CHAPTER VI

LEGAL PERSONS HAVING QUALIFIED STATUS

22. +Members of Confederations and other Unions.+

23. +Neutralized States.+

24. +Protectorates, Suzerainties.+

25. +Corporations.+ (_a_) Private. (_b_) Exercising political powers.

26. +Individuals.+

27. +Insurgents.+ (_a_) Definition. (_b_) Effect of admission of insurgency.

28. +Belligerents.+ (_a_) Definition. (_b_) Conditions prior to recognition. (_c_) Grounds of recognition. (_d_) Who may recognize. (_e_) Consequences. (1) Recognition by a foreign state. (2) Recognition by the parent state.

29. +Communities not fully Civilized.+

§ 22. Members of Confederations and other Unions

A state in the sense of public law is not sovereign in the sense of international law, if there are any limitations upon its power to enter into relations with other states. Such a state may be a member of a confederation and exercise certain powers giving it a qualified international status. These loose unions may, as in the German Confederation from 1815 to 1866, leave to the local states a certain degree of autonomy in regulating international affairs while granting to the central government certain specified powers. This division of international competence is usually a temporary compromise ending in new states or in a close union. "Inasmuch as both the central and the separate states carry on diplomatic intercourse with foreign powers, they must each and all be regarded as Subjects of International Law; and inasmuch as they carry on such intercourse only in a limited degree, they cannot be regarded as fully and absolutely sovereign."[67]

In the examples of personal and real unions and the like, the nature of the state is a matter of public law and little concerns international law. As related to international law, the question is how far are such states restricted in their dealings with other states. A union, such as that existing in the case of the ruler of the United Kingdom of Great Britain and Ireland and Empire of India, is of importance to international law only in its united capacity, while for public law the nature of the union is of much significance. The same might be said of the unions of Austria-Hungary, and Sweden-Norway.

§ 23. Neutralized States

Neutralized states are sovereign only in a qualified degree. While such states have a certain formal equality, their actual competence is limited in regard to the exercise of sovereign powers. This limitation as to neutrality may be externally imposed or externally enforced, as in the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till 1900, Samoa. This neutralization may take place for political or philanthropic reasons.[68] The degree of external sovereignty possessed by neutralized states varies. The fact that these states are not fully sovereign in the field of international law in no way affects their competence except in respect to matters covered by the conditions of neutralization. Such states are deprived of the right of offensive warfare, and have not therefore that final recourse possessed by fully sovereign states for enforcing their demands.

§ 24. Protectorates, Suzerainties

States under protectors--_protectorates_--usually possess all powers not specifically resigned. States fully sovereign may demand (1) that states under protectors afford reasonable protection to the subjects and to the property of subjects of fully sovereign states, and (2) that the protecting state use reasonable measures to give effect to the protection which it has assumed. Just how much responsibility the protecting state has depends upon the degree of protection exercised and assumed. The protectorate of Great Britain over the South African Republic by the agreement of 1884 was of a very moderate form. The right to veto within a certain time any treaty made with a foreign state, other than the Orange Free State and native princes, constituted practically the only restriction on the independence of the Republic. Great Britain has several other protectorates in Africa over which the degree of authority varies. In many instances protectorates easily pass into colonies, as in the case of Madagascar, which Great Britain recognized as under French protection in 1890, which protection the queen of Madagascar accepted in October, 1895, and in August, 1896, Madagascar was declared a French colony.[69]

As distinct from a state under a protectorate which possesses all competence in international affairs which it has not specifically resigned, a state under _suzerainty_ possesses only such competence as has been specifically conferred upon it by the suzerain. The relations are usually much closer than between protecting and protected states; and in many cases only the suzerain has international status, while the vassal is merely tributary, though having a certain degree of internal independence which may be in some instances almost complete. By the first article of the Treaty of Berlin, Bulgaria is made a tributary and autonomous principality under the suzerainty of the Sultan of Turkey. Under Russian suzerainty are such vassal states as Bokhara and Khiva. Some of the states under the suzerainty of European states have no status in international law, as in the case of Bokhara and Khiva. There exist such anomalous cases as the co-suzerainty of the republic of Andorra, the collective suzerainty of the Samoan Islands till 1900,[70] and the absolute suzerainty of the United States over the "domestic dependent nations" of Indians.

