II
Let us take the second question. Can a cession be made to a private citizen?
We are happy to be able to abridge this part of our work by referring to the article, “The Free Navigation of the Congo,” published by our eminent colleague of the Institute, Sir Travers Twiss, in the sixth number of the Revue du droit international for 1883.
It is true that Sir Travers Twiss occupies himself with the question whether those associations which are not organised as States can exercise sovereign rights, rather than whether these rights of sovereignty can be conceded to private individuals; but the argument which he invokes in support of his thesis applies in great part to cessions made to individuals.
When writers establish their point of departure to arrive at a demonstration they commence often by saying:
“It is an established principle,” etc. Or, “It is a principle of law,” etc. And they employ this form when their principles are the most contestable. In the article we have just cited, Sir Travers Twiss mentions an article in the Revue de géographie of Paris,[79] in which Mr. Delavand says: “It is a principle of law that states alone can exercise sovereign rights, and that no private company can have them.” He (Sir Travers Twiss) adds, with reason, that this proposition is affirmed in too absolute a manner, and he proves conclusively by historical facts that his criticism is just.
Doubtless an individual, as such, and a private society, in that capacity, are not sovereigns, and exercise no act of sovereignty. This needs no demonstration. But, in virtue of what principle of international law is it sought to be shown that one who is a private citizen to-day cannot become a sovereign to-morrow, and be in possession of the plenitude of sovereignty? Such a principle does not exist. No author of international law has ever sustained it, and all the history of humanity, from the earliest down to modern times, denies it.
Individuals can become sovereigns, and exercise the rights of sovereigns, in two ways:
First. By creating themselves into a state—that is to say, by establishing themselves upon a territory which belongs to them, and forming themselves into a community with a regular government, and legal organs of public power—in a word, with all the constituent elements of a state.
Most of the states of antiquity, according to legends and traditions, or positive historical information, have been created in no other way.
The states of the Middle Ages had the same origin. The Franks, the Visigoths, the Ostrogoths, the Burgundians, and others, were only nomadic peoples, composed of chiefs who, in the eyes of international law, were only individuals, but who founded states.
The Italian republics of the Middle Ages were only municipalities without international sovereignty, and they have become sovereign states. Simple individuals, poor fishermen, caused the republic of Venice to rise from the waves of the Adriatic and to become its queen.
Almost all the States of New England, in America, have been founded by individuals.[80]
States, to exist, have no need to be recognised by other states. Those who have founded them are the sovereigns, and therefore have the right to exercise the rights of sovereignty in so far as this exercise has not been delegated to an authority instituted under the constitution of the state.
And a revolution which has for result the detaching from a state of one of its parts, is it not at the commencement the work of individuals? And those individuals, if they unite themselves in their enterprise, can erect a simple province or provinces into a new and sovereign state, and exercise then sovereign rights.
And if to-day, simple individuals should establish themselves on a desert island, or on territory unoccupied by another state, they can establish a new state, with all the rights of sovereignty. We have seen Texas thus formed.
Second. An individual can become sovereign by succeeding to another sovereign in the exercise of the sovereignty of a state. From a private individual he becomes a sovereign.
The question whether a private individual can accept a sovereignty when the interior laws of his state forbid him is outside of our subject, and we do not treat of it.
Philip, Duke of Anjou, great-grandson of Louis XIV., was, from the point of view of international law, a simple individual. After the death of Charles II., by the treaty of Utrecht the states belonging to the Crown of Spain were dismembered, and Philip V. was recognised as the King of Spain, and acquired part of the states of the Spanish monarchy. Other examples might be cited.
When a prince was elected King of Germany he became a sovereign from a private individual that he was.
Or, again, when a chief of an African tribe, forming a sovereign state, cedes to an individual in full sovereignty a part of his state, does he do other than to call another person to the exercise of rights of sovereignty over one part of his state, erected into a new state? What difference is there between the case of a European prince who is called as sovereign to a state, or part of a state, and that where an African chief calls upon an individual to exercise sovereign powers over part of his state? In the fact undoubtedly there is much difference, but in law there is none; and that is the question. It is a question of law (droit) we have to study here.
It is even possible that an individual may remain a subject of the state to which he belongs, and may be the sovereign of another country. The sovereign, therefore, can have a double personality. Thus, Ernest Augustus, and George V., Dukes of Cumberland, were subjects of Queen Victoria and peers of England and at the same time Kings of Hanover. In 1787 the sovereign bishop of the principality of Osnabruck, the Duke of York, sat as a peer of England in the House of Lords.[81]
The question which has been laid down at the head of this opinion is a novel one. It has not been foreseen or treated in works of international law. Many authors treat a question which touches upon this one, but which differs from it a good deal. They ask if an individual can make in his own name an act of occupation of a territory newly discovered without a master. They reply negatively to this question, and, in their line of ideas, they are right; for those who discover new territories are almost always navigators, travelling in a public ship, often public officers or individuals commissioned by their governments—agents of the government—and they cannot occupy in their own name.
