an effective blockading force.[83] (For similar position on part of Great Britain, see Parl. Deb. H. C., June 27, 1861.)
The United States also refused to recognize that the vessels of the insurgents were beyond the pale of international law or in any sense piratical.
The United States did not deny that closure might be a domestic measure similar to blockade in accord with municipal law, but emphatically maintained that effective blockade only could close a port in time of such insurrection.
It was further maintained that "The denial by this [U.S.] Government of the Colombian proposition did not, however, imply the admission of a belligerent status on the part of the insurgents." Message Pres. Cleveland, Dec. 8, 1885.[84]
The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly mention a status of insurgency as existing in Cuba.
During the rebellions in Chili in 1891 and in Brazil in 1894, the insurgents, while not recognized as belligerents by third powers, were nevertheless given freedom of action by these powers.
§ 28. Belligerents
(a) Definition. A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent.
(b) The general conditions prior to recognition are: (1) that the end which the community in revolt seeks shall be political, i.e. a mere mob or a party of marauders could have no belligerent rights, (2) the hostilities must be of the character of war and must be carried on in accord with the laws of war, (3) the proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible, (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization.
As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of belligerency exist, there may be great divergency of opinion in cases of recognition,[85] but the question of belligerency is a question of fact and never a question of theory.
(c) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a responsible organization may not be recognized without offense to the parent state except upon certain grounds. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection."[86] "The reason which requires and can alone justify this step [recognition of belligerency] by the government of another country, is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties.... A recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government."[87]
(d) Recognition of belligerency is naturally an act of the executive authority.[88]
The following is the proclamation of Queen Victoria of May 13, 1861:—
"Whereas we are happily at peace with all sovereign powers and states:
"And whereas hostilities have unhappily commenced between the Government of the United States of America and certain states styling themselves the Confederate States of America:
"And whereas we, being at peace with the Government of the United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties:
"We, therefore, have thought fit, by [and with] the advice of our privy council, to issue this our royal proclamation:
"And we do hereby strictly charge and command all our loving subjects to observe a strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf or the law of nations in relations thereto, as they will answer to the contrary at their peril."
(e) Certain consequences follow the recognition of belligerency.
(1) If recognition is by a foreign state.
(a) From the date of recognition, the parent state is released from responsibility to the recognizing state for the acts of the belligerents.
(b) So far as the recognizing state is concerned, the parent state and the belligerent community would have the same war status, i.e. in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the recognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must accord the belligerent community all the privileges of a full state.
(c) The recognizing state may hold the belligerent community, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its belligerency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts of the recognized community from the date of recognition.
(d) This recognition does not necessarily affect other than the three parties, the recognizing state, the belligerent community, and the parent state.
(2) If recognition of belligerency is by the parent state.
(a) From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents.
(b) So far as the prosecution of hostilities is concerned, the community, recognized as belligerent by the parent state, is entitled to full war status.
(c) From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, i.e. contracts made with a belligerent, or responsibilities assumed by a belligerent, do not fall upon the parent state, when victorious in the contest.
(d) Recognition of belligerency by the parent state gives the revolting community a war status as regards all states.
In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties directly concerned, when recognition is by a single foreign state. In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality and demand reparation for any breach of the same, may maintain blockade, prize courts, and take other measures allowable in war.
The condition of insurgency is usually tacitly admitted for a period prior to the recognition of belligerency, and the vessels of the insurgents are not regarded as pirates either in practice or theory. They have not the animus furandi. The admission of insurgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status.
§ 29. Communities not fully Civilized
While there is no agreement as to what constitutes civilization, still international law is considered as binding only upon states claiming a high degree of enlightenment. Communities, whether or not politically organized and not within the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities not fully civilized should be treated as civilized states would be treated so far as the time and other circumstances permit. Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization. Many states not admitted to the circle of nations have now acquired such a status as entitles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded, as for many years to China, Persia, and other Asiatic states.
