Chapter Four: 
(Volume I)
BROKEN PROMISES
Chapter Table of Contents
Introduction
History is replete with the many wrongs committed toward people and their rightful governments. For example, a number of European kings after World War I were forced, by threat of coercion and continued violence, to abdicate. When there is true coercion, not by uncertain whim or caprice, any agreement, treaty, abdication or contract becomes void and empty of legal effect. It was not free-will that made these kings and sovereign princes bow the knee to their enemies who had overpowered them. It was blackmail – the crime of saying, in effect, "Surrender in not enough. Unless you abdicate, we will continue to kill our hostages – not just your troops, but your innocent people who get in the way of our desire to subjugate you and force you to do as we say." The Allied armies in World War I and the politicians refused to accept a number of honest surrenders, because they wanted to force or push Europe into becoming democracies, which was a violation of their sovereign rights as nations. The threats of the Allies were to be carried out until the monarchs abdicated. However, these extorted abdications were invalid since they were made, in effect, at the point of a gun. Duress of this magnitude makes abdications and other agreements invalid. Hence, these kings were robbed by foul play of their birthright. There is no question about what was morally or ethically right or wrong in this situation. It is clear that the abdications were null and void. Other examples of such wrongs are scattered throughout the pages of history.
The Right to be Restored in International Public Law
Prescriptive law acknowledges and sustains the rightful and legitimate claims of valid deposed governments, but it does not recognize imposters or counterfeiters. No one should. But, the unjustly deposed that have perpetuated their rights are morally, ethically, and legally full and complete sovereigns without territory. They should be recognized as having one of the greatest of all honors, the right of supremacy above all others to rule and reign, even though the rightful royal house is never restored to their rightful place. They should, nonetheless, be given proper acknowledgment, even if restoration is completely out of the question.
The fact is, no dispossessed former monarch or ruler, no matter how flawless and perfect their claim is, should ethically and morally be restored to modern de facto power without the consent of the people involved. ". . . A title . . . acquired by prescription is only good internationally, and does not bar any right which the inhabitants of [an] appropriated territory may have. . . ."[1] Everything must be done cooperatively and by mutual consent for it to not violate what is ethically and morally right. Even in ancient times, although David of old was the Lord’s anointed king of Israel as a very young man, he was only a de jure non-territorial, non-reigning monarch for at least a decade. He did not become the de facto or actual ruling king until the people accepted him, because armed conflict, force and coercion are always to be avoided, where possible, for the good and benefit of all mankind.
This international legal right to be restored, obviously, is rarely ever implemented, but the legal experts, scholars and international organizations who proclaim this legal and rightful entitlement are witnesses to the fact that the right exists. It is part of international law. Its message is that rightful deposed sovereignty is as real as reigning sovereignty in international law.
In the 1997 General Recommendation XXIII, the UN Committee on the Elimination of Racial Discrimination, stated concerning “indigenous peoples” that “where they have been deprived of their lands and territories traditionally owned . . . without their free and informed consent, [we should] take steps to return these lands and territories.”[2] There is an obvious and very important moral principle here:
For example, a man may violate your right to your property by taking it away from you, but your right to that property has not been alienated [you still hold the right], i.e., you are in the right and the robber is in the wrong.[3]
All too often restoration never happens; nevertheless, it is recognized as a “right” or a just and ethical entitlement. That is, it is universally acknowledged as something that is fair and rightful or “ought” to take place. In addition, what is morally right for one group, who was robbed of their rightful possessions, is just as right and proper for others in the same predicament. That is, using the same words and same philosophy, “where they [the former kings, princes, and/or governments-in-exile] have been deprived of their lands and territories traditionally owned . . . without their free and informed consent, [we should] take steps to return these lands and territories [to their rightful heirs]”[4] A “right” is by definition, “A just claim, either moral or legal, upon a society.”[5]
Charles Maurice de Talleyrand-Perigord (1754-1838), one of the greatest diplomats of the 19th century, declared that, “. . . [Legitimacy] requires that the crown [of a deposed monarchy] be returned to him to whom it belongs.”[6]
Hugo Grotius, one of the most respected authorities on international law, wrote in different words the same thing. He explained, “As things [stolen] are to be restored to their original owners, so subjects are to be restored to their former lawful sovereigns.”[7] What represents true justice for the indigenous can equally be applied to the disposed kings, princes, and legitimate governments-in-exile, who were also wrongfully robbed of their priceless heritage and possessions, including the right to rule and govern in their own lands. The following, although not fully approved by the United Nations, represents what is morally right in terms of the basic principles of justice:
Indigenous peoples [as well as deposed kings and lawful government] have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples [kings and princes] concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status.[8]
At the heart of the 1814-1815 Congress of Vienna, we find that, “the idea of Legitimacy [based on prescription] was the belief that displaced monarchs . . . were the rightful rulers of their nations and should be restored to power.”[9] In more modern times, this doctrine has been reiterated as a cornerstone philosophy of international law in occupation situations. Article 43 of the 1907 Hague Convention, states:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.[10]
The Regulations make of the occupying power a trustee for the sovereign [king, prince or government] in exile, for whom the occupant administers the territory until a return [and restoration] is negotiated [and accomplished].[11]
There is strong and powerful legal and moral precedence for the idea that those who have been robbed should be restored to their property or their rights. In obedience to this principle, the Emir (or king) of Kuwait was restored to power after his country was liberated from Iraq by the Allied Forces in Gulf War of 1991. Emerich de Vattel declared:
. . . If the bona fide possessor [the de facto ruler or republic] should discover, with perfect certainty, that the claimant is the real proprietor [the real de jure sovereign], and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution [not just compensate, but give back to the rightful ruler what he or she truly owns the right to, that is, the de facto rule of his own country].[12]
From the 17th century, Samuel Pufendorf declared:
. . . the Obligation to Restitution doth not expire, till the expell’d Prince and his Heirs, who had a Right of succeeding, are all deceas’d; or till such an unfortunate Prince hath quite [meaning completely] abdicated, or relinquished his Claim to the Kingdom: and this he is presumed [or legally assumed] to have done, as by other Inclinations. . . .[13]
The indications by which we may assume abandonment of royal rights and privileges are acts of silence, acquiescence, neglect to protest or speak up when one should, or a failure to use exalted titles and the symbols of rightful monarchy to make it eminently and unmistakably clear that the entitlements of regal sovereignty are not abandoned. Hence, as long as the royal house maintains their rights through the rules and principles established, they keep them. And as long as they keep them, the right to restitution is maintained and perpetuated. Prince de Talleyrand-Périgord declared:
[Legitimacy] does not require that [an overthrown republic must] be restored [unless there is a true and valid government-in-exile is in existence] whereas [legally and lawfully, legitimacy] does require that the crown [of a deposed monarchy] be returned to him to whom it belongs. Thus is manifested the excellency of the monarchical government, which, more than any other, [legally] guarantees the preservation and the perpetuity of [either reigning or non-regnant sovereignty].[14]
In modern times, we have “The Atlantic Charter” agreement that again recognized as morally just and right that “sovereign rights and self-government [be] restored to those who have been forcibly deprived of them.”[15] However, the international system cannot force a restoration of a rightful king, sovereign prince, or deposed government onto any nation or country. The International Court of Justice, nor any other international tribunal, can compel or coerce obedience to its decrees. The reason is that international law is voluntary or by the sovereign consent of nations. The principle of non-interference in the internal or domestic affairs of a nation is a fundamental principle of international law, which has been enshrined in Article 2(7) of the United Nations Charter. This means by law, “. . . [to interfere is illegal and unlawful] either for the purpose of the ‘restoration’ of a depose sovereign, or the ‘reintegration,’ to their former sovereign [to his lands and people unless invited to do so, is prohibited]. . . .”[16] For example:
No state is authorized to render assistance to provinces or colonies which are in revolt against the established government. . . . If the right of interference, – in favor of liberty for instance, – be once admitted, the door is open [for all kinds of uninvited meddling or] interfering by taking part in every quarrel.[17]
Interference in support of insurrection against the recognized government can hardly hope to find justification from the principles of international law [because it is contrary to international law].[18]
This 1860 statement was reiterated, confirmed, and validated not only by the Charter of the United Nations itself in 1945, but more recently in a 1981 General Assembly resolution, which stated:
1. No State or group of States has the right to intervene or interfere in any form or for any reason whatsoever in the internal and external affairs of other States.
