Chapter One: 
(Volume II)
INTERNATIONAL LAW AND DEPOSED SOVEREIGNTY
Chapter Table of Contents
Introduction: Dynastic Rights, Sovereignty and Prescription
Most people interested in nobility and royalty have no idea how sovereignty could still be legally intact in a deposed or dethroned royal house that no longer rules a nation. Domestic law does not perpetuate the right to rule. Sovereignty does not exist for a deposed royal house under domestic law. Therefore, no domestic or national law, hereditary or otherwise, can continue or perpetuate such rights. National law only recognizes the sovereignty of the current ruling government, not an exiled government or a dispossessed ruling house. International law, through prescription, is the only law that directly addresses the maintenance and loss of dynastic and governmental rights. This will be explained in great detail as it is the foundation upon which all legal sovereign rights can be preserved indefinitely.
Jura regalia [are defined as] royal rights, -- a term comprehending not only those rights which pertain to the political character and authority of the king, but also those rights which are incidental to his regal dignity. . . .[1]
That is, jura regalia are the dynastic rights of both reigning and deposed monarchies. ". . . Prescriptive acquisition [or forfeiture] of [those] regalian rights . . ." is a legal reality which has taken place from ancient times.[2] (See "The Ancient Rules of Prescription were before all Recorded History" in this chapter)
". . . Prescription [is the transfer] of major regalia [royal or dynastic rights] . . ." from one legal entity to another by certain rules.[3] Prescription has power over all such regal rights and has had this authority from time immemorial as a natural law doctrine. "Regalia majora," is defined as "those prerogatives of the King which are part of his sovereignty."[4] In other words, royal rights, as great as they are, are merely a part -- a subordinate element of the greater or all-encompassing right of sovereignty. That is, "The more considerable royal rights, which are called greater, (regalia majora) . . . are annexed to the sovereignty [of a monarchy]. . . ."[5] That is, they are an extra or subordinate part, which are added to or annexed to the supreme part or greater right of sovereignty.
As described, royal rights are a lesser aspect annexed to what is supreme or the highest of all. So, even though major regalia is "the king’s dignity, power, and royal prerogative, as opposed to his revenue, which is comprised in the minora regalia," it is not greater than sovereignty, but is an aspect of it.[6] "Those [dynastic] prerogatives . . . are part of his sovereignty."[7] They are not all of it, but a component part of the it. ". . . the Rights defined as regal [or dynastic] . . . are adjuncts [supplementary rather than an essential part] of the power of making law and may be prescribed on the authority of that [sovereign] power in different ways in different commonwealths. . . ."[8] ) In other words, ". . . Majora regalia . . . [are an] attribute [or lesser part] of sovereignty."[9] Nevertheless, these important ". . . royal prerogatives [are] inseparable from sovereignty."[10]
Royal rights being inalienable and inseverable from sovereignty means that if you take de jure sovereignty away from a deposed house, which takes place through prescription, there is no major regality, no royalty, and no dynastic prerogative left. As an example, a court palatine had authentic royal rights and jurisdiction within his or her territory, but was still subservient to the sovereign authority of the land, which is the highest right or above all. Being an appendage of sovereignty, royal rights are always subordinate to the supreme authority of the land. Sovereignty is, in fact, the foundation of everything royal and grand. It is the heart and soul of grandeur – the highest secular entitlement on earth.
Once the all-encompassing attribute of sovereignty has been terminated, all royal rights of a hereditary dynasty are lost with it. This includes all the rights of:
(1) Jus Imperii,
(2) Jus Gladii,
(3) Jus Majestatis, and
(4) Jus Honorum.
Each is an important attribute of sovereignty:
(1) Jus Imperii is the right to command and legislate. "Jus imperii [is a major component of] the right of sovereignty."[11]
(2) Jus Gladii is the right to enforce one’s commands, which is also an indispensable quality without which sovereignty cannot exist.
(3) Jus Majestatis is the right to be honored, respected and protected, which is also an inseparable part of sovereignty. ". . . The ‘right of majesty’ (Jus Majestatis) i.e. [is an integral aspect of true] sovereignty. . . ."[12]
(4) Jus Honorum is the right to publically and legally, rather than privately, honor and reward, and, ". . . the jus honorum [like the other qualities] can not exist without the attribute of sovereignty. . . ."[13]
This right, which is not limited only to the power to grant titles of nobility but also the faculty to bestow other marks of honor, such as pensions, knightly orders, civil and military awards, is strictly connected to the attributes of sovereignty.[14]
. . . Jus honorarium, which comes from the possession of sovereignty as the other powers that characterize the sovereignty itself (such as jus imperii, jus gladii and jus majestatis) survives . . . when the effective exercise of jus imperii and jus gladi is suspended [not destroyed, but becomes dormant] by the loss, for example, of the effective control over a country.[15]
There is no division between legislative and enforcement rights and the right to honor and be honored. Sovereignty is not sovereignty if it is not composed of all four elements that comprise this important quality. In other words, there is no such thing as holding only the right to be honored and the right to honor others and not also hold the right to command and the right to make laws. One must have all four characteristics or one does not hold the highest of all secular rights -- the right or entitlement to rule. In other words, by analogy, one can't be partially pregnant, sort of dead, kind of human, or almost sovereign. Supremacy is an all or nothing quality for either a reigning dynasty or a deposed royal house. All four qualities equal, or amount, to sovereignty. Anything less is non-sovereign. As stated below:
It is certain that sovereignty comprehends the exercise of four fundamental rights: the JUS IMPERII, which is the right of command; the JUS MAJESTATIS, which is the right to be honored, respected and protected; and the JUS HONORUM, which is the right to reward merit and virtue.[16]
Dispossessed royal houses continue to hold all four rights of sovereignty:
When the sovereign loses the territory, on which he used to exercise the JUS IMPERII and the JUS GLADII, he does not lose the [four] sovereign rights. He still conserves IN PECTORE [in abstentia] and IN POTENTIA [in potential] the above-mentioned rights [all four of them], of which the effective exercise is [merely] suspended. . . .[17]
There is no difference between deposed sovereignty and reigning sovereignty except in form. They are fundamentally the same. The dispossessed king or sovereign prince still holds the right to legislate and enforce even if he is deposed, because he still holds the legal rightnot the power, but the legal and lawful entitlement to rule as long as he, and his successors, continue to perpetuate this right.
One with ". . . sovereignty does not cease to be such even if he . . . makes promises . . . [like creating] a constitution limiting the exercise of [his] powers. . . ."[18] He still holds all the sovereign rights of imperium and gladii even though he cannot exercise them because of the constitution does not allow him to. By analogy, Grotius explained:
If the head of the household promises that he will do for it something which affects the government of it, he will not on that account cease to have full authority over his household, so far as matters of the household are concerned. A husband, furthermore, is not deprived of the power conferred on him by marriage because he has promised something to his wife.[19]
Without all four of these fundamental elements either in an active or inactive state, no reigning or deposed king or prince holds any sovereignty or royal rights.
"If the Sovereign [has] abdicated or been lawfully deposed . . . his legal title to international rights and favours has ceased."[20] That is, not only is such a person without valid legal title under domestic law, but also under international law. He or she has lost every royal and sovereign privilege -- no longer having a legal and lawful public right to anything regal, supreme or grand. This kind of loss of every dynastic right is equally true of a deposed house that neglects their rights. Because:
. . . After so many years of prescription [that is, 50 to 100 years of negligent abandonment of their once valid royal claims] our [former or deposed] kings and emperors [forfeit or] have lost all those true and ancient imperial rights [of rulership and royal honors and privileges]. . . .[21]
It ceases to exist by natural law. However, if a depose house is prescriptively intact, that house will have the full international right to rule -- all four qualities, but not necessarily the power, to operate and function in all four areas. Nevertheless, if de jure, deposed sovereignty is forfeited, there is nothing left. Everything sovereign, and therefore royal, is gone. Such a family no longer holds their former kingdom’s highest and most supreme right, (the priceless right of sovereignty), they are no longer royal, grand or anything other than commoners with no more authority than anyone else. All honors must spring from a genuine, authentic source or fountain of honor otherwise it must be rejected as worthless pretense.
It is [quite] possible that the great, grandson of a deposed king might grieve over the loss of the hereditary [or dynastic] rights to a kingdom which would have descended to him if it had not been forfeited [or lost] by his ancestor. But again, if he were a reasonable man, and if he had the opportunity of an honorable career and a happy life in a private station, he might not regret the lack of royal dignity, and he might be perfectly contented with his actual state.[22]
Obviously, commoners, who have lost their rights are no longer princes or de jure kings. They do not have the right to bear titles, and honor others, as they are merely regular people and citizens of their lands. So it could be a great disappointment to them. But a true non-territorial sovereign, from a royal family that has maintain it, prescriptively holds all the rights and majesty of his former kingdom or principality. He is a genuine and true sovereign, an international public person in international law. Furthermore, recognized by others or not, he is genuine and authentic.
The important point here is, to have illustrious royal ancestors and even be the firstborn descendant of such a family who once ruled a land means nothing legally if sovereignty has been forfeited. If the precious quality of sovereignty is gone, or lost in any of a number of different ways, which will be discussed later in this chapter, so is the legitimate right of holding any royal entitlement, prerogative, or privilege. Nothing is left over. You simply cannot hold the rights to something that has been legally and lawfully terminated on both a domestic and international level.
The point is, ". . . the Rights of Princes to their thrones are . . . Legal Rights . . ." through prescription, which can preserve or terminate such.[23] "[Both internal and external] sovereignty is . . . merely [a] legal conception. . . ."[24] Since sovereign right ". . . is conferred by law . . . ," it can also be taken away or terminated by law[25] In other words, the law giveth and the law can just as easily take away. "No man is King or Prince by instrument of nature [not by natural law], but every King and king's son hath his dignity and preeminence above other men, by authority only of the common wealth [that is, by domestic law]."[26] Dynastic or hereditary rights are:
. . . human laws . . . [that] enable men to transmit with their blood property, titles of nobility, or the hereditary right to a crown. These privileges may be forfeited for himself and his posterity. . . . They may be forfeited for posterity, because they are not natural rights.[27]
To illustrate this fact, note that there are hundreds of different combinations of hereditary injunctions. Succession can be patriarchal or matriarchal, it can be by rota (ladder or staircase), semi-elective, designation or appointment, by marriage, wills, intestate procedures, dynastic, or family pacts and reversibility in case one family became extinct, international treaties, assassination, constitution, parliament, house rules and laws, custom, proximity of blood, ultimogeniture (succession of the youngest), lateral succession, matrilinear, religious, revelatory, primogeniture, agnatic or semi-salic, pragmatic, partible, or any combination thereof, which allows for hundreds of different possible hereditary composites.
. . . The mere fact that different nations have come to different conclusions about [inheritance or the passing on of dynastic rights] plainly shows that it is a fairly open question about which there is no natural law [principle or universal absolute in regard to the continuance of regal rights through succession] either way.[28]
This leaves succession up to human law, constitution, custom, or house rules, rather than the higher ageless and unchanging law of nature. With this in mind, dynasty succession rights are finite-domestic national rules subject to loss and change as suits the circumstance. However, international law does designate the way to change such rules, which will be the subject of a sub-chapter in Chapter VI entitled "Legal and Lawful Solutions to Succession Conflicts Provided under International Public Law," Some, who have not made an in-depth study of this subject, may ask:
Is not hereditary Right, in all hereditary Kingdoms, indefeasible and unlimited? [Answer]: No there is no such thing as unlimited indefeasible hereditary Right in any Kingdom.[29]
Man-made rights, whether dynastic or hereditary, are not eternal, everlasting or absolute, they are merely man created entitlements that can be altered or come to an end. Hereditary dynastic rights come not by nature, but ". . . by the operation of civil [house rules or constitutional] law, where this law has established lineal succession. . . ."[30] It is not ". . . a divine [indestructible] hereditary right, which cannot be defeated [changed, or annulled] by any human act whatsoever, to be inherent in the heir."[31] The right of any dynasty is subject to forfeiture as much as any other legal creation. In fact, hereditary monarchy was not the most common form. Jean Bodin observed, in the 16th century, that ". . . there are only a very few strictly hereditary monarchies" at that time.[32] Although this practice changed for many as more and more kingdoms and principalities adopted primogeniture, the point is, royal succession is not indefeasible [or irrevocable]. As Sir William Blackstone declared, "The doctrine of hereditary right does by no means imply an indefeasible right to the throne."[33] In fact, as Edmund Burke declared in the 18th century, ". . . no creature now maintains, ‘that the crown is held by divine hereditary and indefeasible right.’"[34] The idea that dynasties can never die is a dead doctrine once believed by some, but never universally as will be discussed later.
It is not to be understood, however, that one cannot, by prescription, establish his right . . . which another claims in virtue of his right of relationship [or right by blood or jure sanguinis]. . . . All that is meant is, that if no other heir has been entered, the right of blood is not lost. . . .[35]
"Generally it may be said that any right [including dynastic entitlements] may be lost by non-usage which can be acquired by lengthened use [that is, by and through prescription]."[36] Indefeasible hereditary succession is a discredited idea that has no basis in reality, nor does it have any legal backing. A whole book was written on this subject showing how:
Hereditary right [is] not indefeasible [not invincible, absolute or permanent, and this is] . . . founded upon the unalterable laws of society and government, proving that [unforfeitable] right . . . can never belong to any prince or succession of princes.[37]
Prescription is the only international law principle that allows or permits non-territorial sovereignty to exist as a right after dethronement; and it can be passed on to successors depending on the rules of succession. However, if prescriptive law is disobeyed, the consequence is forfeiture of all that belongs to a royal house. In other words, lost rights cannot be passed on to the next generation, because ". . . there is [simply] no such thing as unlimited indefeasible [that is, an unforfeitable] hereditary Right in any Kingdom [reigning or deposed]."[38] Inalienable hereditary rights do not exist in this world outside the context of natural law by virtue of ancient prescriptive rules.
