German Constitution as it existed before the World War, 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 were still treated by the practice of the States as heads of sovereign States, a fact without legal basis if these States had been no longer International Persons. Thirdly, the member-States of Germany, as well as of Switzerland, retained their competence to conclude international treaties between themselves without the consent of the Federal State, and they also retained the competence to conclude international treaties with foreign States as regards matters of minor interest. If these facts 1 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 memberStates are sovereign too, but only with regard to See Riess, Auswärtige Hoheitsrechte der deutschen Einzelstaaten (1905), and Windisch, Die Völker rechtliche Stellung der deutschen Einzelstaaten (1913). internal 1 affairs. All their external sovereignty being 1 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 2 according to whether their memberStates 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 memberStates, 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 with 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 1871,3 Mexico since 1857, Argentina since 1860, Brazil since 1891, Venezuela since 1893. 1 The courts of the United States of America have always upheld the theory that the Federal Government is sovereign as to all powers of government actually surrendered, whereas each member-State is sovereign as to all powers reserved. See Merriam, History of the Theory of Sovereignty since Rousseau (1900), p. 163. 2 This distinction is of the greatest importance and ought to be accepted by the writers on the science of politics. 3 Under the Constitution adopted by Germany after the World War Germany remains a Federal State; but the member-States no longer enjoy the right to send or receive diplomatic envoys to or from foreign States (Article 45), nor to conclude any treaties with them, without the consent of the Federation (Articles 45 and 78). 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-Hershey, Nos. 103-104-Bluntschli, §§ 76-77-Hartmann, § 9Heffter, § 19 and 22-Holtzendorff in Holtzendorff, ii. pp. 98-117Liszt, § 6—Ullmann, § 25-Gareis, § 15-Bonfils, Nos. 188-190— Despagnet, Nos. 127-128-Mérignhac, i. pp. 201-219--Pradier-Fodéré, i. Nos. 109-112-Nys, i. pp. 382-390-Rivier, i. § 4-Calvo, i. §§ 66-72 -Fiore, i. No. 341, and Code, Nos. 110-115-Martens, i. §§ 60-61Stubbs, Suzerainty (1882)-Baty, International Law in South Africa (1900), pp. 48-68-Boghitchévitch, Halbsouveränität (1903). Union and State. $90. The union and the relations between a suzerain The and its vassal State create much difficulty in the science between of the Law of Nations. As both are separate States, a Suzerain union of States they certainly make, but it would be Vassal 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 itself a separate International Person, 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 sovereign1 States In contradistinction to the States which are under suzerainty or protectorate, and which are commonly VOL. I. L called half sovereign States, I call Inter national Position States. because they are sovereign within their borders, but not without. The full sovereign State upon which a half sovereign State is either absolutely or for the most part internationally dependent, is called the suzerain State. Suzerainty is a term which was originally 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 involves 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. § 91. The fact that the relation between the suzerain and the vassal always depends upon the special case, of Vassal 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 purpose 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 1 whatever either between themselves or with foreign States. 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, while she was still a vassal State of Turkey, could 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 and Bulgaria, while they were Turkish vassal States, were permitted to send and receive consuls as diplomatic agents. 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 acquired in 1898, when she was still a Turkish vassal State, condominium,3 together with Great Britain, over the Soudan, which meant that they exercised 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 Serbia See Westlake, i. pp. 41-43, and Papers, pp. 211-219, 620-632. See also Lee-Warner, The Native States of India (1910), pp. 254-279. Not to be confounded with the position of the Indian vassal State is the position of India. See below, § 94b. 2 The rulers of these States cannot therefore claim the privileges which, according to International Law, are due to heads of States abroad. See below, § 171. |