2. The principle of non-intervention and non-interference in the internal and external affairs of States comprehends the following rights and duties:[19]
Among the rights and duties specified, it stated that States were to “. . . refrain . . . from the threat or use of force in any form whatsoever. . . .” Or from subversive activities, overt or covert, or “. . . the promotion, encouragement . . . of rebellious or secessionist activities . . . under any pretext whatsoever. . . ,” [or] “. . . from any . . . activity in the territory of another State without its consent.” Human rights and self-determination were specifically mentioned in this resolution, but the right to interfere or intervene was not granted unless authorized under the Chapters VI and VII of the UN Charter under the auspices of the Security Council and then only under highly extreme situations approved by such Council.[20] This non-binding statement reaffirms the principle of sovereignty as the supreme right within a nation to make its own decisions. “. . . International law [has] from time immemorial held the concept of sovereignty and its key feature, the principle of non-interference in high esteem . . . ,” except under severe situations, therefore, states, being sovereign (even if they only hold de facto authority and external recognition or imperfect title), are by law at liberty to pursue their legitimate and lawful goals without being forced or coerced by outside forces. No one, therefore, can compel a state to restore its lawful government or former monarchy even though it is legally, morally, and ethically required to. The reason is that international law is “Voluntary” and states are recognized as having the power to exclusively govern their own affairs. The point being:
The sovereign State does not [have to] acknowledge a central executive authority above itself; it does not [have to] recognize a legislator above itself; it owes no obedience to a [world] judge above itself.[21]
They are independent. This is what is called external sovereignty or the right of non-interference, which is a seminal or essential part of sovereignty in international law. In the judgment of the Palmas Case in 1928, Judge Huber asserted that:
Sovereignty . . . signifies independence. Independence in regard to a portion of the globe is the [internal] right to exercise [the right to rule] therein, to the exclusion of any other State, the [full] function of a State.[22] (emphasis added)
Another reason why deposed sovereignty is unlikely to be restored is that:
To vindicate the right of the [unjustly] deposed sovereign against them [the illegal revolt or conquest of the usurper] is a legal impossibility, because the conqueror [whether by revolution or conquest], by rending asunder their [the people’s] hitherto existing allegiance, forces them as subjects into his power.[23]
The result is:
. . . The majority of the [people] are not in a position to withdraw themselves from the new dominion, [therefore] they must yield themselves up to it, and become thereby, de facto, his subjects.[24]
In other words, time does a lot of damage to the rightful owners or rulers:
Long possession [ultimately] forms an attachment betwixt the possessing king [or his successors] and his subjects and an expectation that he should govern them; and at the same time detaches [dampens] the former king [and his rightful heirs] from the affections and expectations of his people.[25]
Imagine trying to restore by force of arms all the unlawfully deposed royal houses of Africa, Europe, or Asia? This could cause major complications in the form of instability, rebellion, and bloodshed or armed uprisings in many countries. Nevertheless, it is implicit or a fundamental part of international law that there must be a “. . . full intention of restoring the [rightful] Sovereign. . . .”[26] Most of the time, this does not happen. It is extremely rare. However, the following provides an example of when this moral and legal right was honored, acknowledged, and respected, but note also the conflict it has caused over the years in the Middle East. That is, what is right may not be practical or worthwhile; nevertheless, what is legitimate and lawful should be openly acknowledged for what it is, which may be all that can ever be done in justice to the dispossessed who have maintained their rights. Nevertheless, with official recognition of who actually holds rightful sovereignty, this may turn the hearts and interests of the people toward the rightful heir to the throne or to the government without upsetting the good and healthy order that may exist, which is so important to the people, their future, and their well-being.
They only way regal privileges can be re-instituted is by changing the form of government into a monarchy – a constitutional or parliamentary monarchy where republic principles are respected as well as the right of the monarch. In other words, by virtue of the highest secular entitlement on earth, that is, by the full right of sovereignty, a republic could re-establish royal privileges by creating a monarchy and giving to the royal house the full and complete right to rule through a new constitution that defines the limits and appropriate powers thereof. An important principle of international law is that “. . . he who does an injury is bound to repair the damage. . . .”[27] This is not only the law, but it is what is morally and ethically right. These laws further demonstrate and acknowledge the law of prescription that deposed sovereignty is sovereignty, by law, even though it is dispossessed. However, a lessor right does not take priority over a higher or more important law. The right to be restored does not take precedence over the right of the people to accept or reject a restoration of the former royal house. It merely acknowledges that the right exists even if it is never implemented on a de facto basis. In other words, "De jure rights are not annulled by de facto conditions."[28] The right of a deposed royal house continues on forever as long as it is maintained.
The Restoration of the Modern State of Israel under International Law
Jean J. Burlamaqqui (1694-1748), a well-known jurist, scholar and founder of international law, declared that usurpers, whether foreign or domestic, are:
. . . obliged to restore the crown to the right owner, or to his heirs, till it can be presumed that they have renounced [or abandoned] their pretensions [their royal right to rule], and this is always presumed, when a considerable time is elapsed without their being willing [to use their titles] or able to make any effort to recover the crown [such as a diplomatic protest where possible].[29]
Even though the right, in justice, exists for restoration, it is extremely rare. But there is one great example of the application of this law. After almost 1,900 years of consistent and unrelenting protest, an ancient nation became the modern State of Israel on its original territory. Prescription requires that a dispossessed nation must never stop publicly claiming their right to their territory in order to keep those rights intact. Once they neglect the claim for 100 years, or what is called time immemorial, there is an irrevocable legal preclusion made against their claim making it null and void or empty ever afterwards. However, if they continue to maintain their claim in every generation, their right legally and lawfully never ends. Almost 1,900 years later, by virtue of the preserving principles embodied in the rules of prescription, the Jews were restored to their sovereign rights and privileges in the land of their forefathers. Because:
. . . they have disputed the possession of the land, by continued protests through their literature and their private and public worship. In spite of all the oppression which has been like the grinding of the upper and nether millstones, they have constantly and steadfastly manifested their animus revertendi [the full intention of returning].[30]
“Prescription [the lost or forfeiture of the right to rule their land] cannot be founded upon dereliction [neglect or abandonment] in their case, for they have never abandoned the land. They made no treaty, they did not even surrender.”[31] Their public and private protest is explained as follows:
In the annual Passover service, they say, “At present we celebrate it here, but the next year we hope to celebrate it in the land of Israel. This year we are being accounted aliens here, but next year we hope to be children of freedom in the land of Israel.”
The same sentiment is publicly repeated in all their great feasts of the Passover, Pentecost, New Year, Day of Atonement, and Tabernacles, and also, by all Orthodox Jews, in the regular Sabbath service, and in the morning prayers for every day in the year.[32]
In other words:
It is clear therefore that, in the foundation principles of international law, there is no basis for prescription against Israel, either on the ground of dereliction [neglect or lack of protest] or of undisputed possession [they have disputed it at least annually if not every day for 1,900 years.].[33]
This is quite remarkable and amazing for any dispossessed people. It is almost unheard of. They never gave up. In spite of:
. . . having no sovereign or political head through whom they could speak, they have disputed the possession of the land, by continued protests through their literature and the private and public worship.[34]
This kind of protest is similar to what is required for a deposed monarch and his successors, which is to consistently use his or her royal titles and the national symbols of sovereignty (the armorial bearings) as an obvious, continuous, and unmistakable sign that he has never given up or abandoned his rights. The Jewish people preserved their prescriptive rights by public protest at least annually. In fact:
Israel is the only state that was created in the last century whose legitimacy was recognized by both the League of Nations and the United Nations. The League of Nations Mandate that was issued by the victorious powers of World War I did not create the rights of the Jewish people to a national home in Palestine, but rather recognized a pre-existing right, for the links of the Jewish people to their historic land were well-known and accepted in the previous century by world leaders from President John Adams to Napoleon Bonaparte to British Foreign Secretary Lord Palmerston. These rights were preserved by the successor organization to the League of Nations, the United Nations, under Article 80 of the UN Charter. The ancient, even biblical, association of the Jewish people with the Land of Israel was accepted in the Judeo-Christian tradition as a historical axiom.
From a legal standpoint, an opportunity arose [in the 20th Century] to assert these historically recognized [legal] rights.[35]
Hence, we have a powerful example of how prescription can preserve sovereign rights indefinitely for thousands of years. The next example is from the early modern era. Prussia had been wrongfully robbed of the sovereign territories of Herstal and Hermal. One hundred years had passed, but “. . . the Title [or royal right] of the House of Brandenburg [to these lands] had been kept alive by repeated Claims [or protests in full harmony with the rules of prescription]. . . .”[36] Therefore, Prussian royals were recognized as the lawful rulers. The de facto ruler, the Prince Bishop of Liege, was a successor to the original usurpation. However, he could no longer hold on to these lands because Brandenburg dynasts had continued their perpetual and consistent protest and therefore effectively and entirely stopped the legal loss of their dynastic internal right to rule these territories. The Bishop stalled, but he had to give in, in the end, to what was lawful and right.
Self-Determination and Restoration
Self-determination is a noble sounding ideal, but, in reality, it is a “golden calf” or “false god,” because one man’s “self-determination” is another man’s “pernicious and malignant rebellion against existing rights” – in other words, sedition and treason.
Humankind is currently politically organized into approximately two hundred sovereign, territorial states, each one embodying a separate normative tradition shaped by the vagaries of its history and its political, ethnic, religious and other traditions. Nevertheless, extensive diversity remains at the sub-state level. Practically speaking, this sub-state diversity cannot be fully or finally accommodated by further redistribution of existing sovereignty to create more independent states. As a former United Nations Secretary General noted in 1992, “If every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace and security and economic well-being would become even more difficult to achieve.” (Boutros-Ghali 1992: paragraphs 17-18)[37]
Because self-determination has been worshipped and idolized as a concept, it is often exploited by would-be usurpers, rebels, and so-called freedom fighters that 95% of the time only bring anguish, murder, and pain, not greatness, prosperity, and good to their countries. As far back as 1793, in the setting of the French Revolution, General Carnot (1753-1823) reported a grave danger to the National Assembly that:
If . . . any community whatever had the right to proclaim its will and separate from the main body under the influence of rebels, etc., every country, every town, every village, every farmstead might declare itself independent.[38]
If territorial integrity were not a sacred principle considered to be inviolate in international law and was not of utmost importance, we might have 10,000 or more tiny little countries all over the place similar to the size of the Principality of Monaco. The whole world could conceivably fall into pieces if self-determination were to become the crowning rule as the highest of all laws. There must be limits to prevent national suicide, destruction, and ruin. Common sense tells us that the right of territorial integrity must always take precedence over the right to self-determination. A good summary was given by a Commission of the League of Nations in 1921 on the importance of sovereignty; it concluded:
To concede to minorities either of language or religion, or to any fractions of a population, the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of [sovereignty or] the State as a territorial and political entity.[39]
U.N. Secretary-General U. Thant declared in 1970, “As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its Member States.”[40] “To invoke the general principle of self-determination [or popular sovereignty], and to make it a supreme law of international life [above all others],” wrote Walter Lippmann (1889-1974) in U.S. War Aims, would be sheer madness, it is “. . . to invite . . . anarchy. For the principle can be used to promote the dismemberment of practically every organized state [on earth].”[41]
The 1960 UN General Assembly “Declaration on the Granting of Independence to Colonial Countries and Peoples” proclaimed that “all people have the right of self-determination” but added the pointed qualifier that “any attempt aimed at the partial or total disruption of the national unity or territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”[42]
The likelihood of restoration based on self-determination is extremely slim. This is why the Hawaiian government-in-exile fought hard to be regarded as an occupied country, an accurate label, rather than classed among the various people who will probably never have a chance to rule themselves.
