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Commissions of inquiry and extradition are to be effected without charge.
h. Various matters. The above-mentioned matters are those which are of greatest interest not only in interstate but also in international relations. It would be almost impossible to state all cases in which interstate relations exist or at least are possible. Some matters of high importance in international law are on account of Federal institutions beyond the reach of interstate law — import and export, railways, telegraph. In other matters the space left to interstate law is narrow or large according to the extent of Federal powers and law. But even
But even on subjects within the power of the Cantons these have in most cases made no regulations of an interstate character.
Concordats and other intercantonal treaties have been concluded on the following subjects, not mentioned above: Control of vagrant and other dangerous people, passports, transportation of surrendered criminals and of destitute people sent to the commune of origin, collections for pious and similar institutions, traffic of motor cars and bicycles, official register of medicaments, control of patent medicines, extinction of insects noxious to agriculture (May bugs, etc.), protection of young people abroad, relations of vicinage, exercise of patented professions in frontier districts, mortgages on estates divided by intercantonal boundaries, taxation of real estate in boundary districts, navigation police and fisheries in intercantonal waters, etc.
A concordat of great importance is the treaty of Langenthal of 1828, by which the Cantons of Lucerne, Berne, Soleure, and Zug (Argovie, Thurgovie, and Basle adhered later) created a common Roman Catholic bishopric of Basle, since in the period of the revolution the ecclesiastical organization of Switzerland had undergone fundamental changes.
The catalogue of concordats could easily be continued and still to-day new concordats, either of particular or general character, are concluded when the interests of Cantons require a definite and legal regulation of certain interstate relations or if Federal legislation seems to be impracticable at this time.
THE ORIGIN OF THE CONGO FREE STATE, CONSIDERED FROM THE STANDPOINT OF
The partition of Africa, which the present generation has seen accomplished, has yielded a generous by-product in international law. Protectorates, spheres of influence, hinterlands, the position of savage and semicivilized tribes, nominal and effective possession, territorial leases — these are but a few of the topics to which the political apportionment of the Dark Continent has drawn attention and exacted serious consideration. For more than twenty years the position of one of the largest holders of African territory, the Congo Free State, has aroused much discussion. With the serious accusations against Congolese administration press, pulpit, and platform have made the English-speaking peoples familiar. How far these have been proved it is not a part of the present paper to decide. It is enough for our purpose to say that charges of maladministration have been made in the official publications of more than one country, and that protests based upon them have been presented to those responsible for the direction of the State's affairs. No doubt the criticisms of the past few years have tended to hasten the annexation of the Congo, before which Belgium had previously faltered. Leaving aside the details of the annexation, important as they are from another point of view, the change means the substitution of a responsible government for the Congo in place of the former absolute control by a king-sovereign, who for some years had been able, thanks to the mutual jealousies of the powers, to govern as he chose, whatever might have been the limitations upon his activities which treaties had sought to impose. The coercive power of ultranational public opinion, upon which in the last analysis international law depends, has been plainly evident in the case of the Congo State. Public sentiment, transcending national boundaries, has demanded a responsible government for the Congo. It has accomplished practically all that the concerted action of the powers might have sought to do.
With the annexation of the Congo to Belgium will appear a new relationship — that of a neutralized state holding a colony within neutralized territory. Belgium will succeed, as the acknowledged owner of the Congo, to those conditions to which the Independent State of the Congo was subject. These appear in the various conventions and agreements to which the Congo Free State and its juristic predecessor, the International Association of the Congo, have been a party. The Congo Free State had treaty relations with the principal countries of the globe, the obligations of which Belgium must, of course, assume. Beyond this the Congo State had either signed or adhered to the General Acts of Berlin (February 26, 1885) and Brussels (July 2, 1890), as well as the Convention of Brussels of June 8, 1899.1 In other words, the Congo Free State has been treated as sovereign and independent during nearly a quarter of a century. As it passes out of existence it is pertinent to review the peculiar conditions of its origin, viewed from the standpoint of international law. As the annexation to Belgium is now (November 15) an accomplished fact, this subject may be approached without propagandist bias.
