J. De Louter: Het Stellig Volkenrecht, 2 vols. 1910.

§ 59. The Science of the Law of Nations, as left by the French Revolution, developed progressively during the nineteenth century under the influence of three factors. The first factor is the endeavour, on the whole sincere, of the Powers since the Congress of Vienna to submit to the rules of the Law of Nations. The second factor is the many law-making treaties which arose during this century. And the last, but not indeed the least factor, is the downfall of the theory of the Law of Nature, which after many hundreds of years has at last been shaken off during the second half of this century.

When the nineteenth century opens, the three schools of the Naturalists, the Positivists, and the Grotians are still in the field, but Positivism[84] gains slowly and gradually the upper hand, until at the end it may be said to be victorious, without, however, being omnipotent. The most important writer[85] up to 1836 is Klüber, who may be called a Positivist in the same sense as Martens, for he also applies the natural Law of Nations to fill up the gaps of the positive. Wheaton appears in 1836 with his "Elements," and, although an American, at once attracts the attention of the whole of Europe. He may be called a Grotian. And the same may be maintained of Manning, whose treatise appeared in 1839, and is the first that attempts a survey of British practice regarding sea warfare based on the judgments of Sir William Scott (Lord Stowell). Heffter, whose book appeared in 1844, is certainly a Positivist, although he does not absolutely deny the Law of Nature. In exact application of the juristic method, Heffter's book excels all former ones, and all the following authors are in a sense standing on his shoulders. In Phillimore, Great Britain sends in 1854 a powerful author into the arena, who may, on the whole, be called a Positivist of the same kind as Martens and Klüber. Generations to come will consult Phillimore's volumes on account of the vast amount of material they contain and the sound judgment they exhibit. And the same is valid with regard to Sir Travers Twiss, whose first volume appeared in 1861. Halleck's work, which appeared in the same year, is of special importance as regards war, because the author, who was a General in the service of the United States, gave to this part his special attention. The next prominent author, the Italian Fiore, who published his system in 1865 and may be called a Grotian, is certainly the most prominent Italian author, and the new edition of his work will for a long time to come be consulted. Bluntschli, the celebrated Swiss-German author, published his book in 1867; it must, in spite of the world-wide fame of its author, be consulted with caution, because it contains many rules which are not yet recognised rules of the Law of Nations. Calvo's work, which first appeared in 1868, contains an invaluable store of facts and opinions, but its juristic basis is not very exact.

From the seventies of the nineteenth century the influence of the downfall of the theory of the Law of Nature becomes visible in the treatises on the Law of Nations, and therefore real positivistic treatises make their appearance. For the Positivism of Zouche, Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real Positivism, since these authors recognised a natural Law of Nations, although they did not make much use of it. Real Positivism must entirely avoid a natural Law of Nations. We know nowadays that a Law of Nature does not exist. Just as the so-called Natural Philosophy had to give way to real natural science, so the Law of Nature had to give way to jurisprudence, or the philosophy of the positive law. Only a positive Law of Nations can be a branch of the science of law.

The first real positive treatise known to me is Hartmann's "Institutionen des praktischen Völkerrechts in Friedenszeiten," which appeared in 1874, but is hardly known outside Germany. In 1880 Hall's treatise appeared, and at once won the attention of the whole world; it is one of the best books on the Law of Nations that have ever been written. Lorimer, whose two volumes appeared in 1883 and 1884, is a Naturalist pure and simple, but his work is nevertheless of value. The Russian Martens, whose two volumes appeared in German and French translations in 1883 and at once put their author in the forefront of the authorities, certainly intends to be a real Positivist, but traces of Natural Law are nevertheless now and then to be found in his book. A work of a special kind is that of Holtzendorff, the first volume of which appeared in 1885. Holtzendorff himself is the editor and at the same time a contributor to the work, but there are many other contributors, each of them dealing exhaustively with a different part of the Law of Nations. The copious work of Pradier-Fodéré, which also began to appear in 1885, is far from being positive, although it has its merits. Wharton's three volumes, which appeared in 1886, are not a treatise, but contain the international practice of the United States. Bulmerincq's book, which appeared in 1887, gives a good survey of International Law from the positive point of view. In 1894 three French jurists, Bonfils, Despagnet, and Piédelievre, step into the arena; their treatises are comprehensive and valuable, but not absolutely positive. On the other hand, the English authors Lawrence and Walker, whose excellent manuals appeared in 1895, are real Positivists. Of the greatest value are the two volumes of Rivier which appeared in 1896; they are full of sound judgment, and will influence the theory and practice of International Law for a long time to come. Liszt's short manual, which in its first edition made its appearance in 1898, is positive throughout, well written, and suggestive. Ullmann's work, which likewise appeared in its first edition in 1898, is an excellent and comprehensive treatise which thoroughly discusses all the more important problems and points from the positive standpoint. Hannis Taylor's comprehensive treatise, which appeared in 1901, is likewise thoroughly positive, and so are the serviceable manuals of Wilson and Maxey. Of great value are the two volumes of Westlake which appeared in 1904 and 1907; they represent rather a collection of thorough monographs than a treatise, and will have great and lasting influence. A work of particular importance is the "Digest" of John Basset Moore, which appeared in 1906, comprises eight volumes, and contains the international practice of the United States in a much more exhaustive form than the work of Wharton; it is an invaluable work which must be consulted on every subject. The same is valid with regard to the three volumes of Nys, who may be characterised as a Grotian, and whose work is full of information on the historical and literary side of the problems.[86]