This is important to understand, because knowledge is power. It is also highly protective. Knowing how not to be deceived by the charlatans or bogus princes who skillfully fight the truth and knowingly blur legal realities in order to take advantage of innocent, unsuspecting victims, is of great value in a world of so many scammers and counterfeiters. It is very important to understand the basic inherent facts about sovereignty and royalty, so one is not taken in by those who masquerade as authentic, but who are really only impostors, who impersonate what is real, genuine and true. Such are liars and deceivers, not honest or honorable men.
The fundamental, basic, or core principles in this chapter have been covered in Volume I, but not in great detail, or in the detail it deserves. To get a thorough knowledge, more information must be furnished. Because these concepts are of such great importance to sovereignty, justice and legitimacy in the practice of international law, it is deemed essential to include them and repeat them in different contexts including adding footnotes that not only show references, but also add citations that either expand the understanding or act as additional support to the ideas presented.
There is clear and unmistakable support for these natural law principles from the majority of experts, scholars, jurists, and publicists throughout the world. Nevertheless, few people are fully aware of them and their important binding certainty, and therefore their towering implications to the whole field of nobility and royalty and governments-in-exile in terms of the important sovereign right to rule. Hence, repetition becomes a necessity to expand the general knowledge and understanding of the more intricate details. As new topics or aspects of prescription are brought up in the chapter and sub-chapters that follow, the opportunity to cite additional quotes, as evidence to reconfirm them and their natural legal foundation will be taken. In most cases, this central law is at the heart of our ability to discern true claims from false ones.
The essential aspects of international prescriptive law revolve around either the continuance or the elimination of sovereignty. This is the central axis of the outcome of its rules. Since all royal and regal rights are deeply ingrained into the constitutional makeup of sovereignty, the rules of prescription becomes a chief concern. Royal hereditary rights are so intertwined and tangled up together with this law that all royal honors and entitlements cannot have any justification or legitimacy outside of its influence. If de jure sovereignty is lost by it or any other way, royalty no longer has any lawful existence or legal standing in the real world – not through any law on earth domestic or otherwise. Royalty ends with the loss of sovereignty, because it is inseparably connected to it. Therefore, the maintenance of sovereignty through prescription is of utmost importance to deposed royal houses if they are to continue as such. A dispossessed royal house cannot be royal, regal, imperial, and rightful or hold any privileges outside of it. A government-in-exile as an organization is also meaningless and void without sovereignty. It is nothing, but a pretense of something real without this important right. Sovereignty is therefore the core issue and prescription determines whether this critical quality will legally survive.
Prescriptive Terms and Definitions
It may well be doubted if any advantage is gained by importing into the law of international prescription, terms which have become technical in private and public municipal law, like postliminium, derelictio, derivative acquisition, extinctive acquisition, etc. . . . The intercourse of nations is best managed by referring to those general principles applicable to what is international, and not in terms and phrases appropriated to other systems, and colored by their associations.[39]
Use of domestic technical terminology can create confusion and misunderstandings. To simplify things and be more in harmony with international usage, "prescription . . . is [basically and fundamentally] the acquisition or extinction of rights by lapse of time."[40] As a natural law principle it both maintains rights under certain conditions and terminates them under others. It is important to recognize that the various terms for prescription that are used on the internatonal level do not fundamentally differ from each other. For example, extinctive, acquisitive, and immemorial prescription all essentially have the same meaning. For example:
. . . [Because] immemorial possession and acquisitive prescription proper (akin to adverse possession) ultimately produces a single, common outcome -- the acquisition of a good title -- there is a tendency to lump them together under the head of "acquisitive prescription."[41]
This is appropriate, because fundamentally, these terms do not differ in any important way. Note the following definition for immemorial prescription:
. . . Immemorial possession [is] a possession -- the origin of which is unknown or so involved in obscurity that it can not be shown whether the possessor holds title from the original owner or has obtained possession from someone else.[42]
This definition can include both extinctive and acquisitive prescription because, after 100 years, critical evidence is lost or destroyed by time. The reason for this is one of practicality. In modern history, the original possessor of a State or other territory is generally known, even if the territory was subsequently overtaken by another sovereign. But, with the passage of time, (e.g. 100 years), it becomes progressively more challenging to tell if the original owner did not in some way legally transfer rights either to the new possessor of the territory or to someone else. Therefore, the title to these rights of sovereignty can become legally uncertain, and a legal mechanism is required to be able to conclusively settle these unknowns. For this reason, after 100 years, prescription resolves this uncertainty. With this resolution, the legal case for these rights of sovereignty is definitively concluded and finalized by prescriptive law.
Put another way, the precise rights of the original possession cannot be determined without speculating or assuming facts not in evidence. With the passage of time, these facts can never be adequately determined with any degree of reliability or certainty after so many years. That is why the law of prescription is so critical to form good title. This will be discussed again in greater detail later in the text. But the point is that immemorial prescription encompasses both extinctive and acquisitive prescription; after 100 years, prescription settles that all rights transfer to the current possessor after such a long and unchallenged possession has taken place.
Immemorial possession raises a conclusive presumption of title: a presumption juris et de jure, which admits of no proof to rebut it; for the right of possession must prevail until a better title is shown, and immemorial possession is legally presumed to have survived all proof on either side. . . .[43]
Thus, whole dynasties irreparably and conclusively forfeit their once lawful regal hereditary entitlements and the case cannot be legally rebutted, refuted, or defeated. Any new or old evidence submitted is not admissible at this point. The transfer of all entitlements and all sovereignty is final.
Immemorial prescription does not mean there were no prior sovereigns, or ". . . no traces at all to be found of any [potential] right in any other person [or entity]. . . ."[44] Such would be a first occupancy situation, not a circumstance appropriate for prescription. In immemorial possession, there is always a potential claimant, known or unknown, but one that has lost his rights because of neglect for so long a period of time.
In other words, immemorial prescription can, in effect, be an acquisitive prescriptive situation by virtue of the fact that there was indeed a former sovereignty involved who has acquiesced. Likewise, an acquisitive prescription can become an immemorial prescription merely by the passage of time resulting in the loss of evidence and no living witnesses who can testify about what really happened making the origins unknown or unknowable. Acquisitive prescription can be "shrouded in doubt," because one hundred years will create that situation. Or, on the other hand, immemorial prescription can involve a known former sovereign entity.
Comparing extinctive with acquisitive prescription, we find that:
Acquisitive prescription is the acquisition of a right by lapse of time; extinctive prescription is the extinction of a right by lapse of time. Extinctive prescription is not a mode of acquiring ownership, while acquisitive prescription is.[45] (emphasis added)
However, in international prescription, if sovereignty is extinguished through extinctive prescription, the right to rule automatically goes to the subsequent government just as in acquisitive prescription. So again, there is virtually no difference in the outcome. The terms can and are used interchangeably and are practically synonyms. They overlap to such a great deal that the distinctions are of little practical use. In summary, "Prescription . . . is a portmanteau concept [a merger] that comprehends both a possession of which the origin is unclear or disputed, and an adverse possession that is in origin demonstrably unlawful."[46]
Yet further review is necessary. "The difficulties encountered at the international level start with the interpretation of concepts that have been left [for the most part] undefined and vague."[47] The chief and obvious exception between the terms extinctive, acquisitive and immemorial is that immemorial prescription requires one hundred years of uncontested, undisputed possession, while extinctive and acquisitive prescriptive cases can transfer royal and/or sovereign rights in half the time. Vattel made it clear in the book The Law of Nations that "ordinary prescription" does not require immemorial possession or one hundred years for the loss and transfer of rights.[48] International courts in the last century also recognize shorter periods of possession to arrive at a final prescriptive transfer of all internal rights to sovereignty. This powerful natural law is from time immemorial and was practiced by the ancients.
International Law is Ancient
"[Many writers] have [in the past] committed the grave mistake of asserting that the ancient world had no conception of a valid and binding international law."[49] The fact is that they actually had such laws and practices. "The concept of sovereign rule," for example, "dates back centuries in the context of regulated relationships and legal tradition among such disparate territorial entities as Egypt, China, and the Holy Roman Empire."[50]
In the seventh century, Isidore, the Bishop of Seville, wrote down in the form of an encyclopedia ". . . a compendium of much of the essential learning of the Greco-Roman and early Christian world."[51] He defined the Roman law of nations, as follows, showing that it was truly international law as we know it and define it today. He wrote:
What the law of nations is (Quid sit ius gentium):
1. The law of nations concerns the occupation of territory, building, fortifications, wars, captivities, enslavements, the right of return, treaties of peace, truces, the pledge not to molest embassies, the prohibition of marriages between the races. And it is called the "law of nations" (ius gentium) because nearly all nations (gentes) use it.[52]
All natural law, such as, "prescription," was considered to be valid and just for all nations and all people and could be applied to all situations as deemed appropriate by Roman authorities throughout the known world. The point is, "Jus gentium [the Roman law of nations] . . . used the concept of prescription. . . ."[53] And ". . . Ius gentium [was] the law governing the relations of Rome with other states. . . ."[54] Gaius (130–180 AD), an eminent ancient Roman jurist wrote:
Every people that is governed by statutes and customs observes partly its own peculiar law and partly the law common to all mankind. That law which a people establishes for itself is peculiar to it and is called ius civile as being the special law of that state, which the law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium as being the law observed by all mankind.[55]
But the Romans did not originate this principle, "Plato [wrote] Rules for . . . Prescription in [ancient Greece long before Rome ever existed]."[56] That is, the law of "prescription [is thought to have] . . . originated . . . with the Greeks. . . ."[57] However, usucaption or prescription was part of the law in the ancient Empire of Persia.[58] In fact, international prescriptive law, being part of the universal natural law of all ages and all people, and was used in ancient Israel over 1,000 BC.
Grotius, and other writers on international jurisprudence, have illustrated their own views of public law by numerous examples taken from the history of this singular people [the children of Israel]. . . .[59]
The Babylonians had international law as they dealt with many nations as an empire.[60] Hugo Grotius gives several examples of ancient prescription:
. . . the Lacedaemonians, we are informed by Isocrates [(436-338 BC)], laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena [a stale uncontested claim of over 100 years].
Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, "that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers [more than 100 years ago], he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretensions, empty talking, and the latter treats them as idle tales and fables.[61]
Cicero in his second Book of Offices, [asks] Is there any Reason Why Lands that a Man has been possessed of for many Years, or even many Ages, should be taken from him?[62]
The answer to this question is, of course, "no," if the former ruler, or his lawful successors, failed to maintain their rights were permanently forfeit. This is because, "Time hath made the Possession firm and lasting [in other words, final and permanent]. . . ."[63]
In the . . . Justinianic legal formation [500-600 AD] . . . prescription . . . turned incholate [part] title into complete title . . . and offered a virtually unassailable right of sovereignty and possession. . . .[64]
Grotius describes such a situation in the ancient Israel where Jephthah ". . . pleads prescription."[65]
To disturb anyone in the actual and long possession of territory has in all ages been considered as repugnant to the general interests and feelings of mankind. For we find in holy writ, that when the king of the Ammonites demanded the land situated between the rivers Arnon and Jabok, and those extending from the deserts of Arabia to the Jordan, Jepthah [the king of Judah] opposed his pretensions by proving his own possession of the same for three hundred years, and asked why he and his ancestors had for so long a period neglected to make their claim. And the Lacedaemonians, we are informed by Isocrates, laid it down for a certain rule admitting among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena.[66]
Another example of ancient prescription follows:
Sulpitius in Livy, disputing against Antiochus, shews it to be unjust that because the Greeks in Asia had at one time been in subjection, he should make that the ground of an asserted right of reducing them to subjection again after several ages. The historians speak of the claims of ancient [stale, outdated] possessions as idle talk, mythical stories [fairy tales or make-believe].[67]
Thus prescription was recognized as just in ancient times as well as being universally accepted in practically every nation on earth. It probably goes back even further – probably even before recorded history:
. . . Because things [property] were [first] acquired by real use, i.e. by settlers remaining physically on certain lands for a long time, usucaption [also called prescription] was the first, and therefore remained the principal, mode through which sovereignty became legitimate among all the nations. Thus far from the true, therefore, is the idea that usucaption [or prescription] was peculiar to the Roman citizens, a false belief that has hitherto confused all who have written on this subject.[68]
Prescription is an ancient natural law principle that appears to have had no beginning. By whatever name it is called, it is co-existent with man himself. It is an integral part of his nature and being. Prescription being intimately tied to the laws of ownership and property is tied to everything we care about as human beings. International law, another important dimension of life, like prescription, also goes much further back than the Romans or the Greeks:
In recently recovered historical materials there is evidence of arbitration and treaty-negotiation among the nations of western Asia as early as 4000 B. C. . . . [That is] the problem [and practice] of international federation [inter-governmental merger and agreement] is at least five thousand years old.[69]
Hence, it is incorrect to:
. . . assume that international law has developed only during this last four to five hundred years and only in Europe, or that Christian civilization has enjoyed a monopoly in regard to prescription of rules to govern interstate conduct.[70]
. . . [International law] existed in all climes and ages to regulate the relations between independent nations existing since ancient times. The ancient civilizations of India, Egypt, Greece and Rome had advanced notions of what forms a major part of international law today.[71]
This included a treaty system, diplomacy, rights for ambassadors, proper and just war, arbitration potential, consulates, piracy, rights of asylum, prescription (both preservative and extinctive), and more.
