International Law Part 8

44. +Inequalities among States.+ (_a_) Court precedence.

(_b_) Matters of ceremonial.

(_c_) Weight of influence in affairs.

-- 43. Equality in General

The equality of states was an early premise of international law. This equality, however wide may have been its meaning, as interpreted by some of the earlier writers, can now be held to extend only to legal status.

A state from its very being as a sovereign unity must be legally equal to any other state. Only those states members of the international circle are regarded as possessed of this equality from the point of view of international law. So far as legal attributes as _states_ extend, the states members of the international circle are equal, yet that their weight in the world of affairs may vary by virtue of other circ.u.mstances must be admitted. The legal status of states is the same; regardless of the form of state organization, whether monarchy or republic; regardless of origin, whether by division or union of former states or even if created in a region hitherto outside the jurisdiction of any state; regardless of area, population, wealth, influence, etc.; regardless of relations to other states provided sovereignty is not impaired; regardless of any change in the form of state organization, as from a republic to a monarchy or even of a temporary lapse in the exercise of sovereignty.

-- 44. Inequalities among States

While all states, members of the family of states, are equal in international law so far as their legal attributes are concerned, they may be very unequal in other respects.

(_a_) One of the oldest marks of inequality is that of =court precedence=, which for many years was a fertile source of difficulty, and was at last settled to the extent of ranking by t.i.tle of diplomatic representative by the Congress of Vienna in 1815.[120]

(_b_) =Inequalities in matters of ceremonial= of various kinds have not disappeared. These may be based upon tradition or conventional grounds, and frequently give rise to difficulties if disregarded. These ceremonials may be (1) political as between the sovereigns in their official personal capacity as emperors, kings, dukes, etc., (2) court and diplomatic in interstate negotiations, (3) treaty as in _alternat_ or in the alphabetical signing of treaties, (4) maritime ceremonial in salutes, etc.

(_c_) =Inequalities in weight of influence in affairs.=

(1) In Europe there is distinctly recognized in political practice an inequality of the states, and they are cla.s.sed as "the great powers,"

"the minor powers," and sometimes such states as those of the Balkan peninsula are referred to as "the little powers" or "third-rate states."

These divisions are based merely upon political grounds, and states may pa.s.s from one division to another as their wealth, area, or influence increases or decreases.

At the present time "the great powers," generally mentioned _officially_ upon the continent in the alphabetical order of their names in French, _i.e._ _Allemagne_, _Angleterre_, _Autriche_, etc., are Germany, Great Britain, Austria, France, Italy, and Russia. During the sixteenth and seventeenth centuries Spain was numbered with "the great powers." Sweden was so ranked in the seventeenth century. Italy was counted with "the great powers" after 1870. The union of several powers upon certain lines of policy, since early in the nineteenth century, has been called "the concert of Europe," "the primacy of the great powers," etc. It was not the purpose of these great powers to establish new rules of international law; but as enunciated by the five powers, Nov. 15, 1818, it was "their invariable resolution never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[121]

That the practice of the Great Powers has not been strictly in accord with these expressed principles, a glance will show. The immediate action of Austria, Russia, and Prussia in the Congress of Troppau, 1820, carried the principle of interference in the internal affairs of states so far that Great Britain found itself compelled to dissent. This continuance of the policy of the Holy Alliance in putting down movements in favor of popular liberty, wherever arising, led to gross violations of international rights. Nor did Great Britain become a party to the acts of the Congress of Verona in 1822, which led to intervention to prevent changes in the internal organization of Spain in 1823. The struggles of the Greeks for independence at about this time were naturally regarded by those upholding the ideas of the Holy Alliance as dangerous to those states desiring to prevent revolutionary movements.

