6. Formation of a State by Combination of Minor States into a Union or Confederation Manning (Amos), "Law of Nations," 94-95. Oppenheim, 2d ed., vol. I, 113, 115, 123, and 133-140. Woolsey, 6th ed., 36-37. 7. The Attainment of Independence by an Insurgent Political Community Stockton's "Manual for Naval Officers," 25, 37. Phillimore, vol. 8. Insurgency Moore's "Digest," I, par. 74. Scott's "Cases," 743. Wilson, "International Law," par. 18. 9. The State of Belligerency and Its Recognition Appendix I. Harcourt, "Letters of Historicus," 1-37; Moore's "Digest," pars. 59-71. Taylor, pars. 145–7. 10. The Recognition of a New State Hershey, "Essentials," 123-6. Oppenheim, 2d ed., vol. I, pars. 71-75. Westlake, vol. I, 57-58. Walker, "Manual," par. 1. Moore's "Digest," I, chap. III, pars. 27-42. 11. Continuity of States Hershey, "Essentials," 125-6. Wheaton, 8th ed., pars. 28-32. 12. De Facto Governments See Appendix I. Moore's "Digest," I, 41. Halleck, I, Baker's 4th ed., note to 85. Hall, 6th ed., 21 and 291. Westlake, "International Law," I, 59, 60. 13. Extinction of States Westlake's "International Law," I, 63-69. Halleck, I, Baker's 4th ed., 95. Lawrence's "Principles," par. 49. CHAPTER VI THE SUCCESSION OF STATES. FUNDAMENTAL RIGHTS AND DUTIES OF STATES. INDEPENDENCE AND EQUALITY OF STATES. SELF-PRESERVATION. RESPECT FOR THE DIGNITY AND HONOR OF THE STATE --- 58. The Succession of States and Sovereignty. The matter of the extinction of states has been dealt with in the previous chapter. The subject of the succession of a state to one extinguished or the succession of an absorbing state to an acquisition of territory remains to be discussed. It is a matter difficult to establish by the general rules laid down by writers upon international law, as the exceptions seem to be equal in number to the compliances with the rules. A very good enunciation of the general doctrine is shown in a discussion by Westlake and his translation of the statement made by Huber in his "Staaten-Succession," comprising probably the best that has been written upon the subject. It reads as follows: "The notion of succession is a general one in law and belongs exclusively neither to private nor to public law. Succession is substitution plus continuation. The successor steps into the place of the predecessor and continues his rights and obligations; so far the successions of private and public law agree. But we now have to distinguish between those kinds of succession. A civil successor who steps into the place of his predecessor steps into his rights and obligations as though he were himself the predecessor. That is the universal succession of private law in the Roman sense, at least according to the prevailing doctrine. But the successor of international law steps into the rights and obligations of his predecessor as though they were his own. State succession is substitution plus continuation quoad jura not quoad defunctum.”1 In the syllabus of Attorney-General Griggs as to public and private laws in the case of succession of sovereignty in acquired territory, he quotes as follows: "Those laws of the former government which have for their object a certain governmental public policy, of which character are the laws for the disposition of the public domain and the granting of quasi-public franchises, rights, and privileges to private individuals or corporations, ceased to have any force or effect after the sovereignty of the former government ceased." Afterward he says: "On the cession of territory by one nation to another, those internal laws and regulations of the former designated as municipal continue in force and operation until the new sovereign imposes different laws and regulations." "The laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty."3 As to the inhabitants of an extinct state there seems to be general agreement that those who continue to reside in the conquered or acquired state or return there permanently become the subjects of the absorbing state. The state acquiring territory, no matter how done, holds it subject to its own constitution and laws and not according to those of the late government, and the inhabitants remaining there accept its rule and protection. Emigration is not forbidden and they do not necessarily participate in political power. This is the case with the acquisition of territory by the United States until the territory is admitted by its will as a State of the Union. Before that political citizenship is given or withheld by the action of Congress, if no treaty has been made to the contrary, they may be held as nationals but not as citizens. 1 Westlake, I, p. 69. 2 Harcourt v. Gailliard, 12 Wheat. 523. * Moore's "Digest," I, pp. 304, 310, 311. With respect to property, especially public property and obligations, the instructions of Mr. Adams as secretary of state to Mr. Everett on the 10th of August, 1818, in the main hold good at the present time, the absorbing state having the right to scrutinize the obligations and their validity. Mr. Adams said: "The conqueror who reduces a nation to his subjection receives it subject to all its engagements and duties toward others, the fulfilment of which then becomes his own duty." There is no doubt as to the assumption of all the assets of the vanquished community. As to the debts as mentioned previously, a scrutiny of their origin is not unusual. It is hardly to be supposed that debts made for revolutionary purposes or to obtain the means of carrying on a war against the conquering state would be honored. When Cuba was freed from Spain, the United States for herself and for Cuba refused to consider as a proper debt the loans which Spain had charged to Cuba for the cost of suppressing the insurrections of Cuba against Spain. Westlake concludes also "that if the territory changing masters is merged for revenue purposes in that of the annexing state the liability of the latter will be unlimited, but that, if it is maintained as a separate fiscal unit, the obligations of the extinguished state, or those of the ceding state connected with the territory, will not pass over beyond the value of the assets received, including such taxation of the territory as it can reasonably bear without reference to the political convenience of the annexing state."2 The effect of a change of sovereignty in acquired territory upon the treaty relations existing and, further, as to a choice of nationality during military occupation will be discussed under the appropriate headings. As to private laws, it is well established that, in cases of cession or conquest in civilized countries with laws of property, these laws, usages, and regulations remain in force until 'Moore's "Digest," I, p. 96. 2 Westlake, "Int. Law," I, p. 77. changed by the state succeeding to the acquired territory. The decisions of Chief Justice Marshall in our country, as well as those of Lord Mansfield and Ellenborough in England, agree that the laws of a conquered country continue until they are altered by the conqueror. As to private rights, I can quote no better authority than that of Chief Justice Marshall when he says: "It is very unusual, even in cases of conquest, for the conqueror to do more than displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated, that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to each other and their rights of property remain undisturbed."1 The same general principles apply not only to territory acquired by conquest or cession but to the territory of a country which has acquired independence by successful revolution or lost temporary independence by unsuccessful rebellion. 59. Fundamental Rights and Duties of Sovereign States.There are certain rights and duties of a fundamental nature inherent to sovereign states. They can be classified as follows: 1. The right of independence and legal equality among other states. 2. The right of self-preservation. 3. The right of respect for the dignity and honor of the state. 4. The right of exclusive jurisdiction over its own territory. 5. The right to hold and acquire property. These rights, to a less degree, exist in and toward states not fully sovereign. The duties of a state corresponding to these rights require a proper observance of them in international relations, accom 1 Moore's "Digest," I, p. 416. |