International Law. A Treatise Volume I Part 17

[Footnote 164: See Martens, N.R.G. XVIII. p. 448.]

The neutralisation took place, however, under the abnormal condition that Luxemburg is not allowed to keep any armed force, with the exception of a police for the maintenance of safety and order, nor to possess any fortresses. Under these circ.u.mstances Luxemburg herself can do nothing for the defence of her neutrality, as Belgium and Switzerland can.

[Sidenote: The former Congo Free State.]

-- 101. The former Congo Free State,[165] which was recognised as an independent State by the Berlin Congo Conference[166] of 1884-1885, was a permanently neutralised State from 1885-1908, but its neutralisation was imperfect in so far as it was not guaranteed by the Powers. This fact is explained by the circ.u.mstances under which the Congo Free State attained its neutralisation. Article 10 of the General Act of the Congo Conference of Berlin stipulates that the signatory Powers shall respect the neutrality of any territory within the Congo district, provided the Power then or hereafter in possession of the territory proclaims its neutrality. Accordingly, when the Congo Free State was recognised by the Congress of Berlin, the King of the Belgians, as the sovereign of the Congo State, declared[167] it permanently neutral, and this declaration was notified to and recognised by the Powers. Since the Congo Conference did not guarantee the neutrality of the territories within the Congo district, the neutralisation of the Congo Free State was not guaranteed either. In 1908[168] the Congo Free State merged by cession into Belgium.

[Footnote 165: Moynier, "La fondation de l'etat independant du Congo"

(1887); Hall, -- 26; Westlake, I. p., 30; Navez, "Essai historique sur l'etat Independant du Congo," Vol. I. (1905); Reeves in A.J. III.

(1909), pp. 99-118.]

[Footnote 166: See Protocol 9 of that Conference in Martens, N.R.G. 2nd Ser. X. p. 353.]

[Footnote 167: See Martens, N.R.G. 2nd Ser. XVI. p. 585.]

[Footnote 168: See Martens, N.R.G. 3rd Ser. II. pp. 101, 106, 109, and Delpech and Marcaggi in R.G. XVIII. (1911), pp. 105-163. The question is doubtful, whether the guarantee of the neutrality of Belgium extends now to territory of the former Congo Free State _ipso facto_ by its merger into Belgium.]

IX

NON-CHRISTIAN STATES

Westlake, I. p. 40--Phillimore, I. ---- 27-33--Bluntschli, ---- 1-16--Heffter, -- 7--Gareis, -- 10--Rivier, I. pp. 13-18--Bonfils, No. 40--Martens, -- 41--Nys, I. pp. 122-125--Westlake, Chapters, pp. 114-143.

[Sidenote: No essential difference between Christian and other States.]

-- 102. It will be remembered from the previous discussion of the dominion[169] of the Law of Nations that this dominion extends beyond the Christian and includes now the Mahometan State of Turkey and the Buddhistic State of j.a.pan. As all full-Sovereign International Persons are equal to one another, no essential difference exists within the Family of Nations between Christian and non-Christian States. That foreigners residing in Turkey are still under the exclusive jurisdiction of their consuls, is an anomaly based on a restriction on territorial supremacy arising partly from custom and partly from treaties. If Turkey could ever succeed, as j.a.pan did, in introducing such reforms as would create confidence in the impartiality of her Courts of Justice, this restriction would certainly be abolished.

[Footnote 169: See above, -- 28.]

[Sidenote: International position of non-Christian States except Turkey and j.a.pan.]

