§ 91. The fact that the relation between the suzerain and the vassal always depends upon the special case, excludes the possibility of laying down a general rule as regards the position of Vassal States within the Family of Nations. It is certain that a Vassal State as such need not have any position whatever within the Family of Nations. In every case in which a Vassal State has absolutely no relations whatever with other States, since the suzerain absorbs these relations entirely, such vassal 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 Vassal 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 Vassal 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 Vassal 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 Vassal States have not the right to make war independently of their suzerain, Bulgaria, at the time a Vassal State, nevertheless fought a war against the full-Sovereign Servia in 1885, and Egypt conquered the Soudan conjointly with Great Britain in 1898.

How could all these and other facts be explained, if Vassal 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 Vassal 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 vassal, if an exception is not expressly mentioned or self-evident. Thus, again, war of the suzerain is ipso facto war of the vassal. Thus, thirdly, the suzerain bears within certain limits a responsibility for actions of the Vassal State.

Under these circumstances it is generally admitted that the conception of suzerainty lacks juridical precision, and experience teaches that Vassal 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.

Vassal 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 Vassal State under Turkish suzerainty, is not half-Sovereign, but enjoys autonomy to a vast degree.

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—Mérignhac, II. pp. 180-220—Pradier-Fodéré, 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 völkerrechtliche Protectorat" (1891)—Engelhardt, "Les Protectorats, &c." (1896)—Gairal, "Le protectorat international" (1896)—Despagnet, "Essai sur les protectorats" (1896)—Boghitchévitch, "Halbsouveränität" (1903).

§ 92. Legally and materially different from suzerainty is the relation of protectorate between two States. It happens that a weak State surrenders itself by treaty into the protection of a strong and mighty State in such a way that it transfers the management[144] of all its more important[145] international affairs to the protecting State. Through such treaty an international union is called into existence between the two States, and the relation between them is called protectorate. The protecting State is internationally the superior of the protected State, the latter has with the loss of the management of its more important international affairs lost its full sovereignty and is henceforth only a half-Sovereign State. Protectorate is, however, a conception which, just like suzerainty, lacks exact juristic precision,[146] as its real meaning depends very much upon the special case. Generally speaking, protectorate may, again like suzerainty, be called a kind of international guardianship.

§ 93. The position of a State under protectorate within the Family of Nations cannot be defined by a general rule, since it is the treaty of protectorate which indirectly specialises it by enumerating the reciprocal rights and duties of the protecting and the protected State. Each case must therefore be treated according to its own merits. Thus the question whether the protected State can conclude certain international treaties and can send and receive diplomatic envoys, as well as other questions, must be decided according to the terms of the individual treaty of protectorate. In any case, recognition of the protectorate on the part of third States is necessary to enable the superior State to represent the protected State internationally. But it is characteristic of the protectorate, in contradistinction to suzerainty, that the protected State always has and retains for some parts a position of its own within the Family of Nations, and that it is always for some parts an International Person and a subject of International Law. It is never in any respect considered a mere portion of the superior State. It is, therefore, not necessarily a party in a war[147] of the superior State against a third, and treaties concluded by the superior State are not ipso facto concluded for the protected State. And, lastly, it can at the same time be under the protectorate of two different States, which, of course, must exercise the protectorate conjointly.

In Europe there are at present only two very small States under protectorate—namely, the republic of Andorra, under the joint protectorate of France and Spain,[148] and the republic of San Marino, an enclosure of Italy, which was formerly under the protectorate of the Papal States and is now under that of Italy. The Principality of Monaco, which was under the protectorate, first of Spain until 1693, afterwards of France until 1815, and then of Sardinia, has now, through custom, become a full-Sovereign State, since Italy has never[149] exercised the protectorate. The Ionian Islands, which were under British protectorate from 1815, merged into the Kingdom of Greece in 1863.

§ 94. Outside Europe there are numerous States under the protectorate of European States, but all of them are non-Christian States of such a civilisation as would not admit them to full membership of the Family of Nations, apart from the protectorate under which they are now. And it may therefore be questioned whether they have any real position within the Family of Nations at all. As the protectorate over them is recognised by third States, the latter are legally prevented from exercising any political influence in these protected States, and, failing special treaty rights, they have no right to interfere if the protecting State annexes the protected State and makes it a mere colony of its own, as, for instance, France did with Madagascar in 1896. Protectorates of this kind are actually nothing else than the first step to annexation.[150] Since they are based on treaties with real States, they cannot in every way be compared with the so-called protectorates over African tribes which European States acquire through a treaty with the chiefs of these tribes, and by which the respective territory is preserved for future occupation on the part of the so-called protector.[151] But actually they always lead to annexation, if the protected State does not succeed in shaking off by force the protectorate, as Abyssinia did in 1896 when she shook off the pretended Italian protectorate.

