Chapter Two: (Volume I)
THE LEGAL BASIS FOR NON-TERRITORIAL SOVEREIGN ENTITIES
Chapter Table of Contents
The doctrines of international law merely ratify in the legal sphere what moralists proclaim in the ethical realm. Prescriptive principles, as demonstrated below, provide a just and fair standard for what is morally in full accord with the laws of nature. Time, law, and practice have conferred upon the principle of “prescription” a “timeless rational validity.” “Prescription [is] a matter of natural [intelligent] reason,” which is why there is such a large “. . . world-wide agreement as to its essential doctrines.” These principles are an important part of “The general principles of law recognized by civilized nations, which means that they are “. . . so fundamental that [they are] a basic tenet in virtually every major legal system.” Thus the basic principles of prescription constitute a seminal or essential part of the law of nations.
This important ancient principle is indispensable to justice, both internationally and domestically in transferring the right to rule over whole nations or smaller territories on a large scale down to property and land on a local domestic or individual basis. Hugo Grotius made it clear that prescription is not merely about the transfer of the royal rights and/or sovereignty over territories, it is “. . . about [whole complete] kingdoms and [in addition it is about] the boundaries of kingdoms. . . .”
Civic or municipal prescription as used throughout the world rightfully transfers the title or ownership of property from derelict original owners after a certain period of time, as determined by domestic law, to the actual possessor and user of the land; but “[prescription] is more applicable to the transfer of [the rights of deposed] kingdoms and principalities [or sovereign exiled governments] . . . than the property of individuals.” (emphasis added) “[Prescription] applied to relations between sovereign states [even more] than to relations between the inhabitants of any particular state.” This is most true and important because:
[The same reason that prescription was introduced into] the civil jurisprudence of every country [was to promote] . . . quiet possession, give security to property, stop litigation, and prevent a state of continued bad feeling and hostility between individuals, is equally powerful to introduce it, for the same purposes, into the jurisprudence which regulates the intercourse of one society with another, more especially when it is remembered that war represents between States [what] litigation [is] between Individuals.
. . . Prescription is the main pillar upon which the security of national [sovereign] property and peace depends, is as incontrovertible a proposition as that the property and peace of individuals rest upon the same doctrine.
It is a well-established fact that, “. . . the rules of international law were [originally and] exclusively applied [to sovereign dynasties].” Prescription, being one of the more prominent rules in international law, impacted royal houses and has both preserved and destroyed sovereign and royal rights throughout the ages. In the days of the kings and princes, prescription was all “. . . about kingdoms and their territories,” not merely boundary disputes. (emphasis added) This is still true for the deposed houses. But the point is:
. . . Even a legitimate dynasty may easily forfeit its rights to the throne by its own misdeeds [such as negligence or abandonment]. The rights of sovereigns, as those of other human beings, are not imperishable [that is, are not indestructible]. (emphasis added)
. . . A person may forfeit his Regal Rights, and cease de jure [that is, legally] to be King. . . .
. . . The law of nations . . . prescribes that prescription should take place amongst sovereign states or kings (as well as for property [on a domestic level]). The right a [deposed] king has . . . will prescribe for the same reason as the right to the sole use of land or other estates. . . . Immemorial possession cuts off all [royal dynastic] claims.
Deposed dynasties are not exempt from prescriptive loss or forfeiture. That is, “The imprescriptibility of royal titles forms no part of the law of nations.” Instead, the rules and principles of prescription in international law are binding on royal houses as they were to solve “. . . controversies concerning kingdoms and their boundaries. . . . It is repugnant to the common sense of mankind” that all the rights and regal grandeur of sovereignty should not be transferred to the possessor when they are discarded and abandoned under the laws of natural justice. Otherwise, if old claims remained valid, they could provide excuses to perpetuate wars if they are never settled. Old antiquated claims to sovereignty were a great concern, especially in ancient days, and wars have only increased in modern times, albeit for different reasons, but they have become significantly worse in terms of death tolls and damage to property.
Under the subtitle “Of What May be Prescribed,” the 1963 Chamizal Arbitration made it clear that, “Any right [such as, dynastic rights of royal houses] which may be the subject of sovereign title may be prescribed. . . .” In other words, “. . . the Right of Sovereign Power [the highest secular honor on earth without which royalty does not exist] may be obtained [and therefore lost] . . . by long Possession [by the timeless rules of prescription].” That is, since royalty cannot exist without the sovereignty, then obviously dispossessed royal houses are under the power, dominion, and jurisdiction of the natural law principles of prescription, which either preserve or terminate sovereignty. The point is, “. . . All royal rights were and are prescriptive [that is, can be legally terminated or preserved]. . . .” In other words, “. . . Sovereignty, considered as imperium, is transferable, i.e. [is] alienable. . .” As such, it can be lost or given away. “. . . Sovereignty may [also] be modified or transferred by treaty, sale, exchange, cession, or prescription.”
