PART I

STATES. THEIR CLASSIFICATION

TITLE A

SUBJECTS OF INTERNATIONAL LAW

1

STATES

a

§ 6. Significance of the Term in International Law.

It is necessary to observe what are the political entities described as States which are deemed to constitute the members of the family of nations and to be governed as such in their relations with each other by the principles of international law. Great Britain and Illinois are each doubtless properly designated as a State, although the latter, while subject to the operation of those principles, is not itself a person of international law. If the term State is fairly descriptive of political bodies such as the several commonwealths of the United States, the States which enjoy membership in the international society and which are recognized by it as persons of international law are confined to those which possess certain well-defined qualifications, and which comprise a relatively small number of those which are given the same appellation. Thus any definition of the term State in its generic sense must fail, because of its very breadth, to point out the distinctive elements which characterize every political entity deemed to be a subject or person of international law.2

1 Westlake, 2 ed., I, 1–5.

2 Thus Mr. Justice Miller, in Keith v. Clark, 97 U. S. 454, 459-463, in referring to the status of Tennessee during the Civil War, was concerned merely with the problem of describing the nature of a State of the Union rather than a State of international law. See, also, Texas v. White, 7 Wall. 700, 720-721. "Most of the definitions of the publicists may, however, be traced back, in substance if not in form, to Cicero, who, in his De Republica, defines the

b

§ 7. Requisites of a State of International Law.

A State or person of international law must, according to enlightened practice, possess the following qualifications:

First, there must be a people. According to Rivier, it must be sufficient in numbers to maintain and perpetuate itself. This requirement could not, he declares, be met by a casual gathering of individuals or by a chance group of bandits or by a society of pirates.1

Secondly, there must be a fixed territory which the inhabitants occupy. Nomadic tribes or peoples are thus excluded from consideration.2

Thirdly, there must be an organized government expressive of the sovereign will within the territory, and exercising in fact supremacy therein.3

Fourthly, there must be an assertion of right through governmental agencies to enter into relations with the outside_world. The exercise of this right need not be free from external restraint. Independence is not essential. It is the possession and use of the right to enter into foreign relations, whether with or without restriction, which distinguishes States of international law from the 'populus' as a numerous society united by a common sense of right and a mutual participation in advantages. In almost the same words Grotius defined the state (civitas) as a perfect society of free men, united for the promotion of right and the common advantage. Pufendorf propounded the idea, which has been so generally adopted, of treating the state as a moral person, endowed with a collective will. According to Vattel, a nation or state is a body politic or society of men who seek their well-being and common advantage in the combination of their forces. This definition is substantially adopted by Wheaton. But it must be admitted that all the foregoing definitions are imperfect, and that they can be accepted only with certain limitations." Moore, Dig., I, 14.

Cf. Dana's Wheaton, § 17.

1 Rivier, I, 46. For an abstract of the views of this author see Moore, Dig., I, 16-17, 18. See, also, Bonfils-Fauchille, 7 ed., § 162.

2 Rivier, supra; also Phillimore, 2 ed., I, 81.

3 Phillimore, supra; Bonfils-Fauchille, supra; Hall, Higgins' 7 ed., § 1.

4 "It is not necessary for a State to be independent in order to be a State of international law." Westlake, 2 ed., I, 21.

"As international law deals with actual conditions, it recognizes the fact that there are states not in all respects independent that maintain international relations, to a greater or less extent, according to the degree of their dependence." Moore, Dig., I, 18, citing Rivier, I, 52.

If independence be regarded as a necessary possession of a State of international law, the existing practice of treating as persons or subjects of that law various types of so-called dependent States is incapable of explanation. Even those who assert that independence is a necessary attribute of a State, are frequently unwilling to employ the term "State" to designate what they believe that it fairly signifies, and are impelled to utilize the adjective "independent" or "sovereign" in order to make clear their meaning.

AMERICAN COMMONWEALTHS.

COLONIES

[§ 8 larger number of political entities given that name and which are wholly lacking in such a privilege. It illustrates the difference between Ecuador and Alaska, and between Cuba and South Carolina.

