acteristics necessary to their recognition as sovereign states by the community of nations: First. After occupation or colonization in a territory without civilized population. Second. By the attainment, after previous existence, of sufficiently full civilization and standing. Third. By the division of a state into two or more nationalities. Fourth. By attaining independence as a nationality from the subjection of another state. Fifth. By the combination of a number of minor states into a federal union or confederation. Sixth. By the attainment of independence of an insurgent political community. 46. The Formation of a State by Occupation or Colonization in a Territory Without Civilized Population.-A sovereign state has been already defined as among other things a community of persons permanently located within a fixed territory. The mode of acquiring this territory varies according to circumstances. It may have been discovered before but not occupied. A claim to territory by a nation on the ground of discovery alone is not sufficient; there must be also actual and beneficial occupation. As to the aboriginal inhabitants, formerly little attention was paid to them and their claims of ownership and possession. The English colonies settled in America, however, did better. They, as a rule, paid for the territory occupied, and in the main this policy has been followed by the United States. As a rule, however, if the land occupied is "peopled by uncivilized tribes which are not politically organized under any government possessing the marks of sovereignty" an occupation by civilized peoples is tolerated or accepted. A modern case under this head is that of the Transvaal Republic. In 1836 a number of Dutch farmers left Cape Colony and went into an unsettled portion of South Africa. A number of them located themselves in the country now known as the colony of Natal and established a government of their own. Upon the absorption of this territory by Great Britain they again moved and, joining other sections of the original party, settled in the uplands beyond the Vaal River. In 1852 they were dealt with by the British Government as an independent state or series of states. Other powers followed the lead of the British Government, and from 1864 until 1877 the Transvaal Republic of the Boers was an international person and sovereign state in every sense. Subsequently, there was a peaceful annexation, a revolt followed by the establishment of a British suzerainty, a war, and, finally, the extinction of the republic and a union with the British Empire as a selfgoverning colony. The creation of the Congo Free State and the Republic of Liberia are still further modern examples of state formation under this head.1 47. The Formation of a State by the Attainment, after Previous Existence, of Sufficiently Full Civilization and Standing. Under this head we may mention the entrance of Russia into the community of nations in the eighteenth century. Before that time, though Russia was a Christian empire, she had but little contact and intercourse with central and western Europe. In these times, in conjunction with Poland, Sweden, and Denmark, it may be said that Russia formed another system or community of nations with retarded civilization. As a consequence of the reforming spirit of Peter the Great and his ambitious projects, Russia of her own volition entered in the European family of nations and the two communities of states became fused in one.2 By the seventh article of the treaty of Paris of 1856, England, Austria, France, Prussia, Russia, and Sardinia declared the Sublime Porte admitted to participate in the advantages of the public law and system of Europe. This agreement was 1 Lawrence's "Principles," 4th ed., pp. 84, 85. 2 Westlake, "Int. Law," part I, p. 45. a matter of public policy on the part of the nations concerned rather than as a recognition of the full attainment of civilization on the part of Turkey. In fact, the full application of the tenets of international law was not made to Turkey, as the foreign consular jurisdictions remained and still remain in Turkey under the name of capitulations as another form of exterritoriality. Japan is an example under this heading and, unlike Turkey, became a full member of the international society when, by action of the European and American powers, she was freed from the foreign consular jurisdiction and the condition of exterritoriality. Upon the absorption of Korea by Japan she partook as a province of the status of Japan in this respect. 48. Formation of States by the Division of a State into Two or More Nationalities.-A case under this head came with the separation of Portugal from Spain and the later peaceful separation of Brazil from Portugal, of which state Brazil was a possession. The King of Portugal became the Emperor of Brazil; since that time both countries have become republics. Another case is the subdivision of the old republic of Colombia, which divided itself, in 1832, into Venezuela, Ecuador, and New Granada, the latter becoming, in 1863, the present republic of Colombia, from which Panama separated in 1903. The separation of Texas is also a case in point, as it existed some little time as an independent republic before it was annexed as a State by the United States. Probably the most recent creation of new states by separation is the peaceable one of Norway from Sweden in 1905. 49. The Attainment of Independence by Relief from the Subjection of Another State.-A case in point under this head was the erection of Belgium into a kingdom after the Belgian insurrection of 1830, thus relieving the Belgian or Flemish people from the subjection of the United Netherlands and the Dutch monarchy. England and France took up the cause of the insurgents, and finally the other European powers joined them, which led to the acceptance of the new order of things by the Netherlands in 1839, the new kingdom having been made a neutralized power. Greece, Rumania, and Servia were carved out of Turkey, Russia having been the leading power to favor these emancipations. Bulgaria and Montenegro were also freed by the action of the European powers and have become independent kingdoms with certain restrictions, the principal one being that of religious toleration, which so far has been quietly ignored by Rumania. The states just mentioned under this head have become so partly by their own exertions, partly by the aid of the great powers of Europe.1 50. The Combination of a Number of Minor States into a Union or Confederation.-This, when a federal union, is called in German a Bundesstaat, and refers to unions in which the central authority deals directly with foreign powers and exercises the external sovereignty of the federation. A federation of this kind does not differ, so far as international law is concerned, from any other ordinary sovereign state. The best examples at the present time under this head are the United States since the adoption of the Constitution, Switzerland since 1874, and, to a less degree, the German Empire since its establishment after the Franco-German War of 1871. There are other unions that represent sovereign states, like the incorporated union of the United Kingdom of Great Britain and Ireland in its successive states, of the incorporation of England and Scotland in 1707, and of Ireland in 1800. Austria and Hungary are externally the Austro-Hungarian Empire, though internally the empire is known as the dual monarchy, while Sweden and Norway were united as a common nation from 1814 until 1905. 51. The Attainment of Independence by an Insurgent Community. This is the sixth and last method to be discussed. The evolution of a state by a successful insurrection or revolu1 Westlake, "Int. Law," part I, pp. 46, 47. tion is also the most important and interesting of the methods of the formation of a sovereign state. It generally causes different stages of progress toward independence and recognition of statehood and is likely to involve the recognition of various conditions by other states of the community of nations. In the forcible separation and formation of a new state there are usually, but not necessarily, two antecedent stages through which the new community passes before arriving at successful independence. The first or preliminary stage is now named as that of insurgency and takes place shortly after the appeal to arms; the second is when the insurrection has established itself with sufficient stability and strength to have conceded the state of belligerency or the rights of belligerents, so far as the war is concerned, afloat and ashore. In some cases the insurrection may not get beyond the first stage, that of insurgency, as in the Brazilian insurrection of 1894, or it may reach the second stage of belligerency and get no further, as with the Southern Confederacy of 1861-5, or it may gain its end as insurgents, never having been recognized as belligerents, as in the case of the Chilian insurgents of 1891.1 52. The State of Insurgency.-Practically every revolution or civil war begins in insurrection, and generally neutrals become at once affected; this is especially the case when hostilities extend to the territorial waters of the contestants or to the high seas. The right of insurgents to carry on hostilities on land within the territory of the parent state has never been challenged, but when the hostilities originate or reach the seaports and the coastal waters of the country concerned or extend to the high seas an anomalous condition arises under former usages and the ordinary rules of international law. This creates the necessity for an intelligent dealing under international law with the state of insurgency as anterior to the status of belligerency. Progress has already been made in this direc 1 Stockton's "Manual," p. 33. |