VIII NEUTRALISED STATES

Westlake, I. pp. 27-30—Lawrence, §§ 43 and 225—Taylor, § 133—Moore, I. § 12—Bluntschli, § 745—Heffter, § 145—Holtzendorff in Holtzendorff, II. pp. 643-646—Gareis, § 15—Liszt, § 6—Ullmann, § 27—Bonfils, Nos. 348-369—Despagnet, Nos. 137-146—Mérignhac, II. pp. 56-65—Pradier-Fodéré, II. Nos. 1001-1015—Nys, I. pp. 379-398—Rivier, I. § 7—Calvo, IV. §§ 2596-2610—Piccioni's "Essai sur la neutralité perpétuelle" (2nd ed. 1902)—Regnault, "Des effets de la neutralité perpétuelle" (1898)—Tswettcoff, "De la situation juridique des états neutralisés" (1895)—Morand in R.G. I. (1894), pp. 522-537—Hagerup in R.G. XII. (1909), pp. 577-602—Nys in R.I. 2nd Ser. II. (1900), pp. 468-583, III. (1901), p. 15—Westlake in R.I. 2nd Ser. III. (1901), pp. 389-397—Winslow in A.J. II. (1908), pp. 366-386—Wicker in A.J. V. (1911), pp. 639-654.

§ 95. A neutralised State is a State whose independence and integrity are for all the future guaranteed by an international convention of the Powers, under the condition that such State binds itself never to take up arms against any other State except for defence against attack, and never to enter into such international obligations as could indirectly drag it into war. The reason why a State asks or consents to become neutralised is that it is a weak State and does not want an active part in international politics, being exclusively devoted to peaceable developments of welfare. The reason why the Powers neutralise a weak State may be a different one in different cases. The chief reasons have been hitherto the balance of power in Europe and the interest in keeping up a weak State as a so-called Buffer-State between the territories of Great Powers.

Not to be confounded with neutralisation of States is neutralisation of parts of States,[152] of rivers, canals, and the like, which has the effect that war cannot there be made and prepared.

§ 96. Without thereby becoming a neutralised State, every State can conclude a treaty with another State and undertake the obligation to remain neutral if such other State enters upon war. The act through which a State becomes a neutralised State for all the future is always an international treaty of the Powers between themselves and between the State concerned, by which treaty the Powers guarantee collectively the independence and integrity of the latter State. If all the Great Powers do not take part in the treaty, those which do not take part in it must at least give their tacit consent by taking up an attitude which shows that they agree to the neutralisation, although they do not guarantee it. In guaranteeing the permanent neutrality of a State the contracting Powers enter into the obligation not to violate on their part the independence of the neutral State and to prevent other States from such violation. But the neutral State becomes, apart from the guaranty, in no way dependent upon the guarantors, and the latter gain no influence whatever over the neutral State in matters which have nothing to do with the guaranty.

The condition of the neutralisation is that the neutralised State abstains from any hostile action, and further from any international engagement which could indirectly[153] drag it into hostilities against any other State. And it follows from the neutralisation that the neutralised State can, apart from frontier regulations, neither cede a part of its territory nor acquire new parts of territory without the consent of the Powers.[154]

§ 97. Since a neutralised State is under the obligation not to make war against any other State, except when attacked, and not to conclude treaties of alliance, guaranty, and the like, it is frequently maintained that neutralised States are part-Sovereign only and not International Persons of the same position within the Family of Nations as other States. This opinion has, however, no basis if the real facts and conditions of the neutralisation are taken into consideration. If sovereignty is nothing else than supreme authority, a neutralised State is as fully Sovereign as any not neutralised State. It is entirely independent outside as well as inside its borders, since independence does not at all mean boundless liberty of action.[155] Nobody maintains that the guaranteed protection of the independence and integrity of the neutralised State places this State under the protectorate or any other kind of authority of the guarantors. And the condition of the neutralisation to abstain from war, treaties of alliance, and the like, contains restrictions which do in no way destroy the full sovereignty of the neutralised State. Such condition has the consequence only that the neutralised State exposes itself to an intervention by right, and loses the guaranteed protection in case it commits hostilities against another State, enters into a treaty of alliance, and the like. Just as a not-neutralised State which has concluded treaties of arbitration with other States to settle all conflicts between one another by arbitration has not lost part of its sovereignty because it has thereby to abstain from arms, so a neutralised State has not lost part of its sovereignty through entering into the obligation to abstain from hostilities and treaties of alliance. This becomes quite apparent when it is taken into consideration that a neutralised State not only can conclude treaties of all kinds, except treaties of alliance, guarantee, and the like, but can also have an army and navy[156] and can build fortresses, as long as this is done with the purpose of preparing defence only. Neutralisation does not even exercise an influence upon the rank of a State. Belgium, Switzerland, and Luxemburg are States with royal honours and do not rank behind Great Britain or any other of the guarantors of their neutralisation. Nor is it denied that neutralised States, in spite of their weakness and comparative unimportance, can nevertheless play an important part within the Family of Nations. Although she has no voice where history is made by the sword, Switzerland has exercised great influence with regard to several points of progress in International Law. Thus the Geneva Convention owes its existence to the initiative of Switzerland. The fact that a permanently neutralised State is in many questions a disinterested party makes such State fit to take the initiative where action by a Great Power would create suspicion and reservedness on the part of other Powers.

