Chapter One: 
(Volume I)
SOVEREIGNTY AS IT RELATES TO NON-TERRITORIAL AND DE JURE PERSONS IN INTERNATIONAL LAW
Chapter Table of Contents
Introduction
Sovereignty was known and highly valued and treasured in ancient days. The ancient kings were also very concerned with their territories and about being independent and free from the meddling of others. As an example, about 624 BC, long after the northern kingdom of Israel was taken into Babylon, King Josiah of ancient Judah appears:
. . . to have been virtually the sovereign of Samaria as well as of Judea. [Hence] when Pharaoh-Necho was marching, on his way to the Euphrates, through a portion of the territory of the ten tribes, Josiah . . . would naturally resent the act as an infringement upon his own regal rights and sovereignty, and would resist the Egyptian, not as the lord of the two tribes of Rehoboam’s kingdom, but as reigning over the dominions of his ancestor David. . . .[1]
King Josiah died because of his attack on the enormous Egyptian army for violating a small, insignificant portion of his territory in Samaria. When the children of Israel marched toward the Promised Land, they traveled through the territories of several kings on the way. In each case, they were attacked, because territory (territorial sovereignty) was extremely important in ancient times as well as in modern times. The current or modern definition for sovereignty is a perfect fit for the ancients. Sovereignty is “supreme authority over a population inhabiting a territory,” which is exactly what the ancient kings had. They defended it with their very lives. It was that important to them.[2]
“No [knowledgeable] person . . . denies the historical existence of sovereign states in the ancient and mediaeval world before Bodin.”[3] In fact, “The Mediterranean basin was the cradle of our [present] system of independent states and international organization.”[iv] This history goes back at least a thousand years B.C. But the concept of the nation-state system was lost in the dark ages. “Not until the fifteenth and sixteenth centuries did the national state regain the center of the stage.”[5] That is, it existed in ancient times and was rediscovered and reapplied. For example, hundreds of years before Christ, “Plato and Aristotle are rightly judged as the authors [expounders, not originators] of the classical theory of absolute State-sovereignty.”[6] Sovereignty or governmental supremacy, which was always a pivotal part of every ancient kingdom, is still, despite its enemies, a strong, central concept of the law of nations today. Sovereignty is a crowning and towering principle in the earth that has provided order and protection throughout all history. It is an indispensable ancient quality to be treasured and safeguarded as priceless as the foundation of all effective, civil, and law-abiding societies.
The term “sovereign” is derived from the Latin superanus originated in medieval France and was used to designate the political or other authority that had no other temporal authority above itself. In pre-Renaissance and Reformation times, the Holy Roman Emperor, successor to the Caesars, possessed supra-national authority over the temporal rulers of Europe. The Pope, considered to be the Successor of St. Peter, Prince of the Apostles, held as the Vicar of Christ undisputed spiritual sovereignty over all Christendom. It is generally recognized that although sovereignty existed in ancient times, the concept of sovereignty as we know it today was introduced into modern international law by Jean Bodin (1530-1596) with the publication of his work De la Republique in 1577. Bodin declared that sovereignty was “the absolute and perpetual power within a State” and that it was not subject to any restrictions save the Commandments of God and the natural law.[7] Briefly, he points out that sovereignty was traditionally held to reside in a sovereign person: “In the original theory it was not the state that was the sovereign, but a person or persons within a state that were ‘sovereign’ over the rest.”[8] (emphasis added) This was, of course, a king or a prince. Thus, international law recognizes that “In every monarchy the monarch appears as the representative of the sovereignty of the state, and thereby becomes a sovereign himself.”[9] Although the majority of sovereigns in the international arena are today republics, the doctrines of international law concerning sovereignty (indeed, the very concept itself) are derived from monarchical political theory.
The Treaties of Westphalia in 1648 have long been hailed as the beginning of modern state sovereignty, but, in reality, “The peace treaties of Westphalia – in intention, in wording, and in outcome – remained embedded in [the] geopolitical configuration” of its time.[10] That is, “The treaties were not concluded between states but between rulers. . . .”[11] “The treaties did not abandon the dynastic principle . . . , but laid down strict rules of succession, namely primogeniture, to ensure the stable transmission of returned proprietary titles” and lands.[12] This rule was very desired and important as most wars were wars of succession, which was the “. . . the dominant form of international conflict at the time.”[13]
Contrary to conventional beliefs, the sovereignty of the German princes was actually diminished, not enlarged. After 1648, they could not make war among themselves, nor could they form alliances against the Emperor. The princes could no longer choose the religion of their subjects. Disputes had to be submitted to one of the Empire’s two supreme courts, which not only heard interstate difficulties, but entertained law suits against the lords, counts, and princes of the land thereby showing the Empire’s superiority or dominance. Foreign policy had to be decided by the Imperial Diet or Council of Rulers. In other words, even though the territorial prince’s liberty and basic rights were ius armorum or antedated and survived 1648, qualifications to sovereignty were codified and former rights were reduced.
These treaties became part of the Constitution of the Holy Roman Empire and were recognized as international law in Europe.[14] But it needs to be recognized that the historical semantics and contents “. . . reflected the prevailing consensus that the treaties should not enact new principles of international public law.”[15] Hence, what was in the treaties merely reflected time-honored principles rather than making up new ones. For example, 400 years earlier:
In 1230 Frederick II (1215-50) conceded to each German prince sovereign rights in his own territory. From the thirteenth to the nineteenth century these princes ruled their territories as independent states, leaving the office of emperor a hollow title.[16]
In other words, the concepts of territoriality, independence from the meddling of others, and the right of exclusive internal control already existed was respected as legally and morally right, even though violated. What happen in these treaties was:
Authority was dispersed to the various kings and princes. In each territory there were no longer multiple loyalties and authorities; there was only one: loyalty to the authority of the king or prince. The territory and the people in that territory belonged to the ruler who did not have to answer to an external authority. Thus the Westphalian state system distinguished itself not only from the earlier feudal principle in Europe, but also from similar principles of suzerainty that existed elsewhere in that time in India, China, the Arab Islamic world, and the Mongol-Tatar region.
The key elements of the modern nation-state where now all in place: a people, a territory in which they lived, and a bureaucracy administering the affairs of the monarch, whose authority over the people of his territory was established by international law. . . . The very term state, which arose in the sixteenth century, derived from the Latin status, meaning “position” or “standing” – in this case, the position or standing of a sovereign, or ruler.[17]
In other words, the monarch was the state and the state was all wrapped up in the royal rights and prerogatives of the king or ruling prince. These treaties reflected “. . . the overwhelming dynastic nature of the Westphalian order – [this is what] set it apart from its modern successor.”[18] Westphalia was a reiteration and reconfirmation of proprietary sovereignty – sovereignty in the hands of hereditary royal houses. As proprietary sovereigns, they continued to own their territories as dynastic property or ownership rights:
. . . Thus [their sovereign territories] were handled like an economic asset in international relations – a disposable mass for [various family purposes, such as,] inheritances, compensations, exchanges, securities, cessions, donations, partitions, indemnities, satisfactions, sales, and purchases [etc.][19]
That is, “Where the sovereignty is a full property right, it includes ownership of the land and the people, and the right to dispose of all at pleasure.”[20] The modern nation-state that eventually or ultimately emerged was non-proprietary rather than involving dynastic ownership. Other theoretical concepts and economic realities did much more than anything else in creating the modern state; such as, a stronger right to private property, the emergence of organized merchandising, new wealth and a rising middle class as well as the theory, though faulty, as shall be seen, of popular sovereignty changed the political landscape and cultural conditions in a dramatic way. The kings and sovereign princes, who survived this period of time, became non-proprietary, limited, or constitutional monarchs. What Westphalia really did was to enshrine in law or codify the principles that already existed about sovereignty. For example, internal sovereignty was supreme within a territory, and external sovereignty was chiefly the idea of independence from the meddling of others.
It is important to understand the role that prescription and adverse possession played throughout medieval times and in the establishment of the Westphalia system.[21]
This will become more and more clear as prescription is elaborated. International law originated in the traditional Christian states of Europe on the basis of Divine law (comprising (1) natural law and (2) public Revelation in the form of the Scriptures and Christian tradition), which has resulted in what is termed, “The general principles of law recognized by civilized nations”[22] It has always declared the moral principle that “might does not constitute right” that a sovereign dispossessed of his territories by a usurper (an unjust aggressor) or by revolutionaries remains the legitimate ruler of the territories concerned. He possesses the right to recover such territories and is entitled to the recognition of his claims by the other legitimate sovereigns. He is also entitled to assistance, if only in terms of moral support, in recovering his territories. Recapture by force, however, is no longer considered appropriate or recommended; and in some cases it is considered to be unlawful and illegal. Because of this fact, “. . . a nation [a sovereignty or a monarch] is not required to resort to aggression and disrupt the world order to keep a claim alive.”[23]
The moral principle of legitimacy of governmental rights in international law has an excellent pragmatic base for de jure non-territorial sovereigns: If legitimate sovereign states permit one of their number to be overwhelmed by aggression from without, or revolutionaries from within, the time will come when they too will be faced with destruction by aggressors or revolutionaries . . . with possibly no friends left to assist them.
Aesop (620-564 B. C.), the writer of Aesop’s fables, summarizes the pragmatic principle involved nicely in his fable of the trees and the woodman. The latter obtained the consent of the trees to cut down the smallest of their number in the hope of appeasing him. The woodman promptly fashioned the smallest tree into a handle for his ax and then proceeded to cut down the rest of the trees. No one withstood the woodsman. Finally he ended with the largest, which by this time was completely powerless to resist his aggression. . . .
Unfortunately, the moral and pragmatic principles involved have been conveniently forgotten in recent times where the popular press and politicians tend to glorify every revolutionist and “liberation” movement in sight while correspondingly degrading established and legitimate traditional authority. The basis for their attitude seems to be that since the revolutionaries are “popular,” they must invariably be right, while the “authoritarians” are invariably wrong. Alongside this “new infallibility” are the pressures on responsible statesmen to avert nuclear war, pressures that naturally require them to deal with the representatives of revolutionist governments. However, as the legal doctrines concerning the rights of legitimate de jure sovereigns have gradually fallen into disuse, these well-meaning Western statesmen are often at a loss in dealing with these governments and frequently make the mistake of according them rights traditionally given to legitimate sovereigns. This is an error that can be appreciated by the fact that revolutionist governments keep their international agreements only when it is to their political advantage to do so and advantageous to the Revolution. Had the clear distinctions in traditional international law between legitimate and de facto governments been maintained in full force by the nations of the Western alliance, and had the respective rights of each survived in a workable manner, our statesmen would have a clear basis for a proper means of intercourse with revolutionist and illegitimate governments, without undue compromise to their own honor and sense of morality and without undermining the moral right of the legitimate sovereign to recover possession. It might also be added that treating revolutionist governments on a strictly de facto basis would be excellent pragmatic politics given their notorious predisposition to violate international agreements at their convenience and their obvious misuse of the privileges and rights accorded to civilized nations by international law as an offensive weapon against the latter.
Finally, there are those cases where the moral criteria for overthrowing a tyrant can be met, at which point the sovereignty of the state concerned passes from the tyrant to the new provisional government. These provisional governments, under the traditional doctrine of international law, have the right to claim assistance and support from other civilized nations in completing the deposition of the tyrant. However, due to the vagueness in modern international law over the requisite moral criteria for deposing a tyrant, adequate support is not only many times denied the legitimately established provisional government, but also the popular press in many of the civilized states frequently propagandizes against it in favor of the tyrant. There is a great need for wider knowledge of the moral criteria for legitimately overthrowing a tyrant as well as what formally constitutes tyranny.
The initial chapter of this study will examine the concept of sovereignty as it specifically relates to non-territorial international persons or entities and the implications of legality and morality in international law upon which de jure sovereignty is based. Once the theoretical basis for both types of sovereignty has been established, their functions in the international concert can be examined and a formal definition of them can be made.
The Concept of Sovereignty in International Law
The idea behind Bodin’s concept of “sovereignty” originates from the idea of a “perfect society” laid down in the natural law philosophy of Aristotle and St. Thomas Aquinas. As our modern grasp on sovereignty is ultimately derived from the natural law idea of a perfect society, it will be well to examine this idea in some detail. It will not only explain the juridical foundations of the modern state but will also provide the theoretical justification for the recognition of non-territorial sovereignty in international law.
A perfect society is a term used as a theoretical foundation for understanding sovereignty. A “perfect” society is not perfect as such, but it is fully developed in having independence, authority, and jurisdiction. The term perfect society can apply to both territorial and non-territorial entities. This book, of course, focuses on sovereignties without territories.[24]
A perfect society is one which is not subject to any other natural society. It is not a part of or a tributary to the end of any other natural society, and it has at its disposal all the means necessary for attaining its end . . . in other words, it is self-sufficing.[25]
Self-sufficiency is the chief distinguishing mark of a perfect society and, thus, of sovereignty.
