§ 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.

Nobody 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.

§ 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 nobody 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.

§ 82. When a State merges voluntarily into another State—as, for instance, Korea in 1910 did into Japan—or when a State is subjugated by another State, the latter remains one and the same International Person and the former becomes totally extinct as an International Person. No succession takes place, therefore, with regard to rights and duties of the extinct State arising either from the character of the latter as an International Person or from its purely political treaties. Thus treaties of alliance or of arbitration or of neutrality or of any other political nature fall to the ground with the extinction of the State which concluded them. They are personal treaties, and they naturally, legally, and necessarily presuppose the existence of the contracting State. But it is controversial whether treaties of commerce, extradition, and the like, of the extinct State remain valid and therefore a succession takes place. The majority of writers correctly, I think, answer the question in the negative, because such treaties, although they are non-political in a sense, possess some prominent political traits.[112]

A real succession takes place, however, first, with regard to such international rights and duties of the extinct State as are locally connected with its land, rivers, main roads, railways, and the like. According to the principle res transit cum suo onere, treaties of the extinct State concerning boundary lines, repairing of main roads, navigation on rivers, and the like, remain valid, and all rights and duties arising from such treaties of the extinct State devolve on the absorbing State.

A real succession, secondly, takes place with regard to the fiscal property and the fiscal funds of the extinct State. They both accrue to the absorbing State ipso facto by the absorption of the extinct State.[113] But the debts[114] of the extinct State must, on the other hand, also be taken over by the absorbing State.[115] The private creditor of an extinct State certainly acquires no right[116] by International Law against the absorbing State, since the Law of Nations is a law between States only and exclusively. But if he is a foreigner, the right of protection due to his home State enables the latter to exercise pressure upon the absorbing State for the purpose of making it fulfil its international duty to take over the debts of the extinct State. Some jurists[117] go so far as to maintain that the succeeding State must take over the debts of the extinct State, even when they are higher than the value of the accrued fiscal property and fiscal funds. But I doubt whether in such cases the practice of the States would follow that opinion. On the other hand, a State which has subjugated another would be compelled[118] to take over even such obligations as have been incurred by the annexed State for the immediate purpose of the war which led to its subjugation.[119]

The case of a Federal State arising—like the German Empire in 1871—above a number of several hitherto full Sovereign States also presents, with regard to many points, a case of State succession.[120] However, no hard-and-fast rules can be laid down concerning it, since everything depends upon the question whether the Federal State is one which—like all those of America—totally absorbs all international relations of the member-States, or whether it absorbs—like the German Empire and Switzerland—these relations to a greater extent only.[121]

§ 83. When a State breaks up into fragments which themselves become States and International Persons, or which are annexed by surrounding States, it becomes extinct as an International Person, and the same rules are valid as regards the case of absorption of one State by another. A difficulty is, however, created when the territory of the extinct State is absorbed by several States. Succession actually takes place here too, first, with regard to the international rights and duties locally connected with those parts of the territory which the respective States have absorbed. Succession takes place, secondly, with regard to the fiscal property and the fiscal funds which each of the several absorbing States finds on the part of the territory it absorbs. And the debts of the extinct State must be taken over. But the case is complicated through the fact that there are several successors to the fiscal property and funds, and the only rule which can be laid down is that proportionate parts of the debts must be taken over by the different successors.

When—as in the case of Sweden-Norway in 1905—a Real Union[122] is dissolved and the members become International Persons of their own, a succession likewise takes place. All treaties concluded by the Union devolve upon the former members, except those which were concluded by the Union for one member only—e.g. by Sweden-Norway for Norway—and which, therefore, devolve upon such former member only, and, further, except those which concerned the very Union and lose all meaning by its dissolution.

§ 84. When in consequence of war or otherwise one State cedes a part of its territory to another, or when a part of the territory of a State breaks off and becomes a State and an International Person of its own, succession takes place with regard to such international rights and duties of the predecessor as are locally connected with the part of the territory ceded or broken off, and with regard to the fiscal property found on that part of the territory. It would only be just, if the successor had to take over a corresponding part of the debt of its predecessor, but no rule of International Law concerning this point can be said to exist, although many treaties have stipulated a devolution of a part of the debt of the predecessor upon the successor.[123] Thus, for instance, arts. 9, 33, 42 of the Treaty of Berlin[124] of 1878 stipulate that Bulgaria, Montenegro, and Servia should take over a part of the Turkish debt. On the other hand, the United States refused, after the cession of Cuba in 1898, to take over from Spain the so-called Cuban debt—that is, the debt which was settled by Spain on Cuba before the war.[125] Spain argued that it was not intended to transfer to the United States a proportional part of the debt of Spain, but only such debt as attached individually to the island of Cuba. The United States, however, met this argument by the correct assertion that the debt concerned was not one incurred by Cuba, but by Spain, and settled by her on Cuba.