No group of people can have self-determination unless they have the independence to operate according to their own free and unhindered will. To enjoy and experience this kind of freedom, a minority or separate culture would have to be sovereign. This would require secession or to have their own nation or country. However, if secession were a right higher than sovereignty and territorial integrity, it would threaten the very fabric of society or what holds it stably together. It would institutionalize a powerful weapon or tool for special interest groups to bully the rest of the nation. For example, rich persons who don’t like a certain policy could just secede, create their own nation, and let the poor and underprivileged of their former country wallow in ruin. Or, they could choke the rest of the nation into submission. Secession is the ability to destroy and dismember a nation, create instability, encourage malicious political maneuverings, and dishearten those who would otherwise invest in and build up, the economy thereby creating greater prospects for the prosperity and well-being of all the people.
Secession is rarely justifiable. It is, in most circumstances, an act of robbery in which an individual or group of people want to steal a portion of a nation’s territory or land without permission from the parent country. It can also be considered to be an act of treason or one of the greatest of crimes against a nation and the international order. Theft and plunder of this order are never appropriate or permissible in most situations. It is contrary to justice or what is fair and ethically and morally right. It is contrary to the principal of sovereignty, the supreme right of a nation over its whole territory, and the right to rule all things therein. And while self-determination and self-government is highly attractive:
. . . The prospect of 5,000 homogenous, independent statelets which define themselves primarily in ethnic, religious, or linguistic terms is one that should inspire at least as much trepidation as admiration. As frontiers are shifted and minorities displaced to make way for greater purity, a new age of intolerance is more likely to follow than an era of mutual respect and tolerance for all.[43]
The core problem is that the enforcement needed to create and maintain the old romanticized ethnocentric community values are rarely compatible with ethnic tolerance, freedom, or fairness to all people. Instead, it would tend to promote a climate of intolerance instead of goodwill and acceptance. Self-determination, as a philosophy, is fraught with the danger of destroying the very thing it supposedly wants to create, and that is freedom, tolerance, liberty, justice, and the ideal of diversity.
If old sovereign claims were never legally lost or prescriptively forfeited and prescription did not legitimize and validate the present, then morally and ethically the nations of the earth would have to, for example:
. . . oblige the English Saxons to restore the whole country to the Britons. By which principle our Norman gentry would be obliged to resign their lands to God knows who, the Scots theirs to the old Caledonians; all nations in the world would be unhinged. . . .
. . . The poor descendants of the old Aborigines everywhere sought out, and made the lords of the country. . . . [Obviously] restitution becomes . . . impossible, and the law of nations [by prescription] then gives a right for the sake of public peace and necessity [to the current ruling nations].[44]
Prescription [that is, status quo or long possession – the preserving side of the principles of prescription] was the basis of the original membership of international society. . . .[45]
This has never ended. It has never changed.
. . . The title of territory based on immemorial possession [that is, on immemorial prescription], being an essential and undeniable legal foundation of the status quo “is generally recognized and cannot be dispensed with.”[46]
“After the first World War, self-determination seemed [appeared or gave the impression] to [have entirely] displace prescription as the only valid ground [for legitimacy and ‘membership’ in the ‘international society’ or the world family of nations]. . . .”[47] However, self-determination has not emerged as such. It is a questionable theoretical philosophy that has not been validated in practice, although it has been proclaimed as lawful and right in a UN resolution. However, it has an important added restraint. Resolution 1514 (XV) states very succinctly that:
Every intent, partial or total, to disrupt the unity or the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.[48]
In other words:
Today the norm of territorial prescription [status quo or long possession] together with its companion, nonintervention, constitute foundations of international society proclaimed by the UN Charter, the Helsinki Final Act, the Charter of the Organization of African Unity, and other international covenants. Those norms were reiterated by the 1990 Paris Charter and subsequent pronouncements of the CSCE [The Commission on Security and Cooperation in Europe] and the Council of Europe which articulated international standards of conduct for the Post-Cold War era in Europe. They were also reiterated by the 1992 London Conference which – in connection with the conflicts in former Yugoslavia – called upon all parties to respect existing international boundaries and the rights of national minorities.[49]
Without going into the historical reasons and serious conflicts of the past that revolve around the following issue, in February of 2008, a declaration of independence from Serbia was written in Kosovo and released to the world. Within a few days, some major nations recognized Kosovo as a new nation, which amounted to giving it external or political de facto and de jure acknowledgment. However, this desire for independence has never materialized, nor has Kosovo appealed to a divided United Nations for statehood. The U.N. Security Council did not approve of the declaration. But, most importantly, Serbia, the nation that holds the supreme right of sovereignty over Kosovo, did not agree with it. However, because so many nations recognized Kosovo as having the political right to be a nation-state, the United Nations requested legal advice on this pressing issue from the International Court of Justice (ICJ). Did Kosovo have the legal right to secede from Serbia and form a free and independent nation? The ICJ issued non-binding advice on this question in July of 2010 and declared that the declaration itself was not illegal or in violation of international law because no organ of the Kosovo government created it. But it did not say that Kosovo had the right to take away any territory or remove the sovereign rights of Serbia over it. Before the ICJ hearing, Boris Tadic, the Serbian president, warned that, “If the International Court of Justice sets a new principle [allowing secession], it would trigger a process [a dangerous legal precedence] that would create several new countries and destabilize numerous regions in the world.”[50] It needs to be remembered that:
Neither customary international law nor the United Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own.[51]
It could be catastrophic to allow such, as it would create unending problems all over the globe as stable, well-run, productive nations are ruined by dividing into thousands of little cooperative and uncooperative countries.
The United Nations is divided over the issue with Kosovo and Serbia. However, the majority of nations do not support a right to independence, because, to support it, is to encourage numerous separatist movements worldwide and imbibe them with legal clout or a power that should not be allowed by common sense considerations.
To date international society has proved deeply reluctant to give up on the post-1945 and post-colonial practice legitimating inherited boundaries. I am not aware of any evidence for arguing that self-determination based on ethnonational group identity is a legitimate claim if it involves changes of existing international boundaries against the will of any affected sovereign state. That has never been a practice of international society. The world of national states is a juridical order [meaning a legal order] not a sociological order.[52]
Self-determination is an inflammatory word that has caused enormous pain and anguish in the world:
Once, Jefferson’s idea, “all men are created equal,” was wedded to [or mixed up with] President Wilson’s idea, that all people are entitled to “self-determination,” the fate of the Western Empires was sealed. Wilson’s secretary of state, Robert Lansing, saw it coming: “The phrase [self-determination] is simply loaded with dynamite. It will raise hopes that can never be realized. . . . What a calamity that the phrase was ever uttered. What misery it will cause![53]
Twenty-five years after Versailles, Walter Lippmann would denounce Wilson’s doctrine of self-determination as “barbarous and reactionary.”
Self-determination, which has nothing to do with self-government but has become confused with it, is barbarous and reactionary: by sanctioning secession, it invites majorities and minorities to be intransigent [be unyielding] and irreconcilable. It is stipulating in the principle of self-determination that they need not be compatriots [cooperative] because they will soon be aliens [have their own country]. There is no end to this atomization [break down] of human society. Within the minorities who have seceded there will tend to appear other minorities who in their turn will wish to secede.[54]
Self-determination, combined with other false philosophies of the early 20th century, has already created devastating problems for the world. They:
. . . destroyed the [stable and growing economies of the] German, Austro-Hungarian and Russian empires and ushered onto the world stage Lenin, Stalin, Mussolini and Hitler. . . . This lead to the slaughter of Jews and tens of millions of Christians, the devastation of Europe, Stalinization of half the continent, and a half century of Cold War.[55]
In sum, self-determination, although sounding ideal, is not only factious and mythical, but it is a falsehood that can be highly dangerous to mankind. In other words, “WILSON’S DOCTRINE OF SELF-DETERMINATION destroyed the Western empires.”[56] It cannot be considered a healthy doctrine. It fails the tests of right reasoning and good common sense. If we are not to repeat the bloodbaths of the past, we must learn from history and so we can spare future generations from those same evils. The point is:
The concept of self-determination is a very powerful one. As Wolfgang Danspeckgruber put it: “No other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and hopes as self-determination.” It evokes emotions, expectations and fears which often lead to conflict and bloodshed.[57]
In the neighborhood of “. . . 50 conflicts in the world today are related to antagonism between claims to self-determination and to state sovereignty.”[58] However, after expounding that self-determination is a rat’s nest of vipers, it should be understood that in modern international law, self-determination is recognized. But it is a bridge to nowhere, for the most part, as it is “a right of last resort” that has “. . . no predetermined outcome” and “. . . is not an absolute right.”[59] In fact:
Hardly any right recognized by law is absolute. This is true also of the right of self-determination, which is not self-executing nor unilaterally applicable. When the right, in the manner in which it is claimed, clashes with other international legal principles and rights, all of these rights and principles should be weighed and balanced, keeping in mind the overall international law objective of maintenance of peace and security.[60]
When basic human rights are generally acknowledged and respected, in balance with all the rights of other cultural groups in a nation, then no group of people are being oppressed, but are, in fact, being treated fairly and equally even if ideal situations do not exist. In such a state of affairs, there is no valid and legitimate right to challenge the territorial integrity of the nation.