Self-sufficiency does not mean a condition in which every want of a perfect society is actually provided for (autarky) but rather implies a degree of organization and independence which enables it normally, to provide the means whereby the growing wants of the community may be successively met. A particular society may be unable to provide for all of its economic wants and may be dependent on imports or financial support (foreign aid, etc.) from other societies. However, if it possesses all those organs whereby societies normally provide for the needs of the community, whether from within or without, it may rightly be spoken of as a perfect or complete society.[26]
Some have attempted to describe self-sufficiency as a purely economic concept of independence from imports or the ability to provide everything it needs by itself.[27] This is not self-sufficiency per se but autarky. Autarky, usually applied to economics, is not needed to provide the element of self-sufficiency necessary for what is called a perfect society. Any requirement for autarky as an element of a self-sufficient perfect society is exploded by Aristotle’s own analysis of the elements of self-sufficiency in Politics. There, Aristotle describes self-sufficiency as including the capacity of providing for food, arms, the arts, revenue, religion, and the tribunals of law and justice.[28] Moreover, the actual attainment of autarky by a perfect society is an unwelcome development in today’s international society where the mutual interdependence of various societies on each other is one of the best guarantees of world peace. It is not without significance to the world community that the main attempts in this century to achieve autarky were made by societies like Nazi Germany, Fascist Italy, and Communist Russia.
At the beginning of Politics, Aristotle speaks very clearly of the perfect society or, as he terms it, the “perfect community,” by which he means the civil power or the state as opposed to the “imperfect community,” meaning the family. The family is part of the perfect community and its authority is exercised by precepts rather than by laws. It is “imperfect” in that it needs the perfect community or society to assist it to achieve its ends.[29]
Following Aristotle, St. Thomas Aquinas implies that a perfect society is one which is not part of another society:
As one man is a part of the household, so, a household is a part of the State; and the state is a perfect community according to Politics. And therefore, as the good of one man is not the last end, but is ordained to the common good; so too the good of one household is ordained to the good of a single state, which is a perfect community. Consequently he that governs a family can indeed make certain commands or ordinances, but not such as to have properly the force of law.[30]
Thus, a perfect society is a single unit, animated by a single life, self-centered, independent, and self-sufficient. Indeed, it is this condition of self-sufficiency that marks the end of the process in which the “imperfect community” grows, develops itself economically, differentiates itself politically, and finally emerges as a complete or perfect society, one which is termed a “state” when it has a territorial base. The condition of self-sufficiency is not only the end of the process of development into a perfect society but is also the differentiating mark of it – or, as it is normally termed, the state.[31]
However, the perfect society or the state is not alone in today’s world. The self-sufficiency of the perfect society is not absolute as the positivist[32] writers would make it, but it is linked by many chains with the welfare of many states on the same continent and throughout the world. It is likewise linked with other perfect societies through its commitment to a common civilization. These facts create a legal and moral duty on the part of a perfect society or state to recognize its interdependence with other such societies, to assist and work with them, and to use this mutual interdependence for the welfare of all societies[33] on the globe. Thus, self-sufficiency in a perfect society or state means independence from other sovereigns and political freedom in the international arena from a certain compulsion. Thus the Positivist claim for absolute freedom or sovereignty – the “Liberte” (license) of the French Revolution[34] – arbitrariness or license is wrong and contrary to the concept of freedom implicit in the Judeo-Christian natural law.[35] When a perfect society or state is spoken of as “sovereign,” this merely means that it is independent of other sovereigns, not that it possesses “Liberte” – license to do absolutely anything it wants.[36] No right exists for “. . . men to act anywhere according to their pleasure, without any moral tie.”[37]
In summary, self-sufficiency, which is the key element in the establishment of a perfect society or community, appears to be the capacity of providing for itself. Implicit in this capacity is the authority necessary to direct the constituent elements towards the achievement of its goals. As will be demonstrated later, authority is an important element in the constitution of a perfect society (or state). In so providing for the needs of the whole community, the perfect society (state) does so as the highest independent representative of the entire community, and in so doing, deals with other perfect societies on the basis of equality. It is this element of the right to independent action in the name of the whole society that is the chief element of self-sufficiency in a perfect society. This element of the right to independent action by a given society is usually termed “sovereignty” in the science of international law:
By sovereignty is meant the legal supremacy of the State. It is made up of two elements - a positive and a negative element. Sovereignty confers on the ruler of the State a positive right of supreme rule - a right to command and direct the people in everything necessary for the good of the body politic. The negative element implied in sovereignty is that of complete legal independence of other States. . . .
Sovereignty is, above all things, a legal conception. It means that in law (the natural law of course) the State has a right to certain things. Physically a State might be prevented from using its powers and rights in particular cases, but the legal or juridical rights conveyed by the term “sovereignty” will remain as long as the State remains. Again, sovereignty implies the legal independence of the State, i.e. its complete independence of other States. Now the independence of the State in the present connection is a very technical conception that needs to be carefully interpreted. It means the same thing as the complete self dependence of the State, or the fact that its rights derive from itself, are native to itself, that they are not merely delegated to it by another State, or exercised by virtue of powers conferred on it by any other State or body. In other words, independence means that legally and juristically the State is not subject to any other political body. Any community that exercises its Powers by virtue of authority conferred on it by another, or in the exercise of which it is legally subordinate to another, cannot be supreme or sovereign and is not a State. . . .[38] (emphasis added)
It can, therefore, be seen that a true sovereign consists of the qualities of a perfect society whose powers are derived from itself and not delegated to it by any other perfect society (or state) and is not juristically subject or subordinate in any manner to any other society. This attribute of the legal independence or freedom from subordination to another body implicit in sovereignty is intriguing, as this is precisely the element that gives non-territorial sovereigns their juridical sovereignty vis-à-vis territorial sovereigns. Their sovereignty in international law is based on their status as perfect societies, independent and supreme in their own sphere and coordinate with, but not subordinate to, the territorial state. The juridical sovereignty of non-territorial sovereigns is a matter of moral and legal rights, of the requirements of reason; it is not a question of physical power. Calculating statesmen have wisely measured the moral stature possessed by the Holy See, the definitive example of non-territorial sovereignty, in terms of power politics, lacking any other means of expressing a concrete reality that cannot be estimated in material terms.[39] It should, perhaps, be hoped that after two World Wars, the development of thermo-nuclear weapons, and all other evidence of the inability of the territorial States to attain the peace the whole world so ardently desires, that the element of physical force should no longer be considered to be a test of sovereignty in international law.
In this connection, please note that the existence of sovereignty does not necessarily require one society to exercise its sovereignty by the same means and to the same extent that another society might do. Often the de facto freedom of action of one perfect society may be circumscribed by historical reasons, or by the very nature of the function that a particular society desires to perform in the international arena. Switzerland, for example, has renounced its right to international alliances in order to function as an international peacemaker. The circumcision of the actual exercise of certain powers normally associated with sovereignty does not in itself impair the juridical sovereignty of a perfect society so long as its authority is original and not derived from another:
But this legal independence as an attribute of sovereignty requires to be still further examined. A State de facto might be largely dependent on other political bodies and be very far from enjoying complete freedom of action; it might actually contract away a great deal of its freedom, and be bound by innumerable obligations towards other States, and still be sovereign. Every State in the world is to some extent bound by obligations to other States, they are to some extent, therefore, dependent de facto on one another. They are not wholly free in their dealings with one another. Sometimes the limitations placed on their freedom are self-imposed, that is, they are imposed by treaty; sometimes they are not. After the Franco-Prussian War, Prussia imposed obligations on France, the imposition of which obligations France could not resist. Yet, France remained sovereign. Why? Because it still retained all the legal or juridical authority required for a State, and that authority was original and underived. Its authority was not delegated to it by any other power. There are countries which enjoy very little de facto freedom of action in regard to the things that are essentially functions of State. . . .
Yet these are sovereign States. They are sovereign because, even though they are not allowed to use their powers with all the freedom of other States, yet their powers are their own, their authority is original. It is not delegated authority derived from other States. . . .
From these instances it is evident that a State may possess sovereign authority and be treated as a sovereign person in International Law, even though it is not free in the actual exercise of its powers, just as a man may still be a human person though deprived of liberty. A community is sovereign as long as its authority is its own and not derived from other States. . . .
Granted then that a State is radically self-dependent, in the sense explained, its freedom may de facto be limited in many ways, but, as Bryce remarks, “third parties (i.e. other States) are not prima facie bound to pay any regard to the fact that the inferior State is de facto dependent. They may properly treat it as being completely sovereign.[40] (emphasis added)
It should be emphasized that due to the particular mission of non-territorial sovereigns in the world, they do not need all of the powers and prerogatives normally attributed to a territorial sovereign. The mission of a non-territorial sovereign is vertical to that of the territorial sovereign, whose relations with other territorial sovereigns is horizontal or geographical. The non-territorial sovereign and the territorial sovereign are both perfect societies in the fullest sense, each being fully perfect in its respective sphere. The sphere of the territorial sovereign is, of course, temporal and concerns the physical welfare and life of its subjects. The two examples given in this book of non-territorial sovereignty on the basis of having a fully developed independence, authority and jurisdiction comprise a “mixed” (i.e., containing elements of both the sacred and the profane) supranational mission stretching across geographical boundaries for the fulfillment of its purposes.[41]
The first two examples that will be addressed in detail do not only have a perfect society which lasted for hundreds of years, but they hold sovereign rights as deposed monarchs from the possession of former territories. These rights were never forfeited, but were maintained and perpetuated in full accord with the rules and principles of prescription. Prescription preserves intact the internal de jure right to rule and govern as long as the titles and arms of the nation or territory are consistently used and/or official protests continue against the loss of de facto control over their land and country continues. Their sovereignty is thus two-fold under the law of nature. These non-territorial sovereigns are perfect societies in the truest sense of the term. Their authority is original and underived and not delegated to them by any other power. Their legal independence or freedom from subordination to any other perfect society (state) is one of the key elements that establish their sovereignty.
Positivist theories of international law (which like the Apostle Thomas disregard the things of the spirit for those that “the eye can see and the hand can touch”) place far too much emphasis on the element of physical force as a criterion of sovereignty. The positivist theories have the unfortunate effect of creating a “dog-eat-dog” environment in which mere “might” constitutes “right.” As sovereignty itself is primarily a legal concept, its essence lies primarily in its legitimate right to self-sufficiency or independence. Any theory of sovereignty that fails to consider this natural law element of moral right implicit in sovereignty will fail the test of actual state practice:
“The kind of sovereignty we have been considering,” writes Bryce [“studies,” II, 56],”is erected by and concerned with law only. It has nothing to do with the actual forces that exist in a State or with the question to whom obedience is in fact rendered by the citizens in the last resort. . . . The actual receiving of obedience is, therefore, not (as some have argued) the characteristic mark of a sovereign authority.”
Whether any writer has at any time been bold enough to identify in general terms the two conceptions of sovereignty and the possession of supreme physical overbearing power, we do not know, but it is certain that theories are held in which these two conceptions tend to coalesce, and in which such statements occur as that, even though physical might is not the definition, it is at least an inseparable characteristic of sovereignty.
Now, that physical might is neither the definition nor an inseparable attribute of sovereignty is certain. If it were, there would exist on earth no person or body that could be described as sovereign. For there is no government that is so strong as that, it could resist the whole organized opposition of the people. But then it will be said with Rousseau that sovereignty resides with the people, with the volonté generale. We answer that even if this were true our contention would still hold good, for, first, there is no people that is absolutely proof against having its enactments reduced to naught by divisions amongst the people themselves; and secondly, there is no people and no government that could effectively resist the combined opposition of all other governments and peoples. If, therefore, actual might or physical fitness to overbear all opposition is a necessity of sovereignty then there could be no such thing as sovereignty in the world. Evidently, therefore, the conception of sovereignty contains some element besides that of mere physical constraining power. . . .
Philosophers may attempt for purposes of scientific precision to eliminate this intangible element, as it is called, the element of natural right . . . to prevent opposition by securing a willing obedience on the part of reasonable people, and also to defend the lives and liberties of the people against foreign powers. There is no nation that will not claim that its rights have been violated before going to war with other nations.[42] (emphasis added)
It is this element of moral right to sovereignty or international personality, based on their existence as perfect societies and on natural law, that entitles non-territorial sovereigns to recognition of their unique status by other sovereigns. Under commonly held doctrines of international law, a sovereign “is and becomes an international person through recognition only and exclusively.”[43] Although there is a certain positivist bias implicit in this view (unacceptable to one who regards natural law as the basis of international law), a sovereign is nevertheless entitled to recognition if it can establish that it is a perfect society especially with the additional preservation of its legal entitlements as deposed sovereigns that have maintained and kept its rights intact in full harmony with prescription as a critical element or principle rule of the law of nations.
The latter rules on prescription will be elaborated, but, first, the principles of a perfect society will be addressed in detail, and two major examples will be given subsequent to the basic understanding of a perfect society.
For territorial sovereigns, those who possess territories, the establishment of a perfect society is predicated or built upon possession of (a) subjects; (b) organized government; (c) capacity to enter into diplomatic relations with other sovereigns; and (d) territory.[44]
In the natural law analysis of a perfect society, these may be arranged under the three essential elements of independence (capacity to enter into diplomatic relations with other sovereigns, authority (organized government), and jurisdiction (subjects and territory). Any given perfect society will be found to possess these three elements of independence, authority, and jurisdiction. If it passes this test, it may truly be said to be “sovereign” under international law and ought to be accorded full recognition of its international personality by other sovereigns. Other entities that cannot pass the test for establishment as a perfect society may, nevertheless, be entitled to limited international personality status based on the functions they perform in the international community and their need for certain diplomatic prerogatives normally accorded to sovereigns for the unfettered performance of their functions. Such would not, however, entitle them to sovereignty.
