Rivier, in his treatise on international law," enumerates, as sion and exclusion; illustrations. tial elements of the state," which he defines as "an Principles of inclu- independent community, organized in a permanent manner on a certain territory," the following: "Territory and population, collective will and government, independence and permanence." Hence he excludes from the category of the state, which he describes as a "moral person" and "the subject of the law of nations," a horde or nomadic tribe; the negro tribes of Africa and the native races of Australia; the North American Indians, although the United States has allowed them, on grounds of expediency, a certain national existence; and chance communities, organized temporarily, such as bands of brigands and associations of pirates. States, existing and recognized as such, which give themselves over, accidentally or even habitually, to acts of spoliation and ransom, like certain Greek states of antiquity and later still the predatory states of Barbary, do not, he says, for that reason cease to be states. But an association of malefactors, which installed itself on a territory, could not pretend to be treated as a nation, even though it should take the name; war would not be made upon its members according to the laws of war; they would be chastised as criminals, and, in the repression of their depredations on the sea, there would be no question of booty properly so-called or of the observance of the rules of law in regard to prizes. And if anarchists should undertake to found an establishment of some importance, with a view to live according to their maxims, it would not be a state, since the anarchist utopia excludes the idea of government. Religious communities, continues Rivier, are not states; although, for special reasons, the Holy See occupies a position analogous to that of states, and the Pope is treated as a sovereign, and even as a privileged sovereign. Nor do we recognize the personality of the law of nations in communities and corporations which, although they are permanent and organized, and have a territorial seat, are subordinatesuch as communes, provinces, and colonies, and a fortiori political, scientific, industrial, and commercial corporations and societies. Great companies, established for purposes essentially commercial and industrial, may obtain from the state charters or letters-patent, delegating a part of its powers, as, for example, the English companies in Africathe Royal Niger Company (1886), the East African Company (1888), and the South African Company (1889). Such, also, was the Hudson's Bay Company, and especially the East India Company, which for many years had, under the authority of the British Government, an existence analogous to that of states, possessing notably the powers of peace and war with reference to the Hindus. Nor was the Hanseatic League a state; very powerful at certain moments, it was only a league a Principes du Droit des Gens, par Alphonse Rivier, Paris, 1896, 2 vols. of cities, as much territorial as imperial, endowed with important. political privileges, but without a proper (propre) existence, and not recognized as an independent community. Sovereigns, or the heads of states, are sometimes considered as persons or subjects of the law of nations. But, while sovereigns are the universal representatives of states, it is only on this ground that they can be considered as having, and then only indirectly, a personality under the law of nations. This conception, however, seems to be superfluous. More erroneous still is the doctrine which sees in the man a subject of the law of nations; the man has international rights only in his character of a subject or citizen of a state, and through the intermediary of that state. The ethnographic nationalities, the real or pretended races to which the inhabitants of the territory belong, and the languages which those inhabitants speak have no direct influence from the point of view of the law of nations; but they have a moral importance, political and social, which may be very considerable. Principes du Droit des Gens, I. 45–51. Protected princes of "The native princes who acknowledge the imperial majesty of the United Kingdom have no international existence. That their dominions are contrasted with the dominions of the Queen, and that their subjects are contrasted with the subjects of the Queen, are niceties of speech handed down from other days and now devoid of international significance, though their preservation may be convenient for purposes internal to the Empire; in other words, for constitutional purposes. So, too, the term 'protectorate' as applied to the Empire in its relation to those princes, and the description of their subjects, when abroad, as persons entitled to British protection, are etymologically correct; but they do not bear the technical meaning which belongs to the protection of the Republic of San Marino and its citizens by the Kingdom of Italy, or that other technical meaning which belongs to a protectorate in Central Africa. They are etymologically correct because every state is the protector of its own people, and the United Kingdom has, for international poses, absorbed the Indian princes and their subjects into itself. And the government of India was fully justified in the notification which it published in its Official Gazette, No. 1700 E, 21st August, 1891: The principles of international law have no bearing upon the relations between the government of India as representing the Queen-Empress on the one hand and the native states under the suzerainty of Her Majesty on the other. The paramount supremacy of the former presupposes and implies the subordination of the latter."" pur Westlake, International Law, 215; citing Lee-Warner, The Protected Princes of India, 373. See also Tupper, Our Indian Protectorates. H. Doc. 551-2 "We must understand by the word 'state' all the possessions of a nation, in whatever place they may be situated and Colonial posses- whatever may be the distance that separates them. sions. Vattel has formulated on this subject the following important rule: 'Whenever the political laws and the treaties have not established distinctions to the contrary, that which we call the territory of a nation includes its colonies."" Calvo, Le Droit International, cinquième éd., § 40, p. 170. II. SOVEREIGNTY AND INDEPENDENCE. § 4. The words "sovereignty" and "independence" are often used by writers on international law as practically synonyIdeas of sovereignty mous terms. Sometimes they are carefully distinand independence. 