[However] . . . to oppressed peoples, the ones whose basic rights are not being respected by the mother state and the ones who are often subject to heinous human rights abuses. Such oppressed peoples, in theory, have a right to . . . self-determination, and [this kind of] self-determination signifies that such peoples have a right to remedial secession and independence.[61] (emphasis added)
But:
Self-determination [for everyone] . . . would undermine the essential principle on which international law was founded, the existence of [independent, stable] sovereign nation states. . . .[62]
Put tersely, one person’s right to self-determination may well mean that another people’s right to territorial integrity is threatened or violated. That realization cannot be cast aside when considering the balance between justice and peace in today’s international system.[63]
“Territorial integrity” is to be “inviolable” according to the most important world covenants made in modern times. Two United Nations General Assembly resolutions (1514 (XV) & 2353 (XXII) declare unequivocally that self-determination must not override the sovereign right of territorial integrity.[64] The latter declares:
Any colonial situation which, partially or completely, destroys the national unity or territorial integrity of a country is incompatible with the purposes and principles of the Charter [of the United Nations].[65]
Thus the abuse of self-determination can become a crime. Nevertheless, it cannot be denied that:
For peace, security and stability to exist, any associations between peoples and communities or between them and the state must be based on genuine and continuing consent, mutual respect and mutual benefits. Peace cannot exist in states that lack legitimacy [respect for all] or whose governments threaten the lives and well-being of a section of the population.[66]
Nor can peace exist where the people descend into chaotic and/or organized revolt and commit crimes of sedition or even genocide to coerce and force the situation. To understand when rebellion is justifiable and how it must intelligently proceed or take action is in Chapter VI, the sub-chapter “Legitimate Provisional Governments,” in the sub-sections entitled, “Legitimate Right to Resist Tyranny” and “The Legitimate Provisional Government resulting from the Exercise of the Right of Resistance.” Also important is “Condemnation of Revolution” to understand its serious and damning nature unless performed according to correct principles and natural law.
The overall conclusion of this sub-chapter is that, even though legal rights exist, there are solid reasons why restoration is impractical, dangerous, and therefore unlikely. This includes not only indigenous people who have been exploited and horribly wronged, but also unlawfully deposed governments and legitimate and rightful monarchies that been unlawfully robbed of their rights. The whole point is, international law does indeed fully recognize certain rights and entitlements as lawful, valid, serious and important, but places a greater priority and emphasis on stability, law and order, sovereignty, peace, and the general well-being of all people. To do this, the law cannot consider that the desire to have one’s own country, which is only a want in most cases, not a need nor a necessity, should trump the general good or higher entitlements of all the people of a sovereign nation. It is a reality in this world that not everything can be fair for all parties. But, at least, the most important good can and must be safeguarded, protected, and encouraged by law and by practice. The rule of law must contain the idea that when principles are in conflict, and to obey one principle requires the violation of the other, then for the sake of justice, we must, “Never let things which matter most be at the mercy of things which matter least.”[67] The higher law must always be obeyed and upheld above all lesser laws.
For individuals and groups who feel entitled, because of the false hopes created by the alluring temptation of the doctrine of self-determination, this may not set well, but imperfection cannot be avoided when legal rights conflict and there are no easy or obvious solutions but the necessity to suffice with what one has. Improvement is possible and most welcome, but perfection, or what is ideal, is not realistic or to be expected in an imperfect world. Hence, scholars have recommended that self-determination be looked at as a process, not a destination, for it is not an absolute right that can be depended on to create major change. Self-determination is a legal concept, but it is also very vague and fickle in its conclusions or outcome. It represents murky waters, legal obscurity, and impractical desires and longing for the most part.
Considering all that has been said, is it any wonder that self-determination has taken a back seat to other more important concerns internationally? “. . . The principle of self-determination in the restricted definition of the League of Nations” is now “a dead letter and has been for some time.”[68]
The settlement after the Second World War saw the abandonment of this constitutional mode of establishing legitimacy [called self-determination]. . . . It seems that international society is excogitating [which means to think out and carefully plan] a new principle of legitimacy, or rather, a version of the popular principle which makes it simpler in theory and easier to apply in practice.[69]
That is, territorial sovereignty (the territorial nation) won out over popular sovereignty (the cultural nation). This is especially manifest in decolonization where, instead of unique cultures, ethnicity, language bonds, etc., determining the outcome, whole colonial territories were transferred over to new governments without any changes in boundaries to reflect the people.
Part of the reason for this is:
Popular legitimacy is something of a phantom [it is immaterial or without substance] as compared to dynastic [or territorial] legitimacy because, unlike an individual physical person such as a king [or the ground upon which a man can stand], nobody has ever seen or heard or touched “the people.” It is not something substantial at all. It is a nominal idea, – an abstraction, and not even an empirical [provable] generalization. . . .[70]
Rulers, governments, and territory, on the other hand, are more solid, substantial, and real. Self-determination, being a rather perilous abstraction, is not what prevails in the practical utilitarian world. If given free reign, there is:
1. the very fear that it would create indefinite and unending divisions. Few states are ethnically homogeneous. Even the secessionist’s proposed territories contain separate peoples who have cultural differences and could at any time separate and create their own little tiny nations,
2. therefore, there is the fear that it would disintegrate the world as we know it. It would be like opening Pandora’s Box, and bring ruin by the domino effect thereby contaminating the whole of mankind,
3. the fear of the effect such a right could have on the democratic system by providing a minority with an opportunity for constant blackmail – threatening to secede if there is no conformity with its [unreasonable and coercive] wishes,
4. the danger of creating extremely small dependent and weak nations needing constant external international aid,
5. “the fear of trapping [or confining] minorities within the seceding state who presumably cannot themselves secede [nor protect themselves from abuse],”
6. the fear that seceding territory would be “economically or strategically [hurtful] to the [safety and security of the] original state” and offer no helpful assistance or, worse, create a belligerent, vulnerable, and dangerous borderland.[71]
None of these are conducive to peace, and this would increase problems rather than solve them. Since there are an estimated 5,000 national or ethnic groups, that occasionally disagree and separate from each other, thereby creating more potential divisions and sub-divisions, the problem seems endless.[72] A crushing blow came to the idea of self-determination in the 1970 Declaration on Principles of Internal Law Concerning Friendly Relations and Cooperation Among States when it declared unequivocally:
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part the territorial integrity or political unity of sovereign and independent States. . . .
The territorial integrity and political independence of the State are inviolable [which means they are not to be violated, cut in pieces or compromised in any way].[73]
To better understand the flaws and dangers associated with self-determination, see also the sub-section “The Political and Philosophical Fiction of Popular Sovereignty.”
Imperialism, Colonialism, and Sovereignty
The natural law regarding what is just and true, if it were respected and lived, would have forced European colonial imperialists to conclude that they had no more right to impose their rule on the American Indian tribes or other indigenous people than those tribes had the inalienable right to discover Europe, declare it their own land, and rob all the decadent European nations and inferior people of the whole continent. Might does not make right. Grotius taught that it is, “Equally shameless is it to claim for oneself by right of discovery what is held by another . . . . For discovery applies to those things which belong to no-one.”[74]
In the early period of European imperialism, it was recognized and acknowledged that native and indigenous people had sovereignty. It was understood in those days as something ethically and morally important. Hugo Grotius in his The Freedom of the Seas, wrote:
. . . To believe that infidels are not masters of their own property; consequently, to take from them their possession on account of their religious beliefs is no less theft and robbery than it would be in the case of Christians.
Nor are the East Indians stupid and unthinking; on the contrary they are intelligent and shrewd so that the pretext for subduing them on the ground of their character could not be sustained. Such a pretext on its very face is an injustice. Plutarch said long ago that the civilizing of barbarians had been made the pretext of aggression, which is to say that a greedy longing for the property of another often hides itself behind such a pretext. And now that well known pretext of forcing nations into a higher state of civilization against their will . . . is considered by all theologians . . . to be unjust and unholy.
They are not to be deprived of sovereignty over their possessions because of their unbelief, since sovereignty is a matter of positive law, and unbelief a matter of divine law. . . . In fact I know of no law against such unbelievers as regards their temporal possessions. Against them no King, no Emperor, not even the Roman Church, can declare war for the purpose of occupying lands, or of subjecting them to temporal sway.[75] (emphasis added)
Some very powerful Europeans, being filled with greed, had to justify their actions against the indigent people of the world. They did so by replacing the natural law with created positive law – law that justified them or gave them an excuse to trample on the rights of others, steal their land, their resources, and their right to rule. It was concluded that there was “a standard of civilization” that had to be met “. . . before they could make a credible claim to state sovereignty. . . . Sovereignty could only be conferred on people who could handle it. . . .”[76] This, however, was just an excuse, as these people already had, and were exercising, inherent and rightful sovereignty because they had independence, their own laws, authorities and jurisdiction – qualities of a perfect society. They were not merely an unthinking, unsettled horde of wandering unorganized, individual savages and barbarians in a state of nature, who had no law or political organization. They were people; they were organized, and they had rights according to both natural and moral law. However:
According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors. . . .