The degree of independence necessary for the existence of a perfect society has already been discussed at some length: the necessary independence for a perfect society implies that it is not a subject, tributary, or creature of any other society; that its powers are derived from itself and not delegated to it; and that it is self-sufficient, i.e., that it has the right to take independent action in the name of the whole society with other societies on an equal basis. Thus, a perfect society is independent from any other juridical entity.
However, the element of independence most certainly does not preclude traditional historical relationships that have existed between various perfect societies, sanctified by time and ties of friendship, loyalty, and affection. These historic relationships comprise various degrees of dominion status, suzerainty, protectorship, and dependency. Yet all of these Commonwealth nations are independent and enjoy diplomatic representation with other sovereigns. Such traditional historic relations between the various perfect societies in the Commonwealth can be sentimentally summarized as “the ties that bind.” Hence, the existence of a traditional relationship between two Perfect Societies in no way compromises the element of independence requisite for the establishment of a Perfect Society.
The element of independence essential to the establishment of a perfect society would imply that such be supreme and independent in its own sphere. As a perfect society, it would also be able to establish that it is an external and visible society in its own right. Having shown the above, it would then have established a moral right to independent existence or sovereignty in international law. As a sovereign it would possess actual independence and liberty within its sphere vis-à-vis other sovereigns and would be entitled to diplomatic relations with them on the basis of equality. Indeed, the existence of mutual bilateral diplomatic relations on the basis of equality is proof sine qua non of sovereignty predicated on the establishment of a perfect society.
The second component element for the establishment of a perfect society is authority. This is to say, authority that is unshared and total in its own dominion. As evidence of its authority a perfect society legislates in its own name in the fields within its jurisdiction. It is not subject to any other authority in the execution of its mission. Hence, due to its self-derived authority, a perfect society is sovereign and complete within itself. It is subordinate to no higher society and enjoys independence and autonomy, that is, full judicial existence. As a result of its authority, a perfect society is fully perfect and sovereign within its own sphere – which is determined by the ends of the society.
Jurisdiction, power exercised over its subjects – not mere moral influence or persuasion – is the third and final element of a perfect society. The element of jurisdiction would indicate that a perfect society is organized on juridical principles and that it possesses a complete legal system with trial and appellate courts. As a proof of its jurisdiction, the judicial system of a perfect society would be entitled to pass judgment on transgressors and assign sanctions. Moreover, a perfect society possesses sufficient means within itself for carrying out its purposes.
Deposed monarchs, and their rightful successors, who have maintained and kept their rights alive, are the full and complete embodiment and personification of every right and authority of their former kingdom or principality on a de jure, internal, non-territorial basis. Therefore, they have in their person all the qualities of a perfect society. However, most of those qualities are not in an organized form.
Sovereignty, as already stated, basically consists of four different aspects or factors:
1. Jus Imperii, which is the right to command;
2. Jus Gladii, which is the right to impose obedience to command;
3. Jus Majestatis, which is the right to be honored, respected, and protected; and
4. Jus Honorum, which is the right to reward and honor merit and virtue.[45]
A territorial sovereign, whether republican or monarchical, normally may exercise each of these elements of sovereignty to some degree. A non-territorial sovereign, such as a deposed monarch and/or government in exile, possesses all four traits as well, but it cannot normally exercise the right to command the nation or to impose obedience. These traits are possessed as inherent rights of sovereignty but are not under their immediate control. In other words, jus imperii and jus gladii are possessed as suspended, dormant, or inactive entitlements. In most cases, de jure non-territorial sovereigns can freely exercise the right to be honored and the right to honor others; nevertheless, they still have the inoperative “right” even though they cannot use it to command the nation and impose obedience.
Hugo Grotius (1583-1645), one of the most prominent fathers of international law, declared, “We must . . . distinguish in Sovereignty, . . . between the Right itself, and the Exercise of that Right. . . .”[46] It is important to understand that “. . . at root [meaning fundamentally], sovereignty, both internal and external, is a legal principle and should not be confused with power [or the exercise thereof]. . . .”[47] It is a supreme legal entitlement or right.
[It] is not the Power, it is not the Authority, it is not the Command, but it is the Right of Power, the Right of Authority, the Right of Command, as Vattel so beautifully and correctly declares. Supreme Power, Supreme Authority, Supreme Command, is the superstructure, resting upon “that foundation and root,” the Right of it, which is Sovereignty.[48]
“Sovereignty is the right, not the ability, to determine one’s policies. [In other words,] like any right it may or may not be effectively enjoyed [it might be] infringed, violated, or ignored.”[49] In fact, “. . . there has never been a ‘mythical past’ in which states could exercise absolute control and authority.”[50] According to Hugo Grotius:
The supreme power is . . . limited by divine law, natural law and the law of nations, but also by such agreements as are made between ruler and ruled. Thus an indefinite number of rights may be subtracted from the authority of the ruler; his acts may be rendered subject to ratification by a senate or other body . . . yet the sovereignty still retains its essential quality unimpaired.[51]
The right exists even if it is inoperative, temporarily suspended, or hibernating. Both reigning and non-reigning sovereigns have the fullness of all four of the aspects of sovereignty – jus imperii, jus gladii, jus majestatis, and jus honorum. Both are limited in one way or another in the use they can make of them. Sovereignty is “absolute” in the right, but not in its actual practice of the right, which may be limited by a constitution, legislative rules, or in case of a regnant nation by such organizations as the International Monetary Fund (IMF) and by other regulations, legal provisions, and treaties, etc. Jurisdiction is also limited by a separation of powers and other appropriate checks and balances to safeguard freedom and eliminate imbalances of power. Thus the right, not the practice of the right, is “absolute.”
“Sovereignty is a matter of authority, the right to regulate, govern and rule. It is often, however, confused with control over outcomes,” which control it may never possess or possesses only to a limited degree.[52] Nevertheless, the supreme legal right exists and is absolute, because the right to rule “. . . is an entire thing, to divide it is to destroy it.”[53] The actual control is another thing entirely. Without this important understanding, much of what goes on and is written about sovereignty can be misinterpreted, misread, and misunderstood. The right of sovereignty is not divided, but the control of sovereignty can be delegated to others. As an example, many countries have three branches of government – the executive, the legislature, and the judicial, each exercising some part of the supreme right. In other words, the right is absolute, the practice is flexible.
If the three elements of a perfect society exist – independence, authority, and jurisdiction, it does not necessarily mean that sovereignty also exists. The one and only way a perfect society can be sovereign without territory is if it already possesses and have legally conserved the rights and entitlement of sovereignty from the past. A non-territorial perfect society would have to be either a valid deposed royal house (a dynasty) or a legitimate and rightful government-in-exile that has maintained the entitlement to rule by virtue of the rules and principles of prescription.
For example, many Christian churches, including some non-Christian religions, operate as perfect societies, but they are not sovereign; they are religious organizations and nothing more. It is important to understand that there is no such thing as ecclesiastical sovereignty. Sovereignty is a secular quality. Religious, fraternal, or other such organizations are not composed of Jus Imperii, the legal and lawful right to command armies and navies and legislate domestically, nor do they possesses the right of Jus Gladii, the right to enforce one’s commands as a civil authorities with police power and judicial sentencing. They can give out rewards for merit. But they do not have the right to be honored and respected as the heads of state (Jus Majestatis) and reward others as reigning or non-reigning nations (Jus Honorum).
The Catholic Church is an exception, but only because the Popes also hold secular sovereignty rights:
. . . It is necessary to bear in mind the two sovereignties claimed by the Holy See: one, the Temporal Sovereignty, and the other the Ecclesiastical Sovereignty; one exercised as the civil ruler over Rome, now contracted [diminished] to the Vatican State; the other exercised as spiritual ruler over the Church. . . .[54]
Both regnant (reigning) and non-territorial monarchs are the personification and embodiment of independence, authority, and jurisdiction in their persons even though one is limited by a constitution and the other is single and alone. That is, “All the majesty [rights and glory] of the nation resides in the person of the prince. . . .”[55] Some truly sovereign entities, such as a well-organized government-in-exile, hold these qualities (the characteristics of a perfect society) in corporeal reality and not merely as a legal abstract as in the case of a deposed, but rightful, king or sovereign prince. Nevertheless, both hold the right to rule and operate such. For the sake of convenience, the elements comprising a perfect society are summarized as follows:
Elements of a Perfect Society
A. Independence:
(1) Independent from any other juridical entity – powers are self-derived and not delegated.
(2) Self-sufficient – has the right to take independent action in the name of the whole society.
(3) Supreme and independent in its own sphere.
(4) External and visible society in its own right – bearing normal engines and attributes of sovereignty.
(5) Moral right to an independent existence.
(6) Actual independence and liberty within its sphere vis-à-vis other sovereigns.
(7) Diplomatic relations with other sovereigns on the basis of equality or possesses the de jure moral and ethical right of such.
B. Authority:
(1) Unshared and total authority in its own dominion.
(2) Legislates in its own name in the fields within its jurisdiction.
(3) Not subject to any other authority in the execution of its mission.
(4) Sovereign and complete within itself.
(5) Subordinate to no higher society and enjoys independence and autonomy – full judicial existence.
(6) Fully perfect and sovereign within its own sphere, which is determined by the ends of the society, royal family, or order of chivalry.
C. Jurisdiction:
(1) Exercises power over its subjects–not just moral influence or persuasion.
(2) Organized on juridical principles.
(3) Possesses a complete legal system with trial and appellate courts or possesses the legitimate legal right or entitlement to do so.
(4) Passes judgment on transgressors and assigns sanctions or could do so if appropriate and organize.
(5) Has sufficient means within itself for executing its purposes.
(6) Has unimpeded freedom to conduct its mission.
Two candidates for non-territorial sovereignty will be surveyed according to the elements of a perfect society. If they meet the criteria, then they ought to be accorded the full prerogatives of sovereignty (political factors or religious and racial bias would, of course, play a role in whether recognition of their rightful sovereignty is actually accorded) in international law. Both of these entities additionally possess the de jure right of deposed sovereigns who have maintained their rights. Other candidates who do not meet the full test of a perfect society might be accorded certain privileges of international personality commensurate with their functions in the inter-national arena.
The Basis of Sovereignty in International and Natural Law
Having established a theoretical model that can be used to establish the right to sovereignty in international law for non-territorial sovereignty, this study will now turn to the question of the legitimate right of de jure governments or sovereigns-in-exile. When all is said and done the right of a sovereign-in-exile to recognition of his sovereignty depends directly on the nature of international law: whether international law is based on the natural law and can, therefore, take cognizance of the legitimate moral right of a de jure sovereign or whether it is positivist and thus is concerned merely with the actual facts of power politics. A positivist-based international law would take cognizance only of the fact of actual possession by the de facto usurping government and accord recognition to its sovereignty based on that fact alone. However, if the precepts of international law are derived from natural law, a radically different situation is created: here, sovereignty, the legitimate right to rule, is predicated upon the moral entitlement to rule under natural law. Therefore, the following factors in natural law concerning sovereignty and the state would need to be considered, and the moral right to rule would depend on the fulfillment of the criteria under them: (1) the origin of the state; (2) the organic nature of the state; (3) origin of political authority; (4) grounds of political authority; and (5) title to political authority. Fulfillment of the criteria in these natural law factors will not only establish the moral title necessary for de jure sovereignty, but it will also set forth the moral criteria for the legitimate overthrow of a tyrant and the establishment of a lawful provisional government.
International law is that body of laws that determines and defines the rights and duties of sovereigns in their mutual relations and dealings. It is divided into natural and positive law. Natural international laws are those that arose out of the very nature of the state antecedent to state – prior to any agreement or act. They are commonly referred to as the “general principles of law.” Positive international laws are those that depend entirely upon inter-state agreement, express or tacit, or on some kind of state enactment or act such as a treaty.[56]
As law is a rule imposed by someone having authority over the persons or communities bound by the law, some positivist writers deny that international law is really a “law” in the technical sense because sovereigns, they argue, have no common ruler. To answer this contention, the distinction between natural and positive international law must be clarified:
The natural precepts of international law are grounded immediately upon nature (i.e., the natural relations between States as determined by the nature of the State) and ultimately on the Author of nature; and as all States, like all individuals, are subject to the laws of nature and to the Supreme Lawgiver, so the natural precepts of international law are to be regarded as laws in the strictest sense of the word. They are imposed by One having authority over all States.
