Meaning of Sove

reignty in the Nine

the eighteenth century. It suffices to mention Rousseau, whose "Contrat Social" appeared in 1762 and defended again the indivisibility of sovereignty. Rousseau's conception of sovereignty is essentially that of Hobbes, since it contains absolute supreme power, but he differs from Hobbes in so far as, according to Rousseau, sovereignty belongs to the people only and exclusively, is inalienable, and therefore cannot be transferred from the people to any organ of the State.

§ 69. During the nineteenth century three different factors of great practical importance have exercised their influence on the history of the conCentury. ception of sovereignty.

teenth

The first factor is, that, with the exception of Russia, all civilised Christian monarchies have now turned into more or less constitutional monarchies. Thus identification of sovereignty with absolutism belongs practically to the past, and the fact is now generally recognised that a sovereign monarch may well be restricted in the exercise of his powers by a Constitution and positive law.

The second factor is, that the example of a Federal State set by the United States has been followed by Switzerland, Germany, and others. The Constitution of Switzerland as well as that of Germany declares decidedly that the member-States of the Federal State remain Sovereign States, thus indirectly recognising the divisibility of sovereignty between the member-States and the Federal State according to different matters.

The third and most important factor is, that the science of politics has learned to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The

majority of publicists teach nowadays that neither the monarch, nor Parliament, nor the people is originally Sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. The organ or organs which exercise for the State powers connected with sovereignty are said to be sovereign themselves, yet it is obvious that this sovereignty of the organ is derived from the sovereignty of the State. And it is likewise obvious that the sovereignty of a State may be exercised by the combined action of several organs, as, for instance, in Great Britain, King and Parliament are the joint administrators of the sovereignty of the State. And it is, thirdly, obvious that a State can, as regards certain matters, have its sovereignty exercised by one organ, and as regards other matters by another organ.

In spite of this condition of things, the old controversy regarding divisibility of sovereignty has by no means died out. It acquired a fresh stimulus, on the one hand, through Switzerland and Germany turning into Federal States, and, on the other, through the conflict between the United States of America and her Southern member-States. The theory of the concurrent sovereignty of the Federal State and its member-States, as defended by "The Federalist' (Alexander Hamilton, James Madison, and John Jay) in 1787, was in Germany taken up by Waitz,' whom numerous publicists followed. The theory of the indivisibility of sovereignty was defended by Calhoun, and many European publicists followed him

in time.

1 Politik, 1862.

A Disquisition on Government, 1851.

Result of the Controversy

Sove

reignty.

§ 70. From the foregoing sketch of the history of the conception of sovereignty it becomes apparent regarding that there is not and never was unanimity regarding this conception. It is therefore no wonder that the endeavour has been made to eliminate the conception of sovereignty from the science of politics altogether, and likewise to eliminate sovereignty as a necessary characteristic of statehood, so that States with and without sovereignty would in consequence be distinguishable. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs. As there can be no doubt about the fact that there are semi-independent States in existence, it may well be maintained that sovereignty is divisible.

Recogni

dition of

II

RECOGNITION OF STATES AS INTERNATIONAL PERSONS Hall, §§ 2 and 26-Lawrence, §§ 56-60-Phillimore, II. §§ 10-23Taylor, $$ 153-160-Walker, § 1-Westlake, I. pp. 49-58-Wheaton, § 27-Bluntschli, §§ 28-38-Hartmann, § 11-Heffter, § 23-Holtzendorff in Holtzendorff, II. pp. 18-33-Liszt, § 5-Ullmann, §§ 20-21-Bonfils, Nos. 195-213-Despagnet, Nos. 79-85-PradierFodéré, I. Nos. 136-145-Nys, I. pp. 69-115-Rivier, I. § 3Calvo, I. §§ 87-98-Fiore, I. Nos. 311-320-Martens, I. §§ 63-64— Le Normand, "La reconnaissance internationale et ses diverses applications" (1899).

$71. As the basis of the Law of Nations is the tion a con. common consent of the civilised States, statehood alone does not include membership of the Family of Family of Nations. There are States in existence, although their number decreases gradually, which are not, or not

Membership of the

Nations.

fully, members of that family because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born. For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is and becomes an International Person through recognition only and exclusively.

Many writers do not agree with this opinion. They maintain that, if a new civilised State comes into existence either by breaking off from an existing recognised State, as Belgium did in 1831, or otherwise, such new State enters of right into the Family of Nations and becomes of right an International Person. They do not deny that practically such recognition is necessary to enable every new State to enter into official intercourse with other States. Yet they assert that theoretically every new State becomes a member of the Family of Nations ipso facto by its rising into existence, and that recognition supplies only the necessary evidence for this fact.

If the real facts of international life are taken into consideration, this opinion cannot stand. It is a rule of International Law that no new State has a right towards other States to be recognised by them, and that no State has the duty to recognise a new State. It is generally agreed that a new State before its recognition cannot claim any right which a member and 26; Ullmann, § 20; Gareis, 1 See, for instance, Hall, §§ 2 p. 64; Rivier, I. p. 57.

1

1 See above, §§ 27 and 28.

Mode of Recognition.

of the Family of Nations has towards other members. It can, therefore, not be seen what the function of recognition could be if a State entered with its birth really of right into the membership of the Family of Nations. There is no doubt that statehood itself is independent of recognition. International Law does not say that a State is not in existence as long as it is not recognised, but it takes no notice of it before its recognition. Through recognition only and exclusively a State becomes an International Person and a subject of International Law.

§72. Recognition is the act through which it becomes apparent that an old State is ready to deal with a new State as an International Person and a member of the Family of Nations. Recognition is ! given either expressly or tacitly. If a new State asks formally for recognition and receives it in a formal declaration of any kind, it receives express recognition. On the other hand, recognition is tacitly and indirectly given when an old State enters officially into intercourse with the new, be it by sending or receiving a diplomatic envoy,' or by concluding a treaty, or by any other act through which it becomes apparent that the new State is actually treated as an International Person.

But no new State has by International Law a right to demand recognition, although practically such recognition cannot in the long run be withheld, because without it there is no possibility of entering into intercourse with the new State. The interests of the old States must suffer quite as much as those of the new State, if recognition is for any length of time refused, and practically these interests in time.

Whether the sending of a consul includes recognition is discussed below, § 428.