The Prescriptive Preservation of the Ancient Royal House of David
Maintaining royal rights and keeping them alive, according to the rules of prescription, can be easily discerned in the following case, which represents prescriptive preservation of deposed rights for almost a thousand years. It has been gleaned from what history is available to show that titles were used by a well-known deposed royal house, such that, their claim was never discarded, neglected or abandoned. From 970 B.C. to the coming of Christ in 1 A.D., the Davidic line was a dispossessed and did not rule or reign in the Holy Land. This lose of kingship was prophesied or foretold by the Prophet Hosea, who lamented for the sins of Israel and explained the result thereof, "For the children Israel shall abide many days [thousands of years] without a king, and without a prince, and without a sacrifice. . . ," etc. (Hosea 3:4) In other words, he considered that part of the curse of sin is to lose the great blessing and national benefit of having a royal house reigning in the midst of the people. Nevertheless, the House of David followed what perpetuates or keeps the non-territorial right alive according to natural law. The example is that:
Jesus [who was called the Christ] was in the most full and perfect sense a descendant of David, not only by law in the royal line of kings through his reputed father, but also in fact by direct personal descent through his mother.[72]
The angel announced to his mother, Mary:
He shall be great, and shall be called the Son of the Highest: and the Lord God shall give unto him the throne of his father David: And he shall reign over the house of Jacob for ever; and of his kingdom there shall be no end. (Luke 1: 32-33)
Jesus the Christ was of the lineage of the ancient kingly line and the rightful heir of the family. However, to be the royal scion of a royal house is not enough. Titles of sovereign rank had to consistently used to legally and lawfully maintain a claim of sovereign royalty by a deposed house, which requirement was full achieved by the ruling line of the descendants of David. This was exemplified by the fact that Jesus of Nazareth was called "the son of David" seventeen times in the New Testament account. "Son of David" was a title. It did not merely mean a descendant of David, but is found elsewhere in Jewish tradition. It refers to the heir to the throne.[73]
. . . Son of David was one of the most common Jewish titles . . . . It was a royal title denoting his lineage from the family of the Great King David and his right to re-establish and rule over the coming kingdom of God.[74]
This title is similar to the French title "dauphin," which was the title of the heir apparent to the throne in France. The title "son of David" was the de jure and rightful head and chief of the royal house of David. With the addition of "the" to the title, making it "the son of David," it was the title of Jesus the Christ. It meant that he was the actual, legal and lawful king of all Israel.
Joseph, the step-father of Jesus, was also called "son of David," in other words, heir to the throne holding dynastic or de jure succession rights. (Matthew 1:20) That is, "The scepter of Juda [the right to the throne] . . . came to Joseph by hereditary succession. . . ."[75] According to Hammurabi's Code, section 188, if a man teaches his adopted son a trade, the son is thereby confirmed in all the complete rights of heirship. As the adopted step-son of the Davidic heir to the crown of Judah and Israel, Jesus became the rightful heir after his father’s death.
Dr. James E. Talmage wrote:
Had Judah been a free and independent nation, ruled by her rightful sovereign, Joseph the carpenter would have been her crowned king; and his lawful successor to the throne would have been Jesus of Nazareth, the King of the Jews.[76]
Canon Girdlestone adds:
If the crown of David had been assigned to his successor in the days of Herod it would have been placed on the head of Joseph. And who would have been the legal successor to Joseph? Jesus of Nazareth. . . .[77]
Not only was the regal and exalted title of the "son of David" used, but:
. . . The words "mother of my Lord" [spoken by Elizabeth, the mother of John the Baptist] point to Mary as a queen-mother figure [or personage of high royal status]. It has been noted in the royal court language of the Ancient Near East, the title "mother of my Lord" would have been used to address the queen mother of the reigning king (who himself is addressed as "my Lord;" 2 Samuel 24:21).[78]
The royal line kept their de jure royal rights alive the same way international law requires today. Specifically it was through the continued use of royal titles, such as, using the royal title "the son of David," which was the equivalent of the rightful "prince of the royal Davidic line."
There was an additional title used by the royal descendants of David followed the conquest of Judah by Babylon and the loss of the Kingdom. This title translates as “Exilarchate”, and it was established by the Jews while in Babylon. The title of Exilarchate meant a "King-in-waiting." Those who held this position could trace their ancestry to the House of David through the male line.[79]
The head of the Exile, who exercised temporal authority, wore in the Jewish eyes the royal crown, keter malkhut. . . . The[se] Exilarchs of Babylon who ruled over Israel with scepters [the symbols of royalty] were of the house of David, the ancient king of Israel]. . . . [In fact] for more than four centuries the office remained the exclusive possession of the members of a single extended family that traced its descent from the house of David on the male side.[80]
"[This ruling office] was hereditary, passing directly from father to son in most but not all cases."[81] Their appointment required the Babylonian Caliphs confirmation, but:
The Caliph’s choice was clearly restricted to the immediate relatives of the deceased or deposed exilarch and except for periods of inner dissension, it followed the usual hereditary succession.[82]
Though they were not really kings:
. . . Their status and authority as "Kings in Exile" was recognised by Jews everywhere. In other words, the Exilarchs are not of the Davidic dynasty, they are the Davidic dynasty; that is de jure Kings of Judah by right of descent.[83]
The Exilarch could appoint "judges" who were his representatives in all local and principal centres of Jewry. He exercised complete jurisdiction over all Jews in the Calphate. He was, in effect, the exiled monarch of all Jews based in Baghdad, but he had greater powers than any King of the Jews ever had.
The Exilarch . . . had to have Davidic descent. . . . The Exilarch had his own "Palace" [and army] . . . and when he went out, had runners running before him crying, "Make way for the Son of David [which was his title as a king of Israel in exile].[84]
Note the title of rightful kingship "the Son of David," meant the heir to the throne. After the ending of the Babylonian captivity in 538 BC, political power in Judea was exercised consecutively by:
the Persians until Darius III . . . in 331 BC; Alexander the Great until his death in 323 BC;
the Antigonids of Macedonia and Asia Minor . . . (until the Battle of the Kings in 301 BC;
the Ptolemies of Egypt . . . until the battle of Paneas in 198 BC;
the Seleucids of Greece and Asia Minor . . . until the revolt of the Hasmoneans against the Seleucids in 166 BC, although the Hasmoneans did not establish full independence until 141 BC;
the Jewish Hasmonean dynasty (the Maccabees - meaning 'hammer') until Pompey captured Jerusalem in 63 BC;
the Jewish Hasmonean dynasty as client rulers until the Romans replaced the Hasmoneans with the Herodians in 37 BC;
the Jewish Herodian dynasty (37 BC to 6 AD, 41 to 44 AD) as client rulers interchanging with periods of direct Roman rule (6 AD to 41 AD, 44 AD to 66 AD);
after the Jewish revolt of 66-70 AD . . . the Romans governed Judea by direct rule from Caesarea until the Jewish revolt of 132 to 135 AD, when the Jews were finally expelled from Jerusalem. . . . This was the beginning of the Diaspora ("scattering") and a substantial proportion of the Jews of Judea joined their brethren in Mesopotamia.[85]
. . . Modern skeptics tend to dismiss the possibility of Davidic descent out of hand but it is apparent that numerous scholars do not do so. More importantly, the Jewish authorities and people at large accepted the Davidic descent of the Exilarchs as fact for 2,000 years. There must be many of Davidic descent [at this present time][86]
Jereimiah, the prophet, prophesied that, "As the host of heaven cannot be numbered, neither the sand of the sea measured: so will I multiply the seed of David my servant. . . ." (Jeremiah 33:22) Davidic descent may be very numerous, but only one line held the regal right of heaven to rule.
The New Testament Gospel of Luke describes Christ’s natural lineage from father to son from David of old, while Matthew lists the legal and royal line showing how Christ was the lawful king being the nearest kin to the rightful line that held the highest right on earth to the throne. No matter how determined and powerfully his enemies hated this man, none ever attempted to discount the fact that he was the true Son of David and the Heir Apparent. Jesus of Nazareth was hailed by the crowd, during his triumphal entry into Jerusalem, with the title, "Hosanna to the Son of David." They were actually saying, "Glory to the rightful king of the royal house of David." (Matthew 21:9, 15)
In a Jewish context the term "son of God" was a royal title applied to every Jewish king of Israel descended from King David. In Psalms 2:7, David was anointed king and referred to as God’s "son" as an announcement of "adoption" by God. Subsequently, the second Psalm was recited at the coronation of every Jewish king descended from King David. As a result, the term "son of God" became a royal title of the kings of Israel.[87]
Seventeen times Jesus is referred to as the "King of the Jews" in the New Testament. Pilate, the Roman governor asked him, "Art thou a king then? Jesus answered; Thou sayest that I am a king. To this end was I born, and for this cause came I into the world. . . ." (John 18:37) He was born with the full hereditary right of to be a sovereign as the rights were maintained through the continued use of titles. Even the wise men from the East who came near the time of his birth, probably from the land where many Jews continued to dwell and where they had "kings-in-waiting" or "Exilarchs," they came to King Herod asking, "Where is he that is born King of the Jews?" (Matthew 2:2)
Christ is the Son of David [the title of the heir apparent or royal scion]; he was born in mortality as the literal seed and descendant of Israel's great king. Both Mary (his actual mother) and Joseph (his reputed father) were descendants of David. From Mary our Lord inherited the blood of David; from Joseph came the right of kingship, meaning that if there had been a temporal ruler sitting upon the throne of David, such would have been Joseph and later Jesus.[88]
Everyone knew the title "son of David" meant a legitimate royal prince of the house of David with the full sovereign right to rule and reign over both Judah and Israel. There was nothing vague about it. It was the right title for the right claim. Therefore, it had the support of natural law. But for a title and arms to preserve rights by prescriptive law, it must be the real actual title of the nation for which the claim is being made. This was true for the title "son of David," as it meant the rightful heir to the throne of David, hence, the law preserved their rights de jure even though they were a deposed house. A different title that did not specify the exclusive right to rule over a specified territory would not qualify. For example, if the title used was merely "Joseph of David," it would not maintain the grand claim, therefore, the claim, by law, would be forfeited without the entitlement to ever reclaim it.
(See the sub-section, "The Restoration of the Modern State of Israel under International Law" in Chapter IV in Volume I. It shows how Rightful sovereignty was also preserved intact for thousands of years for modern Israel as well.)
The Ancient Rules of Prescription were before all Recorded History
The above example of "the son of David" was gathered from scholars and historians to show that the natural and international law principles of prescription concerning the preservation of royal rights were known and practiced in ancient days. They were not only applied in the Empire of Rome and in the kingdoms and republics of Ancient Greece, but also among the ancient House of Israel. As an example: domestically, "in rabbinic law, if one abandoned hope of recovering lost or stolen property, he [in effect, legally] renounced his claim to ownership."[89] As pointed out earlier, Hugo Grotius describes the same on an international level in the ancient Israel where Jephthah ". . . pleads prescription."[90] ". . . The title of the Israelites [to a certain land] was confirmed by a prescription of above three hundred years. . . ."[91] Commenting on this, one scholar wrote:
. . . If 300 years' of undisputed possession of the land did not give a prescriptive right [to ancient Israel], it would be difficult to imagine by what title [or right any] land could be held.[92]
And again by a different scholar:
If the Ammonites had had any right to it [the land they lost], they ought to have asserted their claim in Moses' time. It was much too late now, after the expiration of 300 years. For "if no prescriptive right is to be admitted on account of length of time, and if long possession gives no title, nothing would ever be held in safety by any people, and there would be no end to wars and dissension"([Johannes] Clericus [1657-1736]).[93]
For example, in more modern times, King Phillip in 1297 declared to the representatives of Papal Rome that "the French monarchy holds prescriptive right . . . [which] has been in force for a thousand years. . . ."[94] He explained that ". . . in governmental affairs the French Crown is subject to nobody, and nobody means nobody."[95]
Prescriptive right is the right by which all nations hold their entitlement to rule, because of the almost universal usurpation that took place in the history of every present-day nation. As nations rise and fall, and they are replaced by other nations or government who occupy the same territory as the previous one. Prescription eventually in time makes their rule valid and legitimate. Prescription is recognized as just, equitable, necessary, and reasonable; and were applied as far back as 1300 B.C.
Grotius, in introducing the case of Jephthah declared that, "To disturb any one in actual and long possession of territory, has in all ages been considered as repugnant to the general interests and feelings of mankind."[96]
". . . The idea that usucaption [prescription] was peculiar to Roman citizens [is] a false belief that has hitherto confused all who have written on the subject."[97]
Before the Romans:
The Greek philosophers were well acquainted with prescription as a law suggested by natural justice. Indeed those sages, from whom the nascent [emerging] Roman state is said to have derived the wisdom of the Twelve Tables, speak of prescription in terms familiar to our modern conceptions.[98]
All the way back to 1754 BC, a form domestic adverse possession may be found in the Code of Hammurabi:
If a captain or a soldier has neglected his field, his garden and his house, instead of working them; and another takes his field, his garden and his house, and works them for three years; if he returns and desires to till his field, his garden, and his house, they shall not be given him. He that has taken and worked them shall continue to use them.