With the positive rules or precepts of international law, i.e., those rules that depend on agreement only, it is quite different. These rules are not imposed by any person or body having common authority over States, and over international relations, but are matters of compact and agreement only, just like the compacts and agreements of private individuals; and, therefore, though, like private individual agreements, they bind in conscience and in law and will be upheld by the Supreme Lawgiver, nevertheless they are not laws in the technical sense of the word, but rules or compacts only, depending for their enforcement on the good faith of the several parties to the contract.[57]
However, (1) as it would be too inconvenient to separate the two sets of international rules, calling the natural set laws and the other something else, and (2) as international agreements once made, although not “laws” in themselves, are nevertheless agreements binding sovereigns in conscience and binding by the strength of the natural law (the obligation of keeping one’s contracts being a duty of natural law, binding on individuals and sovereigns alike), it is customary to speak of both sets as laws, comprising between them, the code of international law.[58]
The positivist writers deny that international law is dependent on the natural law or that it possesses any moral bearing or character. They claim that international law deals only with the actual needs and material wants of sovereigns, whereas the natural and moral law deals with ideals and super-mundane things: with what ought to be rather than with what is. Therefore, positivists assert that these two categories are distinct and independent, and that any attempt to reconcile them would be exceedingly difficult if not impossible. The findings of this study indicate that the positivist view of the nature and subject-matter of natural law is completely erroneous:
The natural moral law is nothing more than the necessity of doing or attaining the things that are necessary for our natural perfection, i.e., the perfection which is obtainable by man within the compass of his natural capacities. As man’s nature is given him by the Author of nature, of course it is on the Author of nature that the natural law is ultimately grounded. But it is grounded immediately upon our human nature itself, and we determine the precepts of this law, not by direct examination of the divine mind, which would be impossible, but by the study of our own capacities and needs, their natural objects; and the acts necessary for the attainment of these objects. It will thus be seen that the natural moral law is not to be regarded as dealing with ethereal matters, as resting on no need of our material life. The natural law is the law which prescribes the things that are necessary for our human natural perfection, and it includes every kind of natural necessity, necessities of mind and of body, the things necessary for each man personally, and the things necessary in our dealings with one another, the State, which we said is a necessity of nature, and the necessary relations of States. Thus international law, which prescribes the things necessary for States in their mutual relations and dealings, is nothing more than a part of the moral law, and must be regarded as governed generally by moral considerations.[59] (emphasis added)
The positivist writers claim that the chief purpose of their theory of the non-moral character of international law is to exalt it in the eyes of the world by representing it as supreme and independent of any other law, person, or order of things. This theory contains a hidden fallacy that actually leads to the complete bankruptcy of international law: positive international law is based on treaties entered into by sovereigns. However, if these treaties do not themselves rest on something deeper and more sacred than themselves, if they do not rest upon a law of nature enjoining the faithful performance of promises and contracts and forbidding violation of the same as wrong, then such treaties have no real power to bind the contracting sovereigns to their performance, and each sovereign will not only regard itself as free but will also be entirely free to adhere to or renounce such treaties as its private interest dictate.[60] The actual conduct of the chief positivist nations – Nazi Germany and the Soviet Union – provides ample confirmation of this fact and of the bankruptcy of international law to which the positivist theories lead.
The positivist writers regard all international law as totally the result of treaty, agreement, or understanding between different sovereigns. They argue that it is based on treaty, express or implied; that is, the principles of international law are either expressly formulated in treaty or are so widely accepted and acted on by sovereigns as to give positive encouragement to the assumption that they will continue to be acted upon in the future. They maintain that all international law can be shown to depend on a covenant or agreement of one of these two kinds. The natural international law – that body of law that is obligatory on a sovereign prior to its own acceptance of it and continues to be obligatory whether or not sovereigns accept it – is regarded by the positivist writers as pure chimera. Applied in practice, the positivist view would render all understanding and communication between states impossible, creating the immoral situation advocated by Machiavelli, and would undermine the foundations of international law itself:
That a system of international law based exclusively on treaty, and independent of all natural principle, would be bankrupt and without foundation, and valueless as regulating the relations of States, is clear from the very nature of treaties themselves. The binding-force of treaties cannot depend on treaty. If it did, every treaty imposing terms on the opposing parties would itself presuppose another treaty binding to the fulfillment of those terms; that again would presuppose another, and so on without end. Unless there was a law of nature imposing an obligation of fidelity to treaties, treaties as valid acts could never begin, they could never acquire validity or binding force; and in these circumstances, as we have already said, the only question which a State could reasonably be expected to entertain in regard to treaties which it is tempted to violate would be the question whether, having violated them, it would be strong enough to defy the hostility of those States with which it had broken faith.[61]
It is true, of course, that Sovereigns often break faith with each other and depend on their military strength to support such immoral actions. However, it is one thing to recognize this fact of life and another to declare that there are no natural rights among sovereigns, which they are morally and ethically bound to recognize whether they determine to or not, and that in violating its agreement with others, a sovereignty violates a sacred principle to which all sovereigns are rightfully bound. No responsible king or other ruler would claim adherence to the positivist theory as it is so completely opposed to the conscience of nations. The positivist theory is publicly repudiated by all statesmen when their own country has suffered wrong at the hands of a more powerful sovereign. It is even repudiated by those who freely violate treaties in their efforts to “prove” (for propaganda purposes) that the treaty had already been violated – by the other side. Witness the “attack” on a German radio station by Nazis dressed in Polish uniforms as a pretext for the Nazi invasion of Poland in 1939.
The positivist theory of international law that denies the natural law and the moral rights protected thereunder is based on the erroneous assumption that all rights are founded solely on state authority. The positivists conclude that as sovereigns are independent of each other and as there is no single state (like the Holy Roman Empire in the Middle Ages) to determine the rights of all others, international rights depend on nothing else other than agreements or treaties between different states.
The moral natural law expresses the fullest realities of this world because it expresses the sternest necessities of nature. There are obvious immutable rights that depend not on the authority of the state but on the natural law: The right of husbands and wives to fidelity, of parents to the respect of their children, of a man suffering from extreme necessity to help, of owners to their property, and especially the right of owners from whom property has been stolen, but who cannot prove the crime, to the recovery of the same. These rights cannot depend on anything else but nature. It is beyond the scope (and length!) of this study to set forth in complete detail the establishment of the existence of the natural law of good and evil; for this, the reader is referred to The Science of Ethics, volume I, chapters 4 and 20, by Rev. Michael Cronin, Professor of Ethics and Politics, University College, Dublin, National University of Ireland.
The positivist argument that there are no natural international laws, independent of positive treaty or agreement, is opposed to the principles of human reason and to the very nature of the state:
The State is from nature, that it is an institution required by nature, and possessed of a special natural purpose and character. It must, therefore, have special natural requirements in regard to, and definite natural relations with, other States; and, therefore, it has a natural right to the fulfillment of those requirements and a natural duty to observe those relations. It is evident, therefore, that there are in existence certain natural laws, defining the rights and duties of States in regard to one another.[62]
While there is a large body of positive international law, this body presupposes other laws that are not positive (that is, not depending on state enactment or agreement) but instead derive from nature and are thus natural laws. Positive laws will always be found to proceed from certain natural necessities that they are devised to satisfy and fulfill. For example, the sovereign enacts sanitary laws because certain things are naturally necessary for health, and health is a natural necessity. There is no ruler (a few of the more eccentric former colonial states excepted) that would enact laws that are purely artificial, which do not in some way represent or fulfill some requirement of nature, however general and indeterminate. (The reader is referred to The Science of Ethics, Volume I, Chapter 19, for the establishment of the two modes in which positive law depends on natural law.) In the same way all positive international law, depending on treaties and international understandings, will be found to represent some natural requirement in the relations of states and, thus, some general natural international law that the positive law is meant to determine and fulfill.
Among the general natural international laws that we can deduce through reason is the moral right of sovereigns to justice. This moral right does not rest on any positive enactment of international law or on any resolution of the United Nations but rather on the requirements of nature itself. This moral right of sovereigns to international justice belongs to them and binds other sovereigns absent any positive enactment:
It is clear that every individual has a natural right in justice to his life, his property, his character, and that any violation of these rights constitutes an offence against the natural law. The existence of a natural law of justice as between individual and individual is undoubted, and from it we can deduce a natural law of justice as between States, or a natural international law of justice. For the natural law, which forbids injury as between one individual and another, is not dependent on limitations of space and time; a man has a natural right to his life not because he is an Englishman or a Frenchman or a German, but because he is a man, a natural person; and, therefore, a man’s duty to respect the lives of others, is valid and binding not only in regard to persons living under the same government as himself, but in regard to other persons also; an Englishman has no more right to kill a German or an Italian than to kill one of his own countrymen. The relations of justice obtain between human persons as such, between all persons. They do not end at the boundaries of States. The boundaries of States have no significance whatsoever in determining the fundamental relations of justice. They hold for men separated by the widest distances and living under the most diverse governments.
And if relations of justice obtain between individuals of different States, so, also, they obtain between these States themselves. The State, like the individual, is a natural person, a moral person of course, yet a person and natural–naturally incorporated. States are equal to and independent of one another; and just as individuals, because they are equal and independent, have rights as against one another, so also States have rights as against one another. States, for instance, being equal, they cannot use one another for their own pleasure and convenience or otherwise treat one another as subordinate. And these rights belong to States from nature, and they bind even before they are agreed to or recognized by the body of nations.[63]
From this reasoning, it is evident that some of the precepts of international law are natural and not dependent on positive treaty, agreement, or international understanding. Although some international law stems from treaty, some of the more important and sacred principles of international law have never been made the subject of agreement or treaty. . . they are universally accepted without the need of a treaty or agreement of any kind. Such is the law that no sovereign should wantonly destroy the property or inhabitants of another. In more recent times the precedent-making “Judgement of The Nuremberg Tribunal” established that no sovereign or its agents (including the head of state) shall (1) conspire to commit certain international crimes: (2) commit crimes against peace (i.e., the planning, preparation, initiation, and waging of aggressive wars); (3) commit war crimes (especially the waging of “total war”); and (4) commit crimes against humanity (especially genocide). These fundamental laws of international morality, directly derived from natural law, are accepted by all sovereigns and are recognized as binding on all sovereigns independent of their acceptance. Their validity does not depend on being accepted by the concert of nations. The fact that laws of this kind are not embodied in treaties or other international agreements is itself positive proof that such natural international laws do not need to be contained in written documents or accepted through compact in order to be recognized as binding on all.
There are, therefore, certain international laws derived from the natural moral law that govern the relations of sovereigns and sovereign nations.
It should not be surprising to find that some of the most authoritative publicists of international law fully accept the moral natural law as the basis or primary source of international law. One of the most prominent of these was Sir Robert Phillimore (1810-1885), a legal advisor to the British Foreign Office. In his very authoritative work, Commentaries Upon International Law, Phillimore declares that Divine Law is the primary source of international law, that it is written in the hearts of all mortals and through natural reason is binding on all mankind:
Moral persons are governed partly by Divine law (leges divinae,) which includes natural law–partly, by positive instituted human law, which includes written and unwritten law or custom (jus scriptum, non scriptum consuetudo.)
States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly by Divine, and partly by positive law. Divine Law is either (1) that which is written by the finger of God on the heart of man, when it is called Natural Law; or (2) that which has been miraculously made known to him, when it is called revealed, or Christian law.
The Primary Source, then, of International Jurisprudence is Divine Law. Of the two branches of Divine Law which have been mentioned, natural law, called by jurists jus primarium, is to be first considered. ‘In Jure gentium,’ Grotius says, ‘jus naturae includitur;’ and, again, ‘jure primo gentium guod et naturale dicitur.’
All civilized heathen nations have recognized this law as binding upon themselves in their internal relations. They called it the unwritten, the innate law of which mortals had a Divine intuition – the law which was begotten and had its footsteps in heaven, which could not be altered by human will, which secured the sanctity of all obligations – the law which natural reason has rendered binding upon all mankind.[64]
Having established in so definitive a manner that international law is derived from the natural moral law, Phillimore states that, as a corollary thereto, sovereigns (indeed, the entire world community) cannot make laws (either municipal or international) that contradict the moral natural law:
One important practical inference from this position is, as has been shown, the necessary existence of International Obligations between Christian and Heathen States. Another practical consequence is, that the Law derived from the consent of Christian States is restricted in its operation by the Divine Law; and just as it is not morally competent to any individual State to make laws which are at variance with the law of God, whether natural or revealed, so neither is it morally competent to any assemblage of States to make treaties or adopt customs which contravene that Law.
Positive Law, whether National or International, being only declaratory, may add to, but cannot take from the prohibition of Divine Law.[65] (emphasis added.)