No part of the larger Congo question has evoked more spirited discussion than this of the origin of the State. How and when did it come into existence? It was created by the powers in 1885, said
It was a de facto state before the powers met in conference at Berlin, said others. It is easy to see why these two antagonistic theories have been advanced. Those who have wanted the powers to “ do something " for the natives have insisted that the State was the creation of the powers. Those who sought to defend Leopold's administration elected to regard the Congo State as having had a de facto existence prior to the Berlin Conference. This was done in order to support the view that the Congo State, in adhering to the Berlin General. Act, did so as an existing sovereign state, yielding no more than did any other signatory – France or Germany, say — which had territories affected by the terms of that act. Those who desired the Congo reformed through international action adopted the theory that a state may be called into being by the fiat or mandate of the existing powers.
1 The texts of these treaties will be found in the Supplement to this number of the JOURNAL, at pages 7, 27, and 70.
Those who have exalted the independence of the State have rested upon the familiar doctrine that recognition is but a statement of what at the time appears to be the fact.
The existence of the sovereign state is independent of its recognition by other states. This recognition is the statement of a fait accompli, and is also the approbation of it. It is the legitimation of a situation of fact, which is henceforth founded upon law. It is the attestation of the confidence which the states have of the stability of the new order of things.”
These words of the distinguished Belgian jurist correctly state the modern rule. Any other position logically leads to intervention on the part of the recognizing state. It is applicable when a state has been formed out of another state, or of parts of another state or states. But in the case of the Congo it is submitted that the rule does not apply. There was no de facto state in the Congo basin in 1884, and no one then claimed that there was. It was at that time the theory neither of the powers which recognized the State, nor of Leopold who founded it. This claim of an antecedent de facto existence does not appear until after the Berlin Conference, and then as a matter not wholly free from doubt.3
Those who maintain the State's antecedent de facto existence rest their case upon (1) the cessions made to the predecessor of the Free State, the International Association of the Congo, of political sovereignty by the native African chiefs; or (2) upon rights growing out of the occupation of territory sans maître; or (3) upon continuous and effective territorial possession animo imperii, following the cession of alleged sovereignty by the native tribes. As to the first of these, much of the discussion has shown a confusion of ideas as to territorial sovereignty and property, between imperium and dominium. No one within recent times would seriously maintain that imperium could be conveyed without any subsequent act or series of acts. As to the second, the occupation of territory rei nullius, the modern position is less clear. To deny that savage or semicivilized tribes have any place in international law shocks the modern conscience. It furnishes a basis for the doctrine that such peoples have no rights which civilized nations need respect.
2 Rivier, Les Principes du Droit des Gens, I, 57. 3 This position is most strongly stated by Cattier (Droit et Administration de l'État Independant du Congo, Bruxelles, 1898), who denies that sovereignty was obtained either through recognition by the powers or through the treaties made at an earlier time with the native African chiefs (p. 43). Cf. Banning, Le Partage Politique de l'Afrique (Bruxelles, 1898). M. Rolin-Jacquemyns denied that the Congo State owed, or could owe, its existence to an assembly of diplomats, but elsewhere (Rev. de Droit Int., 1889, 170) he seems to take the opposite view. Liberia is an apparent, rather than real, exception to the doctrine stated in the text.
Few would go as far as this, but would admit that while such tribes are not persons in international law (government being the test of civilization), yet they have moral rights as against such persons. There is always a danger of importing the idea of sovereignty into what are really matters of occupation and possession. It is to the third of the positions cited to which attention must be directed in order to decide the question as to whether the Congo State had an existence before the Berlin Conference, or, to be exact, prior to November 8, 1884, when its predecessor was recognized as a state by Germany. As this is a question of fact it is necessary to review the series of events which led up to the Berlin Conference. These group themselves into two classes: First, as to the origin and development of the idea of which the Congo Free State was the realization; and, second, as to the actions of the powers in 1884 looking to the partition of Africa, and in reference to the above idea. Finally, there is to be considered the theory as to the existence of the State held by its founder, Leopold.
I. The interest of Leopold II, King of the Belgians, in African affairs has been constant since September, 1876, when at his invitation forty or more prominent European scientists, statesmen, and publicists assembled at Brussels for the purpose of discussing and
4 Cf. Westlake, Chapters on the Principles of International Law, IX.
6 Sir John MacDonnell, Occupation and Res Nullius, Jour. Comp. Leg. 1893, 277-286.