§ 60. COLLECTIONS OF TREATIES

(1) General Collections

Leibnitz: Codex iuris gentium diplomaticus (1693); Mantissa codicis iuris gentium diplomatici (1700).

Bernard: Recueil des traités, etc. 4 vols. (1700).

Rymer: Foedera etc. inter reges angliae et alios quosvis imperatores ... ab anno 1101 ad nostra usque tempora habita et tradata, 20 vols. 1704-1718 (Contains documents from 1101-1654).

Dumont: Corps universel diplomatique, etc., 8 vols. (1726-1731).

Rousset: Supplément au corps universel diplomatique de Dumont, 5 vols. (1739).

Schmauss: Corpus iuris gentium academicum (1730).

Wenck: Codex iuris gentium recentissimi, 3 vols. (1781, 1786, 1795).

Martens: Recueil de Traités d'Alliance, etc., 8 vols. (1791-1808); Nouveau Recueil de Traités d'Alliance, etc., 16 vols. (1817-1842); Nouveaux Suppléments au Recueil de Traités et d'autres Actes remarquables, etc., 3 vols. (1839-1842); Nouveau Recueil Général de Traités, Conventions et autres Actes remarquables, etc., 20 vols. (1843-1875); Nouveau Recueil Général de Traités et autres Actes relatifs aux Rapports de droit international, Deuxième Série, 35 vols. (1876-1908); Nouveau Recueil Général de Traités et autres Actes relatifs aux Rapports de droit international, Troisième Série, vol. I. 1908, continued up to date. Present editor, Heinrich Triepel, professor in the University of Kiel in Germany.

Ghillany: Diplomatisches Handbuch, 3 vols. (1855-1868).

Martens et Cussy: Recueil manuel, etc., 7 vols. (1846-1857); continuation by Geffcken, 3 vols. (1857-1885).

British and Foreign State Papers: Vol. I. 1814, continued up to date, one volume yearly.

Das Staatsarchiv: Sammlung der officiellen Actenstücke zur Geschichte der Gegenwart, vol. I. 1861, continued up to date, one volume yearly.

Archives diplomatiques: Recueil mensuel de diplomatie, d'histoire, et de droit international, first and second series, 1861-1900, third series from 1901 continued up to date (4 vols. yearly).

Recueil International des Traités du XX^e Siècle: Edited by Descamps and Renault since 1901.

Strupp: Urkunden zur Geschichte des Völkerrechts, 2 vols. (1911).

(2) Collections of English Treaties only

Jenkinson: Collection of all the Treaties, etc., between Great Britain and other Powers from 1648 to 1783, 3 vols. (1785).

Chalmers: A Collection of Maritime Treaties of Great Britain and other Powers, 2 vols. (1790).

Hertslet: Collection of Treaties and Conventions between Great Britain and other Powers (vol. I. 1820, continued to date).

Treaty Series: Vol. I. 1892, and a volume every year.

§ 61. BIBLIOGRAPHIES

Zeitschrift für internationales Recht. It has appeared in Leipzig since 1891, one volume yearly. Present editor, Theodor Niemeyer.

Annuaire de l'Institut de Droit International, vol. I. 1877. A volume appears after each meeting of the Institute.

Kokusaiho-Zasshi, the Japanese International Law Review. It has appeared in Tokio since 1903.

Revista de Derecho Internacional y politica exterior. It has appeared in Madrid since 1905, one volume yearly. Editor, Marquis de Olivart.

