International Law. A Treatise Volume I Part 13

-- 74. Recognition is of special importance in those cases where a new State tries to establish itself by breaking off from an existing State in the course of a revolution. And here the question is material whether a new State has really already safely and permanently established itself or only makes efforts to this end without having already succeeded. That in every case of civil war a foreign State can recognise the insurgents as a belligerent Power if they succeed in keeping a part of the country in their hands and set up a Government of their own, there is no doubt.

But between this recognition as a belligerent Power and the recognition of these insurgents and their part of the country as a new State, there is a broad and deep gulf. And the question is precisely at what exact time recognition of a new State may be given instead of the recognition as a belligerent Power. For an untimely and precipitate recognition as a new State is a violation of the dignity[104] of the mother-State, to which the latter need not patiently submit.

[Footnote 104: It is frequently maintained that such untimely recognition contains an intervention. But this is not correct, since intervention is (see below, -- 134) _dictatorial_ interference in the affairs of another State. The question of recognition of the belligerency of insurgents is exhaustively treated by Westlake, I. pp.

50-57.]

In spite of the importance of the question, no hard-and-fast rule can be laid down as regards the time when it can be said that a State created by revolution has established itself safely and permanently. The characteristic of such safe and permanent establishment may be found either in the fact that the revolutionary State has utterly defeated the mother-State, or that the mother-State has ceased to make efforts to subdue the revolutionary State, or even that the mother-State, in spite of its efforts, is apparently incapable of bringing the revolutionary back under its sway.[105] Of course, as soon as the mother-State itself recognises the new State, there is no reason for other States to withhold any longer their recognition, although they have even then no legal obligation to grant it.

[Footnote 105: When, in 1903, Panama fell away from Colombia, the United States immediately recognised the new Republic as an independent State.

For the motives of this quick action, see Moore, I. -- 344, pp. 46 and following.]

The breaking off of the American States from their European mother-States furnishes many ill.u.s.trative examples. Thus the recognition of the United States by France in 1778 was precipitate. But when in 1782 England herself recognised the independence of the United States, other States could accord recognition too without giving offence to England.

Again, when the South American colonies of Spain declared their independence in 1810, no Power recognised the new States for many years.

When, however, it became apparent that Spain, although she still kept up her claims, was not able to restore her sway, the United States recognised the new States in 1822, and England followed the example in 1824 and 1825.[106]

[Footnote 106: See Gibbs, "Recognition: a Chapter from the History of the North American and South American States" (1863), and Moore, I. ---- 28-36.]

[Sidenote: State Recognition in contradistinction to other Recognitions.]

-- 75. Recognition of a new State must not be confounded with other recognitions. Recognition of insurgents as a belligerent Power has already been mentioned. Besides this, recognition of a change in the form of the government or of change in the t.i.tle of an old State is a matter of importance. But the granting or refusing of these recognitions has nothing to do with recognition of the State itself. If a foreign State refuses the recognition of a change in the form of the government of an old State, the latter does not thereby lose its recognition as an International Person, although no official intercourse is henceforth possible between the two States as long as recognition is not given either expressly or tacitly. And if recognition of a new t.i.tle[107] of an old State is refused, the only consequence is that such State cannot claim any privileges connected with the new t.i.tle.

[Footnote 107: See below, -- 119.]

III

CHANGES IN THE CONDITION OF INTERNATIONAL PERSONS

Grotius, II. c. 9, ---- 5-13--Pufendorf, VIII. c. 12--Vattel, I. -- 11--Hall, -- 2--Halleck, I. pp. 89-92--Phillimore, I. ---- 124-137--Taylor, -- 163--Westlake, I. pp. 58-66--Wheaton, ---- 28-32--Moore, I. ---- 76-79--Bluntschli, ---- 39-53--Hartmann, ---- 12-13--Heffter, -- 24--Holtzendorff in Holtzendorff, II. pp.

21-23--Liszt, -- 5--Ullmann, ---- 31 and 35--Bonfils, Nos.

214-215--Despagnet, Nos. 86-89--Pradier-Fodere, I. Nos.

146-157--Nys, I. pp. 399-401--Rivier, I. -- 3--Calvo, I. ---- 81-106--Fiore, I. Nos. 321-331, and Code, Nos. 119-141--Martens, I. ---- 65-69.

[Sidenote: Important in contradistinction to Indifferent Changes.]