If one year only he had neglected them, and he returns; field, garden, and house shall be restored to him, and he shall work them.[99]
Prescriptive title and ownership is of such ancient date that it can be seen in the days of Abraham, which later justified Joshua and the Lord in the conquest of Canaan from about 2200 BC. Question:
By what right did the Israelites invade the land of Palestine [after their long sojourn in Egypt and wandering in the desert]? . . .[100]
Answer:
. . . The right of the Israelites [to repossess the land of Cannaan] originated in their being actually the [lawful] proprietors of Canaan [who actually held the right to rule the law by prescriptive right] . . . they had been unjustly dispossessed by the intruding and hostile Canaanites.
The laws of nations are always the same [that is, the natural law ageless for all times and all people]. If any nation, or tribe, or part of a tribe, take possession of an unknown, undiscovered, unoccupied, or uninhabited country, the right of property vests in them; they are its proprietors and owners. . . .
. . . The ancestors of Abraham [Shemites and Hebrews] were the original occupiers of the pasture land of Canaan. Canaan, therefore, by the law of nations, as well as by the promises of God, was the lot of Abraham's inheritance; and the rightful land of his descendants.
The Canaanite and the Perizzite had only just established themselves in Canaan when Abraham removed from Haran to that country; and were so weak and few in number, that they never interfered with the rights of sovereignty assumed and exerted by Abraham.
Abraham entered upon the Holy Land, and continued his journeyings with a large retinue, and as a powerful prince. He took possession of Canaan as the territory of his [Hebrew] ancestors; not indeed as a fixed habitation, but as pasture land adapted to his numerous flocks and herds. He traversed the whole country as a proprietor, without a competitor. . . .
He declared war as an independent prince of this country against five neighbouring princes; and formed an alliance with Abimelech, as an equal and as a sovereign. . . .
As Abraham thus traversed and possessed Canaan, with undisputed authority, so too did Isaac and Jacob in like manner. No one opposed their right. They exercised, as Abraham had done before them, sovereign power; they never resigned that power; nor gave up to others the property of that land, which now, by long prescription, as well as by the promise of God, had become entirely their own.[101] (emphasis added)
The rest of the story is blurred by a lack of reliable historical facts. However, a reasonable assumption is that debellatio never took place during the oppression of Egypt, because the sovereignty of the people was theocratic or the direct rule of God through special prophets and patriarchs, that is, by his direct representatives. In other words, this situation was very different from normal secular rule under natural and international law. It has no counterpart in modern history. "Title remains vested in God; and because God’s title is absolute, he neither abandons title nor forfeits it by prescription."[102]
The exiled government of Canaan, which was the rightful land of Israel, was not in Egypt, but in heaven. It was untouchable. Prescriptive maintenance of governmental rights and entitlements took place on a higher level than normal. It probably came through the official pronouncements and declarations of true, but unknown, prophets during their sojourn in Egypt as there were ordained men who maintained the beliefs and rites of the people. The focus of this book, however, is not on divine law and sovereignty, but on natural law and natural or secular sovereignty. In this area as well as in rare divine situations as described above, prescriptive rules govern ownership, not only of property rights, but regulates and controls sovereignty itself.
Josephus (37-100 AD), the ancient historian, also declared that Jacob, also called Israel, held "dominion" or sovereignty in Canaan.[103] When the famine necessitated that the House of Israel go down to Egypt, Jacob was ". . . afraid that the happiness there was in Egypt might tempt his posterity to fall in love with it, and settle in it, and no more think of removing into the land of Canaan, and possessing it, as God had promised them. . . ."[104] That is, it was their obligation to do this. Hence, ". . . he had foretold to them prophetically how every one of them was to dwell in the land of Canaan."[105] It was their proclaimed duty, as a people, when they were able, to go back and possess the land that they had a right to rule over. This firm ethnic-wide stand probably continued on a deeply-felt religious level throughout their generations in Egypt. For example, from the early youth of Moses, as much as a 100 years before they got to Canaan, ". . . the Hebrews depended on him, and were of good hopes great things would be done by him. . . ."[106] The prophecy was that ". . . there would a child be born to the Israelites, who, if he were reared, would bring the Egyptian dominion low, and would raise the Israelites; that he would excel all men in virtue, and obtain a glory that would be remembered through all ages."[107] This man was to lead them back to the promised land.
The point is, a loss of rights cannot legally take place if the rights of sovereignty are properly maintained. One of the ways of preserving this entitlement, when a sovereign entity is not ". . . able actually to prosecute his right [because of oppression, he can], confine himself to shewing sufficiently by any sign whatsoever [his continued and consistent claim] that he would not [and did not] abandon it."[108] In other words, there are other means of publically maintaining a valid claim. That is, legally Israel probably never abandoned their right to rule. It was a religiously or deeply held doctrine continually reinforced throughout their stay in Egypt over and over again. And if so, then they prevented prescriptive forfeiture of their rights, not only under divine law, but also under natural law, by proclaiming that they were going to be delivered from Egypt, go back and re-possessed their de facto sovereign right to their own land.
In other words:
. . . The Hebrews had a divine right, from God's gift, to take possession of Canaan, and that this by itself is sufficient justification of their procedure [in that conquest]. . . . [But they also] had at the same time a human [natural law] claim, from the fact that their ancestors had dwelt [and had dominion] in it, without acknowledging the rule or power of the Canaanites. By their descent into Egypt they had not abandoned their right, nor lost it by prescription. They went down to Egypt only for a time, on account of a famine, and it was with the hope and determination of returning again, as the divine promise given to Jacob (Gen. xlvi. 4) confirms. . . .[109]
Prescription, as a natural law being unalterable, just, and never-ending, was before Rome, the Greeks, the Israelites, the Babylonians or the Hebrews. It had its beginning before all known human history, or before anyone had ever heard of the word "prescription." Natural law is ageless and universal with all mankind and so is prescription and ownership. As observed:
The fact that men in general plead the claim of prescription, justifies the conclusion, that it was originally as much established by common consent, as the institution of property [itself].[110]
The point is, prescription and ownership are inseparably connected. This is:
. . . because things were [first] acquired by real use [in ancient times], i.e. by settlers remaining physically on certain land for a long time, usucaption [in other words, prescription] was the first, and therefore remained [or eventually became] the [universal] principle, mode through which sovereignty [or rightful possession] became legitimate among all nations.[111]
The reason for this is that, ". . . All property necessarily originated in prescription, or [that is] . . . in continued possession."[112] In other words:
. . . The origin of prescription is identical with that of property itself; and since the latter can legitimate itself only when accompanied by equality, prescription is but another of the thousand forms which the necessity of maintaining this precious equality has taken. And this is no vain induction, no far-fetched inference. The proof is written in all the codes.[113]
". . . The vast mass of property holders have believed in all ages, that prescription or ancient use was sufficient evidence of property [ownership]."[114] Note "in all ages," that is in both modern times and from the beginning of property itself, prescription was an integral part of ownership. The reason for this is obvious -- throughout most of human history, no document, patent or written title existed for anyone. Prescription or long possession signified who was the rightful owner.
If it could be shown that a man, or his predecessors in title, had held a certain piece of land or a certain right over the land of another, from time immemorial, or for a very long time, nothing more was needed to establish his property.[115]
". . . Prescription is the commonest of all titles to territory; we only fail to recognize that it is so because the titles that depend on it are rarely called into question."[116] Without prescription ". . . all rights of property must perish as it was practically the only way one could prove one’s claim to land or right."[117] Proprietary rights and prescription were inseparable. Combined they created title. This is because ". . . prescription and property are two forms of the same principle, but two forms which serve to correct each other. . . ."[118] No wonder, we cannot find a beginning for it. Prescription is as old as property and ownership, which is part of the natural law or the innate inner nature of man.
The Law of Nations in Modern Times is Flexible and Adaptive for a Reason
One of the major problems from medieval times has been concerning the grave results that have flowed from succession disputes to the various crowns, thrones, dignities, and hereditary succession entitlements. The problem, presented in almost all of these contentions, is that national and municipal law are often silent on these matters. Nevertheless, these issues had to be faced. It was too costly not to address them.
With the general demise of the monarchical system after World War I (accelerated after World War II), one tends to forget that the juridical principles governing monarchical succession in Europe were originally derived from the principles of International Law (itself derived from Natural Law and Judeo/Christian Revelation) which defines the legal aspects of Sovereignty and governs the monarchs subject thereto.
The United Nations Law Commission expressed the need and obligations of nations to support just and rightful principles in Articles 13 and 14 of their June 9, 1949 "Declaration of Rights and Duties of States" as follows:
Article 13: "Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of International Law, and it may not invoke provisions of its constitution or its laws as an excuse for failure to perform this duty."
Article 14: "Every State has the duty to conduct its relations with other States in accordance with International Law and with the principles that the sovereignty of each State is subject to the supremacy of International Law." (emphasis added)
A number of countries express this doctrine or view in their constitutions and/or in decisions of their supreme courts: as an example, Germany, Italy in 1948, Holland, France in 1946, Luxemburg, Austria, the common law of England as specified by Blackstone, South Korea, and the Philippines to name a few.
One of the best recognitions of this supremacy in the legal competence of International Law is found in the U. S. Supreme Court decision in the case of The Paquete Habana, where the Court States:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or juridical decisions, resort must be had to the customs and usages of civilized nations; and as evidence of these, to the works of jurists and commentators, who by years of labor, research, and experience, have made themselves peculiarly well aquatinted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.[119] (emphasis added)
Scholars recognized that there are problems with international law involving enforcement, fluidity and lack of codification, but what is legal and superior in law is still rightful and lawful, whether such are followed or not. In other words, violation of the law by some does not negate or nullify the validity or authenticity of the law in the least. It is still a binding imperative whether ignored or incorporated to the fullest extent that is appropriate.
To determine what the law is, however, remains more difficult on an international level where codification has been resisted. The International Law Commission explained why flexibility has widespread support concerning the rights of sovereignty:
. . . The subject has remained untouched by the codification movement. The reasons for that fact are perhaps not difficult to explain. The salient aspect of this part of international law lies in the rules relating to the original acquisition of territorial sovereignty by discovery, occupation, conquest and prescription. Rights and claims . . . have been traditionally regarded as synonymous with the most vital interest of States, and it is perhaps not surprising that there has been a reluctance to case the applicable rules of law in the form of codified principles which might be involved immediately, with some eagerness, by parties to pending disputes. This has been so throughout the last century [where] a number of territorial disputes; still unresolved have been pending and that the adoption of any rules would, in many cases run counter to the interests or views propounded by the parties to existing controversies.[120] (emphasis added)
Attempts have often been made to establish rules as to usucapio and prescription in the case of the acquisition of sovereignty; but those rules merely state vague analogies.[121]
[Hence, sovereignty law] has remained almost entirely outside the efforts at codification. . . .[122]
One reason for this is the rights of sovereignty are too volatile a subject. Fighting over sovereignty has resulted in terrible wars, ruin, and bloodshed, hence the reluctance to codify sovereignty rights is reasonable and truly in the best interest of all parties. This is because ". . . Jus scriptum, namely codification, 'freezes' or immobilizes law."[123] Codification creates rigidity or a "straight-jacket."[124] However, the down side is that flexibility leads to an uncertainty. There is nothing sure that one can bank on as to how an international court will rule. It is overly fluid in application.
In fact, it is an understatement that international law does not rest on "a solid, sure and effective basis."[125] It has some "serious . . . weaknesses and defects," and there is little "precision" in the use of its rules.[126] "The upshot is that, unlike traditional international law, modern international law very often consists of rules of an abstract, general and sometimes even a vague character."[127] Hence, cases ". . . can only be successfully applied to concrete situations after elaboration and adaptation."[128] This is necessitated, because international conflicts can be so dangerous, flexibility becomes a governing principle, not exactness and legal precision. Therefore, "The rules of international court are indeterminate and vague compared to those of their national counterparts." This is one of the main things, ". . . which distinguishes the procedures of international courts from their national counterparts."[129] The problem with this is that it creates uncertainty that can foster instability.
But all of this is part of "the voluntary [or temporary] law of nations" described by Vattel in the 1600’s, which is always in a state of flux, because it is shaped and fashioned by custom and to a large degree by political game playing. Therefore, it can change to suit what the major players want. In practice, because international law and politics are inseparably connected, it cannot help but be fraught with contradictions, political maneuvering, hidden agendas and other complexities, such as, the influence of large organizations as the International Monetary Fund, the World Bank and the World Trade Organization, who operate without any sovereign right or state elected representatives.[130] The "necessary law of nations" is different. Its principles are sound, solid, unchanging and unequivocal, and prescription is part of this law of all nations.