But neutralised States are and must always be an exception. The Family and the Law of Nations could not be what they are if ever the number of neutralised States should be much increased. It is neither in the interest of the Law of Nations, nor in that of humanity, that all the small States should become neutralised, as thereby the political influence of the few Great Powers would become still greater than it already is. The neutralised States still in existence—namely, Switzerland, Belgium, and Luxemburg—are a product of the nineteenth century only, and it remains to be seen whether neutralisation can stand the test of history.[157]

§ 98. The Swiss Confederation,[158] which was recognised by the Westphalian Peace of 1648, has pursued a traditional policy of neutrality since that time. During the French Revolution and the Napoleonic Wars, however, she did not succeed in keeping up her neutrality. French intervention brought about in 1803 a new Constitution, according to which the single cantons ceased to be independent States and Switzerland turned from a Confederation of States into the simple State of the Helvetic Republic, which was, moreover, through a treaty of alliance linked to France. It was not till 1813 that Switzerland became again a Confederation of States, and not till 1815 that she succeeded in becoming permanently neutralised. On March 20, 1815, at the Congress at Vienna, Great Britain, Austria, France, Portugal, Prussia, Spain, and Russia signed the declaration in which the permanent neutrality of Switzerland was recognised and collectively guaranteed, and on May 27, 1815, Switzerland acceded to this declaration. Article 84 of the Act of the Vienna Congress confirmed this declaration, and an Act, dated November 20, 1815, of the Powers assembled at Paris after the final defeat of Napoleon recognised it again.[159] Since that time Switzerland has always succeeded in keeping up her neutrality. She has built fortresses and organised a strong army for that purpose, and in January 1871, during the Franco-German War, she disarmed a French army of more than 80,000 men who had taken refuge on her territory, and guarded them till after the war.

§ 99. Belgium[160] became neutralised from the moment she was recognised as an independent State in 1831. The Treaty of London, signed on November 15, 1831, by Great Britain, Austria, Belgium, France, Prussia, and Russia, stipulates in its article 7 at the same time the independence and the permanent neutrality of Belgium, and in its article 25 the guaranty of the signatory five Great Powers.[161] And the guaranty was renewed in article 1 of the Treaty of London of April 19, 1839,[162] to which the same Powers are parties, and which is the final treaty concerning the separation of Belgium from the Netherlands.

Belgium has, just like Switzerland, also succeeded in keeping up her neutrality. She, too, has built fortresses and possesses a strong army.

§ 100. The Grand Duchy of Luxemburg[163] was since 1815 in personal union with the Netherlands, but at the same time a member of the Germanic Confederation, and Prussia had since 1856 the right to keep troops in the fortress of Luxemburg. In 1866 the Germanic Confederation came to an end, and Napoleon III. made efforts to acquire Luxemburg by purchase from the King of Holland, who was at the same time Grand Duke of Luxemburg. As Prussia objected to this, it seemed advisable to the Powers to neutralise Luxemburg. A Conference met in London, at which Great Britain, Austria, Belgium, France, Holland and Luxemburg, Italy, Prussia, and Russia were represented, and on May 11, 1867, a treaty was signed for the purpose of the neutralisation, which is stipulated and collectively guaranteed by all the signatory Powers, Belgium as a neutralised State herself excepted, by article 2.[164]

The neutralisation took place, however, under the abnormal condition that Luxemburg is not allowed to keep any armed force, with the exception of a police for the maintenance of safety and order, nor to possess any fortresses. Under these circumstances Luxemburg herself can do nothing for the defence of her neutrality, as Belgium and Switzerland can.