§ 25. Corporations

From the point of view of international law, corporations are generally of two kinds: corporations organized for private purposes, and corporations organized for purposes involving the exercise of delegated sovereign powers.

(_a_) Corporations organized for =private purposes= come within the field of international law, when in time of war their property or other rights are impaired, when maritime law, whether of peace or war, may have been infringed, and when their rights are involved in the domain of private international law.

(_b_) Corporations organized for purposes involving the =exercise of political powers= have from time to time, for several centuries, been chartered and have often acquired a quasi-international status. While restricted to the performance of functions intrusted to them by their charters, the home governments have often sanctioned acts for which their charters gave no warrant. The companies that early entered America, India, Africa, and the later African companies, are of this kind. The development of the late doctrine of "the sphere of influence" has given an important position to these companies organized within those states desirous to share in "the partition of Africa."

Among the most notable of the earlier companies was the English East India Company,[71] which received its first charter in 1600. During more than two hundred and fifty years this company exercised practically sovereign powers, until by the act of Aug. 2, 1858, the government heretofore exercised by the company was transferred to the crown, and was henceforth to be exercised in its name.

In recent years the African companies chartered by the European states seeking African dominions have had very elastic charters in which the home governments have generally reserved the right to regulate the exercise of authority as occasion might demand. These companies advance and confirm the spheres of influence of the various states, govern under slight restrictions great territories, and treat with native states with full authority. The British South Africa Company, chartered in 1889, was granted liberal powers of administration and full capacity, subject to the approval of the Secretary of State for the Colonies, to treat with the native states. The field of operations of this company was extended in 1891, so that it now includes over six hundred thousand square miles of territory. Of this company Lawrence says: "Clearly then it is no independent authority in the eye of British law, but a subordinate body controlled by the appropriate departments of the supreme government. Like Janus of old, it has two faces. On that which looks towards the native tribes all the lineaments and attributes of sovereignty are majestically outlined. On that which is turned towards the United Kingdom is written subordination and submission."[72] The acts of these companies become the basis of subsequent negotiations among the various European states, and the companies have a very important influence in molding the character of African development.

§ 26. Individuals

Without entering into discussion of "the doctrine of the separability of the individual from the state," it is safe to affirm that individuals have a certain degree of competence under exceptional circumstances, and may come under the cognizance of international law. By the well-established dictum of international law a pirate may be captured by any vessel, whatever its nationality. General admiralty and maritime procedure against a person admit the legal status of an individual from the point of view of international law. The extension of trade and commerce has made this necessary. This is particularly true in time of war, when individuals wholly without state authorization, or even in contravention of state regulations, commit acts putting them within the jurisdiction held to be covered by international law, as in the case of persons brought before Prize Courts. The principles of private international law cover a wide range of cases directly touching individuals.

§ 27. Insurgents

(_a_) =Definition.= Insurgents are organized bodies of men who, for public political purposes, are in a state of armed hostility to an established government.