International Organizations are not Authorized to Legislate
The General Assembly of the United Nations cannot create or change international law, nor can they transfer the sovereign ownership of countries or territories to others, except on a voluntary basis. The first president of the ICJ, Stephen M. Schwebel stated:
. . . The General Assembly of the United Nations can only, in principle, issue ‘recommendations’ which are not of a binding character, according to Article 10 of the Charter of the United Nations.[131] (emphasis added)
Sir Hersch Lauterpacht, a prominent 20th century scholar and former judge of the International Court of Justice (ICJ), declared that, ". . . the General Assembly has no legal power to legislate or bind its members. . . ."[132] They are only empowered to "initiate studies," debate, "discuss" things and "make recommendations."[133]
The principle argument against the customary law relevance of General Assembly resolutions is that these are non-binding resolutions, and the states do not mean them to be followed when they are passed.[134]
That is, ". . . the General Assembly lacks legal authority either to enact or to ‘declare’ or ‘determine’ or ‘interpret’ international law so as legally to bind states by such acts. . . ."[135]
Although the Security Council (composed of only 5 nations) is not empowered by the UN Charter to make legal findings,[136] nevertheless, ". . . Security Council resolutions drive and shape the opinion of the international community. This undeniable influence has been recognized since the Council’s inception."[137] Anything that goes beyond what is authorized in the UN Charter, the supreme regulating authority governing the powers vested in the Security Council are either null and void or an act of unlawful usurpation. Influential or not, such infractions are a violation or breach of authority when they happen. The five countries that compose the Security Council were never meant to be legislators or in any way come to the point of ruling the world. The following is an example of how non-legal decisions can unwittingly be interpreted to have unintended legal implications:
. . . [There seems to be an] implicit creation of legal norm through the mere fact of support of one side in a dispute. For instance when the [Security] Council and the General Assembly called on Israel, after the 1967 war, not to alter the status of Jerusalem, an assumption grew out of that resolution that "Jordan has a legal title in Old Jerusalem, which is preferable to Israel’s."[138]
The converse is also true, that "in practice an authorization by the Council has almost invariably been universally accepted as conferring international legality on an action."[139]
Security Council decisions should be seen as they are, not as authoritative legal mandates, which would create laws, but as temporary situation-specific decisions to protect mankind for safety and security reasons only.
The International Court of Justice is another area of concern if they go beyond the boundaries set up for its operation:
Article 38(1)(d) of the Statute of the International Court of Justice directs the court to apply "judicial decisions . . . as subsidiary means for the determination of the rules of law." This direction is made subject to the provisions of Article 59, which state "that the decisions of the Court has no binding force except between the parties and in respect of that particular case."[140]
In the authorizing resolution creating the ICJ, it was made clear that the court’s decisions are considered to be less important than international law, but related or supplementary to it. That is, ". . . Judgments of the ICJ and of some other international courts are formally not lawmaking [organizations]."[141] The Court is not to legislate, but like the Security Council, they have a lot of influence. Therefore:
Many of [the ICJ’s] decisions have introduced innovations into international law which have subsequently won general acceptance. . . . Thus, it is generally questionable whether at least decisions of the International Court of Justice can in fact still be regarded as only "subsidiary" means of determining law.[142]
This influence is being compromised by the fact that there has been a:
. . . recent proliferation of international courts and tribunals, such as various regional courts, courts on human rights, international criminal courts, and the Tribunal for the Law of the Sea. This proliferation is likely to lead to conflicting decisions on international law and there is no ultimate legal authority in the sense of a supreme court to harmonize such conflicts.[143]
Ultimately it must be remembered that the sovereignty of each nation is the ultimate, supreme law of the earth. The United Nations is legally built on treaty law, which is vulnerable to change and revision, because:
. . . there is no such thing as a perpetually binding treaty. The exercise of the treaty-making power implies national sovereignty, and national sovereignty implies the right under certain circumstances to abrogate treaties.[144]
The point here is:
A sovereign state can make a treaty. It can also break a treaty, or determine for itself when a treaty commitment is no longer binding or applicable.[145]
Even:
The Charter of the United Nations is itself no more than a treaty. . . . Consequently, the resolutions of the Security Council have been ignored time and again, by South Africa, Israel, North Korea, and [former] Iraq -- to mention only [a few]. . . .[146]
In fact:
The pages of history are littered with accounts of broken treaties. A few examples may be cited. In 1668 Charles II of England concluded a treaty alliance with Sweden and the Netherlands, but four years later he joined with Louis XIV in war against Holland, having signed the Secret Treaty of Dover with France in 1771. In 1818 the Quadruple Alliance, of Russia, Prussia, Austria and Britain solemnly declared an "unchangeable resolution never to depart either among themselves or in their relations with other states, from the strictest observation of the principles of the Law of Nations." But in 1831, the Czar suppressed the Kingdom of Poland which had been set up at the Congress of Vienna by a treaty which Russia was a signatory. Later Britain destroyed a Turkish fleet without any declaration of war, and Prussia overran the Duchies of Schlezwig and Holstein without pretext or title. The subsequent history of the 19th century is a catalog of similar breaches of International Law and treaty obligations which culminated early in 1914 with Kaiser Wilhelm’s tearing up "the scrap of paper" which committed him to respect Belgium neutrality. Neither the Treaty of Versailles nor the League of Nations could prevent Adolph Hitler from re-occupying the Saar, or from annexing Austria; nor could the agreement he signed in Munich with France and Britain restrain him from overrunning Czechoslovakia in 1938.[147]
Decisions agreed to in the General Assembly [of the United Nations] are never binding; neither these nor any resolutions of the Security Council can be imposed on individual members, should they defy or ignore them, because they are sovereign states and cannot be forced to comply except by some form of military threat.[148]
". . . The sovereign's right to override international law (including obligations created by treaty) has been repeatedly recognized by courts."[149] Nations can and should legally consider themselves supreme. In other words:
The sovereign State does not [have to] acknowledge a centralized . . . authority above itself; it does not [have to] recognize a legislator [a law giver] above itself; it owes no obedience to a judge above itself.[150]
In reaction to the idea that states are not "bound" by a rule of international law unless it has previously "consented" to that particular rule, Hersch Lauterpacht described this sentiment as an "exaggerated regard for sovereignty."[151] However, considering that much of international law is "arbitrary" and "voluntary," rather than truly a part of the "necessary law of nations," which is based on natural law, sovereignty must remain supreme, and above all else, to protect us from the corruptive nature of the world government politics of power and control and the unjust laws that would be imposed to create and maintain its oppression. Sovereignty is protective. It boils down to this, "Only if and to the extent that international law is legitimate is there a moral duty to obey international law."[152] Only natural law is fully just and worthy of full unmitigated acceptance.
Why Nations obey International Law
". . . Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."[153] (emphasis added) Empirical work seems to have confirmed this generalization over the years. Transnational actors do obey the law of nations.[154] But why? They do not have to. Two answers typically provide an explanation. One is self-interest. It is in the best interests of nations to cooperate, to build and strengthen relationships with others economically and otherwise. It has practical value to a nation to be trusted. But there is another deeper more fundamental reason which encompasses all the moral, ethical and legal considerations. It is the innate belief generally common to all men that the "rule of law" is important -- that to follow what is right is right. That is, there is, in reality, a deep down inborn belief in right and wrong, which is a manifestation of the higher law that is part of the fiber and being of what we are as human beings. It is in our nature, and people tend to admire what is right and what is the good, even if they fail to always obey it. "In other words, states submitted to international law because their relations were regulated by the higher law -- the 'law of nature,' of which international law was but a part."[155] In sum, moral, legal and ethical concerns do matter. They matter to people and they matter to nations. As one author concluded:
[So] "Why is it," Oran [R.] Young asked in 1992, "that an actor acquires and feels some sense of obligation to conform its behavior to the dictates or requirements of a regime or an institution? . . . I think," he wrote, "that there are differences in being obligated to do something because of a moral reason, a normative reason and a legal reason."[156] Although Young did not further specify, I would argue that these moral, normative, and legal reasons are in fact conjoined in the concept of obedience. A transnational actor's moral obligation to obey an international norm becomes an internally binding domestic legal obligation when that norm has been interpreted and internalized into its domestic legal system. Both Franck and the Chayeses, exemplars of the philosophical and process traditions, respectively, recognize that transnational actors [nations] are more likely to comply with international law when they accept its legitimacy through some internal process.[157]
The intrinsic core process of the law of nature and the higher law of nations is right reasoning, good common sense and correct principles. All of these produce the capacity to have a free and prosperous international society.
Moral and Ethical Imperatives
Various organizations, as discussed above, offer sources of change and impact on what is considered to be binding and authoritative in the voluntary law of nations, but ". . . there is no hierarchy of sources in international law, and customary law and conventions may freely interact and influence, one another."[158] The most frequently cited sources of international law are specified in Article 38(1) of the Statute of the International Court of Justice. They are:
(a) "international conventions, whether general or particular, establishing rules expressly recognized by the contesting states,"
(b) "international custom, as evidence of a general practice accepted as law,"
(c) the "general principles of law recognized by civilized nations," and
(d) "judicial decisions" as well as "the teaching of the most highly qualified publicists [law scholars / text writers] of the various nations" as an auxiliary source.[159]
Certainty is recognized universally as desirable for the rule of good law to benefit all people. The subjects of the law, whether they are people or nations, must have a sense of sureness. They need to be able to depend on what to expect in order to intelligently manage their affairs. One of the problems is that uncertainty is rampant in customary international law, which is what Vattel described as the "voluntary" or transitory law of nations. This law can mutate and reconstruct itself from age to age giving international law the bad press of being somehow intrinsically flawed and unreliable. This uncertainty ripens into considerable discord worldwide resulting in the unfortunate recognized fact that on an international level, ". . . [there] is no question of law that is undisputed. . . ."[160] Part of the reason for this is:
(1) "International law does not have a dominant theory, ideology or assumption."[161] Disagreement and differences of opinion have become tradition. As a result:
(2) "There is a marked absence of authoritative texts regarding customary
International law."[162]
(3) There is no written constitution, no supreme law, no common law development, or officially recognized precedence upon which one can build a solid set of established and honored legal principles. In other words, customary law is essentially organizationally unstructured.[163]
In contrast natural law never varies. It is always one and the same in all ages of mankind. But it must be discovered, identified and intelligently applied for it to fulfill its high purpose. Some of the basics of natural law are that each nation is sovereign, that prescription either preserves or destroys it, that each nation is a legally and lawfully equal before all true law, that every nation on this earth has the right to be free and independent from the meddling of others; each nation, in order to fulfill natural law, must protect the inalienable right of the people to life, liberty, and the freedom to choose, including basis human rights, which includes, but is not limited to, the right of private property and religious tolerance.
One calls these principles the natural law or the law of reason. To be sure, their details remain somewhat doubtful, but the work of centuries has established a solid core of them and they have come to enjoy such a far-reaching consensus in the declarations of human and civil rights that only the deliberate skeptic can still entertain doubts about some of them.[164]
The State of Nature has a Law of Nature to govern it, which obliges every one; and Reason, which is that Law, teaches all mankind, who will but consult it, that being all [legally] equal and independent, no one ought to harm another in his Life, Liberty or Possessions.[165]
Vattel declared that the necessary law of nations, or natural law, is the ". . . sacred law which nations and sovereigns [reigning and non-reigning princes and governments] are bound to respect and follow in all their actions. . . ."[166] This, of course, includes prescription. If natural law principles, like prescription, are properly used:
Situations of great complexity going back into the distant past and affecting considerable territories can be solved by the application of legal rules. . . . These rules, while admitting of a pronounced measure of elasticity in their application, are clear in principle.[167]
Political manipulation of natural law, as explained earlier, is legally null and void. This nullification occurs whether it is upheld and enforced by the world at large or not.[168] That is:
If laws consciously deny the will to justice, if, for example, they grant and deny human rights arbitrarily, then these laws lack validity, the people own them no obedience, and even the jurists must find the courage to deny their legal character. . . .[169]
". . . The positivist's attempt to specify tests for legal validity without reference to concepts of justice or morality. . . [is totally opposite natural law]."[170] ". . . Natural law consists of one supreme principle, from which all the other principles and precepts are derived: ‘The good is to be done and pursued and evil is to be avoided.’"[171] It is wholly and completely centered in what is just. Laws must be ethically and morally right.
Where there is not even an attempt at justice, where equity, the core [and centerpiece] of justice, is deliberately betrayed in the issuance of positive law, then the statute is not merely "false law," it lacks completely the very nature of law. For law, including positive law, cannot be otherwise defined than as a system and an institution whose very meaning is to serve justice.[172]
Thomas Aquinas (1225-1274) declared:
Every human [man-made] law has just so much of the nature of law as it is derived from the laws of nature. But if in any point it departs from the law of nature, it is no longer a law but a perversion of law.[173]
In other words, the validity of man-made law is more than the mere agreement of legislators. This becomes obvious in the following question that reflects political reality, what if the law makers crave money for re-elections and sell their souls to get it from special interest groups, who bribe them with money, if they will only vote for certain biased laws, which only benefit the few at the expense of the whole? Crooked legislators create corrupt laws that violate freedom and the right of property and possession. Law without equity and justice renders ". . . the jurist as well as the people defenseless against [harmful and dangerous] laws, however arbitrary, cruel, or criminal they may be."[174] The law in Nazi Germany or in Communist or other totalitarian regimes have not only denied people their inalienable rights, but supported torture and genocide. "The soldier [to avoid atrocities should be] . . . required neither by duty nor by law to obey an order that he knows to have been issued with a felony or misdemeanor in mind. . . ."[175] If the German army had decided, that mass killings of innocent people, were morally wrong and repugnant, how different things would have been in the 1930’s and 1940's.
The positivist believes he [or she] has proved the validity of a statute simply by showing that it had sufficient [coercive] power behind it to prevail. But although compulsion [and force] may be based on power, obligation and validity never are. Obligation and validity must be based, rather, on [an ethic or moral] value that inheres in [that is, is inherent in or an integral part of] the statute.[176]
Man-made rules, unless based on natural law, do not bind the universal conscience of mankind or form real and true law.
