Volume I Part 52 (2/2)

I cannot support the charge made by some writers[698] that the Swiss law is inadequate because it does not give criteria for the guidance of the Court in deciding whether or no extradition for complex crimes should be granted. In my opinion, the very absence of such criteria proves the superiority of the Swiss clause to the Belgian _attentat_ clause. On the one hand, the latter is quite insufficient, for it restricts its stipulations to murder of heads of States and members of their families only. But I see no reason why individuals guilty of any murder--as provided by the Russian proposal--or who have committed other crimes, such as arson, theft, and the like, should not be surrendered in case the political motive or purpose of the crime is of no importance in comparison with the crime itself. On the other hand, the Belgian clause goes too far, since exceptional cases of murder of heads of States from political motives or for political purposes might occur which do not deserve extradition. The Swiss clause, however, with its absence of fixed distinctions between such complex crimes as are extraditable, and such as are not, permits the consideration of the circ.u.mstances, conditions, and requirements under which a complex crime was committed.

It is true that the responsibility of the Court of Justice which has to decide whether such a complex crime is extraditable is great. But it is to be taken for granted that such Court will give its decision with impartiality, fairness, and justice. And it need not be feared that such Court will grant asylum to a murderer, incendiary, and the like, unless convinced that the deed was really political.

[Footnote 698: See, for instance, Mart.i.tz, op. cit. II. pp. 533-539.]

[Sidenote: Reactionary Extradition Treaties.]

-- 340. Be that as it may, the present condition of matters is a danger to the very principle of non-extradition of political criminals. Under the influence of the excitement caused by numerous criminal attempts in the last quarter of the nineteenth century, a few treaties have already been concluded which make a wide breach in this principle. It is Russia which is leading the reaction. This Power in 1885 concluded treaties with Prussia and Bavaria which stipulate the extradition of all individuals who have made an attack on the life, the body, or the honour[699] of a monarch, or of a member of his family, or who have committed any kind of murder or attempt to murder. And the extradition treaty between Russia and Spain of 1888 goes even further and abandons the principle of non-extradition of political criminals altogether.

Fortunately, the endeavour of Russia to abolish this principle altogether has not succeeded. In her extradition treaty with Great Britain of 1886 she had to adopt it without any restriction, and in her extradition treaties with Portugal of 1887, with Luxemburg of 1892, and with the United States and Holland of 1893, she had to adopt it with a restrictive clause similar to the Belgian _attentat_ clause.

[Footnote 699: Thus, even for _lese majeste_ extradition must be granted.]

PART III

ORGANS OF THE STATES FOR THEIR INTERNATIONAL RELATIONS

CHAPTER I

HEADS OF STATES, AND FOREIGN OFFICES

I

POSITION OF HEADS OF STATES ACCORDING TO INTERNATIONAL LAW

Hall, -- 97--Phillimore, II. ---- 101 and 102--Bluntschli, ---- 115-125--Holtzendorff in Holtzendorff, II. pp. 77-81--Ullmann, -- 40--Rivier, I. -- 32--Nys, II. pp. 325-329--Fiore, II. No.

1097--Bonfils, No. 632--Merignhac, II. pp. 294-305--Bynkershoek, ”De foro legatorum” (1721), c. III. -- 13.

[Sidenote: Necessity of a Head for every State.]

-- 341. As a State is an abstraction from the fact that a mult.i.tude of individuals live in a country under a Sovereign Government, every State must have a head as its highest organ, which represents it within and without its borders in the totality of its relations. Such head is the monarch in a monarchy and a president or a body of individuals, as the Bundesrath of Switzerland, in a republic. The Law of Nations prescribes no rules as regards the kind of head a State may have. Every State is, naturally, independent regarding this point, possessing the faculty of adopting any Const.i.tution it likes and of changing such Const.i.tution according to its discretion. Some kind or other of a head of the State is, however, necessary according to International Law, as without a head there is no State in existence, but anarchy.

[Sidenote: Recognition of Heads of States.]

-- 342. In case of the accession of a new head of a State, other States are as a rule notified. The latter usually recognise the new head through some formal act, such as a congratulation. But neither such notification nor recognition is strictly necessary according to International Law, as an individual becomes head of a State, not through the recognition of other States, but through Munic.i.p.al Law. Such notification and recognition are, however, of legal importance. For through notification a State declares that the individual concerned is its highest organ, and has by Munic.i.p.al Law the power to represent the State in the totality of its international relations. And through recognition the other States declare that they are ready to negotiate with such individual as the highest organ of his State. But recognition of a new head by other States is in every respect a matter of discretion. Neither has a State the right to demand from other States recognition of its new head, nor has any State a right to refuse such recognition. Thus Russia, Austria, and Prussia refused until 1848 recognition to Isabella, Queen of Spain, who had come to the throne as an infant in 1833. But, practically, in the long run recognition cannot be withheld, for without it international intercourse is impossible, and States with self-respect will exercise retorsion if recognition is refused to the heads they have chosen. Thus, when, after the unification of Italy in 1861, Mecklenburg and Bavaria refused the recognition of Victor Emanuel as King of Italy, Count Cavour revoked the _exequatur_ of the consuls of these States in Italy.

But it must be emphasised that recognition of a new head of a State by no means implies the recognition of such head as the legitimate head of the State in question. Recognition is in fact nothing else than the declaration of other States that they are ready to deal with a certain individual as the highest organ of the particular State, and the question remains totally undecided whether such individual is or is not to be considered the legitimate head of that State.

[Sidenote: Competence of Heads of States.]

-- 343. The head of a State, as its chief organ and representative in the totality of its international relations, acts for his State in the latter's international intercourse, with the consequence that all his legally relevant international acts are considered acts of his State.

His competence to perform such acts is termed _jus repraesentationis omnimodae_. It comprises in substance chiefly: reception and mission of diplomatic agents and consuls, conclusion of international treaties, declaration of war, and conclusion of peace. But it is a question of the special case, how far this competence is independent of Munic.i.p.al Law.

For heads of States exercise this competence for their States and as the latter's representatives, and not in their own right. If a head of a State should, for instance, ratify a treaty without the necessary approval of his Parliament, he would go beyond his powers, and therefore such treaty would not be binding upon his State.[700]

[Footnote 700: See below, -- 497.]

On the other hand, this competence is certainly independent of the question whether a head of a State is the legitimate head or a usurper.

The mere fact that an individual is for the time being the head of a State makes him competent to act as such head, and his State is legally bound by his acts. It may, however, be difficult to decide whether a certain individual is or is not the head of a State, for after a revolution some time always elapses before matters are settled.

[Sidenote: Heads of States Objects of the Law of Nations.]

-- 344. Heads of States are never subjects[701] of the Law of Nations.

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