V COMPOSITE INTERNATIONAL PERSONS

Pufendorf, VII. c. 5—Hall, § 4—Westlake, I. pp. 31-37—Phillimore, I. §§ 71-74, 102-105—Twiss, I. §§ 37-60—Halleck, I. pp. 70-74—Taylor, §§ 120-130—Wheaton, §§ 39-51—Moore, I. §§ 6-11—Hartmann, § 70—Heffter, §§ 20-21—Holtzendorff in Holtzendorff, II. pp. 118-141—Liszt, § 6—Ullmann, §§ 20-24—Bonfils, Nos. 165-174—Despagnet, Nos. 109-126—Pradier-Fodéré, I. Nos. 117-123—Mérignhac, II. pp. 6-42—Nys, I. pp. 367-378—Rivier, I. §§ 5-6—Calvo, I. §§ 44-61—Fiore, I. Nos. 335-339, and Code, Nos. 96-104—Martens, I. §§ 56-59—Pufendorf, "De systematibus civitatum" (1675)—Jellinek, "Die Lehre von den Staatenverbindungen" (1882)—Borel, "Etude sur la souveraineté de l'Etat fédératif" (1886)—Brie, "Theorie der Staatenverbindungen" (1886)—Hart, "Introduction to the Study of Federal Government" in "Harvard Historical Monographs," 1891 (includes an excellent bibliography)—Le Fur, "Etat fédéral et confédération d'Etats" (1896)—Moll, "Der Bundesstaatsbegriff in den Vereinigten Staaten von America" (1905)—Ebers, "Die Lehre vom Staatenbunde" (1910).

§ 85. International Persons are as a rule single Sovereign States. In such single States there is one central political authority as Government which represents the State, within its borders as well as without in the international intercourse with other International Persons. Such single States may be called simple International Persons. And a State remains a simple International Person, although it may grant so much internal independence to outlying parts of its territory that these parts become in a sense States themselves. Great Britain is a simple International Person, although the Dominion of Canada, Newfoundland, the Commonwealth of Australia, New Zealand, and the Union of South Africa, are now States of their own, because Great Britain is alone Sovereign and represents exclusively the British Empire within the Family of Nations.

Historical events, however, have created, in addition to the simple International Persons, composite International Persons. A composite International Person is in existence when two or more Sovereign States are linked together in such a way that they take up their position within the Family of Nations either exclusively or at least to a great extent as one single International Person. History has produced two different kinds of such composite International Persons—namely, Real Unions and Federal States. In contradistinction to Real Unions and Federal States, a so-called Personal Union and the union of so-called Confederated States are not International Persons.[126]

§ 86. A Personal Union is in existence when two Sovereign States and separate International Persons are linked together through the accidental fact that they have the same individual as monarch. Thus a Personal Union existed from 1714 to 1837 between Great Britain and Hanover, from 1815 to 1890 between the Netherlands and Luxemburg, and from 1885 to 1908 between Belgium and the former Congo Free State. At present there is no Personal Union in existence. A Personal Union is not, and is in no point treated as though it were, an International Person, and its two Sovereign member-States remain separate International Persons. Theoretically it is even possible that they make war against each other, although practically this will never occur. If, as sometimes happens, they are represented by one and the same individual as diplomatic envoy, such individual is the envoy of both States at the same time, but not the envoy of the Personal Union.

§ 87. A Real Union[127] is in existence when two Sovereign States are by an international treaty, recognised by other Powers, linked together for ever under the same monarch, so that they make one and the same International Person. A Real Union is not itself a State, but merely a union of two full Sovereign States which together make one single but composite International Person. They form a compound Power, and are by the treaty of union prevented from making war against each other. On the other hand, they cannot make war separately against a foreign Power, nor can war be made against one of them separately. They can enter into separate treaties of commerce, extradition, and the like, but it is always the Union which concludes such treaties for the separate States, as they separately are not International Persons. It is, for instance, Austria-Hungary which concludes an international treaty of extradition between Hungary and a foreign Power. The only Real Union at present in existence outside the German Empire[128] is that of Austria-Hungary, that of Sweden-Norway having been dissolved in 1905.

Austria-Hungary became a Real Union in 1723. In 1849, Hungary was united with Austria, but in 1867 Hungary became again a separate Sovereign State and the Real Union was re-established. Their army, navy, and foreign ministry are united. The Emperor-King declares war, makes peace, concludes alliances and other treaties, and sends and receives the same diplomatic envoys for both States.

Sweden-Norway became a Real Union[129] in 1814. The King could declare war, make peace, conclude alliances and other treaties, and send and receive the same diplomatic envoys for both States. The Foreign Secretary of Sweden managed at the same time the foreign affairs of Norway. Both States had, however, in spite of the fact that they made one and the same International Person, different commercial and naval flags. The Union was peacefully dissolved by the Treaty of Karlstad of October 26, 1905. Norway became a separate kingdom, the independence and integrity of which is guaranteed by Great Britain, France, Germany, and Russia by the Treaty of Christiania of November 2, 1907.[130]

§ 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.

§ 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 constitution 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 Constitutional 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.

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 membership 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.

But it happens frequently that a Federal State assumes 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 Constitution 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.

This being so, two classes 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.

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 VASSAL 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—Mérignhac, I. pp. 201-218—Pradier-Fodéré, 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—Boghitchévitch, "Halbsouveränität" (1903).

§ 90. The union and the relations between a Suzerain and its Vassal 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 Vassal 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 vassal, and, further, regarding the position, if any, of the vassal 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.

Suzerainty is a term which originally was used for the relation between the feudal lord and his vassal; the lord was said to be the suzerain of the vassal, and at that time suzerainty was a term of Constitutional 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 Vassal State which can be called constitutional rights. The rights of the Suzerain State over the Vassal are principally international rights, of whatever they may consist. Suzerainty is by no means sovereignty. If it were, the Vassal 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 guardianship, since the Vassal State is either absolutely or mainly represented internationally by the Suzerain State.