Note “q” to the above states:
(q) It would be hard to point out any error more truly subversive of all the order and beauty of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please, or that laws can derive any authority from their institution merely, and independent of the quality of the subject matter. All human laws are, properly speaking, only declaratory. They may alter the mode and application, but have no power over the substance of original justice. Burke’s Treatise on the property laws.[66]
This recognition that international law is derived from natural moral law has far-reaching consequences. For one thing, it requires that the practices of sovereigns must conform to the natural moral and ethical law. Sovereigns in state practice cannot adopt practices and policies derogating from the principles of natural justice – even for the pragmatic reasons of power politics. Sovereigns are obliged under international law to recognize and honor legitimate moral claims when derived from the natural law and are not free to disregard them under the guise of pragmaticism. Phillimore summarizes the duty of sovereigns to adhere to the moral standards of natural justice in all their undertakings and practices as follows:
Mackintosh nobly sums up this great argument: “The duties of men, of subjects, or princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most abstract and elementary maxim of moral philosophy, and the most complicated controversies of civil or public law, there subsists a connection. The principle of justice, deeply rooted in the nature and interest of man, pervades the whole system, and is discoverable in every part of it, even to its minutest ramification in a legal formality, or in the construction of an article in a treaty.”[67]
Natural law is something innate in every human being; it is built into his conscience and his loftiest innermost desires. It is part of his inner self – his inner nature. However:
. . . The forces of barbarism are always present both in man and in society and constantly threaten to undo the work of centuries [of civilization]. . . . What happened [in Germany, China and Russia that left hundreds of millions of people dead for the sake of dangerous and false philosophies] can happen anywhere for the forces of barbarism are as universal as man’s civilized achievements.[68]
The enemies of natural law, progressives, post-modernists, socialists, liberals, governmental absolutists, relativists, controllers, statists, positivists, those who believe in force and coercion, etc., try to go against human nature rather than follow natural law principles that are in harmony with the way we are as human beings and our natural love for liberty and freedom. For example:
The socialists [among other regulators and dictatorial advocates] attempted to remold human nature [by force or coercion]. Their failure is further evidence that the nature of man is universal and unchanging. Man is a rational animal, a social animal, a property owning animal, and a maker of things. He is social in the way that wolves and penguins are social, not social in the way that bees are social. The kind of society that is right for bees, a totalitarian society, is not right for people. In the language of sociobiology, humans are social, but not eusocial [demoted to the level of an unthinking insect society]. Natural law follows from the nature of men, from the kind of animal that we are. We have the right to life, liberty and property, the right to defend ourselves against those who would rob, enslave, or kill us, because of the kind of animal that we are.[69]
The arguments used by those that seek to prove that we cannot know natural law . . . are precisely the same as the arguments that we cannot know anything, therefore nothing exists, and many notable philosophers, such as Berkeley and Bertrand Russell, who started out arguing that natural law does not exist ended up concluding exactly that – that nothing exists.[70]
This kind of nonsense merely thwarts the progress of civilization because there is always a danger lurking in the shadows that invariably lead individuals and nations down. The honoring and dishonoring of natural law has powerful consequences. As stated below:
Our effectiveness [our success] is predicated upon certain inviolate principles – natural laws in the human dimension that are just as real, just as unchanging, as laws such as gravity are in the physical dimension. These principles are woven into the fabric of every civilized society and constitute the roots of every family and institution that has endured and prospered.
[These] Principles are not invented by us or by society; they are the laws of the universe that pertain to human relationships and human organizations. They are part of the human condition, consciousness, and conscience.
. . . The lesson of history is that to the degree people and civilizations have operated in harmony with correct principles, they have prospered. At the root of societal declines are foolish practices that represent violations of correct principles [or breaches of intelligent philosophical reasoning]. How many economic disasters, intercultural conflicts, political revolutions, and civil wars could have been avoided had there been greater social commitment to correct principles [and right reasoning]?[71]
It is a universal and significant fact that men everywhere generally believe in right and wrong, not because they have a subjective preference for their own standards of conduct, but something inside leads them to describe some customs as morally superior and more highly important to what is just and fair. These are admired and treasured more than others. Natural law is real as much as justice is real, or as any other moral or ethical abstract is real and genuine, and it has impact universally all over the world in all ages and among all people. Right reasoning and correct principles are at the root of natural law and:
It is through teaching and learning that civilization is sustained and perpetuated. The great teachers are those who cherish the wisdom of the past and make it relevant to the present.[72]
The following is an example from the 17th century from which we can learn some valuable lessons about natural law:
The long revolution [finally concluded after 80 years of war in 1648] by the Dutch against Spain [rule] obliterated or gravely weakened those people and [the] institutions responsible for enforcing customary law and fiat law, and little was done to replace these institutions for two generations. But it is everyone’s right and duty to forcibly uphold natural law, thus in order to get a law enforced, or to get away with enforcing it oneself, ones lawyer had to argue natural law, rather than customary law. Thus the Netherlands came to be governed predominantly by natural law, rather than by men or by customary law.
Society ran itself smoothly. This showed that natural law was complete and logically consistent. . . . The experience of the Dutch strongly supports the belief that our understanding of natural law, the medieval theory of natural law as interpreted by medieval lawyers, is fairly close to the truth. If natural law was just something that somebody made up out of their heads, it would not have worked. Internal inconsistencies would have led to conflicts that could not be resolved within natural law, requiring the man on horseback to apply fiat law or customary law to resolve them. Incompleteness would have led to unacceptable lawless behavior. None of this happened, powerful evidence that natural law is not just something invented, but something external and objective that we are able to perceive, like the . . . law of gravity.[73]
In our own day, the “Judgment of the Nuremberg Tribunal” reaffirms the principles set forth in this study: that the source of international law is the moral natural law, which is binding upon sovereigns before their own acceptance of it and even in spite of their denial of it. This judgment establishes beyond doubt that sovereigns are obliged to recognize and honor the moral principles established by the natural law even if these moral principles are not incorporated by treaty, agreement, or understanding into the positive body of international law:
For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.[74] (emphasis added)
The Tribunal further held that pacts and treaties outlawing wars of aggression are merely expressions of world conscience and cited the provisions of the Treaty of Versailles indicting the German Emperor Wilhelm II for offenses against the natural moral law, specifically stating that his trial would vindicate the validity of international morality:
All these expressions of opinion, and others that could be cited, so solemnly made, reinforce the construction which the Tribunal placed upon the Pact of Paris, that resort to a war of aggression is not merely illegal, but is criminal. The prohibition of aggressive war demanded by the conscience of the world, finds its expression in the series of Pacts and Treaties to which the Tribunal has just referred.
It is also important to remember that Article 227 of the Treaty of Versailles provided for the constitution of a special tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the First World War opposed to Germany, to try the former German Emperor “for a supreme offense against international morality and the sanctity of treaties.” The purpose of this trial was expressed to be “to vindicate the solemn obligations of international undertakings and the validity of international morality.” In Article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers “to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war.”[75] (emphasis added)
Note the passage demanding the prohibition of aggressive war “by the conscience of the world.” This is nothing more than the natural moral law, which the Tribunal declares merely finds its expression in the various treaties outlawing war: This affirms what this study has declared: that moral rights and principles established by the natural law are binding upon sovereigns antecedent to the expression of the same in positive (written) international law and notwithstanding their lack of acceptance of the natural law. Note also the language referring to the indictment of Wilhelm II for crimes against (1) “international morality” and (2) “the sanctity of treaties.” Clearly both phrases refer directly to a violation of the moral standards of the natural law rather than to any specific positive international law existing at the time of World War I. The phrase “the sanctity of treaties” is especially interesting as it refers not to treaties themselves but to the moral obligation binding in the natural law upon sovereigns to keep their treaties. As demonstrated earlier, this duty is an obligation of fidelity under the natural law. It is hard to imagine a more direct affirmation of the natural law as the primary and precedent source of international law than the “Judgment of the Nuremberg Tribunal.” On December 11, 1946, the United Nations General Assembly unanimously adopted a resolution in which it “affirms the principles of international law recognized by the Charter of the Nuremberg. Tribunal and the Judgment of the Tribunal” and directed what is now the International Law Commission to formulate those principles.
The outcome of this Judgment is far-reaching as it establishes the validity of referring to ethical principles to establish the moral natural law, the “general principle of justice” in the language of the Tribunal, as the applicable international law on a controverted point or policy. Article 37(c) of the Statute of the International Court of Justice (Hague or World Court) declares that the moral natural law is a part of recognized International Law when it obligates the Court to apply “the general principles of law recognized by civilized nations.” In conclusion, “natural law is not some far away and long ago golden age myth imagined [or imaginary] . . . but a real and potent force in today’s world, which still today forcibly constrains the lawless. . . .”[76] Natural law is for all people in all ages of the world.
. . . Every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience.[77]
This brings us, in full turn, back to the question of the validity of the rights of a de jure sovereign in exile. From what has been said about the foundations of international law on the natural moral law, it appears that if such sovereigns can establish a moral basis for their claims to de jure sovereignty, there is an obligation under international law to recognize and acknowledge it. After all, ethical “principles, [such as prescription]” we are told, “never change; if true once they are true forever.”[78]
Prescriptive Rules are upheld and supported by the Majority of all Scholars, Jurists, Nations and Publicists: only a Small Minority Voice Opposition
As an addition to the fundamentals of a perfect society, the principles or rules of prescription, which are an important part of “the general principles of law recognized by civilized nations,” provides a critically essential way to judge the true status of any claim to de jure non-territorial sovereignty. In prescription, all rights are transferred from the deposed royal house to the republican usurper after a long, uncontested amount of time. It gives “. . . rise to new rights of sovereignty [and royalty if the state is a monarchy] which cannot be questioned and which, by the principle of prescription, must not in the future be tampered with.”[79] Very simply, “. . . prescription involves the long-term . . . possession of territory with no [legitimate] claimant protesting the possession.”[80] It is so powerful that, “. . . Titles by prescription . . . [makes] the title [to the territory, kingdom or nation] incontestable so that it cannot be the subject of future wars or quarrels.”[81] In other words, “. . . The preservative principle of governments [is founded on] prescription. . . .”[82] Therefore, it not only destroys the right of sovereignty, it preserves them, depending on the situation involved.
Edmund Burke [in his book showed that] historical prescription . . . justifies the power of [reigning] monarchs [as well as] . . . the claims . . . of dethroned monarchs against the subversive claims of revolutionaries.[83]
But for the once rightful ruling house that fails, for an extended period of time, to consistently use its exalted titles and national arms and/or to officially protest properly the loss of their kingdom or territory, internal de jure sovereignty is transferred in total to the usurping or successor state. Prescription transfers all dynastic rights from one family to another or from the former kingdom to the new Republic as the case may be. It does not merely give a new dynasty or government, the rights of state, it takes the abandoned rights of the old dynasty and gives them in their entirety to the new one.
When we say, that things [sovereignty] may be acquired [transferred] by prescription, we must be understood to mean, not only corporeal [the territory or land of a nation], but likewise incorporeal things [the de jure sovereign and royal entitlements and rights that are attached to it].[84]
“. . . Prescription creates a new title by extinguishing the previously existing sovereignty [and royalty of a king, sovereign prince or exiled government].”[85] For a deposed monarchy this means they have no more royal rights and are legally and justly terminated as a royal house. This comes from being guilty of neglecting these rights for over a hundred years, or less in some cases in what is called in international law “ordinary prescription,” which will be explained later on. All they have left is that they have royal ancestors, but they are no longer royal themselves and no longer entitled to royal privileges or the royal prerogative. This means, they are no longer fountains of honor nor can they legitimately or rightfully bear exalted titles except by misrepresenting themselves as having something that neither they nor their relatives possess. However, because of the transfer of the full right to rule, the new “. . . government legalizes itself [or becomes legitimate and lawful] by prescription [over time].”[86] Thus we see that a king’s or monarch’s dynastic hereditary right or:
. . . institution is plainly conditional [it can end], and he may forfeit [or lose] his right to allegiance [whether reigning or deposed] as undeniably and effectually, as the subject may forfeit his right to protection.[87]
Prescription as a rule of justice and stability is considered to be so vital that it is part of the most necessary or fundamental law of all nations called the law of nature or natural law. Hugo Grotius made it clear that “. . . Prescription doth truly belong to the Law of Nature . . .” – the higher or most seminal and basic law on earth.[88] Edmund Burke declared that the solid rock of prescription is “rooted in its principles in the law of nature itself.” That is:
. . . on the solid rock of prescription; the soundest, the most general, the most recognized title between man and man that is known in municipal or public jurisprudence – a title in which not arbitrary institutions, but the eternal order of things gives judgment; a title which is not the creature [created by], but the master [that is, above and greater than] positive law; a title . . . rooted in its principles in the law of nature itself, and is indeed the original ground [or fundamental understanding] of all known property. . . .[89]
Edmund Burke made it explicitly and unmistakably clear that “the doctrine of prescription . . . is part of the law of nature.”[90] He further declared, “. . . that prescription not only is ‘a part of the law of nature’ but is ‘a great fundamental part’ of it.”[91] It is a pivotal principle of human nature and ownership.
. . . Society, as well as [ownership of] property, are natural to man; they are in accord with his condition [his likes, his needs, and his wants], being two indispensable elements of the peace . . . as constituted by his nature. Upon this principle [that of human nature], . . . prescription is legitimate [and fully in tune with his natural inclinations and aspirations for justice, equity, and an enriching or productive life].[92]
[By prescription] rights [of possession] that could with equal justice be conceived as timeless and universal thus were subjected to the logic of individual agency [the God-given right of freedom of choice], sovereign wills [the right to alienate whatever one owned such as the proprietary right to rule], and the passage of time. . . . [In other words, prescription] was [truly] founded on natural law [which always preserves sacred rights by rational common sense].[93]
Again, those precious rights that are always preserved by prescription and natural law were freedom of choice and the right of alienation both of which are integral and natural parts of life and liberty.
Although the passage of time [in prescription] had no direct effect, it did serve as a means to determine something that had a direct effect, namely, the intention of the injured party, even if no intention was formally expressed. And the injured party’s intention to surrender its right constituted proper grounds [for its surrender and] for turning what had begun as violent occupation into a legal right.[94]
The end result being that the complete right to rule was, in total not in part, naturally and automatically transferred from the acquiescent former sovereign, or his successors, to the new regime after a long period of time that demonstrates the obvious, that is, the voluntary free-will surrender of the former government or ruling house to the subsequent ruling entity. This, as already discussed, promotes something of infinite value and worth – the peace, finality and stability of all nations.
