Page:EB1911 - Volume 25.djvu/542

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522
SOVEREIGNTY


or force. Feudalism had a phraseology to express the varieties of fiefs which existed under it; modern international law has no generally-accepted terminology for the still greater variety of states which now exist. These varieties tend to multiply, and it is difficult to reduce them all to a few types. The theory that states are equal, and possess all the attributes of sovereignty, was never true. It is still more at variance with the facts in these days when a few great states predominate, and when the contact of western states with African and Asiatic states or communities gives rise to relations of dependence falling short of conquest. The division into federations, confederations and alliances is not complete. Jellinek has suggested this classification (Die Lehre von den Staatenverbindungen, p. 58): (a) Unorganized associations, including — (1) treaties; (2) occupation of the territory of one state and administration by another, as in Bosnia and Cyprus; (3) alliances; (4) protectorates, guarantees, perpetual neutrality; (5) Der Staatenstaat, the feudal state, of which Jellinek gives the Turkish Empire and the old Holy Roman Empire as examples, (b) Organized associations, including — (1) international commissions (Internationale Verwaltungsvereine, such as international postal and telegraph unions, &c); (2) the Staatenbund or confederation of states; (3) real unions of states as distinguished from personal; (4) the Bundesstaat or federal state. 1 Most of the existing varieties may be conveniently ranged in the following classes: —

1. States which have complete independence, complete autonomy, external and internal, and which are recognized in international law as sovereign states.

2. States which have complete external independence, but are more or less subject permanently to other states as to their internal affairs. Of this class there are now few examples. Per- haps, however, such states as permit, permanently or normally, of interference by others on behalf of certain classes of subjects may.be so described. The general principle is that a treaty does not detract from sovereignty. As Jellinek expresses it. " Der Staatenvertrag bindet, aber er unterwirft nicht " (Gesetz und Verordnung, p. 205); or as Grotius (1. ch. 3, 22, 2) expresses it, " Nee regi aut populo jus demit summi imperii."

3. States which enjoy complete autonomy as to internal affairs, but which are more or less subject to other states as to foreign relations. Some writers would place in this category all states forming part of a true confederacy. It includes states which are united temporarily — cases of inorganic unity, to use Jellinek's expression. It includes also permanent alliances or organic unions. These are some examples: —

a. Protectorates and Suzerainties. — The status of certain states, such as Bulgaria and Rumania and the late South African Republic, were peculiar. Even before the independence of the two first- named states, they undoubtedly were for many purposes sovereign.

b. The unions between a superior and inferior state, e.g. the re- lations of the various states to the old Holy Roman Empire; the relations of the Ottoman Porte to its Christian provinces. In the middle ages the question was often mooted whether states subject to feudal superiors, or the states forming the empire, were sove- reign. According to one common definition they were not: a true sovereign state was universitas quae non superiorem recognoscit. " Celui est absolument souverain qui ne rien tient apres Dieu que del'espee. S'il tient d'autruiil n'est plus souverain." The prevalent opinion, however, was that sovereignty was compatible with rights such as were possessed by the Reich over the princes of Germany; that there might be fiefs held in full sovereignty; and that vassal states, when subject only to " nude vassalage," were sovereign. That was the view of Grotius (1. 1. ch. 3, 23. 2), who holds that the nexus feudalis is consistent with summum imperium.

4. States which have, by treaty or otherwise, parted with some portion of their sovereignty and formed new political units: what Herbert Spencer calls " compound political heads," or, to use Austin's expression, " composite states." The most important examples of this class consist of federal or composite states which by treaty or otherwise have surrendered certain of their powers, or which have created a new state (Staatenbund). For many years one of the burning questions in the politics of

1 The distinction between the Staatenbund and the Bundesstaat is discussed in the articles Con*ederation andiFEDERAL Govern- ment.


the United States was the question whether the individual states of the Union remained sovereign. According to the theory of J. C Calhoun, the states had entered into an agreement from which they might withdraw if its terms were broken, and they were sovereign. According to the theory expounded in the Federalist, the individual states did not, after the formation of the constitu- tion, remain completely sovereign: they were left in possession of certain attributes of sovereignty, while others were lodged in the Federal government; while there existed many states, there was but one sovereign. Even if the origin was a compact or contract, after the " United States " were formed by a " consti- tutional act " there no longer existed a mere contractual relation: there existed a state to which all were subject, and which all must obey (von Stengel, Staatenbund und Bundesstaat; Jahrbuch fiir Gesetzgebung, 1898, p. 754; Cooley, Principles of Constitutional Law, pp. 21, 102). According to Austin: " In the case of a composite state or a supreme federal government, the several united governments of the several united societies together with a government common to these several societies, are jointly sovereign in each of these several societies and also in the larger society arising from the federal union, the several governments of the several united societies are jointly sovereign in each and all " (5th ed., vol. i. p. 258). In point of fact, there are fields of action in which A is sovereign, others in which B is sovereign, and certain others in which A and B are jointly or alternately sovereign. To take the American constitution, for example, the states are sovereign as to some matters, the Federal government as to others.

5. Another division includes anomalous cases, such as Cyprus or Bosnia, in which one government administers a country as to which another state retains certain powers, theoretically large.

6. The territories governed or administered by chartered companies form a class by themselves. Nominally such com- panies are the delegates of some states; in reality they act as if they were true sovereigns.

7. Two other classes may be mentioned: (a) cases of real union between states, e.g. that between Austria and Hungary; (b) personal unions, distinguished from the above-named forms — for example, the union of Great Britain and Hanover.

8. A small group consists of instances of condominium or arrangements similar thereto; for example, the arrangements as to the Samoa Islands from 1889 to 1899.

According to modern usage the appellation " sovereign state " belongs only to states of considerable size and population exer- cising without control the usual powers of a state, e.g. able to declare peace or war. Leibnitz, discussing this subject in his Tractatus de jure suprernatus (Opera, 4. 362), says: " Itaque valde etiam dubito, an possit Reipublicae illi Italiae, quam vocant Sancti Marini oppidum, concedi suprernatus, Slzeot tametsi jure liberam esse nemo negat," a remark State. which would apply also to the .republic of Andorra: " Illi tantum vocantur souverains ou potentats, qui territorium majus habent, exercitumque educere possunt; atque hoc demum illud est, quod ego voco suprematum, et Gallos quoque arbitror, cum de rebus ad jus gentium spectantibus, pace, bello, foederibus sermo est, et ipsi aliquos vocant souverains, eos non de urbibus liberis loqui, nee exiguorum territoriorum dominis, quae facile dives Mercator sibi emere potest, sed de majoribus illis potestatibus, quae bellum inferre, bellum sustinere, propria quodammodo vi stare, foedera pangere, rebus aliarum gentium cum auctoritate intervenire possunt " (4. 359).

With this view, may be compared that of a writer in the Law Magazine (1899) xxv. 30, who argues that the republic of San Marino is a state in the full sense.

It is sometimes suggested that self-governing colonies are to be regarded as true states. Undoubtedly some of them can no longer be regarded as colonies in the old sense. The Co/on self-governing colonies forming part of the " multi-cellular British state," as F. W. Maitland describes it (Political Theories of the Middle Ages, p. x.), have an essentially " state-like character." If Liberia is a state, the same may surely be