-- 76. The existence of International Persons is exposed to the flow of things and times. There is a constant and gradual change in their citizens through deaths and births, emigration, and immigration. There is a frequent change in those individuals who are at the head of the States, and there is sometimes a change in the form of their governments, or in their dynasties if they are monarchies. There are sometimes changes in their territories through loss or increase of parts thereof, and there are sometimes changes regarding their independence through partial or total loss of the same. Several of these and other changes in the condition and appearance of International Persons are indifferent to International Law, although they may be of great importance for the inner development of the States concerned and directly or indirectly for international policy. Those changes, on the other hand, which are, or may be, of importance to International Law must be divided into three groups according to their influence upon the character of the State concerned as an International Person. For some of these changes affect a State as an International Person, others do not; again, others extinguish a State as an International Person altogether.

[Sidenote: Changes not affecting States as International Persons.]

-- 77. A State remains one and the same International Person in spite of changes in its heads.h.i.+p, in its dynasty, in its form, in its rank and t.i.tle, and in its territory. These changes cannot be said to be indifferent to International Law. Although strictly no notification to and recognition by foreign Powers are necessary, according to the Law of Nations, in case of a change in the heads.h.i.+p of a State or in its entire dynasty, or if a monarchy becomes a republic or _vice versa_, no official intercourse is possible between the Powers refusing recognition and the State concerned. Although, further, a State can a.s.sume any t.i.tle it likes, it cannot claim the privileges of rank connected with a t.i.tle if foreign States refuse recognition. And although, thirdly, a State can dispose according to discretion of parts of its territory and acquire as much territory as it likes, foreign Powers may intervene for the purpose of maintaining a balance of power or on account of other vital interests.

But whatever may be the importance of such changes, they neither affect a State as an International Person, nor affect the personal ident.i.ty of the States concerned. France, for instance, has retained her personal ident.i.ty from the time the Law of Nations came into existence until the present day, although she acquired and lost parts of her territory, changed her dynasty, was a kingdom, a republic, an empire, again a kingdom, again a republic, again an empire, and is now, finally as it seems, a republic. All her international rights and duties as an International Person remained the very same throughout the centuries in spite of these important changes in her condition and appearance. Even such loss of territory as occasions the reduction of a Great Power to a small Power, or such increase of territory and strength as turns a small State into a Great Power, does not affect a State as an International Person. Thus, although through the events of the years 1859-1861 Sardinia acquired the whole territory of the Italian Peninsula and turned into the Great Power of Italy, she remained one and the same International Person.

[Sidenote: Changes affecting States as International Persons.]

-- 78. Changes which affect States as International Persons are of different character.

(1) As in a Real Union the member-States of the union, although fully independent, make one International Person,[108] two States which hitherto were separate International Persons are affected in that character by entering into a Real Union. For through that change they appear henceforth together as one and the same International Person. And should this union be dissolved, the member-States are again affected, for they now become again separate International Persons.

[Footnote 108: See below, -- 87, where the character of the Real Union is fully discussed.]

(2) Other changes affecting States as International Persons are such changes as involve a partial loss of independence on the part of the States concerned. Many restrictions may be imposed upon States without interfering with their independence proper,[109] but certain restrictions involve inevitably a partial loss of independence. Thus if a hitherto independent State comes under the suzerainty of another State and becomes thereby a half-Sovereign State, its character as an International Person is affected. The same is valid with regard to a hitherto independent State which comes under the protectorate of another State. Again, if several hitherto independent States enter into a Federal State, they transfer a part of their sovereignty to the Federal State and become thereby part-Sovereign States. On the other hand, if a va.s.sal State or a State under protectorate is freed from the suzerainty or protectorate, it is thereby affected as an International Person, because it turns now into a full Sovereign State. And the same is valid with regard to a member-State of a Federal State which leaves the union and gains the condition of a full Sovereign State.

[Footnote 109: See below, ---- 126-127, where the different kinds of these restrictions are discussed.]

(3) States which become permanently neutralised are thereby also affected in their character as International Persons, although their independence remains untouched. But permanent neutralisation alters the condition of a State so much that it thereby becomes an International Person of a particular kind.

[Sidenote: Extinction of International Persons.]

-- 79. A State ceases to be an International Person when it ceases to exist. Theoretically such extinction of International Persons is possible through emigration or the peris.h.i.+ng of the whole population of a State, or through a permanent anarchy within a State. But it is evident that such cases will hardly ever occur in fact. Practical cases of extinction of States are: Merger of one State into another, annexation after conquest in war, breaking up of a State into several States, and breaking up of a State into parts which are annexed by surrounding States.

By voluntarily merging into another State, a State loses all its independence and becomes a mere part of another. In this way the Duchy of Courland merged in 1795 into Russia, the two Princ.i.p.alities of Hohenzollern-Hechingen and Hohenzollern-Sigmaringen in 1850 into Prussia, the Congo Free State in 1908 into Belgium, and Korea in 1910 into j.a.pan. And the same is the case if a State is subjugated by another. In this way the Orange Free State and the South African Republic were absorbed by Great Britain in 1901. An example of the breaking up of a State into different States is the division of the Swiss canton of Basle into Basel-Stadt and Basel-Land in 1833. And an example of the breaking up of a State into parts which are annexed by surrounding States is the absorption of Poland by Russia, Austria, and Prussia in 1795.