. . . Prescription stands out as one of the most instructive examples showing how general principles of law operate as a source of international law.[177]
In fact, prescription is even more fundamental than that, because it is part of the highest, most universal law on earth. Thus, prescriptive law has full jurisdiction over sovereign rights under certain important conditions. Some of "the most highly qualified publicists," many of whom were already quoted in this work, have elaborated on dynastic law, succession and prescription are found in the works of Hugo Grotius (father of modern International Law), Emerich Vattel (second in authority to Grotius), Samuel von Pufendorf (noted for his works regarding Sovereigns in International Law), Johann Wolfgang Textor, and Christian Wolff. In our own day there is Professor J. H. W. Verzijl's monumental nine-volume treatise on International Law, International Law in Historical Perspective, which treats the application of International Law in great depth, and the works of Henry Wheaton, the most outstanding U. S. international lawyer of the last century. These men recognized moral and ethical imperatives.
Monarchy and the Law of Nations
Monarchical renunciations, abdications, cessions, exclusions or disinheritances, and testamentary designations, and prescriptive transfer of rights are all authorized and promoted by the basic principles of international law. In fact, international law governs the position and status of both reigning and unlawfully dethroned sovereign houses. Most of the present-day House Laws, of the European monarchies (regnant and ex-regnant), can be traced directly to international law as it pertains to sovereigns. This evolved during the Medieval and Renaissance eras. International law was originally directed at the conduct of sovereigns because dynastic squabbles created wars and major upheavals in society. "In this context, 'private' family law [of a monarchy] became part and parcel of not only constitutional but also international public law."[178] This meant taking power and rights away from individual monarchs and ". . . investing it in codified laws of succession. . . ."[179] However, these ". . . succession rules and partition schemes were often secretly agreed upon. . . ."[180] Shrouded or not, these ". . . succession rules formed the 'hidden' . . . 'public' international law.'"[181] They were designed to prevent further wars and bloodshed.
The old (16th and 17th century) debates about sovereignty concerned principally with questions of internal sovereignty (e.g. who has de jure [legal] authority over whom within a political society, the limits of political [or internal rightful] authority, etc.).[182]
As stated by Emerich de Vattel, "The law of nations is the law of sovereigns. It is principally for them. . . ."[183] Since practically all sovereigns were monarchs, the law naturally centered around the kings and sovereign princes of the earth. "In actuality, international law in Europe was nothing but inter-dynastic law."[184] That is, "The law of nations was essentially that of dynastic law. . . ."[185] It impacted both internal and external rights. This law included prescription which could preserve or eliminate all royal and sovereign rights.[186] In fact, "all of international law represents a loss of sovereignty to one degree or another."[187] That is, law is designed to control behavior and safeguard justice in one way or another, so it will curtail unlimited authority even of those who hold the supreme or highest of all entitlements – the sovereign himself.
"The principle of monarchical [dynastic] sovereignty and the principle of popular sovereignty [republicanism] are really only . . . differences in the form of government."[188] This was reiterated by Thomas Hobbes, who declared that, ". . . the power of sovereignty is the same in whomsoever it be placed," whether in a king or a republican legislature.[189] A traditional republic legitimately established under the natural law has the same moral and legal right to de jure sovereignty as that possessed by a sovereign royal house.
In other words, "Whatever . . . a King or Prince may, by the Law of Nations, do in his Kingdom or Principality, the same may be done in a Republic. . . ."[190] This is because sovereignty is the highest honor, glory, power and authority there is on earth, nothing is legally or lawfully greater except universal natural law, which has rightful dominion over it. But the point is, sovereignty is the paramount power. Royalty gets it majesty from the right of sovereignty, not the other way around. "Dynastic sovereignty" is therefore nothing more or less than "sovereignty vested in a monarch and the monarch's heirs."[191] By the same token, republican sovereignty is nothing more or less than sovereignty vested in a republic. There is no basic difference. In fact:
. . . [A true] Monarch had a claim to dominion, like the peasant's to his inherited farm; both claims are equally sacred, but both are equally exposed to the risks of forfeiture. The king's right is no different from any other person's right.[192] (emphasis added)
The very notion of sovereignty . . . conceived, like property, as dominion held under law, helped to deprive it of the [illusionary and irrational] character of absoluteness and indivisibility.[193]
There is nothing magical about dynastic or royal sovereignty since, sovereignty is ". . . merely [a] legal conception. . . ."[194] It ". . . rests on a legal right," not on something mystical or supernatural.[195] ". . . Kings and their families and descendants . . . [had] a purely secular form of authority residing in a dynasty’s exclusive, prescriptive rights to rule."[196] It was ". . . conferred by law. . ."[197] and is maintained and continued by the same. It can also be lost or forfeited by secular or international law. The history of the various reigning Houses of Bourbon illustrates the maintenance and loss of the royal prerogative through such legal actions as:
Disinheriting lawful successors,
Transferring (ceding) sovereignty
Abdication and renunciation
Exclusion of a lawful successor or family (destroying their dynastic rights),
Designating who or what family line will succeed to the throne, and Prescription.
These are called "juridical acts," which are intentional acts to affect some kind of legally binding and permanent change, which creates or terminates dynastic rights. They can be overt and obvious or implied. Royal status, rights of succession, and membership in royal houses can be created or lost by an appropriate juridical act. That is, legal rights or status can be renounced (as in the case of Infante Carlo), forfeited (as in the case of Princes Januarius and Phillip), acquired (as when Infante Carlo was integrated into the Royal House of Spain with the title of "Infante Carlo), or even legitimized (as when the illegitimate daughter of Louis II of Monaco was legitimized with rights of succession), as well as willed (as when Charles II of Spain willed Spain to Phillip (IV) of Anjou), lost through disinheritance or exclusion (as when Phillip, the eldest son of Charles III of Spain, was disinherited from both the thrones of Spain and the Two Sicilies), created through adoption (when King Charles XIII of Sweden adopted the commoner Bernadotte as his heir) or even traded (as when Francis of Lorraine, later Emperor Francis I of the Holy Roman Empire, traded his historic family Duchy of Lorraine for Tuscany) by juridical act. In addition, history has many examples of a royal house’s failure to properly protest any of the above adverse actions, resulting in that House’s permanent loss through the juridical act of prescription.
Note that juridical acts can both give rights or destroy them as the case may be. They are so powerful that ". . . juridical acts or further legally relevant facts can operate as titles [deeds of ownership] by which territorial sovereignty [the internal right to rule] can be (a) acquired . . . [and/or] (b) lost. . . ."[198] A juridical act is a legal declaration of intention, whether overtly expressed, or implied by overt behavior, that has a binding legal effect. Such acts are "an expression of will that is intended to have legal consequences."[199] They rarely involve court adjudication, because they are legally binding in and of themselves. Juridical acts cannot be overruled, vacated or annulled except by the united free-will decision of all the parties who made it, or by a court of competent jurisdiction. Since international courts and tribunals are voluntary, juridical acts involving non-territorial sovereignty cannot be destroyed or altered without the willing and uncoerced consent of the deposed entity or other involved parties if there were any. Therefore, they can stand forever unchanged as valid, binding and conclusive outside of any court or judicial proceeding. Clearly, the rules and principles of prescription are powerful legal mechanisms of creating change.
Rights of succession, membership in a Royal House, the status of "Prince," "Infanta," "Duke," etc., are legal status or rights which are dependent on the operation of the House Laws of the House concerned and the principles of International Law relevant to monarchical entitlements. As these exalted privileges are legal rights, they can be renounced, forfeited, acquired, legitimized, lost, or created by ennoblement. Juridical acts, such as renunciation or loss of rights through prescription or morganatic marriage, do not however sever the natural biological relationship (i.e. father to son) between such persons and their House. Only the legal rights to title, noble or royal status or succession are thereby affected. Thus, a renunciation or other change in royal status severs only the legal rights. It does not (indeed, could not) sever the natural biological relationship involved. For example, the fact that a family lost all their royal rights through immemorial prescription, by their juridical abandonment of sovereignty, does not sever the fact that their ancestors were royal. It only destroys their right to rule and their right to titles and the status of nobility and/or royalty. The status of a person as a "son," "brother," "father," "descendant of a royal house," is a biological relationship and is not affected by a change in the legal status vis-à-vis the status of royalty or the lack thereof.
Dynastic succession, the great honor of hereditary sovereignty and all the regal and grand privileges that go with it, are at the mercy of the legal concepts and principles discussed. They apply to both deposed monarchs as well as reigning houses, since both are subjects of international law. In modern times as well as in ancient days:
. . . parties to specific territorial disputes continue to anchor their [sovereign] claims on these modes [that is, on discovery and occupation, cession, accretion, conquest, and prescription]. . . .[200] (emphasis added)
"Each of these modes [of acquisition and loss] has played an important role . . . and thus has substantially contributed to resolving such disputes."[201] ". . . Their functional contribution in clarifying the legal issues in specific disputes cannot be ignored."[202] "[For] almost all disputants rely on at least one or more of these modes [listed above] to buttress their claims of ownership of specific territories."[203] These legal realities are still active, reliable, conceptual rules being applied in the international judicial system. Sometimes, the modern tribunals have been very clear and unequivocal in their support, such as, in the 1992 El Salvador v. Honduras case,[204] where ". . . the ICJ held that acquiescence or lack of protest by other states to the exercise of [usurped] sovereignty is of decisive importance in determining sovereignty issues, together with evidence of possession, control, and displays of sovereignty."[205] (emphasis added) Another example of the rules of prescription being used, without calling it "prescription," is the scholarly observation that:
The doctrine of acquiescence was frequently resorted to by both national and international tribunals when called upon to pronounce on the question of disputed territorial titles. Some of these pronouncements expressly mentioned the term "acquiescence," while others virtually amount to recognizing that principle without explicitly referring to it.[206]
Contemporary international law validates and confirms traditional values and legal standards and therefore its continuing authority over the internal sovereign rights of deposed royal houses and governments-in-exile.
Prescription is termed, by some, a law, by others, a rule, a principle or a doctrine. As a principle, it meets the legal definition of such, that is, it would be a fundamental, well-settled, and undisputed doctrine of law that is so clear and self-evident that it needs no proof to establish its legal certainty.[207] As a legal doctrine, it would be "a rule or principle or the law established through the repeated application [and] legal precedents."[208] If prescription were only a rule and nothing more, still "a ‘rule’ . . . is essentially practical and, moreover, binding. . . ."[209] In addition, when a prescriptive title is completed, whether in a voluntary international court or outside of it, the transfer of internal sovereignty to the possessor ". . . acquires the same force as a formal contract or as a rule of the positive international law."[210] So whatever it is called, each definition proclaims that prescription is obligatory to justice and has legal authority and dominion where it applies to dispossessed dynasties and exiled governments.
[1] James A. Ballantine, Ballantine’s Law Dictionary, 3rd. ed., "jura regalia," 1969, p. 689 and United States Senate, Hearings, 1939, p. 440; Note: "REGALIAN DOCTRINE or JURE REGALIA: The term refers to royal rights, or those rights to which the King has by virtue of his prerogatives." (Transcript of CRUZ vs. SECRETARY of ENVIRONMENT and NATURAL RESOURCES GR No. 135835, December 6, 2000; 2016: https://prezi.com/tpfq4dlax6xs/cruz-vs-secretary-of-environment-and-natural-resources).
[2] Rocky Mountain Medieval and Renaissance Association, Journal of the Rocky Mountain Medieval and Renaissance Association, vol. 10-12, 1989, p. 39.
[3] Colin Forbes Wilder, "Property, Possession and Prescription: The Rule of Law in the Hessian and Rhine – Main Region of Germany, 1648-1776," Dissertation, University of Chicago, August 2010, p. 416; Note: "Among the estates of the realm [principalities, counties, etc. of the Holy Roman empire] a distinction is to be made if they constitute greater or lesser powers (regalia majora, [regalia] minora); for obtaining the former [‘regalia majora’ defined as dynastic rights] praescriptio immemorialis [immemorial prescription] is an absolute necessity; in regalia minora [minor royal rights], the laws of the empire decide." (Immanuel Clauss, "Die Lehre von den Staatsdienstbarkeiten [1893]," International Servitudes, James Brown Scott, ed., 1910, p. 65)
[4] Arthur English, A Dictionary of Words and Phrases Used in Ancient and Modern Law, vol. 2, "Regalia majora," 2000, p. 679;
[5] Prussian Kingdom, The Frederician Code: or, A Body of Law for the Dominions of the King of Prussia, vol. 2, 1761, p. 60; Note: "These are called regal prerogatives, or the prerogatives of majesty," but again, regalia majora is only a subordinate component of the greater attribute of sovereignty. (Emerich de Vattel, The Law of Nations, Book I, chapter 4, no. 45) "Regalia [are] the royal rights of a king [or a dynasty]. . . ." (Archibald Brown, A New Law Dictionary and Institute of the Whole Law, 2nd ed., "Regalia," 1880, p. 452) These rights are divided into two words. ". . . ‘Regalia majora,’ that is rights of sovereignty proper, and ‘regalia minora’ which were [minor] incidentals. . . . " (Rudolf Heubner, A History of German Private Law, Francis B. Philbrick, trans., 1918, p. 270) Both ". . . regalia minor and the regalia majora are rights vested in the Crown," but regalia majora, the hereditary dynastic rights of a royal house, are inseparably connected to and part of the higher right of sovereignty. (House of Commons, Official Report of the Standing Committees, vol. 7, 1972, p. xviii) Take sovereignty away and both regalia majora and minora cease to exist as entitlements.
[6] Law Dictionary, What is Majora Regalia?, 2013: http://thelawdictionary.org/majora-regalia.