A recent event furnishes a powerful support to the theory that rights of sovereignty can be ceded to individuals, namely, the treaty between the Sultans of Borneo and Sulu and Mr. Dent and Baron Overbeck, who, in their turn, have ceded their rights to a private British company, the “British North Borneo Company.” This fact has importance in itself, as a new event which enlarges juridical science; but what especially gives strong support to our thesis is the manner in which this event has been appreciated, be it inferentially or explicitly, by several governments, by jurisconsults, and by eminent statesmen whose opinions can be invoked as having authority.
The opinions of jurisconsults and publicists are ranged among the sources of international law.[82]
In the first place, the Governments of Holland and of Spain, who believed themselves most directly affected by the concessions, accorded by the two Sultans of Borneo, did not deny the principle of the capacity of individuals or of associations to have ceded to them rights of sovereignty, but they raised reclamations against these treaties by invoking rights previously acquired.
Let us reproduce here the passage written by M. de Laveleye upon the discussion to which the giving of a charter of incorporation to the British North Borneo Company gave rise in the English Parliament[83]:
“Certain members of the left, adversaries of what is called in England the imperial policy, that is to say of the policy which seeks extension of territory and of influence, criticised the measure because it created a new responsibility for the country; but no one contested the right of individuals or of the company—rights resulting from treaties concluded with indigenous chiefs. In the reply made in the House of Commons by the attorney-general, Sir Henry James, we read:
“‘These rights were conceded to the company and became legally its property. The Government of Her Majesty had no power to enter into a general examination of the propriety of the occupation of Borneo by a commercial company. It would have been an act of confiscation if, after what had happened, the Government had interfered, and had endeavoured to take from it the rights which it had acquired. ... The only thing the Government had to decide was whether or
not it was necessary to leave the company to act without impediment and entirely without control.’
“Mr. Gladstone was not less affirmative. Said he, at the same sitting:
“‘The charter has not conferred upon the company a single privilege above and beyond what it had already acquired by virtue of a title sufficient to enable it to exercise all these powers.’
“From the explanations given by Lord Granville in the House of Lords, the 13th March, 1882, it appears that if Holland and Spain have protested against the rights invoked by the Overbeck-Dent Company, it was because of anterior rights which these states pretend to have over the northern part of Borneo; but, no more than Germany, formally consulted in the matter by the British Government, have they raised any doubt as to the capacity of individuals and companies to obtain from non-civilised sovereigns the cession of rights implying the exercise of sovereignty. This capacity also was not denied by the members on the opposition side of the House of Commons.”
Thus, the opinion of four Governments, the opinion of two English ministers, Lord Granville and Mr. Gladstone, and of the attorney-general, Sir Henry James, that of Sir Travers Twiss, and of M. de Laveleye, to which we would add the considerations developed in the open letter addressed, the 23d April, 1883, by a member of the African International Association to the Courrier des États-Unis, form an assemblage of authorities of a nature to fortify us in our conviction if we had any doubts.
We conclude with these observations:
1. It is evident that if some powers have raised against similar concessions, made by chiefs of savage tribes to individuals and associations, reclamations founded upon rights previously acquired, there would be ground to submit these pretensions to serious examination, or perhaps they might be submitted to arbitration, as Great Britain and Portugal, in 1875, submitted to the arbitration of the President of the French Republic, M. MacMahon, the contest in regard to certain lands situated on the bay of Delagoa.
2. New sovereignties, at the head of which are individuals or associations, the concessionaries of the chiefs of savage tribes, exist of themselves, of their own right and their own strength, without having need of the recognition of other States. (See Klüber, par. 24; Heffter, par. 23, p. 42, and par. 51, p. 104; Bluntschli, pars. 28 and 38; and all the authors.)
It depends upon the convenance of other States to recognise or not to recognise these new sovereignties. But whatever may be their determination in this respect, the want of recognition does not give them the right to act as if these sovereignties did not exist, and to consider their territories susceptible of occupation.
3. According to the practice of international law, at this day, the recognition of one to whom sovereignty has been conceded, as a sovereign, can even follow of itself, in certain cases. Almost all governments, especially Great Britain and the United States of America[84] have adopted the rule of considering de facto governments as legitimate, as far as they themselves are concerned. (See Heffter, pars. 51, 53, pp. 101-105.)
Let us suppose a European nation had concluded a treaty of friendship or commerce with the chief of a savage tribe, inhabiting a fixed territory. This treaty is supposed to be concluded, and is effectively concluded with the State which the chief represents. The chief had ceded his rights of sovereignty to a European individual or a European association, who are put in real possession of the sovereignty. Could the European nation deny the legitimacy of this new Government if it was a government de facto, according to international usages? No. At least, Great Britain and the United States would recognise it, and probably other States also. And if the preceding chief had been displaced by internal revolution—which can break out among blacks as among whites—and if the black chief had ceded his sovereignty to another Negro, a relation or even a stranger to his family, would that be a reason for refusing recognition to the new sovereign? And if the chief of the tribe had ceded his sovereignty to a white man, in place of choosing for his successor a black man, or an association composed of whites, certainly the difference of colour could not be a reason for refusing recognition to the new sovereign.
Thus it is seen that in wandering away from true and simple principles difficulties of every kind are encountered.
Therefore I am of opinion that independent chiefs of savage tribes can validly cede to a private individual the whole or part of their State, with the sovereign rights which belong to them, and conformably to the traditional customs of the country.
Brussels, December 15, 1883.