66 guished. Independence, like every negative, does not," says Westlake, "admit of degrees. A group of men dependent in any degree on another group is not independent, but has relations with that other which as between the two are constitutional relations. Sovereignty is partible. A group of men is fully sovereign when it has no constitutional relations making it in any degree dependent on any other group; if it has such relations, so much of sovereignty as they leave it is a kind or degree of semi-sovereignty, though the constitution may not call it by that name. Thus the independence and the full sovereignty of a state are identical, but it would be an abuse of language to speak of semi-sovereignty as partial independence." On the other hand, there are writers who strongly object to the idea of a division of sovereignty, since sovereignty, according to their conception of it, is indivisible and has no degrees. These differences belong rather to the domain of political science than to that of international law. As international law deals with actual conditions, it recognizes the fact that there are states not in all respects independent that maintain international relations, to a greater or less extent, according to the degree of their dependence. Such states are generally called semi-sovereign. A state is sovereign, from the point of view of the law of nations, when it is independent of every other state in the exercise of its international rights externally, and in the manner in which it lives and governs itself internally. Rivier, Principes du Droit des Gens. I. 52. a "Theoretically a politically organized community enters of right * * * into the family of nations and must be treated in accordance with law, so soon as it is able to show that it possesses the marks of a state. The Beginning of sovereign existence. a Int. Law, 87. commencement of a state dates nevertheless from its recognition by other powers; that is to say, from the time at which they accredit ministers to it, or conclude treaties with it, or in some other way enter into such relations with it as exist between states alone. For though no state has a right to withhold recognition when it has been earned, states must be allowed to judge for themselves whether a community claiming to be recognized does really possess all the necessary marks, and especially whether it is likely to live. Thus although the right to be treated as a state is independent of recognition, recognition is the necessary evidence that the right has been acquired." Hall, Int. Law. 4th ed. 87. Hall maintains that, viewed as evidence of the right to be treated as independent, recognition by a parent state, though more conclusive of independence than recognition by a third power," does not essentially differ from the latter in legal effect. He admits, however, that there is an important practical difference in the value of the evidence in the two cases, since the parent state, by recognizing its revolted provinces, precludes itself from treating subsequent recognition by other states as premature. nal sovereignty. "Sovereignty is the supreme power by which any state is governed. This supreme power may be exercised either internally Internal and exter- or externally. Internal sovereignty is that which is inherent in the people in any state, or vested in its ruler by its municipal constitution or fundamental laws. ternal sovereignty consists in the independence of one political society, in respect to all other political societies. The internal sov * * * * * * Ex ereignty of a state does not, in any degree, depend upon its recognition by other states. Thus the internal sovereignty of the United States of America was complete from the time they declared themselves 'free, sovereign, and independent States,' on the 4th of July, 1776. It was upon this principle that the Supreme Court determined, in 1808, that the several States composing the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign states, and that they did not derive them from concessions made by the British King. The treaty of peace of 1782 contained a recognition of their independence, not a grant of it. (McIlvaine v. Coxe's Lessee, 4 Cranch, 212.) The external sovereignty of any state, on the other hand, may require recognition by other states in order to render it perfect and complete." * * * Wheaton, Elements, Chap II. § 20, 21, Dana's ed. 31–33. The sovereignty of the state does not preclude the assumption of obligations, by treaty or otherwise, or the existence of a servitude upon the territory of one state for the benefit of another. Nor is it incompatible with the National obliga tions. payment of tribute, where such payment is made, as to the Barbary powers prior to 1830, not as a sign of dependence, but as the price of an advantage gained or peril avoided. Calvo, Le Droit Int., cinquième ed. I. 172, § 43; Rivier, Principes du Droit External influence. Calvo observes that the transitory obedience which a state pays to the directions of another government, or the exterior influence to which it may eventually have to submit, is not incompatible with the sovereignty of such state. Thus, for example, the city of Cracow was recognized by the congress of Vienna in 1815 as a free state, independent and neutral, under the protection of Russia, Austria, and Prussia. Notwithstanding the powerful influence which those three powers were thus called upon to exercise over that state, Cracow did not cease to be considered as an independent nation in its international relations till 1846, when it was incorporated with the Empire of Austria, the incorporation giving rise to a protest on the part of England, France, and Sweden, based upon the violation of the treaties of 1815. Calvo, Le Droit Int., 5th ed. I. 172, § 42. External guarantees. Independence or sovereignty is sometimes guaranteed by one or more states, severally or jointly. The independence of Belgium has been guaranteed since 1831, and in virtue of Art. II. of their treaty with the Netherlands of April 19, 1839, by the five powers; the maintenance of its independence, as well as of its neutrality, was the object of new treaties concluded at London August 9 and 11, 1870, by Great Britain and Prussia, and Great Britain and France. The independence of Luxemburg was collectively guaranteed by Austria, Great Britain, Prussia, and Russia, in the treaty of London of May 11, 1867, Art. II. Greek independence is guaranteed by France, Great Britain, and Russia. By Art. VII. of the treaty of Paris of 1856, the contracting parties agreed each on his own part to respect the independence and territorial integrity of the Ottoman Empire. This is not a guarantee. The independence of Switzerland is not guaranteed by the treaties of Vienna. There was no need of it, and Switzerland wished that the matter should not be brought into question. But the integrity and inviolability of Swiss territory have been guaranteed. Rivier, Principes du Droit des Gens, I. 61-62. |