Rivista di Diritto Internazionale. It has appeared in Rome since 1906, one volume yearly. Editors, D. Anzilotti, A. Ricci-Busatti, and L. A. Senigallia.

Zeitschrift für Völkerrecht und Bundesstaatsrecht. It has appeared in Breslau since 1906, one volume yearly. Editors, Joseph Kohler, L. Oppenheim, and F. Holldack.

The American Journal of International Law. It has appeared in Washington since 1907, one volume yearly. Editor, James Brown Scott.

Essays and Notes concerning International Law frequently appear also in the Journal du droit international privé et de la Jurisprudence comparée (Clunet), the Archiv für öffentliches Recht, The Law Quarterly Review, The Law Magazine and Review, The Juridical Review, The Journal of the Society of Comparative Legislation, The American Law Review, the Annalen des deutschen Reiches, the Zeitschrift für das privat- und öffentliche Recht der Gegenwart (Grünhut), the Revue de droit public et de la science politique (Larnaude), the Annales des sciences politiques, the Archivio giuridico, the Jahrbuch des öffentlichen Rechts, and many others.

PART I THE SUBJECTS OF THE LAW OF NATIONS

CHAPTER I INTERNATIONAL PERSONS

I SOVEREIGN STATES AS INTERNATIONAL PERSONS

Vattel, I. §§ 1-12—Hall, § 1—Lawrence, § 42—Phillimore, I. §§ 61-69—Twiss, I. §§ 1-11—Taylor, § 117—Walker, § 1—Westlake, I. pp. 1-5, 20-21—Wheaton, §§ 16-21—Ullmann, § 19—Heffter, § 15—Holtzendorff in Holtzendorff, II. pp. 5-11—Bonfils, Nos. 160-164—Despagnet, Nos. 69-74—Pradier-Fodéré, I. Nos. 43-81—Nys, I. pp. 329-356—Rivier, I. § 3—Calvo, I. §§ 39-41—Fiore, I. Nos. 305-309, and Code, Nos. 51-77—Martens, I. §§ 53-54—Mérignhac, I. pp. 114-231, and II. pp. 5, 154-221—Moore, I. § 3.

§ 63. The conception of International Persons is derived from the conception of the Law of Nations. As this law is the body of rules which the civilised States consider legally binding in their intercourse, every State which belongs to the civilised States, and is, therefore, a member of the Family of Nations, is an International Person. Sovereign States exclusively are International Persons—i.e. subjects of International Law. There are, however, as will be seen, full and not-full Sovereign States. Full Sovereign States are perfect, not-full Sovereign States are imperfect International Persons, for not-full Sovereign States are for some parts only subjects of International Law.

In contradistinction to Sovereign States which are real, there are also apparent, but not real, International Persons—namely, Confederations of States, insurgents recognised as a belligerent Power in a civil war, and the Holy See. All these are not, as will be seen,[87] real subjects of International Law, but in some points are treated as though they were International Persons, without thereby becoming members of the Family of Nations.

It must be specially mentioned that the character of a subject of the Law of Nations and of an International Person can be attributed neither to monarchs, diplomatic envoys, private individuals, or churches, nor to chartered companies, nations, or races after the loss of their State (as, for instance, the Jews or the Poles), and organised wandering tribes.[88]

§ 64. A State proper—in contradistinction to so-called Colonial States—is in existence when a people is settled in a country under its own Sovereign Government. The conditions which must obtain for the existence of a State are therefore four:

There must, first, be a people. A people is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.

There must, secondly, be a country in which the people has settled down. A wandering people, such as the Jews were whilst in the desert for forty years before their conquest of the Holy Land, is not a State. But it matters not whether the country is small or large; it may consist, as with City States, of one town only.

There must, thirdly, be a Government—that is, one or more persons who are the representatives of the people and rule according to the law of the land. An anarchistic community is not a State.

There must, fourthly and lastly, be a Sovereign Government. Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term includes, therefore, independence all round, within and without the borders of the country.

