Page images
PDF
EPUB

was at first European, and its law European. Gradually the group admitted new members; these new members acknowledging the existing law as binding. The United States of America was the earliest addition outside of Europe; but the United States adopted for the most part the international law of the European family. As Hamilton said: "Ever since we have been an independent nation, we have appealed to and acted upon the modern law of nations as understood in Europe. Various resolutions of Congress during our Revolution, the correspondence of executive officers, the decisions of our courts of admiralty, all recognized this standard." Other American states similarly became members of the family of nations.

[ocr errors]

5

In the early days, also, international law was regarded as limited to Christian states, though, as declared by the five powers in 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." In 1856, however, the five great powers of that day admitted the Turkish Empire to "the participation in the advantages of European public law and concert." The entrance of Japan into the family of nations in 1899 added another non-European state to the international circle."

5 Letters to Camillus, No. 20, 5 Hamilton's Works (Lodge's Ed.) 89. 1 Hertslet, 574.

7 "The treaty of commerce and navigation between the United States and Japan on November 22, 1894, took effect in accordance with the terms of its XIXth article on the 17th of July last, simultaneously with the enforcement of like treaties with the other powers, except France, whose convention did not go into operation until August 4th; the United States being, however, granted up to that date all the privileges and rights accorded to French citizens under the old French treaty. By this notable conventional reform Japan's position as a fully independent sovereign power is assured; control being gained of taxation, customs revenues, judicial administration, coasting trade, and all other domestic functions of government, and foreign extraterritorial rights being renounced." Message of President McKinley, Dec. 5, 1899.

In accordance with the Emporer's orders, the Japanese ministers of state issued instructions in regard to the operation of treaties

RECOGNITION OF INTERNATIONAL STATUS.

10. Recognition is the act which gives to a de facto state international status.

Recognition is the act of the department of government intrusted with authority in foreign affairs, and makes the parties equal as regards international law. Recognition is usually regarded as a deliberate act, which is irrevocable.

Recognition of a new state is uniformly regarded as an act reserved to the department of government charged with the conduct of foreign affairs. As is said by the Supreme Court of the United States: "Who is the sovereign, de jure or de facto, of a territory, is not a judicial, but a political, question, the determination of which by the legislative and

admitting Japan to the family of nations. example:

The following is an "Cabinet Notification No. 1.

"The work of revising the treaties has caused deep solicitude to His August Majesty since the centralization of the government, and has long been an object of earnest desire to the people. More than twenty years have elapsed since the question was opened by the dispatch of a special embassy to the West in 1871. Throughout the whole of that interval, various negotiations were conducted with foreign countries and numerous plans discussed, until finally, in 1884, Great Britain took the lead in concluding a revised treaty, and the other powers all followed in succession, so that now the operation of the new treaties is about to take place on the 17th of July and the 4th of August.

"The revision of the treaties, in the sense of placing on a footing of equality the intercourse of this country with foreign states, was the basis of the great liberal policy adopted at the time of the restoration, and that such a course conduces to enhance the prestige of the Empire and to promote the prosperity of the people is a proposition not requiring demonstration. But, if there should be anything defective in the methods adopted for giving effect to the treaties, not merely will the object of revision be sacrificed, but also the country's relations with friendly powers will be impaired, and its prestige may be lowered. It is, of course, beyond question that any rights and privileges accruing to us as a result of treaty revision should be duly asserted. But there devolves upon the government of this Empire the responsibility, and upon the people of this realm the duty, of protecting the rights and privileges of foreigners, and

executive departments of any government conclusively binds the judges, as well as all other officers, citizens, and subjects of that government. This principle has always been upheld by this court, and has been affirmed under a great variety of circumstances.8 It is equally well settled in Eng

land."9

Recognition, of course, would not be withheld from a state formed by the voluntary union of two or more previously recognized states, as this recognition could not be regarded by any other state as premature or otherwise improper. Such recognition took place when the German Empire was established in 1871.

Likewise there is no offense in the recognition of states which come into being through the peaceful dissolution of

of sparing no effort that they may one and all be enabled to reside in the country confidently and contentedly. It behooves all officials to clearly apprehend the august intentions, and to pay profound attention to these points.

"Marquis Yamagata, Minister President of State.

"July 1, 1899."

Foreign Relations U. S., 1899, p. 469.

8 Can there be any doubt that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know that in the exercise of his constitutional functions he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union. Williams v. Suffolk Ins. Co., 13 Pet. 415, 10 L. Ed. 226; Jones v. United States, 137 U. S. 202, 11 Sup. Ct. 80, 34 L. Ed. 691; Gelston v. Hoyt, 3 Wheat. 246, 4 L. Ed. 381; United States v. Palmer, 3 Wheat. 610, 4 L. Ed. 471; The Divina Pastora, 4 Wheat. 52, 4 L. Ed. 512; Foster v. Neilson, 2 Pet. 253, 7 L. Ed. 415; Keene v. M'Donough, 8 Pet. 308, 8 L. Ed. 955; Garcia v. Lee, 12 Pet. 511, 9 L. Ed. 1176; United States v. Yorba, 1 Wall. 412, 17 L. Ed. 635; United States v. Lynde, 11 Wall. 632, 20 L. Ed. 230.