Natural law, which preserves the precious individual rights of mankind:
. . . is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.[95]
Natural law, being the highest law of life, is so in tune with the higher nature of man and his conscience that, “Prescription [which is part of it] is [naturally] sanctioned by a strong instinctive feeling . . . of our nature; and, in point of authority, [prescription is] the universal practice of mankind, in every age. . . .”[96] Without exception “. . . every civilized nation must ultimately fall back upon a prescriptive root of title [for the legitimacy and validity of their rights].”[97] This is because, there is something higher and greater than sovereignty and which controls its destiny. And this is not merely a legal reality, it is also a matter of common sense. Natural and divine laws are in truth greater and above the legal principle of sovereignty, because sovereignty was created by natural and divine law, not the other way around. Prescription, being an integral part of highest law of mankind, makes the sovereignty of both deposed dynastic houses and governments-in-exile answerable or accountable to its rules and principles.
Emerich de Vattel explained that international law “. . . consist[s] in a just and rational application of the law of nature to the affairs and conduct of nations and sovereign princes.”[98] Thus, “sovereign princes,” being the hereditary royal embodiment of all rights, as well as “nations,” are indeed subject to the rules of prescription, which is an important part of the “just and rational application of the laws of nature.” For the “Law of Nations” is nothing more or less than the “Principles of the Law of Nature applied to the Conduct and Affairs of Nations and Sovereigns.”[99] No wonder, “The majority of writers, as explained above, accept prescription as part of international law.”[100] In fact, prescription is supported “. . . even by the voluntary law of nations.”[101]
However good, wholesome something is, it will have enemies and critics, because there will always be people who disagree and see things through different paradigms. This is merely a part of the fundamental nature and disposition of mankind. However, it is usual or untypical for the majority of scholars or jurists to disagree on what is truly a just idea, legal rule or doctrine. The majority basically agree with each other. It is usually the minority that pushes for that which is in some way contorted, convoluted, but has some semblance of truth. Therefore, it is the majority that one should pay greater attention to, generally speaking. And “. . . the majority of writers are agreed that international rights may be acquired and lost by lapse of time.”[102] The minority [the lesser number or the few] are the ones who most often get things wrong.
. . . Some writers . . . lay themselves open to the imputation of mistaking their own [private] theories of what is just and fitting for the public law of the civilized world. [However] there can be no doubt [about prescription] . . . even in cases where possession was originally acquired by illegal and wrongful acts. It is difficult to see what other title the older state of Europe could put forward to the lands on which their people have been settled from time immemorial [other than by prescription].[103]
It is [also] difficult to see prescription, a valid legal basis for title, described as “defective” [or flawed in any way] or somehow outside the rule of law when, patently, prescriptive title is a legally valid acquisition mode involving the equitable concept of preclusion where an affected State fails to protest.[104]
Yet, “Some nineteenth century jurists [clearly not the majority] rejected the view that prescription is recognized under international law.”[105] However, it is only “. . . several jurists. . .” who felt this way.[106] Several means more than two, but not many. Their justifications can easily be countered chiefly because their ideas cannot stand up to good sound reasoning or the actual practice of nations. One article made the statement:
At the close of the Napoleonic wars in 1815, Europe was parceled out in the interest of dynasties and to preserve the balance of power, but no attention was paid to prescriptive rights or the claims of nationalities. Europe is now rearranging in the interest of peoples with reference to affinities of race, language, sentiments, but again no attention is paid to prescriptive rights. It is certain that the nations of the World do not recognize prescription as conferring absolute dominion. We may go further, and say that it is very doubtful whether they ought to do so. International prescription would not prevent a single war, nor the shedding of a single drop of blood. It would generally be invoked in the interests of power against the weak, of oppression against the oppressed; it would obstruct popular uprisings of peoples to shake off an old and hated yoke; it would sustain long-enthroned dynasties against the will of their subjects; it would perpetuate wrongs that none can speak of without indignation.[107]
There are a number of glaring problems with the above statement:
(1) instead of the nations ignoring prescription, prescription was the core principle in the resolutions upheld over and over again by the 1815 treaties in Vienna, which were acknowledged all over Europe after the great ruin caused by the Napoleonic wars,
(2) prescription, instead of being worthless in preventing war and bloodshed, helps prevent the destruction of life, because its preserving quality is a central feature of the rights of sovereignty, the most powerful international law on earth. Respect for the great principle of sovereignty keeps nations from meddling and interfering into each other’s private business and thus tends to promote peace between the nations, not war,
(3) prescription, like any law, cannot prevent the uprising of the people of any land, but, being a just law, it does not perpetuate wrongs and discontent. Rather, it promotes and encourages good law and order, which is the whole purpose, even the very heart and soul of sovereignty, as a benefit to mankind, and
(4) the objection that prescription is not “recognize[ed] as conferring absolute dominion,” is mute, because nothing on earth confers “absolute dominion.”
As a whole, the above quote confuses social and political realities with lawful and legal rights. The law of nations is never fully or perfectly recognized or lived by any nation on earth – all have violated the best ethical and moral interests of the world in some way or another at times in their history. But the law is still fully binding. It is still obligatory and proclaims what is lawful and right whether it is lived or not. The point is, what is ethically and morally right between nations must be upheld whether they are enforcement or not. Justice is not to be ignored, but it should be promoted as a shining ideal and never forgotten if civilization is to thrive and flourish, especially on an international level where the stakes are so high and the outcome is all too often either war or peace.
[Prescription therefore] is necessary to the tranquility of peoples, the safety of states, and the happiness of the human race, as a preventive of constant war and bloodshed.[108]
. . . If the de facto established possession could be forever contested [and not at some point be extinguished or terminated], disastrous consequences would follow, with a veritable chaos among the states. . . .[109]
“. . . The principle of prescription is indispensable in the interests of the security of states and the assurance of peace.”[110] As an example, the complaint was made in the 17th and 18th centuries that:
Among the evils engendered by the present age, there is no one [thing] perhaps more fatal [and dangerous] in its tendency, or contagious in its example, than that which is now become fashionable in Germany and the North, of reviving or setting up of obsolete and antiquated claims and titles. The dangerous success which has already attended this conduct, will extend the evil, if not timely and effectually checked, to the loosening of all security, and the rendering all [sovereign] property precarious.[111]
Many devastating and horrific problems were created over stale sovereignty claims, therefore, “. . . it is impossible not to recognize the want of a due appreciation of the importance of prescription as a check upon unnecessary territorial disturbance.”[112] Prescription is the answer to legally heal the past and move on. It “. . . is the sine qua non [that which is absolutely necessary] . . . to explain the legitimation of regimes with immoral beginnings.”[113] Being an essential requirement:
We must . . . admit the silence of generations, and the prescription of time, as an incontestable right, [because as a natural law] the prosperity and peace of the human race exact from us that this principle should be immutable and eternal. It is that [principle of right] which renders the territory which each people occupies, and the laws under which they live, inviolable.[114]
In other words:
. . . A long Prescription [50 to 100 years] . . . renders the Reign of the Usurper Peaceable and Lawful, and discharges them [the people] from the Obligation to return to the Obedience of their first Lord.[115]
The right to rule over a territory, nation, principality, or kingdom, had to be settled and not left forever open to potential trouble, which is what prescription is all about. Some of the greatest legal minds, “. . . Vattel and Wheaton . . . both admit [that] prescription founded on length of time [creates] a valid and incontestable title [for the usurper or new possessor].”[116] “These opinions are shared by nearly all publicists.”[117] (emphasis added) In fact, “We have good reasons to believe that nations are all in accord on this point, as it was something in the highest degree necessary to universal peace.”[118] The point is, “Prescription . . . is essential to the existence of society; and rests on reasons as valuable, if not more, in the society of States as in that of individuals.”[119]
For this and many other reasons, “. . . the majority of publicists [readily] admit [this],” because it is not only reasonable and necessary, but it is just.[120] (emphasis added) And “. . . [This] view . . . is in accord with international practice.”[121] So we may conclude that:
. . . Certain writers . . . deny [prescription] altogether, but incorrectly [and wrongfully] . . . [for] there unquestionably is . . . an international prescription, whether it be called “immemorial prescription” or by some other name.[122]
Prescription is justly [and rightfully] applicable . . . between nation and nation . . . the constant and approved practice of nations shows that, [again] by whatever name it be called. . . .[123]
The Judge or Umpire in the Gentini Case, declared that “. . . [t]he permanent court of arbitration has never denied the principle of prescription, a principle well recognized in international law, and it is fair to believe it will never do so.”[124] The reason is clear, “. . . for prescription is created, according to the concurrent testimony of every publicist, by possession during ‘time out of mind. . . .’”[125] (emphasis added) In fact:
. . . Judge Huber [in the Isle of Palmas case] held that the principle of “continuous and peaceful display of authority would prevail even over a prior definitive title.” This can be taken to mean that title by prescription overrides any other title based on occupation or conquest.[126]
The point is, “The existence in international law of the principle of ‘acquisitive prescription’ . . . is acknowledged by the majority of writers.”[127] However, even though the great majority, if not all, sustain prescription as something of great importance and worth, this is not the test of validity or truth as what is right is not always popular or upheld inviolate. The most important point is that prescription is part of the higher law, which is the immutable law for all people and all ages. This law, which is of great importance for the good and benefit of all people, will be addressed over and over throughout the book. It is the law of justice and right written in the deeper part of man. Hence:
. . . Most states . . . recognize prescription as a valid basis for claiming sovereignty over territory. . . . [and] the ICJ [the International Court of Justice] affirmed [or continues to support] the utility of prescription, as a device for acquiring [sovereign] property. . . .[128]
It is important to understand that prescription is not just for the ancients, it is still being used to bring about justice between nations with territorial disputes in the voluntary international courts of today. Three fairly current cases are:
(1) “Right of Passage over Indian Territory (1960)” Portugal claimed a right of passage for some villages it was said to have sovereignty over and which were surrounded by Indian territory. India, in this International Court of Justice case, lost by virtue of their “acquiescence” and Portugal’s continuous and undisputed display of sovereignty.[129]
(2) “Kasujuku/Sedudu (1999)” Even though “the ICJ . . . agreed that prescription was a rule of international law,” Namibia failed to prove it actually occurred.[130]
(3) “Sovereignty over Pulau Litigan and Pulau Sipadan (2002)” In a dispute between Indonesia and the Netherlands, the Court recognized the peaceful (that is, undisturbed by protest) and continuous display of State authority by the Indonesia government; such that, all Dutch de jure claims were dismissed as empty and invalid by virtue of their obvious negligence.[131]
The point is unequivocal:
The principle of extinctive prescription (bars of claims by lapse of time) is widely recognized as a general principle of law constituting part of international law; and has been accepted and applied by arbitral tribunals [in both modern times and throughout history to preserve and promote justice and fairness].[132] (emphasis added)
Although prescription is not called by its name in these courts:
. . . the continuous and peaceful display of sovereignty, or some variant thereof, was emphasized as the basis for title in the Minquiers and Ecrehos Case (France v. United Kingdom), the Anglo-Norwegian Fisheries Case (United Kingdom v. Norway) and in the Island of Palmas Arbitration.[133]
In fact, “The Roman Law of Prescription . . . [has] been employed by all the European powers . . . at one time or another.”[134] That is, in historical practice:
In their acquisition of non-European territory, the European states were guided by Roman principles and practices, that is, occupation of terra nullius, cession, prescription, inheritance, accretion, and conquest.[135] (emphasis added)
. . . The Institute of International Law itself has recognized that practical considerations of order, of stability and of peace [require the world to honor prescriptive law]. . . . Just as private individuals cannot remain subject to obligations indefinitely and under the permanent threat of legal action without any limitation of time, so the State likewise cannot be held responsible for an indefinite duration of time, or remain under the threat of an international [royal or sovereignty] claim which is subject to no limitation.[136]
In other words, “. . . [Prescription] whose exposition fills so large a head in municipal jurisprudence, is equally recognized, as reason dictates it should be, in international law.”[137] “State practice . . . clearly endorses the validity of the institution.”[138] In fact, “. . . the balance of authority is overwhelmingly in its favor.”[139] (emphasis added) In short:
. . . The idea that sovereignty is not subject to prescription – has not been retained, at least not in international law. Though there still are writers who uphold that idea [that sovereignty can never die], the majority rejects it.[140]
If [the] conditions are fulfilled, prescription is a title which is as good as any of the other modes of acquiring territory, and equally valid erga omnes [that is, greater than all other claims].[141]
Prescription extinguishes sovereign rights, unless there is an active, determined, and ongoing public protest by the robbed sovereign house or government-in-exile involved. The definitive wrong of usurpation can never be extinguished or blotted out, that is, the wrong cannot be healed or mended, unless the dynastic royal and/or sovereign claim is forsaken and therefore legally abandoned by being neglected for a long period of time – at least 50 years for “ordinary prescription” and 100 years for “immemorial prescription.” Otherwise:
. . . an absolute right [will be] accrued to the [usurping] State, not only against other nations who have no valid title [or claim in the situation], but even against the nation [state or kingdom] which was the true sovereign, and against the inhabitants of the district [or nation] itself.[142]
The whole future of deposed nobility and royalty is entirely dependent on royal houses being able to perpetuate internal sovereignty. Prescription is the only way that deposed sovereignty can be legally and lawfully maintained intact. Royal privileges and regal honors are based entirely and utterly on the right and privilege of internal de jure sovereignty. That is, all royal prerogatives, privileges and rights are merely appendages, attributes or aspects to the supreme authority of sovereignty, which is the highest secular authority on earth, and is, therefore, above royalty. Take sovereignty away on de jure level and there is no dynastic right left as these entitlements are merely auxiliary rights. They belong exclusively to the supreme, all-encompassing entitlement of sovereignty. In other words, once sovereignty is gone, all the qualities of jus imperii, jus gladii, jus majestatis, and jus honorum are lost. With the forfeiture of the right to honor, no legitimate right exists to operate a genuine order of chivalry, because there is no authentic jus honorum to provide the legitimate authority needed. This is where those who impersonate ancient royalty have no leg to stand on. They are without lawful authority. Yet, by their make believe claims, they often deceive and take advantage of the unsuspecting people who trust them. Such impersonations exemplify the repugnant crimes of fraud and deception. The rules and principles that can identify false claims, that is, what can maintain and destroy sovereignty, will be explained in due course and in great detail. These principles are of no small concern to the future of nobility and royalty.