[7] Arthur English, A Dictionary of Words and Phrases Used in Ancient and Modern Law, vol. 2, “Regalia majora,” 2000, p. 679; Note: "Regalia: royal rights or prerogatives. Regalia majora: such as are part of the King's sovereignty, inseparable; minora, such as are created or conferred upon him." (Frederic Jesup Stimpson [1855-1943], Glossary of Technical Terms, Phrases, and Maxims of the Common Law, 2013, p. 257)
[8] John Locke, Locke: Political Essays, Michael Goldie, ed., pp. 56-57.
[9] Hippolyte A. Taine, The Modern Regime, vol. 1, Svend Rom, annotator, John Durant, trans., 1880, Note: 14, 2006, p. 123; Note: ". . . Regalia majora . . . are attributable to [or result from] the Crown’s right of sovereignty. . . ." (Lloyd’s Maritime and Commercial Law Quarterly, 1984, p. 267)
[10] James Arthur Ballentine, A Law Dictionary, "Regalia majora," 1916, p. 429; Note: "Regalia majora [dynastic or royal rights are] essential Parts [not the whole] of the Sovereignty." (Hugo Grotius, The Rights of War and Peace, Knud Haakonssen, ed., Book 2, chapter 4, no. 8, 2005, p. 502)
[11] Professor Ruben Balane's and Prof. Araceli Baviera’s lectures on succession entitled, "Notes and Cases on Succession," 1996, p. 106, 2013: http://www.scribd.com/doc/3004705/UPSuccession.
[12] The First Federalist: Johannes Althusius, Krisis, vol. 22, Julia Kostova, trans., March 1999, p. 12, see also, 2013: http://dl.archive.org/stream/TheFirstFederalistJohannesAlthusius/ the_first_federalist_althusius_djvu.txt.
[13] Sanchez Ramirez de Arellano, The Jus Honorum, Guy Stair Sainty, ed., 2013: http://www.chivalricorders.org/royalty/fantasy/vigo.htm.
[14] Ibid.
[15] Ibid.
[16] Charles Louis Thourot Pichel, Samogitia: the Unknown in History, 1975, p. 306-307.
[17] Ibid.
[18] Hugo Grotius, The Law of War and Peace, Book I, chapter 3, no. 16.
[19] Ibid.
[20] Robert Phillimore, Commentaries Upon International Law, vol. 2, 1871, p. 142.
[21] Quote from Hermann Conring (1606-1681) in Constantin Fasolt, Past Sense — Studies in Medieval and Early Modern European History, 2014, p. 364.
[22] A. F. Hewitt, "Future Destiny of Infants," Catholic World, vol. 51, No. 305, August 1890, p. 578.
[23] "An Inquiry into the Nature and Obligation of Legal Rights," A Collection of State Tracts, publish'd during the Reign of King William III, vol. 2, 1705, p. 394.
[24] Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127.
[25] Ibid.; Note: Prescriptive law confers and maintains sovereignty. In other words, ". . . 'quia lex facit regem . . . the law creates the king." (Thomas Taylor, A Law Glossary, 1819, p. 171) Powerful natural laws like prescription also terminates the rights of all royal houses that abandon their rights.
[26] R. Doleman, (pseudonym for Fr Robert Parsons), Conference About the Next Succession, 1594, pp. 142, 198-199.
[27] "Problems of the Age," Catholic World, vol. 4, October 1866 to March 1867, p. 528.
[28] "Hereditary Succession," The Saturday Review of Politics, Literature, Science and Art, (18) vol. 455, no. 18, July 16, 1864, p. 80.
[29] A. Dodd, The Case of the Revolution Truly Stated, 1746, p. 23.
[30] Thomas Rutherforth, Institutes of Natural Law: Being the Substance of a Course of Lectures on Grotius De Jure Belli Et Pacis, 1832, p. 581.
[31] Ibid.
[32] Jean Bodin, Six Books of the Commonwealth (1576), M. J. Tooley, trans., 1955, p. 26.
[33] Sir William Blackstone, Commentaries on the Laws of England, vol. 1, 1838, p. 149.
[34] Edmund Burke, "Reflections on the French Revolution," The Five Foot Shelf of Classics, 2009, p. 174.
[35] John Trayner, Latin Maxims and Phrases, 4th ed., 1894, pp. 297-298.
[36] Ibid., p. 401.
[37] A true Scotchman, and lover of his Country, Hereditary Right Not Indefeasible: or, some arguments, founded upon the unalterable laws of society and government, proving that the right claimed by the Jacobites can never belong to any prince or succession of princes, 1747, Title of Book from its Cover Page.
[38] A. Dodd, The Case of the Revolution Truly Stated, 1746, p. 23.
[39] Henry Wheaton, Elements of International Law, 8th ed., 1866, p. 240.
[40] Prescription, 2014: http://www.theodora.com/encyclopedia/p2/prescription.html.
[41] Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 108.
[42] Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 143.
[43] Richard Wildman, Institutes of International Law, vol. 1, 1849, p. 75.
[44] Thomas Rutherforth, Institutes of Natural Law, 1832, p. 67.
[45] Charles P. Sherman, "Acquisitive Prescription. Its Existing World-Wide Uniformity," The Yale Law Journal, vol. 21, no. 2, December 1911, pp. 147-156.
[46] Robert Yewdall Jennings, The Acquisition of Territory in International Law, 1963, p. 23.
[47] Kaarle Nordenstreng & Herbert I. Schiller, National Sovereignty and International Communication, 1979, p. 162.
[48] Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 142.
[49] Brougham Leech, "Ancient International Law, " The Contemporary Review, January-June 1883, p. 260
[50] International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 2001, p. 6.
[51] Saint Isidore (of Seville), The Etymologies of Isidore of Seville, Stephen A. Barney, W. J. Lewis, J. A. Beach & Oliver Berghof, eds., Book 5, no. 6, 2006, p. 118.
[52] Ibid., p. 118.
[53] Camoes Tam, "The Sino-Portuguese Dispute over the Holder of Sovereignty of Macao and the Friendship and Trade Treaty between China and Portugal from an International Law Perspective," 2011: http://www.library.gov.mo/macreturn/DATA/PP270/PP270089.HTM; Note: "The de jure independence of kingdoms (and indeed cities) was based on the fundamental ius gentium [ancient Roman law of nations or international law specifically prescription], and was thus anterior to and stronger than any claims of the Roman emperors to rulership over them. . . . Ius gentium [thus] provided the legal title for [independent] monarchies." (Joseph Canning, The Political Thought of Baldus de Ubaldis, 2003, p. 69). It justified and legitimized sovereign independent rule before modern international law was elaborated and defined in the 17th century.
[54] Adolf Berger, "Encyclopedia of Roman Law," Transactions of the American Philosophical Society, vol. 43, part 2, September 1953, p. 528.
[55] Gaius, Gau Instututiones or Institutes of Roman Law by Gaius, 4th ed., Edward Poste, trans., revised by E. A. Whittuck, 1904, p. 1.
[56] Samuel Pufendorf, Of the Law of Nature and Nations, 4th ed., Basil Kennett, trans., Book IV, chapter 12, no. 4, 2005, p. 442.
[57] Arthur Browne, A Compendious View of the Civil Law, and of the Law of the Admiralty, vol. 1, 1802, p. 246 and Thomas Wood, A New Institute of the Imperial or Civil Law, 1730, p. 165.
[58] David M. Goodblatt, The Monarchic Principle: Studies in Jewish Self-Government in Antiquity, 1994, p. 302.
[59] Henry Wager Halleck, Elements of International Law and Laws of War, 1874, p. 18.
[60] "To depose one monarch and set up another was the usual practice of the Babylonians—to execute a prince who had offended against their code of international law was a proceeding not unknown to them." (George Rawlinson, History of Ancient Egypt, vol. 2, 1881, p. 488).
[61] Hugo Grotius, The Law of War and Peace, Book II, chapter 4, no. 2.
[62] Ibid., different translation
[63] Ibid.
[64] Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640, 2006, p. 187.
[65] Matthew Henry & J. B. Williams, Exposition of the Old and New Testament, vol. 1,1828, p. 629.
[66] Hugo Grotius, The Rights of War and Peace: Including the Law of Nature and of Nations, Book II, chapter 4, no. 4.
[67] Hugo Grotius, Grotius on the Rights of War and Peace: an Abridged Translation, vol. 1, Book 2, chapter 4, no. 2, p. 86.
[68] Gianbattista Vico [1668-1744], Vico: The First New Science, Leon Pompa, ed., 2002, p. 120.
[69] Pittman B. Potter, An Introduction to the Study of International Organization, 1922, p. 23.
[70] R. P. Anand, "The Influence of History on the Literature of International Law," The Structure and Process of International Law, R. St. J. MacDonald and D. M. Johnston, eds., 1938, p. 342; Note: ". . . Many lawyers, among them the greatest like Bartolus of Sassoferrato (1314-1357) and Baldus de Ubaldis (c. 1327-1400), discussed matters we would now classify under the law of nations. The relations between princes and republics were as much subject to the ius commune [common law] as all other fields of the law were." (Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription," The European Journal of International Law, vol. 16, no. 1, 2005, p. 35).
[71] S. K. Verma, An Introduction To Public International Law, 2004, p. 14.
[72] John Kitto, The Pictorial Bible Being the Old and New Testaments, vol. 4, 1856, p. 150.
[73] Géza Vermès, Jesus the Jew: A Historian's Reading of the Gospel, 1981, pp. 131-135; Note: ". . . This title [the Son of David] designated the messianic king who would fulfill the promises God made to David. . . . Jesus is not just any descendant of David, but is the Son of David who would inaugurate the perfect kingdom that would never end." (Edward Syri, "Advocate and Queen," Mariology, Mark Miravalle, ed., 2007, p. 478).
[74] (Mark MacArthur, The MacArthur New Testament Commentary, Matthew 8-15, vol. 2, 1987, p. 90); Note: In spite of the fact that the Scribes and Pharisees sought diligently to find any and all causes against him, they never disputed the claim that he was the heir apparent to all the glory of the throne and scepter of Israel as "the son of David." In addition, Jesus never disputed with those who called him by the royal titles of Lord or Son of David. By accepted and acknowledged them, he confirmed their reality.
[75] Some Reflections upon the Prerogatives, Power and Protection of Saint Joseph, 3rd ed., 1720, p. 6.
[76] James E. Talmage, Jesus the Christ, 1915, p. 87.
[77] Ibid., p. 90.
[78] Edward Syri, "Advocate and Queen," Mariology, Mark Miravalle, ed., 2007, p. 478; Note: "Lord (kurios) in Greek means one having power, authority and dominion." (Ernest J. Kelly, Discovering How to Live a Christ-like Life, 2009, p. 246).
[79] Max A Margolis and Alexander Marx, A History of the Jewish People, 1927, p. 235.
[80] Jeffery I. Roth, Inventing the Crown in Jewish Law, 2006 p. 95.
[81] Ibid.
[82] Salo Wittmayer Baron, The Jewish Community: Its History and Structure to the American Revolution, vol. 1, 1945, p. 173.
[83] "Don Braham Senior of Castile (b. 1410/12). Was he the last Exilarch?," 2011: http://www.peerage.org/genealogy/don_abraham.htm.
[84] Hugh Montgomery, The God-Kings of Europe, 2006, p. 68.
[85] Op.cit., "Don Braham Senior of Castile."
[86] Ibid.
[87] Asher Norman, Twenty-six Reasons Why Jews don’t Believe in Jesus, 2007, p. 203.
[88] James E. Talmage, Jesus the Christ, pp. 83-87, 89-90; See Commentary I, pp. 92-95; and Bruce R. McConkie, Doctrinal New Testament Commentary, vol. 2, 1976, p. 123.
[89] Klyne Snodgrass, The Parable of the Wicked Tenants: An Inquiry into Parable Interpretation, 1983, p. 38; Jacob Neusner, The Halakhah, vol. 1, part 3, 1932, pp. 120-124 and Jacob Neusner, Judaism: The Evidence of the Mishnah, 1988, p. 146.
[90] Matthew Henry & J. B. Williams, Exposition of the Old and New Testament, vol.1, 1828, p. 629 and Hugo Grotius, The Rights of War and Peace: Including the Law of Nature and of Nations, Book II, chapter 4, no. 4.
[91] John Kitto, The Pictorial Bible, vol. 2, 1755, p. 50.
[92] Alfred Edersheim, Israel in Canaan Under Joshua and the Judges, 1877, p. 158,
[93] Carl Friedrich Keil and Franz Delitzsch, Biblical Commentary on the Old Testament: Joshua, Judges, Ruth, vol. 4, and Peace, Book 11, chapter 4, no. 2, p. 78.
[94] Michael Wilks, The Problem of Sovereignty in the Later Middle Ages, 1963, p. 427.
[95] Ibid.
[96] Hugo Grotius, On the Law of War and Peace, Book 11, chapter 4, no. 2, p. 78.
[97] Op.cit., Giambattista Vico.
[98] Mark Napier, Commentaries on the Law of Prescription in Scotland, 1839, as quoted in The Legal Observer, Or, Journal of Jurisprudence, weekly, vol. 18, 1839, p. 2632.
[99] Chilperic Edwards, The Hammurabi Code and the Sinaitic Legislation, 1904, pp. 32-33.
[100] George Townsend, The Old Testament: Arranged in Historical & Chronological Order, vol 1, 2nd ed., 1826, p. 492.
[101] Ibid., pp. 492-494.
[102] Geoffrey P. Miller, The Ways of a King: Legal and Political Ideas in the Bible, 2011, p. 183.
[103] Flavius Josephus, The Antiquities of the Jews, Book 2, chapter 7, no. 3.
[104] Ibid., chapter 7, no. 2.
