The third and most important factor is, that the science of politics has learned to distinguish between sovereignty of the State and sovereignty of the organ which exercises the powers of the State. The majority of publicists teach henceforth that neither the monarch, nor Parliament, nor the people is originally Sovereign in a State, but the State itself. Sovereignty, we say nowadays, is a natural attribute of every State as a State. But a State, as a Juristic Person, wants organs to exercise its powers. The organ or organs which exercise for the State powers connected with sovereignty are said to be sovereign themselves, yet it is obvious that this sovereignty of the organ is derived from the sovereignty of the State. And it is likewise obvious that the sovereignty of a State may be exercised by the combined action of several organs, as, for instance, in Great Britain, King and Parliament are the joint administrators of the sovereignty of the State. And it is, thirdly, obvious that a State can, as regards certain matters, have its sovereignty exercised by one organ and as regards other matters by another organ.
In spite of this condition of things, the old controversy regarding divisibility of sovereignty has by no means died out. It acquired a fresh stimulus, on the one hand, through Switzerland and Germany turning into Federal States, and, on the other, through the conflict between the United States of America and her Southern member-States. The theory of the concurrent sovereignty of the Federal State and its member-States, as defended by "The Federalist" (Alexander Hamilton, James Madison, and John Jay) in 1787, was in Germany taken up by Waitz,[96] whom numerous publicists followed. The theory of the indivisibility of sovereignty was defended by Calhoun,[97] and many European publicists followed him in time.
[96] Politik, 1862.
[97] A Disquisition on Government, 1851.
Result of the Controversy regarding Sovereignty.
§ 70. From the foregoing sketch of the history of the conception of sovereignty it becomes apparent that there is not and never was unanimity regarding this conception. It is therefore no wonder that the endeavour has been made to eliminate the conception of sovereignty from the science of politics altogether, and likewise to eliminate sovereignty as a necessary characteristic of statehood, so that States with and without sovereignty would in consequence be distinguishable. It is a fact that sovereignty is a term used without any well-recognised meaning except that of supreme authority. Under these circumstances those who do not want to interfere in a mere scholastic controversy must cling to the facts of life and the practical, though abnormal and illogical, condition of affairs. As there can be no doubt about the fact that there are semi-independent States in existence, it may well be maintained that sovereignty is divisible.
II RECOGNITION OF STATES AS INTERNATIONAL PERSONS
Hall, §§ 2 and 26—Lawrence, §§ 44-47—Phillimore, II. §§ 10-23—Taylor, §§ 153-160—Walker, § 1—Westlake, I. pp. 49-58—Wheaton, § 27—Moore, §§ 27-75—Bluntschli, §§ 28-38—Hartmann, § 11—Heffter, § 23—Holtzendorff in Holtzendorff, II. pp. 18-33—Liszt, § 5—Ullmann, §§ 29-30—Bonfils, Nos. 195-213—Despagnet, Nos. 79-85—Pradier-Fodéré, I. Nos. 136-145—Nys, I. pp. 69-115—Mérignhac, I. pp. 320-329—Rivier, I. § 3—Calvo, I. §§ 87-98—Fiore, I. Nos. 311-320, and Code, Nos. 160-177—Martens, I. §§ 63-64—Le Normand, "La reconnaissance internationale et ses diverses applications" (1899).
Recognition a condition of Membership of the Family of Nations.
§ 71. As the basis of the Law of Nations is the common consent of the civilised States, statehood alone does not include membership of the Family of Nations. There are States in existence, although their number decreases gradually, which are not, or not fully, members of that family, because their civilisation, if any, does not enable them and their subjects to act in conformity with the principles of International Law. Those States which are members are either original members because the Law of Nations grew up gradually between them through custom and treaties, or they are members which have been recognised by the body of members already in existence when they were born.[98] For every State that is not already, but wants to be, a member, recognition is therefore necessary. A State is and becomes an International Person through recognition only and exclusively.