This book will also include an examination of the origin of the state, the organic nature of the state, the origin of political authority, and the grounds of, and title to, political authority – all parts of the natural law. The moral claim of a de jure sovereign to sovereignty under the natural moral law can be completely established from this examination as a certainty. Likewise, the section on de jure sovereignty will also examine the criteria necessary under the natural law for the legitimate overthrow of a tyrant and the establishment of a lawful provisional government.
[1] Herodotus, “The Scythian Dominion in Asia,” The Journal of Sacred Literature, John Kitto, ed., vol. 4, no 7, April 1853, p. 24.
[2] Tanja E. Aalberts, “Politics of Sovereignty,” Agra Europe Weekly, Enschede: Febodruk, 2006, p. 16.
[3] Satinder Kumar, Metaphysical Polity in Ancient India, 2000, p. 60.
[4] Pittman B. Potter, An Introduction to the Study of International Organization, 1922, p. 24.
[5] Ibid., p. 33.
[6] A. London Fell, Origins of Legislative Sovereignty and the Legislative State: Medieval or Renaissance Origins?, 1919, p. 23.
[7] Jean Bodin, De la republique, i.c. 1576, p. 8 and Lassa Oppenheim, International Law, vol. 1, 1905, p. 104.
[8] James L. Brierly, The Law of Nations, 2nd ed., 1936, p. 36.
[9] Lassa Oppenheim, International Law, 8th ed., Hersch Lauterpacht, ed., 1967, p. 346.
[10] Benno Teschke, The Myth of 1648, 2003, p. 246.
[11] Ibid., p. 238.
[12] Ibid., p. 239.
[13] Ibid., p. 226.
[14] Ibid., pp. 37, 243.
[15] Ibid., p. 239.
[16] Mark A. Kishlansky, Patrick Geary & Patricia O’Brien, A Brief History of Western Civilization: the Unfinished Legacy, vol. 1, 4th ed., 2004, p. 188.
[17] Bruce M. Russett, Harvey Starr and David Todd Kinsella, World Politics: the Menu of Choice, 8th ed., 2006, p. 56.
[18] Benno Teschke, The Myth of 1648, 2003, p. 245.
[19] Ibid., p. 231.
[20] Charles Edward Merriam, History of the Theory of Sovereignty since Rousseau, 1900, p. 377.
[21] Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy, 2006, p. 57.
[22] Article 38 of the Statute of the International Court of Justice: 2011: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.
[23] The Judge Advocate General’s School, The Military Law Review, vol. 107, 1985, p. 30.
[24] “In early modern treatises on political philosophy, it is sometimes said that the state is a perfect society. By this is meant not that the state is without flaw, but that it is a complete society, having full temporal power to impose its order on its constituents, without needing to appeal to some larger structure. A provincial or local authority, by contrast, is imperfect since there are matters in which it must appeal to some higher governing body. The idea that the state is a perfect or complete society is implicit in modern international law, where states are not considered to be subordinate to any international body, being presumed fully competent to manage their affairs without coercive external interference.” (Daniel J. Castellano, A Basic Lexicon of Political Philosophy, 2011: www.arcaneknowledge.org/histpoli/politerms.htm). (emphasis added).
[25] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, p. 461.
[26] Ibid., p. 464.
[27] Georg Jellinek, Das Recht des Modernen Staates, 1901.
[28] Aristotle, Aristotle: Politics, Benjamin Jowett, trans., Book 7, no. 8.
[29] Robert A. Graham, S. J., Vatican Diplomacy, 1959, p. 229.
[30] St. Thomas Aquinas, Summa Theologica, vol. 2, part 2, sec. 2, reply obj. 3, 2007, p. 995.
[31] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, p. 464.
[32] Positivism is the secularist conception of law under which the exclusive criterion of legality is that it emanates from the legislative organ in a constitutionally prescribed form. Positivism denys the natural law which holds that all human laws contrary to it are void ipso facto.
[33] Heinrich A. Rommen, The State in Catholic Thought, 1945, p. 405.
[34] As Canon Cronin observes in The Science of Ethics, vol. 2, chap. 15, p. 580, this “. . . is what John Oliver Hobbes describes as the ‘desolate freedom of the wild ass,’ meaning the power to do what one pleases, unrestrained by any requirements of law, or moral duty, or social obligation, or dictate of human reason of any kind. Such freedom is valueless to creatures of reason, and scarcely even merits the name of freedom; for without law there can be no guarantee of protection, and without a guarantee of protection no man is his own master – his life, his possessions, and his rights being opened to invasion at any moment.”
Nevertheless, “. . . according to Rousseau ‘each one is united to all, but nevertheless obeys only himself and remains as free as before.’ This theory exerted a baneful influence at the time of the French Revolution for it destroyed all lawful authority and threw society into a maelstrom of confusion.” (Rev. John C. Rager, S.T.L., Political Philosophy of Blessed Cardinal Bellarmine, 1926, p. 106)
[35] Freedom in the natural law sense is the ability to make a rational choice based on right reason. It is in essence a spiritual prerogative, freeing man from the restraint of matter. But the spiritualizing effect of freedom is not easily won nor easily preserved. It must be won and preserved against the forces in the world that oppose man’s true freedom. It has its enemies both inside of and outside man.
Outside man there is force or violence used against a man’s will. Within a man there are fear, concupiscence, and ignorance which can weaken or destroy man’s freedom. The most obvious enemy of freedom is violence or force which is applied to man from the outside. It cannot alone destroy the freedom of man’s will.
The really dangerous enemies of freedom come from within man: fear makes a man do something that he would not wish to do in ordinary circumstances. Still, unless it is so powerful that it destroys man’s power to know what he is doing, there is still an element of voluntariness to his act although the moral culpability may be considerably diminished. Concupiscence or desire may influence a man’s will through its urgency.
Freedom, though, is only destroyed when the strength and vehemence of the concupiscence destroy his power to know what he is doing. Ignorance is the worse enemy of freedom as freedom is based on man’s ability to know his legitimate goals and through right reason seek the means that lead to the goal.
Thus, ignorance prevents man from seeking either the proper goal or the right means to a proper goal. Ignorance can well be voluntary through man’s refusal or neglect to learn . . . in this case it leads him to abuse freedom. The true meaning of a man’s acts is determined not only by the inner freedom of his decisions but also by the concrete conditions under which he acts.
The actual condition in which a human act is done can influence the direction of the act to man’s ultimate goal. The chief circumstances which affect the significance of a human act are found in the answers to the questions “Who, what, where, by what aids, why, how, and when?” The use man makes of his freedom determines his final destiny. The direction in which his freedom takes him can be influenced by fear, concupiscence, and ignorance within him and by the actual circumstances in which his acts are done.
[36] Rommen, The State in Catholic Thought, p. 404.
[37] Peter James Stanlis, Edmund Burke and the Natural Law, 2003, p. 80.
[38] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, pp. 545-546.
[39] Thus Robert A. Graham, S. J., mentions in Vatican Diplomacy, 1959, pp. 24-25, that Napoleon instructed his envoy to the Holy See to “deal with the Pope as if he had two hundred thousand men at his command.” Winston Churchill recollects that when Stalin posed his famous question to French Foreign Minister Pierre Laval as to “How many divisions has the Pope?” “Laval’s answer was not reported to me; but he might certainly have mentioned a number of legions not always visible on parade.” The point, of course, is that a non-territorial sovereign may weld great moral suasion, like the Holy See, or may be an excellent conduit for diplomatic action and negotiation with other states, like the Sovereign Order (Knights) of Malta. Both aid when disaster strikes, and the Sovereign Order of Malta, originating as a military organization specializes in medical missions to war-torn lands. Both are excellent sources of diplomatic information and may be counted on to perform unusual and highly confidential diplomatic missions when requested by the receiving state. The widespread diplomatic recognition that both have received is indicative of the esteem and value in which they are held by the international community.
[40] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, pp. 546-548.
[41] The encounter of love and misery gives birth to mercy, which is therefore one of the essential forms of charity, situated in the very heart of the Judeo-Christian Western tradition (Thomas Aquinas, Summa Theologica 2a, 2ae, 30). Mercy is compassionate sorrow at another’s misfortune together with a will to alleviate it.
The Spiritual Works of Mercy are: (1) to instruct the ignorant; (2) to admonish sinners; (3) to bear wrongs patiently; (4) to forgive offences; (5) to comfort the afflicted; (6) to counsel the doubtful; and (7) to pray for the living and the dead.
The Corporal Works of Mercy are: (1) to feed the hungry; (2) to give drink to the thirsty; (3) to clothe the naked; (4) to shelter the homeless; (5) to visit the sick; (6) to ransom the captive; and (7) to bury the dead. These works of mercy demand a spirit of service, the attention of love, and the sincerity of compassion: “I have given you an example . . .” the Lord said (John 13:15). The performance of these works was characteristic of the life of Christ who, as St. Peter expressed it, “went about doing good” (Acts 10:38).
The explicit word of God is a challenge to those sharing the Western religious tradition: “I desire mercy, and not sacrifice” (Os. 6:6 DV); “God who is rich in mercy, by reason of his very great love wherewith he has loved US” (Eph. 2:4) wants us to be united with Him and to come to know the joy of giving as He has given. The Holy See and the Sovereign Order of Malta are merely following God’s command in performing their well-known acts of mercy.
[42] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, pp. 554-556.
[43] Lassa Oppenheim, International Law: a Treatise, vol. 1, 1905, p. 109.
[44] Convention on Rights and Duties of States, Montevideo, 1933, art. 1,49 stat. 3097, T.S. No. 881.
[45] Note: “. . . Jus honorarium, which comes from the possession of sovereignty as the other powers that characterize the sovereignty itself (such as jus imperii, jus gladii and jus majestatis) survives . . . when the effective exercise of jus imperii and jus gladii is suspended [not destroyed, but merely becomes dormant and inactive] by the loss, for example, of the effective control over a country.” (Sanchez Ramirez de Arellano, “The Jus Honorum and the Beach,” Guy Stair Sainty, ed., 2011: www.chivalricorders.org/royalty/fantasy/vigo.htm).
[46] Hugo Grotius, The Rights of War and Peace, Book I, chapter 4, no. 24.
[47] Richard W. Mansbach and Kirsten L. Rafferty, Introduction to Global Politics, 2008, p. 66.
[48] John Stephen Wright & John Holmes Agnew, Citizenship Sovereignty, 1883, p. 87.
[49] Jack Donnelly, “State Sovereignty and Human Rights,” 2011: http://mysite.du.edu/~jdonnell/papers/hrsov%20v4a.htm.
[50] Katherine L. Lynch, The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration, 2006, pp. p. 52-53.
[51] Charles Edward Merriam, History of the Theory of Sovereignty since Rousseau, 1900, pp. 375-376.
[52] Jack Donnelly, “State Sovereignty and Human Rights,” 2011: http://mysite.du.edu/~jdonnell/papers/hrsov%20v4a.htm.
[53] John C. Calhoun, “Disquisition on Government,” Works, vol. 1, 1851, p. 146.
[54] Charles C. Marshall, The Roman Catholic Church in the Modern State, 1931, p. 313.
[55] Emerich de Vattel, The Law of Nations, Book 1, chapter 15, no. 188.
[56] Michael Canon Cronin, The Science of Ethics, vol. 2, 1929, p. 635.
[57] Ibid., p. 637.
[58] Ibid., p. 638.
[59] Ibid., pp. 638-639.
[60] Ibid., p. 639.
[61] Ibid., p. 641.
[62] Ibid., p. 643
[63] Ibid., pp. 644-645.
[64] Robert Phillimore, Commentaries Upon International Law, vol. 1, chapter 1, nos. 22 and 23, 1854, pp. 15-16.
[65] Ibid., no. 34, p. 26.
[66] Ibid., note (q).
[67] Ibid., chap. 3, no. 35, p. 64.
[68] John B. Hallowell quoted from the “Foreword” in Yves R. Simon, The Tradition of Natural Law, 1992, p. vii.
[69] James A. Donald, “Natural Law and Natural Rights,” 2011: http://jim.com/rights.html.
[70] Ibid.; Note: Natural law, morality, justice and ethics are misunderstood, unfairly judged and condemned by some without ever bothering to deeply understand it or properly define its terms. But “The theory of natural law, attacked and rejected many times, always comes back with fresh energy.” (Yves Simon, The Tradition of Natural Law, A Philosopher’s Reflections, Vukan Kuic, ed., 1992, p. 3) It eternally and everlastingly returns time and time again because it is true and because people can sense this truth deep down in their most innate being.