It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives. In the various wars, treaties, and negotiations, to which the conflicting pretentions of the different States of Christendom to territory on the American continents have given rise, the primitive title of the Indians has been entirely overlooked, or left to be disposed of by the States within whose limits they happened to fall, by the stipulations of the treaties between the different European Powers. Their [the native people’s] title has thus been almost entirely extinguished by force of arms, or by voluntary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader.[77]
Several arguments have been offered through the years as justifications to exploit and take advantage of them. One is smallness of numbers and, therefore, little or no strength to defend themselves. However, as Emerich de Vattel declared, small nations held “. . . the same obligations and the same rights” as large ones. Strength or weakness counted for nothing. “A dwarf is as much a man as a giant is,” he explained, “a small Republic no less a sovereign State than the most powerful kingdom.”[78] Emerich de Vattel’s mentor, Christian Wolf (1679-1754) wrote that:
. . . Just as the tallest man is no more a man than the dwarf, so also a nation, however, small, is no less a nation than the greatest nation. Therefore, since the more equality of men has no relation to their size of their bodies, the more equality of nations also has no relation to the number of men of which they are composed.[79]
The idea that because some native peoples did not build permanent housing, so their land was free to inhabit and take, as the Colonial powers willed prevailed for the most part throughout the new world, but was this lawful? The opposite view was being promulgated by legal scholars. For example:
If possession be immemorial; if there exist no possession anterior to it, it is undoubtedly sufficient to set aside all the pretensions of others; but this is not the effect of prescription, founded on the duration of this possession; it is, the consequence of the natural impossibility for any other to prove a right better founded than that of the possessor.[80]
The possessor had the greatest right to the land in such a case. Christian Wolf declared:
Ownership is not lost by [a] non user. And if separate families wander through uncultivated places, they intend a use of the places only in alternation, a thing which is readily evident, if only you turn your attention to the reason which impels them to wander through uncultivated places.[81]
Wandering had economic purpose. It was an appropriate use of the land for their way of life and their survival. No one “. . . can deny that hunting, fishing, fowling, are species of occupancy, not only in desert places unpossessed, but likewise in territory already possessed.”[82]
Emerich de Vattel established the right of colonization, but the following highly quoted passage ignored the big picture and his most important words on this subject. Nevertheless, this citation was used to justify the wholesale plunder and theft of indigenous people, which was not his intent:
There is another celebrated question which has arisen principally in connection with the discovery of the New World. It is asked whether a Nation may lawfully occupy any part of a vast territory in which are to be found only wandering tribes whose small numbers cannot populate the whole country. We have already pointed out (§ 81), in speaking of the obligation of cultivating the earth, that these tribes can not take to themselves more land than they have need of or can inhabit and cultivate. Their uncertain occupancy of these vast regions can not be held as a real and lawful taking of possession; and when the Nations of Europe, which are too confined at home, come upon lands which the savages have no special need of and are making no present and continuous use of, they may lawfully take possession of them and establish colonies in them.[83]
The next quote was ignored, but it introduces the legal bounds in which the above ideas should have been maintained. Obviously, the confiscation and takeovers of the imperial/colonial mentality was outside of known ethics and the doctrine of legal scholars, who endeavored to establish justice as the foundation of all law and all action. Vattel clarified the bedrock principles of justice that should have prevailed in the following two quotes. He wrote:
. . . it is questioned whether a Nation can thus appropriate, by the mere act of talking possession, lands which it does not really occupy, and which are more extensive than it can inhabit or cultivate. It is not difficult to decide that such a claim would be absolutely contrary to the natural law. . . .[84]
Obviously, it would be unethical and, therefore, out of harmony with concepts of right and wrong:
Whoever agrees that robbery is a crime, and that we are not allowable to take forcible possession of our neighbour’s property, will acknowledge, without any other proof, that no nation has a right to expel another people from the country they inhabit, in order to settle in it herself.[85]
Another excuse was:
. . . that the whole earth was open to the industry and enterprise of the human race, which had the duty and the right to develop the earth’s resources; the more advanced peoples were therefore justified in dispossessing, if necessary, the less advanced.[86]
This, however, denied basic human rights of other people, but it fit with the justification that native people were subhuman beings and/or unworthy and that they must be civilized by the great powers who had the right, the responsibility, and the obligation to control them. Unfortunately, these ideas resulted in acts of atrocity to force a different culture on the people all the while robbing them of their lawful rights. In the final analysis:
What proved fatal to the institution of imperial sovereignty [colonialism] was the liberal idea that there was something inherently wrong about a government that laid claim to foreign territories and populations without their uncoerced consent – even if its intentions were benevolent.[87]
. . . Is it not time to ask whether nations have a right to use force for the purpose of advancing the civilization and enhancing the prosperity of less favored peoples? Is commerce, as the vanguard of our Christian civilization, to be quartered upon reluctant peoples by the rifle and the gunboat? We may well ask ourselves whether a civilization that puts on the horrid front of war, and goes on its mission bristling with cannon, is after all so much better than barbarism in the sum total of human happiness, as to justify an armed crusade to carry its commerce and arts through the world? . . . Should it not shame Christian nations to make their first impression upon ruder peoples through superior powers of destruction, and by a commerce that sends fire and slaughter to prepare the way for opium and rum [gold or oil reserves]?[88]
“The injustice and mischief of admitting that nations have a right to use force, for the express purpose of retarding the civilization and diminishing the prosperity of their inoffensive neighbors, are too revolting to allow such a right to be inserted in the international code.”[89]
These important ethical considerations and the shameful treatment of indigenous peoples finally culminated in a new world view. That is:
After centuries of legitimacy and legality, imperial sovereignty became unlawful. . . . Various UN General Assembly Resolutions . . . portrayed colonization as nothing less than “a crime.” It now takes an effort to remember that much less than a century ago Western Imperialism was a global system that seemed destined to continue indefinitely.[90]
The legacy of colonization and imperialism is that many minority peoples treated unfairly, their lands were taken from them, and they were subjected to unfair and dishonest treaties given under coercion or duress. Some tout that the actions of the United States and the European powers civilized the whole world and thus made sovereignty a global institution, but “the end does not justify the means.” Great good could have been accomplished in good and positive ways rather than by subjugation, murder, bloodshed and tyranny. Stories of how the American Indians were treated, in “the vale of tears” forced march of the Cherokee Indians, for example, is one of the tragic stories of all time. “Might does not make right.” It never did and it never will.
The De jure Sovereign Rights of American Indian Tribes
On the back book cover of Chronicles of American Indian Protest, it reviews this general overall history of Native Americans as follows:
From his initial landing in the New World, the white man has forced the American Indian into a slow and painful retreat. He has undermined his culture and all but destroyed his civilization. Our history is studded with shameful examples of official deceit and injustice, often perpetrated with the open support of a federal government sworn by treaty to honor the Indian’s rights.
Yet from the first, the American Indian has protested the white man’s encroachment and has fought valiantly to preserve his birthright.[91]
Sovereignty, freedom, and liberty have been crucial areas of concern to the Native American, because they were sovereign nations, that were unjustly violated and put down on every hand. The persecution, theft, and murders committed against them are rarely talked about. Textbooks have hidden the raw savagery of Colonist and United States atrocities against them. It is not in the purpose of this section to elaborate, but history is full of brutality, not of the Indian’s deprivations, but of American barbarianism. One example comes from the massacre of Pequot, where the British burned the village buildings and shot every man, women, and child who tried to escape the fire. Early Christian missionaries did not know how to handle Indian observations, such as, “. . . Are the Christians more virtuous, or rather, are they not more vicious than we are?” And “. . . we find the Christians much more depraved in their morals than we are; and we judge from their doctrine by the badness of their lives.”[92] This is not our focus, but it is important to the understanding that the American Indians have valiantly maintained themselves, especially in light of the horrific treatment they have received.
As an example of theft:
All the textbooks tell how Jefferson “doubled the size of the United States by buying Louisiana form France.” Not one points out that it was not France’s land to sell – it was Indian land.[93]
No one told the Indians about this. Most never knew of it. France could not sell what was not theirs to sell. They merely sold their invalid claim to the territory. From 1819 to 1890, more than fifty Indian wars had to be fought to wrest the Louisiana Purchase from the legal and lawful owners.[94]
In the neighborhood of 4,000 treaties have been made with Indian Tribes through the years; especially between 1778 and 1871. This is very significant and important because, “. . . treaty-making power is an attribute of sovereignty. . . .”[95] It was a strong recognition of the true recognized situation of the indigenous population of North America. The fact that treaties were used in dealing with Native American tribes acknowledged their lawful rights as actual sovereign nations.
The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation. . . . Treaty making power . . . rests wholly in sovereignty. . . .[96]
“. . . To be competent to make a treaty, [one] must be a sovereignty; for that treaties, properly so called, can only be made by sovereigns with sovereigns. . . .”[97] This is particularly important for the American Indian Tribes because the Constitution of the United States, the supreme law of the land, makes a treaty a supreme national law of the highest order; such that, by law, the Tribes have sovereignty in accordance with the treaties that were made with them.
The Constitution of the United States also declares that Congress had power, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[98] This again demonstrates the rightful place of Indian Tribes as equal in dignity and legal stature to foreign nations or the individual sovereign States that comprise the nation. For example:
The provisions of these treaties [Hopewell I 1785 and Holston 1791] . . . acknowledge the Cherokees to be a sovereign nation, clothed with the attributes of sovereignty, too unequivocal and decisive to be mistaken; that they not only acknowledge the territory in their possession to belong to them; but have bound the faith and honor of the United States to guarantee that possession against the world; and they have acknowledged that territory to lie without the jurisdiction of any state or district of the United States.[99]
Felix Cohen (1907-1953), a legal scholar, who fundamentally shaped federal Indian law, made this exceptionally clear. He declared:
The whole course of judicial decision on the nature of tribal Indian powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses, in the first instant, all the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but it does not by itself effect the internal sovereignty of the tribe, i.e., its powers of local self-government. (3) These powers are subject to qualification by treaties and by express legislation by Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.[100]
In Worcester v. Georgia, 31 U.S. 515 (1832), Chief Justice Marshall concluded that Indian tribes continue to possess powers of full sovereignty subject only to the superior authority of the federal government. He wrote:
The very fact of repeated treaties with them recognizes it, and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence – its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. “Tributary and feudatory states,” says Vattel, “do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are left in the administration of the state.”[101]
This is a description of a protectorate, which means “a split of sovereignty and its purpose is to vest in the protector rights of external sovereignty while leaving the rights of internal sovereignty in the protected entity.”[102] However, protectorates are often created for the protector to work on achieving “. . . increasing control . . . over the internal affairs of the protected country.”[103] This the United States has tried to do, but it was met with resistance in one of the saddest tales of anguish and destruction ever witnessed. The “Trail of Tears” is only one of those tales. This book will not address the suffering or wrong committed, but it will focus on the principles of deposed sovereignty and the rights and responsibilities attached thereto.
The American Indians, because they valiantly fought for their rights, if not physically with their very lives, have protested and fought in the courts of the land to maintain their valid and authentic claims. Nothing but an international court could deal with disputes between sovereign nations, but no international courts existed in those days. However, the national courts had legal jurisdiction in this case because treaties, according to the U. S Constitution, were a supreme obligation in the nation. Therefore, court battles occurred and manifested Indian protest against encroachment upon their rights.
Sadly, every treaty was lopsided in some way or another. Individually, and as a whole, every treaty was intended to, and in fact did, result in some important loss for the Tribes. Little or nothing was given in return for all the concessions demanded, and the United States broke its treaty promises over and over again, even though a treaty was declared to be the supreme constitutional law of the land and were not be broken or violated. That is, it broke the law, ethics, and all moral considerations when the United States violated its so-called permanent covenants.
