International Law. A Treatise Volume I Part 15

[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. x.x.xII. 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 const.i.tution 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 Const.i.tutional 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 Const.i.tution 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 Const.i.tution 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 t.i.tle "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 members.h.i.+p 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, "Auswartige Hoheitsrechte der deutschen Einzelstaaten" (1905).]

But it happens frequently that a Federal State a.s.sumes _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 Const.i.tution 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 cla.s.ses 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

Va.s.sAL 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--Merignhac, I. pp.

201-218--Pradier-Fodere, 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--Boghitchevitch, "Halbsouveranitat" (1903).

[Sidenote: The Union between Suzerain and Va.s.sal State.]

-- 90. The union and the relations between a Suzerain and its Va.s.sal 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 Va.s.sal 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 va.s.sal, and, further, regarding the position, if any, of the va.s.sal 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 va.s.sal; the lord was said to be the suzerain of the va.s.sal, and at that time suzerainty was a term of Const.i.tutional 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 Va.s.sal State which can be called const.i.tutional rights. The rights of the Suzerain State over the Va.s.sal are princ.i.p.ally international rights, of whatever they may consist.

Suzerainty is by no means sovereignty. If it were, the Va.s.sal 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 guardians.h.i.+p_, since the Va.s.sal State is either absolutely or mainly represented internationally by the Suzerain State.

[Sidenote: International Position of Va.s.sal States.]

-- 91. The fact that the relation between the suzerain and the va.s.sal always depends upon the special case, excludes the possibility of laying down a general rule as regards the position of Va.s.sal States within the Family of Nations. It is certain that a Va.s.sal State as such need not have any position whatever within the Family of Nations. In every case in which a Va.s.sal State has absolutely no relations whatever with other States, since the suzerain absorbs these relations entirely, such va.s.sal 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 Va.s.sal 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 Va.s.sal 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 Va.s.sal 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 Va.s.sal States have not the right to make war independently of their suzerain, Bulgaria, at the time a Va.s.sal 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 Va.s.sal 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 Va.s.sal 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 va.s.sal, if an exception is not expressly mentioned or self-evident. Thus, again, war of the suzerain is _ipso facto_ war of the va.s.sal. Thus, thirdly, the suzerain bears within certain limits a responsibility for actions of the Va.s.sal State.

Under these circ.u.mstances it is generally admitted that the conception of suzerainty lacks juridical precision, and experience teaches that Va.s.sal 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 Va.s.sal State under Turkish suzerainty, see Holland, "The European Concert in the Eastern Question" (1885), pp. 277-307, and Nedjmidin, "Volkerrechtliche Entwicklung Bulgariens" (1908).]

Va.s.sal 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 Va.s.sal 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; Grunau, "Die staats- und volkerrechtliche 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--Merignhac, II.

pp. 180-220--Pradier-Fodere, 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 volkerrechtliche Protectorat"

(1891)--Engelhardt, "Les Protectorats, &c." (1896)--Gairal, "Le protectorat international" (1896)--Despagnet, "Essai sur les protectorats" (1896)--Boghitchevitch, "Halbsouveranitat" (1903).

[Sidenote: Conception of Protectorate.]