Or, again, a Confederacy (Staatenbund), the general government of which possesses plenary powers with reference to international relations, is, indubitably, a State of international law, although, constitutionally, it has itself no existence as a sovereign State.

Viewed from this standpoint of International Law, a State is necessarily a unity. This is as true of an Empire with autonomous colonies and dependencies as it is of a Federal State or a highly centralized Confederacy. That government which holds within its hands the direction of foreign affairs will be held internationally responsible for all the claims that other Powers may have with reference to all the lands and all the peoples concerning which the given government claims authority internationally to deal. All those lands and their populations thus constitute, ad hoc, a single State or subject of International Law.

Thus it is that a political body which, constitutionally viewed, is a State, may not be a State in the eyes of International Law; and, conversely, a State or subject of International Law may not be a State when constitutionally regarded. In a Confederacy (Staatenbund) the member States, constitutionally viewed, are regarded as severally sovereign, and the instrument which unites them, though it may be termed a Constitution, is, in juridical fact, of an international contractual character. In either of these cases, however, the protecting and protected State, and the ensemble of confederated States, are deemed to constitute a single international person.

Some federally organized States permit their member States to enter into direct treaty relations with other powers. It is certain, however, that, in these cases also, the Federal State can be held responsible by other States for whatever its members may do or agree to do. Certainly, the sovereign federally organized State would not permit !

CONCEPT OF THE STATE IN INTERNATIONAL LAW 317

any foreign State to bring to bear force upon any one of its member commonwealths, for such an act would be a violation of its own territorial integrity which, of course, includes the several territories of all its member States.1 Another instance in which the constitutional and international conceptions of statehood do not correspond is in the case of what are known as Protectorates, or, at least, of those protectorates in which the foreign relations of the protected State are exercised by the guardian or patron State. Here, constitutionally speaking, the two States remain severally sovereign and separate from one another, and the bond which unites them is usually, in form at least, a contractual and not a legal one. 5 Inter

Upon the status of composite international persons Oppenheim writes: "Since it is always the Federal State which is competent to declare war, make peace, conclude treaties of alliance, and other political treaties, and send and receive diplomatic envoys, whereas no memberState can of itself declare war against a foreign State, make peace, conclude alliances or other political treaties, the Federal State, if recognized, is certainly itself an International Person, with all the rights and duties of a sovereign member of the Family of Nations. On the other hand, the international position of the member-States is not so clear. It is frequently maintained that they have totally lost their position within the Family of Nations. But this opinion cannot stand if compared with the actual facts. Thus the member-States of Germany, under the German Constitution as it existed before the World War, retained their competence to send and receive diplomatic envoys, not only in intercourse with one another, but also with foreign States. Further, the reigning monarchs of these member-States were still treated by the practice of the States as heads of sovereign States, a fact without legal basis if these States had been no longer International Persons. Thirdly, the member-States of Germany, as well as of Switzerland, retained their competence to conclude international treaties between themselves without the consent of the Federal State, and they also retained their competence to conclude international treaties with foreign States as regards matters of minor interest. If these facts are taken into consideration, one is obliged to acknowledge that the member-States of a Federal State can be International Persons in a degree. Full subjects of International Law-International Persons with all the rights and duties regularly connected with the membership of the Family of Nations-they certainly cannot be. Their position, if any, within this circle is overshadowed by their Federal State; they are part sovereign States, and they are, consequently, International Persons for some parts only." International Law, 3d ed., p. 89.

"In 1914, Great Britain, by a unilateral act, served notice upon the other Powers that it had established a protectorate over Egypt. By a similar unilateral act it terminated that protectorate in 1922.

nationally speaking, the two constitute a single State. This assertion, it may be said, is not supported by a line of established precedents, but it will be generally conceded that, where one State has within its hands the full control of the international relations of another State, other Powers will look to the dominant State, and not to the protected State for the fulfillment by it of its international obligations; and, reciprocally, it is equally certain that the guardian State will concern itself with any violation of international rights which the protected State may suffer. If this is so, then the international distinction between the two States is without real substantive content. It has, indeed, happened that where the guardian State has been at war, the protected State has been regarded as neutral. This is inconsistent with the proposition which has been here declared. Essentially speaking, however, this has been a matter of grace rather than the recognition of a technical obligation, for it may be confidently asserted that in those cases in which there is a substantial reason for declaring that the belligerency of the patron State carries with it ex necessitate the belligerency of the protected State, this doctrine will be applied. The logic of such a proposition is evident.

If one defines a juristic person as an entity in which legal duties and rights inhere, it would seem that there may be bodies-politic which, in the eyes of International Law, are not independent States, and which yet have a standing as persons in the international world. This occurs when, in the case of a civil war, the revolting party has been recognized as a belligerent. This gives to the belligerent a status, not as a State, but as a body-politic which, for the purposes of the war only, is entitled to exercise the rights of, and is under the obligations which

apply to, States themselves when at war with one another.

At first thought it might appear that those States which, for various reasons, have not been admitted to fellowship with the members of the Family of Nations are illustrations of international persons which are not at the same time independent States. This, however, is not the case. Though these States do not have by international law an equality of rights with the other States, they are none the less sovereign States when viewed constitutionally; and are independent States when looked at internationally. For no other State claims a legal authority over them.

State Succession. It will have been seen that, to a very considerable extent, the distinction between State and Government so important to Constitutional Law, is without importance to International Law. International relations, it appears, are between governments, irrespec-ett

tive of their constitutional relations to the States back of and supporting them. In another sense, however, International Law may be said to have dealings only with States, for, according to its premises, the establishment of a new government in no way operates to invalidate, so far as the interests of other States are concerned, the obligations incurred or treaties entered into by the old governments. The governments succeed to one another but the State remains the same. Thus, when, by revolutionary means, one government is supplanted by another government, the new government is held responsible by the governments of other States for the acts of its predecessors, and should the former government re-establish its de facto control, it will be held internationally responsible for the acts of the government which it has overthrown even though, from its point of view, that gov

not

ernment never had a legal existence. From the viewpoint of constitutional law however, the restored government need recognize the legal validity of the acts of the de facto government only insofar as it deems it equitable and expedient. Upon these grounds, municipal courts have held that the payment of taxes by individuals to a de facto government relieves those individuals from making subsequent payment to the re-established de jure government.

The doctrine of continued State liability applies when the whole or a part of the territory of one State is taken over by another State. However, the question as to the extent to which a State which thus takes over the entire territory of another State (which State of course thereby goes out of existence) succeeds to the rights and obligations of the destroyed State as created by previous treaties or agreements with other States, is not without difficulty. Professor Max Huber who, in his Die Staatensuccession, has given us what is perhaps the best discussion of the fundamental principles or theory upon which the answer to the problems thus raised should be solved, lays down the following proposition.

The conception of succession is a general legal conception and belongs neither exclusively to private law nor to public law. Succession is substitution plus continuation. The successor assumes the place of the predecessor and continues his rights and obligations; to this extent public and private law are alike. There is, however, this distinction between succession in public and in private law. The private law successor steps into the place of his predecessor and takes his rights and obligations as though he were the predecessor. This, at least, according to the ruling theory is the "universal succession" in the Roman sense. The successor of International Law, however, assumes the rights and obligations of his predecessor as though they were his own. . . . When a State

See, for example, the holding of the United States Supreme Court in the case of United States v. Rice, 4 Wheaton 246. Cf. Moore, Digest of International Law, vol. I, p. 21. This topic is more fully discussed, post, in chapter XX.