-- 103. Doubtful is the position of all non-Christian States except Turkey and j.a.pan, such as China, Morocco, Siam, Persia, and further Abyssinia, although the latter is a Christian State, and although China, Persia, and Siam took part in the Hague Peace Conferences of 1899 and 1907. Their civilisation is essentially so different from that of the Christian States that international intercourse with them of the same kind as between Christian States has been hitherto impossible. And neither their governments nor their populations are at present able to fully understand the Law of Nations and to take up an att.i.tude which is in conformity with all the rules of this law. There should be no doubt that these States are not International Persons of the same kind and the same position within the Family of Nations as Christian States. But it is equally wrong to maintain that they are absolutely outside the Family of Nations, and are for no part International Persons. Since they send and receive diplomatic envoys and conclude international treaties, the opinion is justified that such States are International Persons only in some respects--namely, those in which they have expressly or tacitly been received into the Family of Nations. When Christian States begin such intercourse with these non-Christian States as to send diplomatic envoys to them and receive their diplomatic envoys, and when they enter into treaty obligations with them, they indirectly declare that they are ready to recognise them for these parts as International Persons and subjects of the Law of Nations. But for other parts such non-Christian States remain as yet outside the circle of the Family of Nations, especially with regard to war, and they are for those parts treated by the Christian Powers according to discretion. This condition of things will, however, not last very long. It may be expected that with the progress of civilisation these States will become sooner or later International Persons in the full sense of the term. They are at present in a state of transition, and some of them are the subjects of international arrangements of great political importance. Thus by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia,[170] and the General Act of the Conference of Algeciras of April 7, 1906,[171] signed by Great Britain, Germany, Austria-Hungary, Belgium, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden, and Morocco herself, endeavours to suppress anarchy in Morocco and to introduce reforms in its internal administration. This Act,[172] which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities in that country for all nations, contains:--(1) A Declaration concerning the organisation of the Moroccan police; (2) Regulations concerning the detection and suppression of the illicit trade in arms; (3) An Act of concession for a Moorish State Bank; (4) A Declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) Regulations respecting customs and the suppression of fraud and smuggling; (6) A Declaration concerning the public services and public works.

[Footnote 170: See Martens, N.R.G. 2nd Ser. x.x.xV. p. 556.]

[Footnote 171: See Martens, N.R.G. 2nd Ser. x.x.xIV. p. 238.]

[Footnote 172: It has been mentioned above, p. 76, that the Moroccan question has been reopened, and that fresh negotiations are taking place for its settlement.]

X

THE HOLY SEE

Hall, -- 98--Westlake, I. pp. 37-39--Phillimore, I. ---- 278-440--Twiss, I. ---- 206-207--Taylor, ---- 277, 278, 282--Wharton, I. -- 70, p. 546--Moore, I. -- 18--Bluntschli, -- 172--Heffter, ---- 40-41--Geffcken in Holtzendorff, II. pp. 151-222--Gareis, -- 13--Liszt, -- 5--Ullmann, -- 28--Bonfils, Nos. 370-396--Despagnet, Nos. 147-164--Merignhac, II. pp. 119-153--Nys, II. pp.

297-324--Rivier, I. -- 8--Fiore, I. Nos. 520, 521--Martens, I. -- 84--Fiore, "Della condizione giuridica intern.a.z.ionale della chiesa e del Papa" (1887)--Bombard, "Le Pape et le droit des gens"

(1888)--Imbart-Latour, "La papaute en droit international"

(1893)--Olivart, "Le Pape, les etats de l'eglise et l'Italie"

(1897)--Chretien in R.G. VI. (1899) pp. 281-291--Bompart in R.G.

VII. (1900), pp. 369-387--Higgins in _The Journal of the Society for Comparative Legislation_, New Series, IX. (1907), pp. 252-264.

[Sidenote: The former Papal States.]

-- 104. When the Law of Nations began to grow up among the States of Christendom, the Pope was the monarch of one of those States--namely, the so-called Papal States. This State owed its existence to Pepin-le-Bref and his son Charlemagne, who established it in grat.i.tude to the Popes Stephen III. and Adrian I., who crowned them as Kings of the Franks. It remained in the hands of the Popes till 1798, when it became a republic for about three years. In 1801 the former order of things was re-established, but in 1809 it became a part of the Napoleonic Empire. In 1814 it was re-established, and remained in existence till 1870, when it was annexed to the Kingdom of Italy.