[71] Stephen Covey, Principle-Centered Leadership, 1991, pp. 18-19; Note: “. . . The 'natural law' tradition . . . is a conviction which gives substantial meaning to what civilized men through our history have called 'the rule of law.' It lies at the very root of what we call constitutional government. . . . It asserts that there are certain ways of behaving which are appropriate to man simple by virtue of the fact that he is a human being. It presupposes that it makes sense to speak of 'human nature,' that man has a nature as well as a history.” (John B. Hallowell quoted from the “Foreword” in Yves R. Simon, The Tradition of Natural Law, 1992, pp. vii-viii).
[72] John B. Hallowell quoted from the “Foreword” in Yves R. Simon, The Tradition of Natural Law, 1992, p. viii.
[73] James A. Donald, “Natural Law and Natural Rights,” 2011: http://jim.com/rights.html.
[74] “International Military Tribunal [Nuremberg] Judgment and Sentences, October 1, 1946,” American Journal of International Law, vol. 41, 1947, p. 172.
[75] Ibid.
[76] Ibid.
[77] John Stephens Wright, Citizenship Sovereignty, 1868, p. 26.
[78] “The Crown and the Constitution,” The Living Age, vol. 137, Eliakim Littell and Robert S. Littell, eds., April-June 1878, p. 524.
[79] Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice, 1996, p. 17; Note: How prescription works is that, “. . . a State [kingdom, principality or republic] has at some past time obtained possession of certain territory, either rightfully or wrongfully; that it has continuously retained possession of that territory [or whole country], claiming and asserting sovereignty and dominion over the same; that such possession and claim have lasted for a sufficient period of time; and that thereby an absolute [irrefutable] right has accrued to the State, not only against other nations who have no valid title, but even against the nation which was the true sovereign, and against the inhabitants of the district itself.” (John Norton Pomeroy, Lectures on International Law in Time of Peace, Theodore Salisbury Woolsey, ed., no. 117, 1886, p. 120) This transfer of all rightful sovereignty from the deposed to the usurper cannot happen without the royal house or government-in-exile discarding their claim through neglect.
[80] James Francis Gravelle, “The Falkland (Malvinas) Islands: An International Law Analysis of the Dispute between Argentina and Great Britain,” Military Law Review, vol. 107, 1985, p. 24; Note: “Another [valid or legitimate] claimant [such as, an heir to the throne] or a dispossessed sovereign [such as the king or monarch by whatever name he is called] can bar the establishment of title by prescription.” (Rebecca M. M. Wallace, International Law, 1997, p. 97 as quoted in Florencia E. Mallon, Decolonizing Native Histories: Collaboration, Knowledge, and Language in the Americas, 2012, p. 76)
[81] Ibid., p. 26: Note: “The procedure [of international prescription] is thus applicable only when a right of sovereignty is already in existence [there is a deposed monarch or government-in-exile involved], and when the attempts to transfer it mark an initial and constant defiance of the claims of the [the original] possessor [that is, by the original sovereign entity], and when also [in the process of time] the conduct of that [original sovereign] reveals long-continued toleration of, or acquiescence in, the process of deprivation.” (Charles Cheney Hyde, International Law, vol. 1, 2nd revised ed., 1947, p. 386).
[82] “An Essay on the Origin and Principle of Sovereign Power,” The Critical Review, or, Annals of Literature, Tobias George Smollett, ed., vol. 9, no. 1, article 7, 1807, pp. 62-63.
[83] Norberto Bobbio, Democracy and Dictatorship: The Nature and Limits of State Power, 1989, p. 85.
[84] Thomas Rutherforth, Institutes of Natural Law, 1832, p. 65.
[85] S. K. Verma, An Introduction to Public International Law, 2004, p. 122; Note: “[A] descendant [of a Usuperer], who has received an authority peacefully transmitted through many generations may not be attacked because that authority was originally usurped. William the Conqueror was a usurper; but that fact would be a bad justification of rebellion against Henry the 6th of England [meaning the current government because time gives legitimacy if the former rulers fail to protest and neglect their claim by silence and acquiescence]. . . . [However] it is clear that as long as the antecedent [that is, the prior] government which the usurping revolution upsets and supersedes, exists at all, the intruding power may be resisted; the former prescription [the sovereign right of the rightful prince and/or his successors] still exists [intact]. It is equally clear, that when [the usurping or new royal house is] firmly established, and all trace of the antecedent government has vanished [or been neglected, deserted or abandoned for a 100 years] and become a [mere] tradition of the past, the existing government cannot be impeached for the badness of its origin.” (“The Rights of Governments, etc.,” The Dublin Review, vol. 50, August 1861, p. 415) This is because the successor house has been legitimated and has become the true and rightful government by the abandonment or neglect of the former house.
[86] “An Essay on the Origin and Principle of Sovereign Power,” The Critical Review, or, Annals of Literature, Tobias George Smollett, ed., vol. 9, no. 1, article 7, 1807, pp. 62-63.
[87] Henry St. John Bolingbroke, Viscount, The Works of Lord Bolingbroke, vol. 2, 1841, p. 85.
[88] Samuel Pufendorf, Of the Law of Nature and Nations, Book 4, chapter 12, no. 8, p. 357.
[89] John Norton Pomeroy, Lectures on International Law in Time of Peace, 1886, pp. 122-123.
[90] Francis Canavan, “Prescriptions of Government,” Edmund Burke: Appraisals and Applications, Daniel Ritchie, ed., 1990, p. 251.
[91] Edmund Burke, Reflections on the Revolution in France, J. G. A. Pocock, ed., 1987, p. 133.
[92] Don Antonio Riquelme as quoted in Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898,p. 279.
[93] Constantin Fasolt, The Limits of History, 2004, p. 114-115.
[94] Ibid.,, p. 114.
[95] Emerich de Vattel, The Law of Nations, “Preliminaries,” nos. 8-9.
[96] Edward Smedley and Hugh James Rose, Encyclopaedia Metropolitana; or, Universal Dictionary of Knowledge, vol. II, no. 118 “Prescription,” 1845, p. 707.
[97] Frederick Edwin Smith, Earl of Birkenhend, International Law, 2009, p. 63.
[98] Emerich de Vattel, “Vattel’s Law of Nations: Principle of the Law of Nature,” The Monthly Review or Literary Journal, vol. 23, 1760, p. 105.
[99] Emerich de Vattel, the full title of the book on international law, The Law of Nations.
[100] “Island of Palmas Arbitration,” American Journal of International Law, vol. 22, 1928, p. 46.
[101] Quoting Vattel in L. C. Green, “The Views of the Positivists,” The Law of Nations and the New World, L. C. Green, Olive Patricia Dickason, eds., 1989, p. 77.
[102] Frederick Edwin Smith, International Law, 4th ed., 1911, p. 70.
[103] Thomas J. Lawrence, The Principles of International Law, 1895, p. 159.
[104] Ralph J. Gills, Navigational Servitudes, 2007, p. 238.
[105] William Slomanson, Fundamental Perspective of International Law, 6th ed., 2011, p. 298.
[106] Sir Robert Phillimore (1810-1885) as quoted in Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898,p. 267.
[107] John Norton Pomeroy, Lectures on International Law in Time of Peace, Theodore Salisbury Woolsey, ed., no. 117, 1886, pp. 130-131.
[108] “Prescription in International Law,” The Nation, vol. 11, (October 20, 1870), no. 277, 1879, p. 253; Note: “The tranquility of the people, the safety of states, the happiness of the human race, do not allow that the possessions, empire, and other rights of nations should remain uncertain, subject to dispute, and ever ready to occasion bloody wars.” (Emerich de Vattel, The Law of Nations, chapter 11, no. 149).
[109] Pasquale Fiore, International Law Codified and its Legal Sanction, Edwin M. Borchard, trans., no. 1081, 1918, p. 421.
[110] “Prescription in International Law,” The Nation, vol. 11, (October 20, 1870), no. 277, 1879, p. 253.
[111] Edmund Burke, Dodsley’s Annual Register, 4th ed., 1773, p. 8.
[112] William Edward Hall, A Treatise on International Law, 7th ed., note 1, 1917, p. 121.
[113] James Daly, Sir Robert Filmer and English Political Thought, 1979, p. 121.
[114] “Report of the Committee of Public Safety on the Principles which the French Republic ought to adopt in her diplomatic System, made in the Convention of November, 1794, by Eschassereriaux the Elder,” A Collection of State Papers, relative to the war against France, vol 2, 1795, p. 220.
[115] The Miscellaneous Remains of Cardinal Perron, President Thuanus, Monsr. St. Evremont, &c. Abridg’d and done into English, 1707, p. 109.
[116] United Nations, Reports of International Arbitral Results, vol. 2, Island of Palmas case (Netherlands, USA), 4 April 1928, 2006, p. 840; Note the following quote with explanations: “. . . The presumption of law from undisturbed [unprotested] possession being, that there is no prior owner, because there is no claimant [that is, undisturbed means no one has made a counter claim, therefore there is, in effect, no other claimant or no one holds a] better proprietary right [than the possessor], because there is no asserted right [no one else has made a complaint or protested the possessor’s right to rule]. [In other words] the silence of other parties presumes their acquiescence [acceptance or consent]: and their acquiescence [of the situation] presumes a defect of title on their part [otherwise they would have protested], or [their acquiescence presumes a full and complete agreement with the new situation therefore it is legally presumed to be] an abandonment of their title. A title once abandoned, whether tacitly or expressly, cannot be resumed [because it is legally terminated or has come to a complete and total end].” (Sir Travers Twiss, The Oregon Territory: its History and Discover, 1846, p. 124).
[117] Theodore S. Woolsey, “Prescription,” Universal Cyclopaedia and Atlas, vol. 9, Charles Kendall Adams and Rossiter Johnson, eds., 1902, p. 456.
[118] Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898, p. 243.
[119] Ibid., p. 299.
[120] Amos Shartle Hershey, The Essentials of International Public Law, 1918, p. 180.
[121] Ibid.
[122] Robert Phillimore, International Law, vol. 1, 3rd ed., 1879, pp. 362-363.
[123] Henry Wheaton, Wheaton’s Elements of International Law, 5th ed., Coleman Phillipson, ed., 1916, p. 268.
[124] Ashraf Ray Ibrahim, “The Doctrine of Laches in International Law,” Virginia Law Review, vol. 83, no. 3, April 1997, p. 661.
[125] “A Cambridge Jurist,” The Second Congress and the Russian Claim to the Isle of Serpents and Bulgrad, 1857, p. 9.
[126] “Island of Palmas Arbitration,” American Journal of International Law, vol. 22, 1928, pp. 867, 884 and pp. 46-47.
[127] Surya P. Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 112.
[128] William Slomanson, Fundamental Perspective of International Law, 6th ed., 2011, p. 298; Note: Jean Barbeyrac declared that Grotius “. . . holds, that even in those countries, where Prescription is not authorized by the Civil laws, it takes place in regard to Things relating to Sovereignty.” (Hugo Grotius, The Law of War and Peace, Jean Barbeyrac, ed., Book 2, chapter 4, commentary on no. 12)
[129] Randal Lesaffer, “Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription,” The European Journal of International Law, vol. 16, no. 1, 2005, p. 53.
[130] Ibid.
[131] Ibid., pp. 54-55.
[132] Greenriver Enterprizes Six Nations, Inc., et al., v. United States (Decisions on Objections to Jurisdiction, 20 July 2006.
[133] Matthew Carven, “Continuity of the Hawaiian Kingdom,” Hawaiian Journal of Law and Politics, vol. 1, Summer 2001, p. 519.
[134] Anthony Pagden, “The Christian Traditions,” States, Nations, and Borders: The Ethics of Making Boundaries, Allen E. Buchanan and Margeret Moore, eds., 2003, p. 114.
[135] Robert Jackson, Classical and Modern Thought on International Relations: From Anarchy to Cosmopolis, 2005, p. 84.
[136] F. V. García Amador, Louis Bruno Sohn and Richard R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens, 1974, pp. 83-84.
[137] Archer Polson, Principles of the Law of Nations, 1860, p. 32; Note: “. . . the uninterrupted possession of territory, or other property, for a certain length of time, by one State, excludes the claim of every other; in the same manner, as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property.” (Henry Wheaton, Wheaton’s Elements of International Law, 5th ed., Coleman Phillipson, ed., 1916, p. 268)
[138] Myres S. McDougal and W. Michael Reisman, International Law in Contemporary Prespective: the Public Order of the World Community, 1981, p. 668.
[139] Thomas Joseph Lawrence, The Principles of International Law, 5th ed., 1910, p. 166.
[140] Eelco Nicolaas van Kleffens, Academie de Droit International de La Ha, vol. 82, 1954, p. 85.
[141] Georg Schwarzenberger, International Law, vol. 1, 1949, p. 141.
[142] Ibid.; Note: “It has . . . been contended that a doctrine of international prescription is inconsistent with the principle, ‘nullum tempits oaurrit reg,’ [which means ‘no time runs against the king.’]. . . . [However] this principle applies only as between individuals and the sovereign.” (“Prescription in International Law,” Harvard Law Review, vol. 17, no. 5, March 1904p. 346) It does not apply to a deposed monarch, and his lawful successors, who are manifestly guilty of over one hundred years of continual negligence in deserting their once rightful and solid claim to the throne of their forefathers.
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