In 1785, Corn Tassel, a Native American, in a speech before the U. S. commissioners seeking a peace treaty with the Cherokee nation, made it clear that natural and international law was being violated. He stated emphatically:
Again, were we to inquire by what law or authority you set up a claim [to our land], I answer, none! Your laws extend not into our country, nor ever did. You talk of the law of nature and the law of nations, and they are both against you.[104]
Chiksika, elder brother of the great war chief Tecumseh stated the following on March 19, 1779:
When a white man kills an Indian in a fair fight it is called honorable, but when the Indian kills a white man in a fair fight it is called murder. When a white army battles Indians and wins it is called a great victory, but if they lose it is called a massacre and bigger armies are raised. If the Indians flees before the advance of such armies, when he tries to return he finds that white men are living where he lived. If he tries to fight such armies, he is killed and the land is taken anyway. When an Indian is killed it is a great loss which leaves a gap in our people and a sorrow in our heart; when a white man is killed, three or four others step up to take his place and there is no end to it. The white man seeks to conquer nature, to bend it to his will and to use it wastefully until it is all gone and then he simply moves on, leaving the waste behind him and looking for new places to take. The whole white race is a monster who is always hungry and what he eats is land.[105]
Atrocities have abounded. American Indians were all too often considered as subhuman with no rights whatsoever, but, and this is very important legally, in spite of the horror and their decimation from disease and the wrongs committed against them, American Indians never gave up, which is important according to the international rules of prescription and the preservation of legal sovereignty.
[A rightful] claimant, although unjustly deprived of possession, should retain its rights of sovereignty, unless it [failed to make a] constant and appropriate effort to keep them alive, and that by ceaseless protests against the acts of the wrongdoer.[106]
This is one thing that Native Americans have done and still continue to do in spite of powerful forces that have been against them. They have never given up their fight for freedom and sovereignty and lost millions of lives in the process. From 1622 to 1898, there have been 133 wars, which included 30 massacres mostly of Indian men, women, and children. The lowest point occurred around the turn of the century after the exhaustion of years and years of trouble on every side. Then protests, not armed conflict, began about 1910 with greater strength ten years later:
In the 1920’s and 1930’s, tribal leaders, Indian people, and their allies successfully fought to reassert some measures of tribal sovereignty. . . . These advances . . . were eroded during the years after World War II, but were not entirely overturned or forgotten. Civil rights activism of the 1960’s and growing political and legal action by Indian people and tribes resulted in tremendous political, social and educational gains.
The federal government inaugurated policies of tribal self-determination and self-governance in the early 1970’s.[107]
Disagreements, however, between the vision of the Supreme Court, opinions of the Executive branch and Legislature, and the Bureau of Indian Affairs Chiefs have created a situation where, “The federal government has been unable or unwilling, to maintain a consistent policy orientation. . . .”[108] Major differences revolve around tribal sovereignty, the breakup of tribes, and assimilation efforts. There are six critical doctrines of disagreement, “. . . the doctrine of discovery, the trust doctrine, the doctrine of plenary power, the reserved rights doctrine, the doctrine of implied repeals, and the doctrine of sovereign immunity.”[109] None of these areas have ever been cleared up and put in harmony with international law as an effort to right wrongs and fulfill the requirements of justice. In conclusion:
It is a well-established principle of the American legal system that Indian tribes possess sovereign powers separate and independent from the federal and state governments. This principle has its basis in a host of United States Supreme Court and lower federal court decisions too numerous to cite here. Although this concept of an independent tribal sovereignty is beyond question, that is where the clarity ends in this area of American Indian law. The extent and breadth of tribal sovereignty is not uniform and is largely specific to each individual tribe. The multitude of court cases that comprise federal Indian common law are a maze of sometimes contradictory and inconsistent decisions. Accordingly, it is difficult to establish any hard and fast rules when analyzing the scope of tribal sovereignty, rather this determination must be performed on a tribe by tribe basis.[110]
Depending on the differences in treaties from tribe to tribe, American Indians exercise much of the required principles of a “perfect society” discussed earlier in Chapter I as criteria of full recognition for having the right to rule. That is, they have a certain degree of independence, authority, and jurisdiction internally. What they are not allowed to exercise de facto by the oppression of the government, they still maintain and conserve on a legal basis through the rules and principles of prescription under public international law.
The Royal Princely Houses of India and their De jure Entitlements
Despite decades of being a republic, India still has a unique cultural and historical image of kings and kingship in turbans with opulent wealth. In the height of the days of the British Indian Empire, Col. Alexander Powell wrote:
. . . You may still envision those gorgeous and dramatic figures whose scimitars maintained the Peacock Throne, with their fabulous wealth and unimaginable splendor; their love of magnificence and pomp, their reckless extravagance, their enervating luxury, their curious customs and deeply-rooted superstitions, their palaces ornate, vast and impenetrable, their jealously guarded Zenanas, their veiled concubines and sinuous, bejeweled dancing girls, their belief that women were created for the sensual gratification of men, their contempt for human life, their terrible tortures and awful punishments, their treasure houses filled with gold and jewels, their squadrons of mail clad horsemen, their hordes of servants and retainers, their fairylike lakes and scented gardens, their priests and idols, their elephants and tigers.[111]
Despite the fact that a majority of the rulers were not wealthy, that some were actually poor and that a few may have been considered destitute by contemporary Western standards, the popular image of the princes living in Asiatic luxury was not entirely unfounded. No less an authority than Rudyard Kipling remarked: “Providence created the Maharajas to offer mankind a spectacle.” The maharajas may not have sat down to breakfast smothered in rubies, as Sir Conrad Corfield assures us, but there can be little doubt that their lifestyles were lavish. A 1947 study “of 85 of the richest and most important nobles revealed a statistical profile of stunning opulence: on the average, each owned five palaces; rode on 9.2 elephants, in 3.4 Rolls-Royce automobiles and 2.8 private railroad cars; and had 5.8 wives or concubines and 12.6 children. Fond of sports, the typical noble had bagged 22.5 tigers in his lifetime.”[112]
Notwithstanding the lingering image of splendor, maharajas no longer rule or overflow with wealth in modern India. About 600 ruling princes disappeared from the political and social landscape in two major installments of legalized political theft – one in 1947 and the other in 1971. De facto or regnant monarchy no longer exists in this great land.
The British government gave India its independence in 1947. In the Indian Independence Act passed in 1947 by the Parliament of Great Britain, the princely states were given three choices: (1) to remain independent, (2) to become a part of the new government of India, or (3) unite with the new government of Pakistan. This meant that they were fully sovereign in their rights and had no suzerain to preside over them. Each Indian prince was free and presided exclusively over his own principality or kingdom without any outside influence.
This situation was similar to what happened in 1806 when the Holy Roman Empire fell. Francis II, as Emperor, released all the Imperial States from their oath of allegiance to the Empire at that time. The Electors, the highest princes of the Empire and the only ones with authority to set things up again, never attempted to re-establish the first Reich. In fact, only one protested the action, which was not enough to make the dissolution illegal. At this point, each state became a free and independent country or nation with no authority above its own. That is:
The dissolution of the Holy Roman Empire meant that anyone who was previously a direct vassal of the Emperor without any intermediary (in other words, was unmittelbar or “immediate”) became ispo facto sovereign. However, not everyone survived as sovereign into the new legal order that emerged in 1806. Obviously, those who became members of the Confederation of the Rhine became full-fledged members of the international community as sovereign entities.[113]
The Napoleonic ambassador to the Imperial Reichstag in July of 1806 issued a decree stating that each immediate state was a full and independent nation of Europe. He stated emphatically that Napoleon as Emperor and King of the French “recognizes the complete and absolute sovereignty of each of the princes whose states presently compose Germany, and maintaining with them the same relations as with the other independent powers of Europe.”[114]
Returning to India, in a press conference on June 4, 1947 about one month before the day of Indian independence (August 15, 1947):
. . . Mountbatten said that the Indian states had been [in history] independent states in treaty relations with the British. With the lapse of paramountcy [suzerainty above and over the Indian Princely States] they would assume an independent status, and were “absolutely free to choose” to choose one constituent assembly or the other, or make some other arrangement.[115]
However, they were not allowed to remain independent by the new India government. The princes were forced to unite either with the new governments of either Pakistan or India. Contrary to the fact that the Princely states were held as the highest authority as sovereign rulers in their own lands, the Indian Congress in 1946 declared that the Princes were not sovereign and, therefore, could not choose independence. They were told that the Indian army could overcome any one of them that rebelled. They were also told that they would be considered enemies of the state if they did not integrate as commanded. The official policy, however, was made without overt threats. The threats were intermixed with such promises as a guarantee of autonomy, immunity from prosecution, exemption from customs duties, annual monetary support, etc. However, they were told that if they did not sign the ascension agreement, they would be forced to merge but without the same benefits, promises and guarantees as those who signed it. Hence, their decisions were made under threat and duress.
Based on natural law, Grotius declared that such acts are null and void. He made it clear that, “[The] claims to sovereignty [of the native Princes of India in this case] were at least equal to those of the reigning monarchs of Europe [before the British East India Company conquered and occupied the land]. . . .”[116] Their independence was taken from them and their sovereignty was severely limited by force of arms. Grotius declared that, “Contracts, or promises obtained by fraud, violence or undue fear by the law of nature and the law of justice entitle the injured party to full restitution. . . . [It] is a RIGHT which we derive from natural law and liberty.”[117] What took place at this time was morally and ethically wrong, but what happened later was an even greater and more complete betrayal, “. . . The real death of Princely India came when the 26th Amendment Act (1971) [of the Indian Parliament] abolished the princes’ titles, privileges and privy purses.”[118] However, as Textor declared, no one can lawfully or rightfully “. . . acquire another man’s property [or his royal rights and privileges] without his consent, for to deprive another against his will [is an act of theft and] . . . runs counter to all Law.”[119]
In spite of what is right, in 1971, about 562 sovereign princes (maharajas – meaning great kings and rajahs – kings) who partially ruled over two-fifths, or a highly substantial part, of the land of India, totally lost their de facto regal rights and privileges. Some of their royal dynasties had lasted over a thousand years. Yet they were robbed, discarded and stripped by the government that promised them a permanent and unending place in the new republic. Each prince was illegally and unlawfully plundered of his titles and sovereign de facto rights by the national government. They would never have gone along with Lord Mountbatten and given up so much to join India if they hadn’t been given a guarantee that their sovereign rights would be respected and honored.