The Pelican, Edw. Adm. appx. D; Taylor v. Barchlay, 2 Sim. 213; Emperor of Austria v. Day, 3 De G., F. & J. 217, 221, 233; Republic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497; Republic of Peru v. Dreyfus, 38 Ch. D. 348, 356, 359.

previously existing bonds of union, as in the case of Sweden and Norway in 1905.1o

There is greater possibility of misunderstanding in case recognition is given to a state that comes into being through disruption of previously existing bonds by force of arms. Such recognition is a question of policy, and, if premature, may be

10 Foreign Relations U. S., 1905, pp. 853-874.

Some of the questions arising in consequence of dissolution of the union of Sweden and Norway are considered in the following memorandum of the Secretary of State of the United States:

"The Secretary of State to the Japanese Minister.

"Department of State, Washington, November 10, 1905. "The Secretary of State has considered the questions in regard to the treaties of Sweden and Norway and the diplomatic and consular relations of those countries with other powers propounded in the memorandum left with him by the Japanese minister on the 9th instant.

"The first and second points therein brought up remain for future adjustment. The views of this government as to their treatment may be thus stated. The queries are:

"(1) Are the treaties hitherto concluded and existing between the United Kingdom of Sweden and Norway and other powers to be considered to have ceased to be valid at this juncture so far as regards Norway, and has Norway temporarily to lose its treaty relations with such other powers?

"(2) Are such treaties as referred to above to be considered valid so far as regards Sweden?'

"The treaty of 1816, which was terminated in 1826, and that of 1827, still extant, were concluded by the United States with the sovereign of Sweden and Norway, acting on behalf of each country. Sweden and Norway are not therein described as a united kingdom; but the obligations contracted and privileges granted by their common king are separately specified in each instance as to the territories, shipping, and commerce of each country. This government would regard the treaty provisions in regard to Norway and to Sweden as severally binding upon each country and unaffected by the dynastic change in Norway. In point of fact the government of Norway and the government of Sweden have hitherto acted independently in execution of their treaty engagements, each within its sovereign jurisdiction. In the matter of extradition the United States has concluded separate treaties with the governments of Nor way and of Sweden.

"(3) Are the diplomatic agents and consular officers hitherto accredited by the United Kingdom of Sweden and Norway to the other

regarded by the previously existing government as a cause for war. The recognition of the United States of America by France in 1778 was premature, and was practically an alliance against Great Britain.11

powers to be hereafter recognized as the diplomatic agents and consular officers of Sweden?'

"This government has been notified by the government of Norway that the functions of the diplomatic representatives of Sweden and Norway have ceased, ipso facto, so far as Norway is concerned, and that representatives of Norway will be appointed. It is understood that the Swedish government regards its diplomatic agents as the representatives of the sovereign, and that with the termination of the king's sovereignty over Norway his ministers cease to represent Norway, but that their representation of Sweden is unaffected thereby, and that no new credentials are needed. It is presumed that each country holds the same position with regard to its consular representatives.

"(4) Are the diplomatic agents and consular officers hitherto accredited by foreign powers to the United Kingdom of Sweden and Norway to be recognized hereafter as the diplomatic agents and consular officers of Sweden alone? If so, is it not required at this juncture to renew the credentials presented to the king of Sweden and Norway by the diplomatic agents of foreign powers, or to take any such course in order to continue the terms of office of these diplomatic agents and consular officers as are accredited to Sweden alone?'

"The United States will, upon provision therefor by the Congress, accredit a diplomatic representative to Norway.

"As under our constitutional system the President is not a sovereign, but the mandatory of the sovereign powers of the states of the Union, the relations of the United States with foreign countries are as between government and government, rather than as between sovereign and sovereign. Consequently the United States will in due time accredit its diplomatic representative to Sweden alone; but in the meanwhile it is disposed to regard its present minister as dually accredited to the two kingdoms, and therefore competent to transact affairs with the government of Norway. As the consuls of the United States in Sweden and Norway act under exequaturs defining their territorial jurisdiction, it is not thought necessary to seek a new exequatur for a consul who already has a Norwegian exequatur. A consul who has a Swedish exequatur is, of course, unaffected by the change."

11 Treaty of February 6, 1778, between France and the United States:

"Article I. If war should break out between France and Great Britain during the continuance of the present war between the

« PreviousContinue »