(_b_) =Effect of Admission of Insurgency.= The practice of tacitly admitting =insurgent rights= has become common when the hostilities have assumed such proportions as to jeopardize the sovereignty of the parent state over the rebelling community, or seriously to interfere with customary foreign intercourse.[73] The general effect of the admission is shown as follows:[74]

(1) Insurgent rights cannot be claimed by those bodies seeking other than political ends.[75]

(2) Insurgent acts are not piratical, as they imply the pursuit of "public as contrasted with private ends."[76]

(3) The admission of insurgent rights does not carry the rights of a belligerent, nor admit official recognition of insurgent body.[77]

(4) The admission of insurgent rights does not relieve the parent state of its responsibilities for acts committed within its jurisdiction.[78]

(5) When insurgents act in a hostile manner toward foreign states, they may be turned over to the parent state, or may be punished by the foreign state.[79]

(6) A foreign state must in general refrain from interference in the hostilities between parent state and insurgents, _i.e._ cannot extend hospitality of its ports to insurgents, extradite insurgents, etc.[80]

(7) When insurgency exists, the armed forces of the insurgents must observe and are entitled to the advantages of the laws of war in their relations to the parent state.[81]

* * * * *

+Note.+ During the struggles between the parties in the United States of Colombia in 1885, the President of Colombia decreed: (1) That certain Carribean ports held by the opposing party should be regarded as closed to foreign commerce, and trade with these ports would be considered illicit and contraband, and that vessels, crews, etc., involved in such trade would be liable to the penalties of Colombian laws. (2) That as the vessels of the opposing party in the port of Cartagena were flying the Colombian flag, it was in violation of right, and placed that party beyond the pale of international law.[82]

The United States refused to recognize the validity of the first decree unless Colombia should support it by an effective blockading force.[83] (For similar position on part of Great Britain, see Parl. Deb. H. C., June 27, 1861.)

The United States also refused to recognize that the vessels of the insurgents were beyond the pale of international law or in any sense piratical.

The United States did not deny that closure might be a domestic measure similar to blockade in accord with municipal law, but emphatically maintained that effective blockade only could close a port in time of such insurrection.

It was further maintained that "The denial by this [U.S.] Government of the Colombian proposition did not, however, imply the admission of a belligerent status on the part of the insurgents." Message Pres. Cleveland, Dec. 8, 1885.[84]

The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly mention a status of insurgency as existing in Cuba.

During the rebellions in Chili in 1891 and in Brazil in 1894, the insurgents, while not recognized as belligerents by third powers, were nevertheless given freedom of action by these powers.

§ 28. Belligerents

(_a_) =Definition.= A community attempting by armed hostility to free itself from the jurisdiction of the parent state may, under certain conditions, be recognized as a belligerent.

(_b_) The general =conditions prior to recognition= are: (1) that the end which the community in revolt seeks shall be political, _i.e._ a mere mob or a party of marauders could have no belligerent rights, (2) the hostilities must be of the character of war and must be carried on in accord with the laws of war, (3) the proportions of the revolt must be such as to render the issue uncertain and to make its continuance for a considerable time possible, (4) the hostilities and general government of the revolting community must be in the hands of a responsible organization.

As each state, including the parent state, must judge as to the fact whether the conditions warranting recognition of belligerency exist, there may be great divergency of opinion in cases of recognition,[85] but the question of belligerency is a question of fact and never a question of theory.

(_c_) A community carrying on, in accord with the rules of war, an armed revolt of such proportions as to make the issue uncertain and acting under a responsible organization may not be recognized without offense to the parent state except upon certain =grounds=. The generally admitted ground is, that the interests of the recognizing state be so far affected by the hostilities "as to make recognition a reasonable measure of self-protection."[86] "The reason which requires and can alone justify this step [recognition of belligerency] by the government of another country, is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties.... A recognition by a foreign state of full belligerent rights, if not justified by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government."[87]

(_d_) =Recognition= of belligerency is naturally =an act of the executive authority=.[88]

The following is the proclamation of Queen Victoria of May 13, 1861:--

"Whereas we are happily at peace with all sovereign powers and states:

"And whereas hostilities have unhappily commenced between the Government of the United States of America and certain states styling themselves the Confederate States of America:

"And whereas we, being at peace with the Government of the United States, have declared our royal determination to maintain a strict and impartial neutrality in the contest between the said contending parties:

"We, therefore, have thought fit, by [and with] the advice of our privy council, to issue this our royal proclamation:

"And we do hereby strictly charge and command all our loving subjects to observe a strict neutrality in and during the aforesaid hostilities, and to abstain from violating or contravening either the laws and statutes of the realm in this behalf or the law of nations in relations thereto, as they will answer to the contrary at their peril."