§ 65. A State in its normal appearance does possess independence all round and therefore full sovereignty. Yet there are States in existence which certainly do not possess full sovereignty, and are therefore named not-full Sovereign States. All States which are under the suzerainty or under the protectorate of another State or are member States of a so-called Federal State, belong to this group. All of them possess supreme authority and independence with regard to a part of the tasks of a State, whereas with regard to another part they are under the authority of another State. Hence it is that the question is disputed whether such not-full Sovereign States can be International Persons and subjects of the Law of Nations at all.[89]

That they cannot be full, perfect, and normal subjects of International Law there is no doubt. But it is wrong to maintain that they can have no international position whatever and can never be members of the Family of Nations at all. If we look at the matter as it really stands, we observe that they actually often enjoy in many points the rights and fulfil in other points the duties of International Persons. They often send and receive diplomatic envoys or at least consuls. They often conclude commercial or other international treaties. Their monarchs enjoy the privileges which according to the Law of Nations the Municipal Laws of the different States must grant to the monarchs of foreign States. No other explanation of these and similar facts can be given except that these not-full Sovereign States are in some way or another International Persons and subjects of International Law. Such imperfect International Personality is, of course, an anomaly; but the very existence of States without full sovereignty is an anomaly in itself. And history teaches that States without full sovereignty have no durability, since they either gain in time full sovereignty or disappear totally as separate States and become mere provinces of other States. So anomalous are these not-full Sovereign States that no hard-and-fast general rule can be laid down with regard to their position within the Family of Nations, since everything depends upon the special case. What may be said in general concerning all the States without full sovereignty is that their position within the Family of Nations, if any, is always more or less overshadowed by other States. But their partial character of International Persons comes clearly to light when they are compared with so-called Colonial States, such as the Dominion of Canada or the Commonwealth of Australia. Colonial States have no international position[90] whatever; they are, from the standpoint of the Law of Nations, nothing else than colonial portions of the mother-country, although they enjoy perfect self-government, and may therefore in a sense be called States. The deciding factor is that their Governor, who has a veto, is appointed by the mother-country, and that the Parliament of the mother-country could withdraw self-government from its Colonial States and legislate directly for them.

§ 66. The distinction between States full Sovereign and not-full Sovereign is based upon the opinion that sovereignty is divisible, so that the powers connected with sovereignty need not necessarily be united in one hand. But many jurists deny the divisibility of sovereignty and maintain that a State is either sovereign or not. They deny that sovereignty is a characteristic of every State and of the membership of the Family of Nations. It is therefore necessary to face the conception of sovereignty more closely. And it will be seen that there exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon.[91]

§ 67. The term Sovereignty was introduced into political science by Bodin in his celebrated work, "De la république," which appeared in 1577. Before Bodin, at the end of the Middle Ages, the word souverain[92] was used in France for an authority, political or other, which had no other authority above itself. Thus the highest courts were called Cours Souverains. Bodin, however, gave quite a new meaning to the old conception. Being under the influence and in favour of the policy of centralisation initiated by Louis XI. of France (1461-1483), the founder of French absolutism, he defined sovereignty as "the absolute and perpetual power within a State." Such power is the supreme power within a State without any restriction whatever except the Commandments of God and the Law of Nature. No constitution can limit sovereignty, which is an attribute of the king in a monarchy and of the people in a democracy. A Sovereign is above positive law. A contract only is binding upon the Sovereign, because the Law of Nature commands that a contract shall be binding.[93]

The conception of sovereignty thus introduced was at once accepted by writers on politics of the sixteenth century, but the majority of these writers taught that sovereignty could be restricted by a constitution and by positive law. Thus at once a somewhat weaker conception of sovereignty than that of Bodin made its appearance. On the other hand, in the seventeenth century, Hobbes went even beyond Bodin, maintaining[94] that a Sovereign was not bound by anything and had a right over everything, even over religion. Whereas a good many publicists followed Hobbes, others, especially Pufendorf, denied, in contradistinction to Hobbes, that sovereignty includes omnipotence. According to Pufendorf, sovereignty is the supreme power in a State, but not absolute power, and sovereignty may well be constitutionally restricted.[95] Yet in spite of all the differences in defining sovereignty, all authors of the sixteenth and seventeenth centuries agree that sovereignty is indivisible and contains the centralisation of all power in the hands of the Sovereign, whether a monarch or the people itself in a republic. Yet the way for another conception of sovereignty is prepared by Locke, whose "Two Treatises on Government" appeared in 1689, and paved the way for the doctrine that the State itself is the original Sovereign, and that all supreme powers of the Government are derived from this sovereignty of the State.