This wholesale theft of sovereignty was brought before the Supreme Court of India in 1992. The decision, given early the next year to reject the prince’s plea, was not based on natural law nor on what was morally and ethically right. Instead the decision was a politically and ideologically based.
In other words, rights that politicians give can be taken away. There are no assurances – no guarantees, covenants, or pledges that cannot be broken. Promises in a democracy cannot be counted on when the winds of popular opinion blow in a different direction. But there is one thing the government could not take away from the princes and that is their supreme right to rule, which is de jure internal non-territorial sovereignty.
Emerich de Vattel declared this important truth, in his classic masterpiece on international law, that, “. . . The king does not forfeit the character of royalty merely by the loss of his kingdom. If he is unjustly despoiled of it by an usurper, or by rebels, he still preserves his rights. . . .”[120] In other words, “The lawful monarch may be dethroned . . . [but] he continues to possess . . . the right of sovereignty [the de jure right of royalty].”[121] To maintain their internal regal rights, all they have to do is protest at the right and proper times and/or consistently use their exalted royal titles and the arms or symbols of their sovereignty.
Of course, there are many ways that sovereignty can be permanently lost, which shall be discussed in Chapter II of Volume II, but a usurper, such as the Dominion of India or Pakistan, cannot take internal de jure rights away from the former rulers of the land unless there is acquiescence. Samuel Pufendorf (1632-1694), a highly respected publicist of the 17th century, wrote, “. . . The rightful prince shall . . . protest and preserve his right over them [those who stole his rights]. . . .”[122] If he does not, if he acquiesces, he “. . . loses it as a matter of law by failure to keep it up.”[123]
Acquiescence has been defined as “letting another country assume and carry out for many years all the responsibilities and expenses in connection with the territory concerned,” which “disqualifies the country [the former sovereign] concerned from asserting the continued existence of the title.”[124]
In other words, “. . . by long acquiescence and silence he may be presumed to have given up his claim.”[125] “Acquiescence means consent to a claim [or approval of it] which may be explicit or it may be implied from the absence of protest or from mere silence.”[126] The good news for deposed kings and sovereign princes of India is that at least 200 of them have consistently used and therefore maintained their titles and the symbols of their authentic and genuine right to rule.[127] Use of exalted royal titles represents a powerful proof that they did not and do not acquiesce, for “without acquiescence there can be no . . . prescription” or forfeiture of de jure internal sovereignty.[128] As a direct result of maintaining their sovereignty intact, their ancient knighthoods and orders of chivalry are just as valid and legitimate as any grant given through any of the deposed royal houses of Europe.
The people in general still revere and honor the de jure Maharajas and Rajas or their heirs. They are regularly called by their royal titles and looked up to as prominent and unusually important people. Many have legally recovered confiscated property or entered politics, where centuries of deference have in some cases given them over 80% of the votes. Some have become business giants, while others have crumbled into abject poverty pedaling rickshaws, but hundreds of them still maintain their royal status and ancient de jure rights despite an ungrateful government that has unlawfully robbed and cheated them out of what was rightfully their property and entitlements.
Full restoration is appropriate to right the wrongs of the past, but this may be impossible at this point. At the very least, non-territorial de jure sovereigns should be recognized as having real and authentic sovereignty with all the respect, honors, and rights due, even though they no longer rule over mighty nations or kingdoms.
[1] Hannis Taylor, A Treatise on International Public Law, 1901, p. 265.
[2] United Nations Doc. HRI/GEN/Rev. 7, General Recommendation XXIII (1997), The Rights of Indigenous Peoples, para. 5.
[3] The Capitalism Site: Rights, 2011: http://capitalism.org/category/rights.
[4] Ibid.
[5] A Team of Experts, Advanced Learner’s Dictionary of Political Science, 2000, p. 253.
[6] Charles Maurice de Talleyrand-Périgord, Memoirs of the Prince de Talleyrand, vol. 2, Duc De Broglie, ed., Angus Hall, trans., 1891, p. 120.
[7] Hugo Grotius, On the Law of War and Peace, Book 3, chapter 16, no. 4; Note: “. . . Caligula is praised for having [done the right thing], in the beginning of his reign, restored to different Princes along with their crowns, the intermediate revenues of their kingdoms.” (Hugo Grotius, On the Law of War and Peace, Book 1, chapter 10, no. 5).
[8] United Nations Declaration on the Rights of Indigenous Peoples, (Draft), U.N. Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, 28 October 1994, at 105-115, reprinted in (1995) 34 I.L.M. 541, Art. 27.
[9] Congress of Vienna, 2011: www.teacherweb.com/NJ/MetuchenHighSchool/MrsLevine/WCFirstHalf.htm; Note: Even though it rarely happens, international law “. . . does require that the crown be returned to him to whom it [rightfully] belongs.” (Op.cit., Charles Maurice de Talleyrand-Périgord)
[10] Edmund Jan Osmanczyk, Encyclopedia of the United Nations and International Agreements: G to M, vol. 2, 3rd edition, Anthony Mango, ed., p. 867.
[11] KarenGuttieri, Paper presented to “Hegemony and Its Discontents,” 45th Annual International Studies Association Convention March 17-20, 2004 - Montréal, Quebéc.
[12] Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 141.
[13] Samuel Pufendorf, Of the Law of Nature and Nations, Book 7, chapter 7, no. 4.
[14] Op.cit., Charles Maurice de Talleyrand-Périgord.
[15] Commission to Study the Organization of Peace, The Atlantic Charter: the eight-point declaration of President Roosevelt and Prime Minister Churchill, August 14, 1941, eight pages.
[16] Ellery Cory Stowell, Intervention in International Law, 1921, p. 344.
[17] Theodore D. Woolsey, Introduction to International Law, no. 41, 1860, p. 89 and Ibid., p. 345.
[18] Ibid.
[19] United Nations General Assembly resolution, A/RES/36/103, 91st plenary meeting, 9 December 1981.
[20] Ibid.
[21] Hersch Lauterpacht, The Function of Law in the International Community, 1933, p. 64.
[22] United Nations, Reports of International Arbitral Awards, “Island of Palmas Case (Netherlands/USA),” 4 April 1928, 2006, p. 838.
[23] The Law Times, vol. 46, “Prussian State Trials,” 1869, p. 65.
[24] Ibid.
[25] Adam Smith, “Lectures on Jurisprudence,” Glasgow Edition of the Works and Correspondence of Adam Smith, vol. 5, Ronald L. Meek, David D. Raphael and Peter G. Stein, Eds., 2004, p. 72.
[26] Hugo Grotius, On the Law of War and Peace, Book II, chapter 2, no. 10.
[27] Emerich de Vattel, The Law of Nations, Book 3, chapter 11, no. 185.
[28] Nancy Lenkeith, Dante and the Legend of Rome, 1952, p. 18.
[29] Jean J. Burlamaqui, The Principles of Political, vol. 2, part I, chapter, 3, no. 9.
[30] William E. Blackstone, “May the United States Intercede for the Jews,” Our Day, Joseph Cook, ed., vol. 8, no. 46, July - December 1891, p. 248; Note: “. . . Continued protests on the part of the dispossessed state, are sufficient to rule out [stop or prevent] the legitimization . . . of the original illegality [or usurpation].” (Hersch Lauterpacht, International Law: Collected Papers, Elihu Lauterpacht, ed., 1970, p. 345) There is no time limits on this. The right can be extended indefinitely for thousands of years.
[31] Ibid., p. 247.
[32] Ibid.
[33] William E. Blackstone, Selig Adler and Adolf Augustus Berle, Christian Protagonists for Jewish Restoration, Joseph Cellini, ed., 1977, p. 21.
[34] Ibid., p. 20.
[35] Address by Prime Minister Netanyahu to the United Nations General Assembly, September 24, 1998, Ministry of Foreign Affairs and Benjamin Netanyahu, A Place Among the Nations: Israel and the World, 1993, pp. 14-15.
[36] Samuel Johnson, “Memoirs of the King of Prussia,” The London Chronicle, vol. 1, May 21-24, 1757, p. 492.
[37] Jennifer Jackson Preece, Minority Rights: between Diversity and Community, 2005, p. 4.
[38] Lazare Carnot, War auch Mitglied der Fanzösischen Nationalversammlung während der Revolution, zitiert nach: Emerson, 1960, p. 299.
[39] The Report of the Committee of Rapporteurs, League of Nations, Doc. B/21/68/106 [VII] p. 22-23, April 26, 1921.
[40] Secretary-General’s Press Conferences, U. N. Monthly Chronicle, vol. 7, February 1970, p. 36.
[41] Juliana Geran Pilon, Why America is such a Hard Sell: Beyond Pride and Prejudice, 2007, p. 191.
[42] Robert Jackson, Sovereignty, Evolution of an Idea, 2007, p. 108.
[43] Hurst Hannum, Autonomy, Sovereignty, and Self-Determination, 1996, pp. 454-455.
[44] Alban Butler, The Lives of the Fathers, Martyrs, and other Principal Saints, vol 5, 1845, p. 341.
[45] Robert H. Jackson, “Boundaries and International Society,” Barbara Allen Roberson, International Society and the Development of International Relations Theory, Barbara Allen Roberson, ed., 2002, p. 163.
[46] Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 108 and J. H. W. Verzijl, International Law in Historical Perspective, 1970, p. 382 and J. H. W. Verzijl, International Law in Historical Prespective: State Territory, vol. 3, 1970, p. 382.
[47] Op.cit., Robert H. Jackson, pp. 163-164.
[48] Angel M. Oliveri Lopez, Key to an Enigma, British Sources to the Falkland/Malvinas Islands, 1995, pp. 37-38.