But the narrow policy of the Alliance was gradually losing support. The opposition of Great Britain and the death of Alexander of Russia in 1825 hastened its speedy fall. Meantime the idea of a collective authority in the Great Powers had been maintained. This began to be exercised in behalf of the Greeks in 1826, and has throughout the nineteenth century been repeatedly exercised in the same behalf, sometimes unselfishly, often from motives of mixed character. During the latter half of the nineteenth century the Great Powers have continually kept a close surveillance over Grecian affairs, and enforced their judgments in regard to Greece by force (destruction of Turkish fleet at Navarino, 1827); by providing form of government and naming monarch (1829 and later); by fixing and changing boundaries (1829 and often); by pacific blockade (1827, 1850, 1886, 1897); by regulating financial affairs, and by other means of varying degree of force.[122]

The Eastern question has particularly occupied the Concert, and the disposition of the territory once within the Turkish jurisdiction has offered a fertile field for varying policy.

The establishment of Belgium as a neutral state by the treaty to which Belgium was itself a party afforded another example of the influence of the Great Powers.

Since 1839 Egypt has also been subject to frequent control by the Great Powers.

Since 1885 the unappropriated portion of Africa has been brought into the range of action of the Concert by the theory of the sphere of influence.

The Concert of the Great Powers shows then a policy which is liable to change with expediency. The two great treaties of the Concert are those of Paris, 1856, and Berlin, 1878. Of these Holland says, "The treaties of Paris and of Berlin thus resemble one another, in that both alike are a negation of the right of any one Power, and an a.s.sertion of the right of the Powers collectively, to regulate the solution of the Eastern question."[123] The fact that the action of the Great Powers has been regarded as binding and tacitly accepted in Europe in certain questions in the East, Egypt, Greece, and Belgium does not give the sanction of international law to the action. The most that can be said is that it is an alliance of a loose character, whose authority is in proportion to the force behind its decisions.[124]

(2) Another feature in European politics giving rise to further inequalities in practice was introduced by the alliance of Germany and Austria in 1879 and Italy in 1883, which is now commonly known as the Triple Alliance. This belt of powers separating Eastern from Western Europe has materially affected the action of other powers.

The "friendly understanding" between France and Russia soon after the Triple Alliance affords a measure of counter-check upon the action of the other powers.

In spite of all these alliances and counter-alliances, the recognition of the weight of the decisions of the congresses and conferences of the Great Powers upon those subjects which are held to affect "the peace of Europe" have an influence comparable to that which might be a.s.signed to a "Supreme Court of International Appeal."[125]

The United States upon the American continent in its enunciation of the Monroe Doctrine, and the subsequent interpretation of it, has a.s.sumed a position as arbiter among the American states in some respects similar to that of the European Concert among the European states. This att.i.tude of the United States has weight in international practice, but cannot be regarded as a part of international law.

CHAPTER XI

JURISDICTION

45. +Jurisdiction in General.+

46. +Territorial Domain and Jurisdiction.+

47. +Method of Acquisition.+ (_a_) Discovery.

(_b_) Occupation.

(_c_) Conquest.

(_d_) Cession.

(1) Transfer by gift.

(2) Transfer by exchange.

(3) Transfer by sale.

(4) Cession of jurisdiction.

(_e_) Prescription.

(_f_) Accretion.

48. +Qualified Jurisdiction.+ (_a_) Protectorates.

(_b_) Sphere of influence.

49. +Maritime and Fluvial Jurisdiction.+

50. +Rivers.+ (_a_) Which traverse only one state.

(_b_) Flowing through two or more states.

(_c_) Under jurisdiction of two states.

51. +The Navigation of Rivers.+

52. +Enclosed Waters.+ (_a_) Wholly enclosed.

(_b_) Gulfs, bays, estuaries.

(_c_) Straits: Danish Sounds, Dardanelles.

(_d_) Ca.n.a.ls: Suez, Panama, Nicaraguan, Corinth, Kiel.

53. +The Three-mile Limit.+

54. +Fisheries.+ (_a_) Deep sea.

(_b_) Canadian.

(_c_) Bering Sea.

55. +Vessels.+ (_a_) Cla.s.ses.

(1) Public.

(2) Private.

(_b_) Nationality.

(_c_) Jurisdiction.

(1) Public.

(2) Private.