(_e_) =Certain consequences= follow the recognition of belligerency.

(1) _If recognition is by a foreign state._

(a) From the date of recognition, the parent state is released from responsibility to the recognizing state for the acts of the belligerents.

(b) So far as the recognizing state is concerned, the parent state and the belligerent community would have the same war status, _i.e._ in the ports of the recognizing state, the vessels of both parties would have the same privileges, the merchant vessels of the recognizing state must submit to the right of search as justly belonging to both parties; in fine, so far as the prosecution of hostilities is concerned, the recognizing state must accord the belligerent community all the privileges of a full state.

(c) The recognizing state may hold the belligerent community, if it subsequently becomes a state, accountable for its acts during the period after the recognition of its belligerency. If, however, the parent state reduces the revolting community to submission, the recognizing state can hold no one responsible for the acts of the recognized community from the date of recognition.

(d) This recognition does not necessarily affect other than the three parties, the recognizing state, the belligerent community, and the parent state.

(2) _If recognition_ of belligerency is by the _parent state_.

(a) From the date of recognition, the parent state is released from responsibility to all states for the acts of the belligerents.

(b) So far as the prosecution of hostilities is concerned, the community, recognized as belligerent by the parent state, is entitled to full war status.

(c) From the date of recognition by the parent state, the belligerent community only is responsible for acts within its jurisdiction, and if subdued by the parent state, no one can be held responsible, _i.e._ contracts made with a belligerent, or responsibilities assumed by a belligerent, do not fall upon the parent state, when victorious in the contest.

(d) Recognition of belligerency by the parent state gives the revolting community a war status as regards all states.

* * * * *

In a broad way, recognition by the parent state makes general those conditions which may exist only for the parties directly concerned, when recognition is by a single foreign state. In cases where several states recognize the belligerency of a hostile community, other states that have not recognized its belligerency may, without offense to the parent state, treat the hostile community as a lawful belligerent, which treatment would be constructive recognition. The general effect of recognition is to extend to the belligerent all the rights and obligations as to war that a state may possess, and to free the parent state from certain obligations while giving some new rights. The parent state may use the proper means for the enforcement of neutrality and demand reparation for any breach of the same, may maintain blockade, prize courts, and take other measures allowable in war.

The condition of insurgency is usually tacitly admitted for a period prior to the recognition of belligerency, and the vessels of the insurgents are not regarded as pirates either in practice or theory. They have not the _animus furandi_. The admission of insurgent status or the recognition of belligerency does not imply anything as to the political status of the community. In the first place there is conceded a qualified war status, and in the second full war status.

§ 29. Communities not fully Civilized

While there is no agreement as to what constitutes civilization, still international law is considered as binding only upon states claiming a high degree of enlightenment. Communities, whether or not politically organized and not within the circle of states recognized by international law, because they are not regarded as sufficiently civilized, are not treated as without rights. It is held that these communities not fully civilized should be treated as civilized states would be treated so far as the time and other circumstances permit. Unduly severe measures, whether in war or peace, should not be used by civilized states in dealing with those not civilized. It may be necessary that barbarians should be used as auxiliary forces in contests with barbarians, but it is now held that such forces should be officered and controlled by the civilized state. Extreme measures, in the way of devastation and destruction, have been used with the idea of impressing upon the minds of barbarians respect for the power of a state, but it is now questioned how far this is fitting for states claiming civilization. Many states not admitted to the circle of nations have now acquired such a status as entitles them to the general privileges of international law to the extent to which their action has not violated its provisions, and it is generally so accorded, as for many years to China, Persia, and other Asiatic states.