[49] Ibid.
[50] “ICJ Rules on Kosovo Statehood: International Court of Justice to issue non-binding opinion on breakaway from Serbia,” 2011: www.aljazeera.com/news/europe/2010/07/201072232633925457.htm.
[51] Eugene V. Rostow, The Future of Palestine, McNare Paper no. 24, November 1993, p. 11.
[52] Op.cit., Robert H. Jackson, pp. 167-168.
[53] Patrick Buchanan, Churchill, Hitler and “The Unnecessary War:” How Britain Lost its Empire and the West lost the World, 2008, p. xv.
[54] Ibid. and Walter Lippman, U. S. War Aims, 1944, p. 174.
[55] Patrick Buchanan, Churchill, Hitler and “The Unnecessary War:” How Britain Lost its Empire and the West lost the World, 2008, pp. xvi-xviii.
[56] Ibid., p. xv.
[57] Wolfgang Danspeckgruber, The Self-Determination of Peoples – Community, Nation, and State in Global Interdependence, 2001 as quoted in Mahmoud Abbaker Suleima, Darfur, a Crisis of Identity & Governance, 2011, p. 342.
[58] “Self-Determination: International Law & Practice (Implementation of the Right of Self-Determination as a Contribution to Conflict Resolution),” UNESCO International Conference of Experts, Barcelona 1998, Michael C. van Walt van Praag and Onno Seroo, Eds., November 21-27, 1998, p. 16
[59] Ibid., pp. 26, 22, 27.
[60] Ibid., p. 27.
[61] Milena Sterio, “On the Right to External Self-Determination: ‘Selfistans, Secession and the Great Powers’ Rule,” Minnesota Journal of International Law, vol. 19, April 23, 2010, Abstract: Cleveland-Marshall College of Law, Cleveland State University, 2011: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1337172).
[62] Elena Cirkovic, The Myth of the Inkarri: “Colonial Foundations in International Law and Indigenous Struggles,” York Centre for International and Security Studies: Working Paper, no. 39, April 2006, p. 11.
[63] Christopher C. Joyner, International Law in the 21st Century: Rules for Global Governance, 2005, p. 48.
[64] Angel M. Olivieri Lopez, Key to an Enigma: British Sources Disprove Claims to the Falkland/ Malvinas Islands, 1995, pp. 37-38.
[65] Ibid., p. 38.
[66] “Self-Determination: International Law & Practice (Implementation of the Right of Self-Determination as a Contribution to Conflict Resolution),” UNESCO International Conference of Experts, Barcelona 1998, Michael C. van Walt van Praag and Onno Seroo, eds., November 21-27, 1998, p. 34.
[67] Johann Wolfgang von Goethe quote original reference unknown.
[68] Robert H. Jackson, “Negative Sovereignty in Sub-Saharan Africa,” Review of International Studies, vol. 12, no. 4, October, 1986, p. 248.
[69] Martin Wright, Systems of States, 1977, pp. 166, 168.
[70] Paraphraze of Louis J. Hale, Men and Nations, 1962, pp. 33-38 in the article: Robert H. Jackson, “Negative Sovereignty in Sub-Saharan Africa,” Review of International Studies, vol. 12, no. 4, October 1986, p. 248.
[71] Paraphrazed and quoted from Alexis Heraclides, The Self Determination of Minorities in International Politics, 1991, p. 28.
[72] Henry Reynolds, Aboriginal Sovereignty, 1996, pp. 170-171.
[73] United Nations Declaration A/5217 (1970).
[74] Hugo Grotius, On the Law of War and Peace, vol. 2, Book 2, no. 9.
[75] Hugo Grotius, The Freedom of the Seas, [1633], Ralph van Deman Magoffin, trans., 2000, pp. 16, 19.
[76] Robert Jackson, Sovereignty: Evolution of an Idea, 2007, p. 74.
[77] Henry Wheaton, Wheaton’s Elements of International Law, 5th ed., Coleman Phillipson, ed., 1916, pp. 270-271.
[78] Emerich de Vattel, The Law of Nations, Book I, Introduction, no. 18.
[79] Christian Wolf, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., 1934, p. 15.
[80] Georg Friedrich von Martens, A Compendium of the Law of Nations, 1802, p. 65.
[81] Christian Wolf, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., 1934, p. 159.
[82] J. G. Heineccus, A Methodical System of Universal Law, vol. 1, 1743, p. 179.
[83] Emerich de Vattel, The Law of Nations, Book 1, chapter 18, no. 209.
[84] Ibid., no. 208.
[85] Ibid., Book 2, chapter 7, no. 90.
[86] Nancy M Williams, The Yolngu and their Land: A System of Land Tenure and the Fight for Its Recognition, 1986, p.126.
[87] Robert Jackson, Sovereignty: Evolution of an Idea, 2007, p. 76.
[88] Joseph Parrish Thompson, American Comments on European Questions, International and Religious, 1884, p. 116.
[89] Henry Wheaton, Wheaton’s Elements of International Law, 5th ed., Coleman Phillipson, ed., 1916, p. 91.
[90] Ibid., p. 77.
[91] The Council of Interracial Books for Children, Chronicles of American Indian Protest, Preface, 1979
[92] Ibid., p. 26.
[93] James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, 2008, p. 121.
[94] Ibid., p. 122.
[95] Charles Henry Butler, The Treaty making Power of the United States, vol. 1, part 2, chapter 4, no. 131, 1902, pp. 228-230.
[96] Chandler P. Anderson, “Extent and Limitations of the Treaty-Making Power under the Constitution,” The American Journal of International Law, American Society of International Law, vol. 1, part 2, July and October 1907, p. 636.
[97] Senator White, “Indians,” Register of Debates in Congress, April 21, 1830, p. 375.
[98] The Constitution of the United States of America, Article 1, section 8, clause 3.
[99] Williant Wirt, “The Cherokee Case,” Niles’ Weekly Register, vol. 39, Hezekiah and William Ogden Niles, eds., September 25, 1830, 1831, p. 87.
[100] Felix Cohen, Handbook of Federal Indian Law, 1942, p. 123) (U.S. Government Printing Office, 1945.
[101] Chief Justice Marshall, Worcester v. Georgia, 31 U.S. 515 (1832), pp. 560-561.
[102] Charles Henry Alexandrowicz, The European-African Confrontation, 1973, p. 62.
[103] Sir Mark Frank Lindley, The Acquisition and Government, 1926, p. 182.
[104] David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground, American Indian Sovereignty and Federal Law, 2001, p. 19.
[105] Allan W. Eckert, A Sorrow in our Heart, 1992, p. 211.
[106] Charles Cheney Hyde, International Law Chiefly as Interpreted and Applied by the United States, vol. 1, 1922, p. 193.
[107] Ibid., p. 7.
[108] Ibid., p. 10.
[109] Ibid., p. 11.
[110] Mark A. Chavaree, Tribal Sovereignty, February 8, 1988, p. 1, 2011: http://www.mitsc.org/library.php?do=section&name=Sovereignty.
[111] Khalid Latif Gauba, His Highness: A Study of the Problems and Passions of Indian State Rule, 1932, p. 134.
[112] Princely States of India, 2011: http://princelystatesofindia.com.
[113] Holy Roman Empire, 2011: www.ict.griffith.edu.au/wiseman/Roman/the%20Holy%20Roman%20Empire.
[114] The Holy Roman Empire, 2011: www.heraldica.org/topics/national/hre.htm.
[115] Chaudhri Muhammad Ali, The Emergence of Pakistan, 1983, p. 228.
[116] Conrod Swack Lamer, The United States Democratic Review, vol. 40, 1857, p. 407.
[117] Hugo Grotius, On the Law of War and Peace, Book 2, chapter 17, no. 17.
[118] Karl J. Schmidt, An Atlas and Survey of South Asian History, no. 35, 1995, p. 78.
[119] Johann Wolfgang Textor, Synopsis of the Law of Nations, vol. 2, 1680, p. 72.
[120] Emerich de Vattel, The Law of Nations, Book 2, chapter 12, no. 196.
[121] Thomas Chalmers, Select Works, vol 5, 1855, p. 184.
[122] Samuel Pufendorf, Of the Law of Nature and Nations, Jean Barbeyrac & William Percivale, translators, Book VII, chapter 7, no. 7, 1710, p. 577.
[123] Gerald Fitzmaurice, “General Principles of International Law Considered from the Standpoint of the Rule of Law,” Recueil Des Cours, Acadimie de Droit International de La Haye, vol. 91, no. 71, 1957 reprinted 1993, p. 121.
[124] Temple of Preah Vihar, Cambodia v Thailand, 1962, I.C.J. pp. 39, 45 June 15, separate opinion of Judge Alfaro.
[125] Ibid.; Note: “. . . The concept of acquiescence is similar to that of implied waiver [or implied consent, implied abandonment or the implied renunciation of all rights].” (Christian J. Tams, “Waiver, Acquiescence and Extinctive Prescription,” University of Glasgow, 2011: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1414188) In acquiescence, “. . . the claimant State [or ‘de jure’ monarch or his successors] failed to assert its [or his] claim and that it thereby has implicitly accepted its extinction.” (Ibid.) “. . . Both implied waiver and acquiescence are based on the same rationale, namely the idea that a certain statement may be inferred from conduct, be it action or inaction.” (Ibid.).
[126] Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 118; Note: For prescription to work, “. . . there must . . . be an acquiescence on the part of the original sovereign. If the latter keeps its claims alive by protest or the bringing of an action, there will not be that undisturbed or ‘peaceable’ possession which alone enables a state to prescribe a title.” (Robert Yewdall Jennings, The Acquisition of Territory in International Law, 1963, p. 23) (Frontier Land case, International Court of Justice Reports, 1959, p. 209).
[127] Mark Bentnall, The Princely and Noble Families of the Former Indian Empire, 2005.
[128] Sergo Turmanidze, “Status of the De facto State in Public International Law: A Legal Appraisal of the Principle of Effectiveness,” Dissertation, University of Hamburg, 2010, p. 284.
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