Fifthly, the inhabitants of the territory must have attained a degree of civilization such as to enable them to observe with respect to the outside world those principles of law which by common assent govern the members of the international society in their relations with each other

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Excluded Associations or Entities

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§ 8. American Commonwealths. Colonies. Corporations. Political entities failing to meet any of the requirements above noted are regarded as incapable of treatment as persons of international law, Thus, as has been observed, the several States of the United States, by reason of their inability to enter into diplomatic relations with the outside world, lack the requisite capacity.2 Such is the situation also of a colony or other possession likewise under such a disability, and that regardless of the autonomy which it may enjoy in respect to domestic affairs. Thus, for example, the Philippine Islands and Porto Rico, as well as Alaska, are not States of international law.

When, however, an autonomous colony such as a self-governing dominion is permitted by its sovereign to hold direct intercourse with the outside world, it thereby attains an international personality, with the capacity requisite for a certain form of membership in the society of States, and thereupon appears to acquire a status difficult to distinguish from that possessed by what are known as dependent States.3

1 See Countries not Possessed of European Civilization, infra, § 33. 2 International responsibility for what may occur in the territory of each is lodged in the State of international law - the United States - of which each is a part, and to which each, in an international sense, belongs.

The participation of the Dominion of Canada, the Commonwealth of Australia, the Union of South Africa, the Dominion of New Zealand and India in the Peace Conference of 1919, the signing of the Treaty of Versailles with Germany, of June 28, 1919, by representatives of each in behalf of their respective portions of the British Empire, and their acceptance as original members of the League of Nations, must be taken to signify that, with the consent of Great Britain, each of these self-governing dominions has attained an international personality, and is to be dealt with accordingly. It would be consistent with the status which each has acquired should any one of them, such as Canada, be accorded the right to maintain permanent diplomatic relations with a neighboring State.

Great corporations, such as the East India Company, or the Hudson's Bay Company, or the Russian-American Company, notwithstanding the scope of the political and other powers delegated to them, have also necessarily been excluded from the category of States of international law.1

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§ 9. Religious Societies. The Pope.

Religious societies, such as the Holy See, are not regarded as States of international law, save when circumstances combine to enable them to satisfy all of the conditions of statehood which have been noted.

The position of the Pope since the days when he was a territorial sovereign has been anomalous.2 As the head of the Roman Catholic Church to which certain States officially avow attachment, he possesses international political significance and wields international power. He holds diplomatic intercourse with various States through the medium of repesentatives whom he both accredits and receives. As head of the Church he concludes with certain States arrangements known as concordats, and which pertain to ecclesiastical matters. By reason of its institutions which divorce political from religious matters, the United States

1 See, in this connection, Dana's Wheaton, § 17, where it is said: "Thus the great association of British merchants incorporated, first, by the crown, and afterwards by Parliament, for the purpose of carrying on trade to the East Indies, could not be considered as a State, even whilst it exercised the sovereign powers of war and peace in that quarter of the globe, without the direct control of the crown, and still less can it be so considered since it has been subjected to that control." See, also, Westlake, Collected Papers, Chap. X.

2 Concerning the Italian law of guaranties of May 13, 1871, see BonfilsFauchille, 7 ed., §§ 377-385; also id., §§ 386-396, concerning diplomatic relations of the Papacy, and the international personality of the Pope; also extensive bibliography, id., § 370. See, also, Oppenheim, 2 ed., I, Chap. X; Clunet, Tables Générales, I, 440, 443, 873.

It should be observed, however, in this connection that the Pope was not permitted to participate in the First Hague Peace Conference of 1899, and was not a participant in that of 1907.

It will be recalled that in 1917, the Pope urged the opposing groups of belligerents to make an endeavor to negotiate peace. See Am. J., XI, Supp., 212; also reply of the United States, id., 216.

4 With respect to the privileged rank of papal nuncios, see Arts. I, II, and IV of Rules of the Congress of Vienna of March 9, 1815, Instructions to the Diplomatic Officers of the United States (1897), § 18.

"In our day, this term [concordats] is applied to conventions concluded between the Holy Apostolic See and the governments of certain States whose population, in whole or in part, is Catholic, and not in regard to questions of faith or dogma, but concerning ecclesiastical discipline, organization of the