Throughout the existence of the Papal States, the Popes were monarchs and, as such, equals of all other monarchs. Their position was, however, even then anomalous, as their influence and the privileges granted to them by the different States were due, not alone to their being monarchs of a State, but to their being the head of the Roman Catholic Church.

But this anomaly did not create any real difficulty, since the privileges granted to the Popes existed within the province of precedence only.

[Sidenote: The Italian Law of Guaranty.]

-- 105. When, in 1870, Italy annexed the Papal States and made Rome her capital, she had to undertake the task of creating a position for the Holy See and the Pope which was consonant with the importance of the latter to the Roman Catholic Church. It seemed impossible that the Pope should become an ordinary Italian subject and that the Holy See should be an inst.i.tution under the territorial supremacy of Italy. For many reasons no alteration was desirable in the administration by the Holy See of the affairs of the Roman Catholic Church or in the position of the Pope as the inviolable head of that Church. To meet the case the Italian Parliament pa.s.sed an Act regarding the guaranties granted to the Pope and the Holy See, which is commonly called the "Law of Guaranty."

According to this the position of the Pope and the Holy See is in Italy as follows:--

The person of the Pope is sacred and inviolable (article 1), although he is subjected to the Civil Courts of Italy.[173] An offence against his person is to be punished in the same way as an offence against the King of Italy (article 2). He enjoys all the honours of a sovereign, retains the privileges of precedence conceded to him by Roman Catholic monarchs, has the right to keep an armed body-guard of the same strength as before the annexation for the safety of his person and of his palaces (article 3), and receives an allowance of 3,225,000 francs (article 4). The Vatican, the seat of the Holy See, and the palaces where a conclave for the election of a new Pope or where an Oec.u.menical Council meets, are inviolable, and no Italian official is allowed to enter them without consent of the Holy See (articles 5-8). The Pope is absolutely free in performing all the functions connected with his mission as head of the Roman Catholic Church, and so are his officials (articles 9 and 10).

The Pope has the right to send and to receive envoys, who enjoy all the privileges of the diplomatic envoys sent and received by Italy (article 11). The freedom of communication between the Pope and the entire Roman Catholic world is recognised, and the Pope has therefore the right to a post and telegraph office of his own in the Vatican or any other place of residence and to appoint his own post-office clerks (article 12).

And, lastly, the colleges and other inst.i.tutions of the Pope for the education of priests in Rome and the environments remain under his exclusive supervision, without any interference on the part of the Italian authorities.

[Footnote 173: See Bonfils, No. 379.]

No Pope has as yet recognised this Italian Law of Guaranty, nor had foreign States an opportunity of giving their express consent to the position of the Pope in Italy created by that law. But practically foreign States as well as the Popes themselves, although the latter have never ceased to protest against the condition of things created by the annexation of the Papal States, have made use of the provisions[174] of that law. Several foreign States send side by side with their diplomatic envoys accredited to Italy special envoys to the Pope, and the latter sends envoys to several foreign States.

[Footnote 174: But the Popes have hitherto never accepted the allowance provided by the Law of Guaranty.]

[Sidenote: International position of the Holy See and the Pope.]

-- 106. The Law of Guaranty is not International but Italian Munic.i.p.al Law, and the members of the Family of Nations have hitherto not made any special arrangements with regard to the International position of the Holy See and the Pope. And, further, there can be no doubt that since the extinction of the Papal States the Pope is no longer a monarch whose sovereignty is derived from his position as the head of a State. For these reasons many writers[175] maintain that the Holy See and the Pope have no longer any international position whatever according to the Law of Nations, since States only and exclusively are International Persons.