§ 101. The former Congo Free State,[165] which was recognised as an independent State by the Berlin Congo Conference[166] of 1884-1885, was a permanently neutralised State from 1885-1908, but its neutralisation was imperfect in so far as it was not guaranteed by the Powers. This fact is explained by the circumstances under which the Congo Free State attained its neutralisation. Article 10 of the General Act of the Congo Conference of Berlin stipulates that the signatory Powers shall respect the neutrality of any territory within the Congo district, provided the Power then or hereafter in possession of the territory proclaims its neutrality. Accordingly, when the Congo Free State was recognised by the Congress of Berlin, the King of the Belgians, as the sovereign of the Congo State, declared[167] it permanently neutral, and this declaration was notified to and recognised by the Powers. Since the Congo Conference did not guarantee the neutrality of the territories within the Congo district, the neutralisation of the Congo Free State was not guaranteed either. In 1908[168] the Congo Free State merged by cession into Belgium.

IX NON-CHRISTIAN STATES

Westlake, I. p. 40—Phillimore, I. §§ 27-33—Bluntschli, §§ 1-16—Heffter, § 7—Gareis, § 10—Rivier, I. pp. 13-18—Bonfils, No. 40—Martens, § 41—Nys, I. pp. 122-125—Westlake, Chapters, pp. 114-143.

§ 102. It will be remembered from the previous discussion of the dominion[169] of the Law of Nations that this dominion extends beyond the Christian and includes now the Mahometan State of Turkey and the Buddhistic State of Japan. As all full-Sovereign International Persons are equal to one another, no essential difference exists within the Family of Nations between Christian and non-Christian States. That foreigners residing in Turkey are still under the exclusive jurisdiction of their consuls, is an anomaly based on a restriction on territorial supremacy arising partly from custom and partly from treaties. If Turkey could ever succeed, as Japan did, in introducing such reforms as would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.

§ 103. Doubtful is the position of all non-Christian States except Turkey and Japan, such as China, Morocco, Siam, Persia, and further Abyssinia, although the latter is a Christian State, and although China, Persia, and Siam took part in the Hague Peace Conferences of 1899 and 1907. Their civilisation is essentially so different from that of the Christian States that international intercourse with them of the same kind as between Christian States has been hitherto impossible. And neither their governments nor their populations are at present able to fully understand the Law of Nations and to take up an attitude which is in conformity with all the rules of this law. There should be no doubt that these States are not International Persons of the same kind and the same position within the Family of Nations as Christian States. But it is equally wrong to maintain that they are absolutely outside the Family of Nations, and are for no part International Persons. Since they send and receive diplomatic envoys and conclude international treaties, the opinion is justified that such States are International Persons only in some respects—namely, those in which they have expressly or tacitly been received into the Family of Nations. When Christian States begin such intercourse with these non-Christian States as to send diplomatic envoys to them and receive their diplomatic envoys, and when they enter into treaty obligations with them, they indirectly declare that they are ready to recognise them for these parts as International Persons and subjects of the Law of Nations. But for other parts such non-Christian States remain as yet outside the circle of the Family of Nations, especially with regard to war, and they are for those parts treated by the Christian Powers according to discretion. This condition of things will, however, not last very long. It may be expected that with the progress of civilisation these States will become sooner or later International Persons in the full sense of the term. They are at present in a state of transition, and some of them are the subjects of international arrangements of great political importance. Thus by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia,[170] and the General Act of the Conference of Algeciras of April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, Belgium, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress anarchy in Morocco and to introduce reforms in its internal administration. This Act,[172] which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities in that country for all nations, contains:—(1) A Declaration concerning the organisation of the Moroccan police; (2) Regulations concerning the detection and suppression of the illicit trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A Declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) Regulations respecting customs and the suppression of fraud and smuggling; (6) A Declaration concerning the public services and public works.

X THE HOLY SEE

Hall, § 98—Westlake, I. pp. 37-39—Phillimore, I. §§ 278-440—Twiss, I. §§ 206-207—Taylor, §§ 277, 278, 282—Wharton, I. § 70, p. 546—Moore, I. § 18—Bluntschli, § 172—Heffter, §§ 40-41—Geffcken in Holtzendorff, II. pp. 151-222—Gareis, § 13—Liszt, § 5—Ullmann, § 28—Bonfils, Nos. 370-396—Despagnet, Nos. 147-164—Mérignhac, II. pp. 119-153—Nys, II. pp. 297-324—Rivier, I. § 8—Fiore, I. Nos. 520, 521—Martens, I. § 84—Fiore, "Della condizione giuridica internazionale della chiesa e del Papa" (1887)—Bombard, "Le Pape et le droit des gens" (1888)—Imbart-Latour, "La papauté en droit international" (1893)—Olivart, "Le Pape, les états de l'église et l'Italie" (1897)—Chrétien in R.G. VI. (1899), pp. 281-291—Bompart in R.G. VII. (1900), pp. 369-387—Higgins in The Journal of the Society for Comparative Legislation, New Series, IX. (1907), pp. 252-264.