[105] Ibid., chapter 8, no. 1.
[106] Ibid., chapter 9, no. 7.
[107] Ibid., chapter 9, no. 2.
[108] Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 145.
[109] John Eadie, A Biblical Cyclopædia: Or, Dictionary of Eastern Antiquities, Geography, Natural History, Sacred Annals, Biography, and Biblical Literature, 23rd ed., 1883, pp. 103-104.
[110] John Penford Thomas, A Treatise of Universal Jurisprudence, 2nd ed., 1829, p. 34
[111] Ibid.
[112] Pierre-Joseph Proudhon, Proudhon: What is Property?, Donald R. Kelley and Bonnie G. Smith, eds., 1993, p. 78.
[113] Ibid., p. 79.
[114] Edward Jackson Lowell, The Eve of the French Revolution, 2nd ed., 1893, p. 361.
[115] Ibid.
[116] James Leslie Brierly, Brierly's Law of Nations: An Introduction to the Role of International Law, 7th ed., 2012, p. 181.
[117] Op.cit., Edward Jackson Lowell.
[118] Op.cit., Pierre-Joseph Proudhon, p. 80.
[119] Paquete Habana, 157 U. S. 677, 700.
[120] Survey of International Law 1949, Chapter III: Jurisdiction of States, (5) The Territorial Domain of States, No. 64, pp. 38-39.
[121] Parliamentary Papers, Great Britain, 1896, p. 12; Note: ". . . There is no hierarchy of sources in international law, and customary law and conventions may freely interact and influence, one another." (Mark Eugen Villiger, Customary International Law and Treaties, 1985, p. 292-293)
[122] Survey of International Law 1949, Chapter III: Jurisdiction of States, (5) The Territorial Domain of States, No. 64, pp. 38-39.
[123] Ibid.
[124] Ibid.
[125] F. N. Keen, review of a pamphlet entitled "What's Wrong with International Law?," W. Friedmann author, The Modern Law Review, vol. 5, no. 2, November 1941, p. 153.
[126] Ibid., p. 154.
[127] Godefridus J. H. Hoof, Rethinking the Sources of International Law, 1983, p. 286.
[128] Ibid.
[129] Gernot Biehler, Procedures in International Law, 2008, p. 42.
[130] ". . . International law is . . . a part of international politics, being a normative and procedural expression of the latter." (Rein A. Müllerson, International Law, Rights and Politics, 1994, p. 55). ". . . [In other words, it is] possible to manipulate international law, where there has been the political will to do so, even in cases where its norms were, in principle, interpreted rather strictly or normatively." (Ibid.).
[131] Stephen Myron Schwebel, Justice in International Law: Selected Writings of Stephen M. Schwebel, 2004, p. 509.
[132] Eli E. Hertz, Reply, 2004, p. 100.
[133] UN Charter articles 10, 13.
[134] Kirsti Samuels, Political Violence and the International Community: Developments in International Law and Policy, 2006, p. 57; Note: "In his book The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Nations, Professor Gaetano Arangio-Ruiz is led to conclude that the General Assembly lacks legal authority either to enact or to ‘declare’ or ‘determine’ or ‘interpret’ or international law so as to legally bind states by such acts, whether these states be members of the United Nations or not, and whether these states voted for or against or abstained from the relevant vote or did not take part in it." (Professor Julius Stone as quoted in Eli E. Hertz, Reply, 2005, p. 100 from Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, 1979, p. 40).
[135] Professor Julius Stone, Israel and Palestine, Attack on the Law of Nations, 1981 quoting Gaetano Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of the Sources of International Law, 1979, p. 40.
[136] Rosalyn Higgins, "The Place of International Law in the Settlement of Disputes by the Security Council," American Journal of International Law, vol. 64, no 1, p. 5.
[137] Kirsti Samuels, Political Violence and the International Community: Developments in International Law and Policy, 2006, p. 70.
[138] Op.cit., Rosalyn Higgins, p. 7.
[139] Kirsti Samuels, Political Violence and the International Community: Developments in International Law and Policy, 2006, p. 69.
[140] Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th ed., 1997, p. 51.
[141] Thomas Buergenthal, "Lawmaking by the ICJ and Other International Courts," Proceedings of the Annual Meeting (American Society of International Law, vol. 103, March 25-28, 2009, pp. 403-406.
[142] Ibid.
[143] Ibid.
[144] Albert Shaw, ed., "The Progress of the World," The American Monthly Review of Reviews, vol. 16, No. 2 August 1897, p. 137.
[145] Jeremy Rabkin, “Recalling the Case for Sovereignty,” Chicago Journal of International Law, January 1, 2005, p. 23.
[146] Errol E. Harris, "The Problem of Sovereignty in International Relations," Philosophical Challenges and Opportunities of Globalization, vol. 2, Oliva Blanchette, Tomonobu Imamich and George F. McLean, eds., 2001pp. 377-378.
[147] Ibid., p. 377.
[148] Ibid., p. 378.
[149] Federation of American Scientists: William P. Barr, Assistant Attorney General of the United States, Office of Legal Counsel, "Authority of the Federal Bureau of Investigation to override International Law in Extraterritorial Law Enforcement," June 21, 1989, section II, para. A(1), 2011: www.fas.org/irp/agency/doj/fbi/olc_override.pdf.
[150] Hersch Lauterpacht, The Function of Law in the International Community, 1933, p. 64; Note: "The Law of Nations is a law for the intercourse [the relationship] of States with one another. . . . [Because] there cannot be a sovereign authority above the single sovereign states [as their authority is supreme], the Law of Nations is a law between, not above, the single States, and is, therefore . . . called ‘International Law.’" (Lassa Oppenheim, International Law: A Treatise, vol. 1, 1905, p. 4)
[151] Hersch Lauterpacht, "Descisions of Municiple Courts as a Source of International Law,” British Yearbook of International Law, vol. 10, 1929, pp. 65,83.
[152] Mattias Kumm, "The Legitimacy of International Law: A Contitutional Framework of Analysis," European of Journal International Law, vol. 15, no. 5, 2004, p. 908.
[153] Louise Henkin, How Nations Behave – Law and Foreign Policy, 2nd ed., 1979, p. 47.
[154] Harold Hongju Koh, "Why Do Nations Obey International Law?," The Yale Law Journal, vol. 201, June 1, 1997, pp. 2599-2600.
[155] Joseph Gabriel Starke, Introduction to International Law, 10th ed., 1989, p. 22.
[156] Oran R. Young, “International Law and International Relations Theory: Building Bridges,” American Society of International Law, vol. 86, proceedings, 1992, pp. 172, 175.
[157] Harold Hongju Koh, "Why Do Nations Obey International Law?," The Yale Law Journal, vol. 201, June 1, 1997, p. 2659.
[158] Mark Eugen Villiger, Customary International Law and Treaties, 1985, p. 292-293.
[159] Statute of the International Court of Justice, Article 38(1).
[160] Jörg Kammerhofer, "Uncertainty in the Formal Sources of International Law: Customary International Law and Some of Its Problems, " European Journal of International Law, vol. 15, no. 3, 2004, p. 551.
[161] Ibid.
[162] Ibid., p. 552.
[163] Ibid.
[164] Gustav Radbruch, Rechtshhilosophie, Erik wolf and Hans-Pieter Schneider, eds., 1973, pp. 327-329.
[165] John Locke, Two Treatises on Government, 1821, p. 191.
[166] Emerich de Vattel, The Law of Nations, “Preface.”
[167] Mark Eugen Villiger, Customary International Law and Treaties, 1985, p. 292-293.
[168] As stated by one international judge concerning the case he was involved in: "It is true that this commission is an international tribunal and in some sense is not fettered by the narrow rules and strict procedures obtaining in municipal courts, but there are certain [vastly important] principles . . . founded in the nature and necessity of things, which are equally obligatory upon every tribunal [every court in every nation] seeking to administer justice." (Garcia Cadiz Findlay in John H. Williams v. Venezuela, No. 36, United States and Venezuelan Commission, convention of December 5,1885 in the case of Ann Eulogia Garcia Cadiz, now Case of Ann Eulogia known at Loretta quoted in United States Congress, "Limitation and Prescription," The Miscellaneous Documents of the House of Representatives for the Second Session of the Fifty Third Congress, vol. 3267, issue 4, chapter 69, 1895, p. 4186).
[169] Gustav Radbruch, Rechtshhilosophie, Erik wolf and Hans-Pieter Schneider, eds., 1973, pp. 327-329.
[170] George C. Christie and Patrick H. Martin, Jurisprudence: text and readings on the philosophy of law, 2007, p. 215.
[171] Ralph M. McInemy, St. Thomas Aquinas, 1977, p. 66.
[172] Gustav Radbruch, Statutory Non-Law and Suprastatutory Law, Bonnie Litschewski Paulson & Stanley L. Paulson, trans., 1993, pp. 14-15.
[173] St. Thomas Aquinas, Treatise on Law, vol. 4, 1970, p. 78.
[174] Op.cit., Gustav Radbruch, Rechtshhilosophie.
[175] Ibid.
[176] Op.cit., Gustav Radbruch, Statutory Non-Law and Suprastatutory Law, p. 13.
[177] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 2006, p. 375.
[178] Benno Teschke, The Myth of 1648, 2003, p. 227.
[179] Ibid.
[180] Ibid., p. 229.
[181] Ibid.
[182] A. John Simmons, "On the Territorial Rights of States," Social, Political, and Legal Philosophy, Earnest Sosa & Enrique Villanueva, eds., 2001, p. 320.
[183] Emerich de Vattel, The Law of Nations, "Preface."
[184] Yong Sang Cho, Conflicts and Harmony in Modern Society, 1985, p. 255.
[185] The Enlightenment World, Martin Fitzpatrick, Peter Jones, Christa Knellwolf and Iain McCalman, ed., 2004, p. 442; Note: It was ". . . to a sort of interlocking corporation of dynasties to which the rules of international law were exclusively applied." (Julius Goebel, Jr., Studies in History, Economics and Public Law, vol. 66, no. 1, 1915, p. 27). That is, international law was natural law brought to bear on all monarchies on the earth for that is the major form of government in that day and age.
[186] "You can call the roll of many principles of modern international law and find them stated with substantial soundness in Grotius; definition of war, and of law, including the law of nature and the law of nations, sovereignty, acquisition of sovereignty, accretion, avulsion, abandonment, usucaption, prescription, alienation of sovereignty over territory, law of treaties, interpretation of treaties, right of the legation, and many phases of the law of war." (American Society of International Law, The American Journal of International Law, vol. 34, 1940, p, 469).
[187] Excerpt from Phillip R. Trimble, Michigan Law Review, vol. 95, 1944 in Thomas M. Franck, Fairness in International Law and Institutions, 1995, p. xxxvi.
[188] Sources of Japanese Tradition, vol. 2: part 2: 1868 to 2000, Carol Gluck and Arthur E. Tiedemann, compilers, p. 162.
[189] "Readings from the Levaithan," Readings in Potential Philosophy, Francis Coker, ed., 1914, p. 326
[190] Johann Wolfgang Textor, Synopsis of the Law of Nations, John Pauley Bate, trans., chapter 10, no. 7.
[191] Richard W. Mansbach and Kirsten L. Rafferty, Introduction to Global Politics, 2008, p. 66.
[192] Fritz Kern, Kingship and Law in the Middle Ages, S. B. Chrimes, trans., 1956, p. 196.
[193] Hersch Lauterpacht, Hersch. 1946. “The Grotian Tradition in International Law,” British Year Book of International Law, vol. 23, no. 21, 1946, pp. 30-31.
[194] Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127.
[195] Tudor Jones, Modern Political Thinkers and Ideas: an Historical Introduction, 2002, p. 4.
[196] Robert Jackson, Sovereignty: The Evolution of an Idea, 2007, p. 62.
[197] Op.cit., Richard W. Mansbach and Kirsten L. Rafferty.
[198] J. H. W. Verzijl, International Law in Historical Perspective, vol. 3, 1970, p. 347.
[199] Merriam-Webster’s Dictionary, "Juridical act," 1996, p. 271.
[200] Seokwoo Lee, "Continuing Relevance of Traditional Modes of Territorial Acquisition in International Law and a Modest Proposal," Connecticut Journal of International Law, vol. 16, 2000, p. 11.
[201] Ibid., p. 2.
[202] Ibid.
[203] Ibid., p. 11.
[204] El. Sal. v. Hond.: Nicaar. Intervening, 1992 I.C.J. 351-53 (Sept. 11).
[205] Seokwoo Lee, "Continuing Relevance of Traditional Modes of Territorial Acquisition in International Law and a Modest Proposal," Connecticut Journal of International Law, vol. 16, 2000, p. 10; Note: "A denial of title by prescription has as yet been rarely formulated in international law." (William Edward Hall, A Treatise on International Law, 7th ed., 1917, p. 122). For one thing, "It is impossible not to recognize the want of a due appreciation of the importance of prescription as a check upon unnecessary territorial disturbance," because once complete, the title becomes legally incontestable and unarguable; and thus should, if the law is respected, prevent any kind of violent disagreement about it. (Ibid.).
[206] Yehuda Z. Blum, Historical Titles in International Law, 1965, p. 67.
[207] Steven H. Gifis, Barron's Law Dictionary, 6th ed., "Principle," 2010 and Henry Campbell Black, A Law Dictionary containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, 2nd ed., 1910, p. 940.
[208] Michael Johnson, Illustrated Dictionary of Law, "Doctrine," 2005, p. 86.
[209] Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 2006, p. 376.
[210] Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898, p. 273.
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