But if the facts of international life and the actual condition of things in every-day practice are taken into consideration, this opinion has no basis to stand upon. Although the Holy See is not a State, the envoys sent by her to foreign States are treated by the latter on the same footing with diplomatic envoys as regards exterritoriality, inviolability, and ceremonial privileges, and those foreign States which send envoys to the Holy See claim for them from Italy all the privileges and the position of diplomatic envoys. Further, although the Pope is no longer the head of a State, the privileges due to the head of a monarchical State are still granted to him by foreign States. Of course, through this treatment the Holy See does not acquire the character of an International Person, nor does the Pope thereby acquire the character of a head of a monarchical State. But for some points the Holy See is actually treated as though she were an International Person, and the Pope is treated actually in every point as though he were the head of a monarchical State. It must therefore be maintained that by custom, by tacit consent of the members of the Family of Nations, the Holy See has a _quasi_ international position. This position allows her to claim against all the States treatment on some points as though she were an International Person, and further to claim treatment of the Pope in every point as though he were the head of a monarchical State. But it must be emphasised that, although the envoys sent and received by the Holy See must be treated as diplomatic envoys,[176] they are not such in fact, for they are not agents for international affairs of States, but exclusively agents for the affairs of the Roman Catholic Church. And it must further be emphasised that the Holy See cannot conclude international treaties or claim a vote at international congresses and conferences. The so-called Concordats--that is, treaties between the Holy See and States with regard to matters of the Roman Catholic Church--are not international treaties, although a.n.a.logous treatment is usually given to them. Even formerly, when the Pope was the head of a State, such Concordats were not concluded with the Papal States, but with the Holy See and the Pope as representatives of the Roman Catholic Church.

[Footnote 175: Westlake, I. p. 38, now joins the ranks of these writers.]

[Footnote 176: The case of Montagnini, which occurred in December 1906, cannot be quoted against this a.s.sertion, for Montagnini was not at the time a person enjoying diplomatic privileges. Diplomatic relations between France and the Holy See had come to an end in 1905 by France recalling her envoy at the Vatican and at the same time sending the pa.s.sports to Lorenzelli, the Papal Nuncio in Paris. Montagnini, who remained at the nunciature in Paris, did not possess any diplomatic character after the departure of the Nuncio. Neither his arrest and his expulsion in December 1906, nor the seizure of his papers at the nunciature amounted therefore to an international delinquency on the part of the French Government. The papers left by the former Papal Nuncio Lorenzelli were not touched and remained in the archives of the former nunciature until the Austrian amba.s.sador in Paris, in February 1907, asked the French Foreign Office to transfer them to him for the purpose of handing them on to the Holy See. It must be specially mentioned that the seizure of his papers and the arrest and expulsion of Montagnini took place because he conspired against the French Government by encouraging the clergy to refuse obedience to French laws. And it must further be mentioned that Lorenzelli, when he left the nunciature, did not, contrary to all precedent, place the archives of the nunciature under seals and confide them to the protection of another diplomatic envoy in Paris. Details of the case are to be found in R.I. 2nd Ser. IX.

(1907), pp. 60-66, and R.G. XIV. (1907), pp. 175-186.]

[Sidenote: Violation of the Holy See and the Pope.]

-- 107. Since the Holy See has no power whatever to protect herself and the person of the Pope against violations, the question as to the protection of the Holy See and the person of the Pope arises. I believe that, since the present international position of the Holy See rests on the tacit consent of the members of the Family of Nations, many a Roman Catholic Power would raise its voice in case Italy or any other State should violate the Holy See or the person of the Pope, and an intervention for the purpose of protecting either of them would have the character of an intervention by right. Italy herself would certainly make such a violation by a foreign Power her own affair, although she has no more than any other Power the legal duty to do so, and although she is not responsible to other Powers for violations of the Personality of the latter by the Holy See and the Pope.

XI

INTERNATIONAL PERSONS OF THE PRESENT DAY

[Sidenote: European States.]

-- 108. All the seventy-four European States are, of course, members of the Family of Nations. They are the following:

Great Powers are: