CHAPTER V

STATES

19. +Definition.+ (_a_) Political. (_b_) Sovereign.

20. +Nature.+ (_a_) Moral. (_b_) Physical. (_c_) Communal. (_d_) External conditions.

21. +Recognition of New States.+ (_a_) _De facto_ existence. (_b_) Circumstances of recognition. (1) By division. (2) By union. (3) By admission of old states. (4) By admission of former barbarous communities. (5) Individual and collective recognition. (_c_) Act of recognition. (_d_) Premature recognition. (_e_) Conditions. (_f_) Recognition irrevocable. (_g_) Consequences. (1) The recognizing state. (2) The recognized state. (3) The parent state. (4) Other states.

§ 19. Definition

A State is a sovereign political unity. It is of the relations of states that public international law mainly treats. From the nature of its subject-matter it is a juridical, historical, and philosophical science.[51] These sovereign political unities may vary greatly. The unity however

(_a_) Must be =political=, _i.e._ organized for public ends as understood in the family of nations and not for private ends as in the case of a commercial company, a band of pirates, or a religious organization.

(_b_) Must possess =sovereignty=, _i.e._ supreme political power beyond and above which there is no political power. It is not inconsistent with sovereignty, that a state should voluntarily take upon itself obligations to other states, even though the obligations be assumed under stress of war, or fear of evil.

§ 20. Nature

From the nature of the state as a sovereign political unity it must be self-sufficient, and certain conditions are therefore generally recognized as necessary for its existence from the standpoint of international law.[52]

(_a_) =Moral.= In order that a state may be regarded as within the "family of nations," and within the pale of international Law, it must recognize the rights of other states and acquiesce in its obligations toward them. This is considered a moral condition of state existence.

(_b_) =Physical.= A state must also possess those physical resources which enable it to exist as territory, etc.

(_c_) =Communal.= A state must possess a body of men so related as to warrant the belief in the continued existence of the unity. Each state may be its own judge as to the time when these relations are established in a given body of men, and the recognition of a new state is fitting.

That such conditions are recognized as prerequisites of state existence from the point of view of international law is not due to the essential nature of the state, but rather to the course of development of international law; as Hall says, "The degree to which the doctrines of international law are based upon the possession of land must in the main be attributed to the association of rights of sovereignty or supreme control over human beings with that of territorial property in the minds of jurists at the period when the foundations of international law were being laid."[53]

(_d_) =External Conditions.= The external relationship of the state rather than the internal nature is the subject of consideration in international law. For local law a community may enter upon state existence long before this existence is recognized by other nations, as in the case of Switzerland before 1648. Until recognition by other states of its existence becomes general, a new state cannot acquire full status in international law; and this recognition is conditioned by the policy of the recognizing states.

§ 21. Recognition of New States

(_a_) =State existence de facto= is not a question of international law but depends upon the existence of a sovereign political unity with the attributes which necessarily appertain to it. This _de facto_ existence is not dependent upon the will of any other state or states.[54] The entrance of the state into the international statehood, however, depends entirely upon the recognition by those states already within this circle. Whatever advantages membership in this circle may confer, and whatever duties it may impose, do not fall upon the new state until its existence is generally recognized by the states already within the international circle. These advantages and duties, as between the recognizing and recognized state, immediately follow recognition but do not necessarily extend to other states than those actually party to the recognition. The basis of this family of nations or international circle which admits other states to membership is historical, resting on the polity of the older European states. These states, through the relations into which they were brought by reason of proximity and intercourse, developed among themselves a system of action in their mutual dealings; and international law in its beginning proposed to set forth what this system was and should be.[55] This family of states could not permit new accessions to its membership unless these new states were properly constituted to assume the mutual relationships, and as to the proper qualifications for admission in each case, the states already within the family claim and exercise the right to judge.

(_b_) =The circumstances of recognition vary.=

(1) The most numerous instances are in consequence of _division_ which involves the recognition of the existence of more than one state within the limits which had formerly been under a single jurisdiction. This may be preceded by recognition of the belligerency of a revolted community within the jurisdiction of an existing state, or may be preceded by division of an existing state into two or more states.[56] In the first case recognition is a question of national policy, in the second case recognition is usually readily accorded.

(2) In modern times a new state has frequently been formed by the _union_ of two or more existing states.[57] The recognition in such a case usually follows immediately.

(3) A state _after existence for a period of years_ may be formally admitted into the family of states. Japan, for centuries a _de facto_ state, was only recently fully admitted to international statehood.[58] Turkey, so long the dread of Europe, was formally received by the Treaty of Paris, 1856.

(4) New states may be formed in _territory hitherto outside_ any _de facto_ state jurisdiction, or within regions _hitherto considered savage_. The examples of this class are mainly Africans, as in the creation of the Congo Free State under the International Association of the Congo. The United States recognized the Congo Free State by acknowledging its flag, April 22, 1884. Liberia, originally established by the American colonization Society in 1821, as a refuge for negroes from America since 1847, has been recognized as an independent republic.