IV

SUCCESSION OF INTERNATIONAL PERSONS[110]

Grotius, II. c. 9 and 10--Pufendorf, VIII. c. 12--Hall, ---- 27-29--Phillimore, I. -- 137--Lawrence, -- 49--Halleck, I. pp.

89-92--Taylor, ---- 164-168--Westlake, I. pp. 68-83--Wharton, I. -- 5--Moore, I. ---- 92-99--Wheaton, ---- 28-32--Bluntschli, ---- 47-50--Hartmann, -- 12--Heffter, -- 25--Holtzendorff in Holtzendorff, II. pp. 33-47--Liszt, -- 23--Ullmann, -- 32--Bonfils, Nos. 216-233--Despagnet, Nos. 89-102--Pradier-Fodere, I. Nos.

156-163--Nys, I. pp. 399-401--Rivier, I. -- 3, pp. 69-75 and p.

438--Calvo, I. ---- 99-103--Fiore, I. Nos. 349-366--Martens, I. -- 67--Appleton, "Des effets des annexions sur les dettes de l'etat demembre ou annexe" (1895)--Huber, "Die Staatensuccession"

(1898)--Keith, "The Theory of State Succession, with special reference to English and Colonial Law" (1907)--Cavaglieri, "La dottrina della successione di stato a stato, &c." (1910)--Richards in _The Law Magazine and Review_, XXVIII. (1903), pp.

129-141--Keith in Z.V. III. (1909), pp. 618-648--Hershey in A.J.

V. (1911), pp. 285-297.

[Footnote 110: The following text treats only of the broad outlines of the subject, as the practice of the States has hardly settled more than general principles. Details must be studied in Huber, "Die Staatensuccession" (1898), and Keith, "The Theory of State Succession, &c." (1907); the latter writer's a.n.a.lysis of cases in Z.V. III. (1909), pp. 618-648, is likewise very important.]

[Sidenote: Common Doctrine regarding Succession of International Persons.]

-- 80. Although there is no unanimity among the writers on International Law with regard to the so-called succession of International Persons, nevertheless the following common doctrine can be stated to exist.

A succession of International Persons occurs when one or more International Persons take the place of another International Person, in consequence of certain changes in the latter's condition.

Universal succession takes place when one International Person is absorbed by another, either through subjugation or through voluntary merger. And universal succession further takes place when a State breaks up into parts which either become separate International Persons of their own or are annexed by surrounding International Persons.

Partial succession takes place, first, when a part of the territory of an International Person breaks off in a revolt and by winning its independence becomes itself an International Person; secondly, when one International Person acquires a part of the territory of another through cession; thirdly, when a hitherto full Sovereign State loses part of its independence through entering into a Federal State, or coming under suzerainty or under a protectorate, or when a hitherto not-full Sovereign State becomes full Sovereign; fourthly, when an International Person becomes a member of a Real Union or _vice versa_.

n.o.body ever maintained that on the successor devolve all the rights and duties of his predecessor. But after stating that a succession takes place, the respective writers try to educe the consequences and to make out what rights and duties do, and what do not, devolve.

Several writers,[111] however, contest the common doctrine and maintain that a succession of International Persons never takes place. Their argument is that the rights and duties of an International Person disappear with the extinguished Person or become modified according to the modifications an International Person undergoes through losing part of its sovereignty.

[Footnote 111: See Gareis, pp. 66-70, who discusses the matter with great clearness, and Liszt, -- 23.]

[Sidenote: How far Succession actually takes place.]

-- 81. If the real facts of life are taken into consideration, the common doctrine cannot be upheld. To say that succession takes place in such and such cases and to make out afterwards what rights and duties devolve, shows a wrong method of dealing with the problem. It is certain that no _general_ succession takes place according to the Law of Nations. With the extinction of an International Person disappear its rights and duties as a person. But it is equally wrong to maintain that no succession whatever occurs. For n.o.body doubts that certain rights and duties actually and really devolve upon an International Person from its predecessor. And since this devolution takes place through the very fact of one International Person following another in the possession of State territory, there is no doubt that, as far as these devolving rights and duties are concerned, a succession of one International Person to the rights and duties of another really does take place. But no general rule can be laid down concerning all the cases in which a succession takes place. These cases must be discussed singly.

[Sidenote: Succession in consequence of Absorption.]