§ 68. In the eighteenth century matters changed again. The fact that the several hundred reigning princes of the member-States of the German Empire had practically, although not theoretically, become more or less independent since the Westphalian Peace enforced the necessity upon publicists to recognise a distinction between an absolute, perfect, full sovereignty, on the one hand, and, on the other, a relative, imperfect, not-full or half-sovereignty. Absolute and full sovereignty was attributed to those monarchs who enjoyed an unqualified independence within and without their States. Relative and not-full sovereignty, or half-sovereignty, was attributed to those monarchs who were, in various points of internal or foreign affairs of State, more or less dependent upon other monarchs. By this distinction the divisibility of sovereignty was recognised. And when in 1787 the United States of America turned from a Confederation of States into a Federal State, the division of sovereignty between the Sovereign Federal State and the Sovereign member-States appeared. But it cannot be maintained that divisibility of sovereignty was universally recognised in the eighteenth century. It suffices to mention Rousseau, whose "Contrat Social" appeared in 1762 and defended again the indivisibility of sovereignty. Rousseau's conception of sovereignty is essentially that of Hobbes, since it contains absolute supreme power, but he differs from Hobbes in so far as, according to Rousseau, sovereignty belongs to the people only and exclusively, is inalienable, and therefore cannot be transferred from the people to any organ of the State.

§ 69. During the nineteenth century three different factors of great practical importance have exercised their influence on the history of the conception of sovereignty.

The first factor is that, with the exception of Russia, all civilised Christian monarchies during this period turned into constitutional monarchies. Thus identification of sovereignty with absolutism belongs practically to the past, and the fact was during the nineteenth century generally recognised that a sovereign monarch may well be restricted in the exercise of his powers by a Constitution and positive law.

The second factor is, that the example of a Federal State set by the United States has been followed by Switzerland, Germany, and others. The Constitution of Switzerland as well as that of Germany declares decidedly that the member-States of the Federal State remain Sovereign States, thus indirectly recognising the divisibility of sovereignty between the member-States and the Federal State according to different matters.

The third and most important factor is, that the science of politics has learned to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The majority of publicists teach henceforth that neither the monarch, nor Parliament, nor the people is originally Sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. The organ or organs which exercise for the State powers connected with sovereignty are said to be sovereign themselves, yet it is obvious that this sovereignty of the organ is derived from the sovereignty of the State. And it is likewise obvious that the sovereignty of a State may be exercised by the combined action of several organs, as, for instance, in Great Britain, King and Parliament are the joint administrators of the sovereignty of the State. And it is, thirdly, obvious that a State can, as regards certain matters, have its sovereignty exercised by one organ and as regards other matters by another organ.

In spite of this condition of things, the old controversy regarding divisibility of sovereignty has by no means died out. It acquired a fresh stimulus, on the one hand, through Switzerland and Germany turning into Federal States, and, on the other, through the conflict between the United States of America and her Southern member-States. The theory of the concurrent sovereignty of the Federal State and its member-States, as defended by "The Federalist" (Alexander Hamilton, James Madison, and John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous publicists followed. The theory of the indivisibility of sovereignty was defended by Calhoun,[97] and many European publicists followed him in time.

§ 70. From the foregoing sketch of the history of the conception of sovereignty it becomes apparent that there is not and never was unanimity regarding this conception. It is therefore no wonder that the endeavour has been made to eliminate the conception of sovereignty from the science of politics altogether, and likewise to eliminate sovereignty as a necessary characteristic of statehood, so that States with and without sovereignty would in consequence be distinguishable. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs. As there can be no doubt about the fact that there are semi-independent States in existence, it may well be maintained that sovereignty is divisible.

II RECOGNITION OF STATES AS INTERNATIONAL PERSONS

Hall, §§ 2 and 26—Lawrence, §§ 44-47—Phillimore, II. §§ 10-23—Taylor, §§ 153-160—Walker, § 1—Westlake, I. pp. 49-58—Wheaton, § 27—Moore, §§ 27-75—Bluntschli, §§ 28-38—Hartmann, § 11—Heffter, § 23—Holtzendorff in Holtzendorff, II. pp. 18-33—Liszt, § 5—Ullmann, §§ 29-30—Bonfils, Nos. 195-213—Despagnet, Nos. 79-85—Pradier-Fodéré, I. Nos. 136-145—Nys, I. pp. 69-115—Mérignhac, I. pp. 320-329—Rivier, I. § 3—Calvo, I. §§ 87-98—Fiore, I. Nos. 311-320, and Code, Nos. 160-177—Martens, I. §§ 63-64—Le Normand, "La reconnaissance internationale et ses diverses applications" (1899).

§ 71. As the basis of the Law of Nations is the common consent of the civilised States, statehood alone does not include membership of the Family of Nations. There are States in existence, although their number decreases gradually, which are not, or not fully, members of that family, because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born.[98] For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is and becomes an International Person through recognition only and exclusively.