(5) From another point of view _recognition may be individual or collective_. Recognition is individual when a state, independently of any other, acknowledges the international statehood of a new state. This was the method of recognition of the United States. Collective recognition is by the concerted action of several states at the same time. This has taken place most often in the admission of minor states to the European family of states, as in the cases of Greece by the powers at the Conference of London, 1880; Belgium, 1831; Montenegro, Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free State was acknowledged by the International Congo Conference at Berlin, 1885.

(_c_) =The act constituting recognition= of a new state may be formal, as by a declaration, proclamation, treaty, sending and receiving ambassadors, salute of flag, etc., or informal, by implication through the grant of an _exequatur_ to a consul from the new state, or other act which indicates an acknowledgment of international rights and obligations.[59] It should be observed, however, that the appointment by, or reception within, an existing state of agents to carry on necessary intercourse between the existing state, and the aspirant for recognition does not constitute recognition. It may be essential to have relations with a community the statehood of which is not established, because of commercial and other matters pertaining to the rights of the citizens of the existing state whose interests, or who in person may be within the jurisdiction of the unrecognized community.[60] The definite act of recognition is, however, in accord with the decision of the internal authority to which this function is by state law ascribed. As foreign states usually take cognizance of the acts of the executive department only, it is the common custom to consider recognition as an executive function, or as a function residing in the head of the state. In the United States, the President is for foreign affairs the head of the state, and has the authority to recognize new states in any manner other than by those acts, which by the Constitution require the advice and consent of the Senate, as in the conclusion of treaties, and appointment of ambassadors, other public ministers, and consuls. President Grant, in his second annual message, Dec 5, 1870, said, "As soon as I learned that a republic had been proclaimed at Paris, and that the people of France had acquiesced in the change, the minister of the United States was directed by telegraph to recognize it, and to tender my congratulations and those of the people of the United States."[61] As President Jackson had in his message in December, 1831, and in the official correspondence with Buenos Ayres denied that country's jurisdiction over the Falkland Islands, Justice McLean said, in rendering his opinion in Williams _v._ Suffolk Insurance Company, "And can there be any doubt that when the executive branch of the government which is charged with our foreign relations, shall, in its correspondence with foreign nations, assume a fact in regard to sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his constitutional functions he has decided the question."[62] "The President is the executive department."[63]

(_d_) Recognition may be =premature= and the recognized community may not be able to maintain its place in the international circle, or in case of a struggle with another state may be defeated. The recognizing state must assume in such case whatever consequences may come from its misjudgment, and the parent state may justly question the right of the recognizing state in its action, _e.g._ the recognition by France of the United States in 1778 could justly be regarded by England as premature and as a hostile act.

(_e_) The recognition of a new state is the recognition of the existence of certain political =conditions=. This recognition of the state carries with it the acknowledgment of sovereignty, independence, equality, etc. It is an essential condition to just recognition that the new aspirant possess these qualifications absolutely or potentially to a reasonable extent.

(_f_) From its nature, =recognition is irrevocable= and absolute, unless distinctly conditional. Even when conditional, if the recognition is prior to the fulfillment of the condition by the recognized state, the recognition cannot be withdrawn because of non-fulfillment of the condition, but the recognizing state may resort to any other means which would be admitted in international law as justifiable against any other state failing to fulfill its obligations, _e.g._ suspension of diplomatic relations, retorsion, reprisals, or even war.[64] In the case of Belgium, the definition of its boundaries and establishing of permanent neutralization was an act subsequent to the recognition of its international statehood, and in case of violation of the treaty stipulations, Belgium would not lose its position as a state, but would be liable to such measures of reparation as the other parties to the treaty might employ.[65] If recognition could be withdrawn, it would work injustice to the recognized state, and to other states who, as third parties, will not permit their rights to be subject to the will of the recognizing state or states.

(_g_) The =consequences of recognition= immediately touch the relations of (1) the recognizing state, (2) the recognized, (3) the parent state if the new state is formed from an existing state, and (4) in a minor degree other states.

(1) The _recognizing state_ is bound to treat the new state in all respects as entitled to the rights and as under duties accepted in international law.

(2) The _recognized state_ is, as related to the recognizing state, entitled to the rights, and under the obligations prescribed in international law. As it is a new person in international law, it is entitled to full personal freedom in entering into relations with other states. So far, however, as the territory within the new state was under local obligations, these obligations are transferred to the new state. The general obligations resting on the parent state, by reason of treaties and responsibilities of all kinds which have been assumed by the parent state in the capacity of a legal unity, are not transferred, because the identity of the parent state remains intact.[66]

(3) The _parent state_, in cases where the new state is formed by separation from one already existing, is, as regards the recognizing state, on the same international footing as the new state. Both states are entitled to equal privileges, and under like obligations. The relations to other states are not necessarily much changed.

(4) The _relations_ of the _states other than the recognizing_, _recognized_, and _parent states_ are changed to the extent that they must respect the _de facto_ relations set forth in (1), (2), and (3) above, _i.e._ while not recognizing the new state, they must accept the fact that the recognition exists for the states who are parties to it, and they are not entitled to pass judgment as to the justice of the recognition.