“. . . The forfeiture of the right to govern, was that the prince passes judgment upon himself by his own actions.” In prescriptive loss this is done by negligence and/or a lack of official protest.
That Prescription is valid against the Claims of Sovereign Princes cannot be denied, by any who regard [or value] the Holy Scripture, Reason, [and] the practice and tranquility of the World. . . . (emphasis added)
By this law, “. . . A Prince, unjustly deposed and expelled, hath still a Right to his Kingdom, tho’ he hath lost the Possession [of the territory].” “. . . The right to rule [royal sovereignty] remains with the royal descendant until he [and his royal house] has lost it through the long process of prescription.” (emphasis added) How it is lost and how it is maintained is an important component of this book, but the important point here is that, “If every nation could rise in arms to assert obsolete legal rights,” there would be no stability on earth, therefore from time immemorial in both ancient and modern times, “. . . [prescription] is as necessary to end disputes between nations as to territory as it is to cut off litigation [and various other disturbances] between individuals. Respect for the law and what is just and right is essential. “. . . Prescription [is] a necessary and just law . . . [which terminates] ancient rights.” However, it does not merely take those rights away, “prescription confers sovereignty. . .” on the possessor where that possession is uncontested for a long period of time. Therefore, old outworn claims of deposed monarchies and exiled governments are abolished. For a more in-depth explanation behind the natural and logic reasoning behind this, note the following:
The right of conquest, when it is not legalized by [self] defense, is an unjust right, because it is the right of force [or coercion]; but the conquest effected, the crime remains attached to the usurper and to the conqueror; and his successors are not accountable for it. An invaded territory on which a nation has lived for ages is become their inheritance. To deny this principle [the principle of prescription] would be to plunge the world in a state of continual warfare. . . . To destroy or derange this order [the justly instituted principle of prescription] would be to produce alarming effects; each people, with arms in their hands, would reclaim the inheritance of their ancestors [by force of arms], and there would be no reason that would prevent the descendants of the people of the south, who, in the fifth century, were either expelled, or conquered, or plundered of the greater part of their territory by the people of Germany, from demanding the restoration of those rights and territories which had been wrested from their ancestors. Each people might exclaim against the divisions produced by the force of [numerous] revolutions, by the [many] changes, or the fall of dynasties, and by unjust and tyrannical treaties; and the descendants of tyrants might then insist upon feigning [right and create further wars]. . . . We must, therefore, for the repose of the people [that is, by natural law], admit the silence [acquiescence] of generations, and the prescription of time, as an incontestable [or incontrovertible] right, and the prosperity and peace of the human race exact from us that this principle [the principle of prescription] should be immutable and eternal. (emphasis added)
The Supreme Court of the United States in 1802 quoting Vattel “. . . held [that] ‘. . . prescription founded on length of time [creates] a valid and incontestable title [that is, a legitimate right to rule for the possessor that is unimpeachable]. . . .’” Vattel also declared that, “. . . All Nations have consented to admit the lawful and reasonable application of them [usucaption and prescription], in view of the common good of all and the individual benefit of each Nation.” That is, in the answer to the question, “Is it not perfectly clear that if antiquated claims are to be set up against recent treaties and long possession, the world can never be at peace . . . , we must answer that it is clear.” If ancient rulers never lost their former sovereign rights to the internal de jure right to rule a kingdom, land, or territory, then either they, or their rightful heirs, could continually and endlessly hold the legal right to take back their nation through war, revolt, revolutionary cruelties, coups and endless bloodshed and mischief that could hurt a nation or people for generations and beyond. Thus:
. . . [Prescription] is more applicable to the transfer of kingdoms and principalities, as they are more easily, more frequently, yes, and more justly transferred, than the property of individuals [to preserve peace].
. . . If a bona fide possession [that is, if long established nations] were allowed to be questioned by those who have acquiesced [given up their right to rule] for a long time . . . , [it] would impair [injure] the title [and security] of the possessor: the inconvenience [or potential problems] of such a result is so obvious, that the practice of Nations and individuals has equally repudiated it.
Prescription eliminates on a permanent basis all unmaintained stale and antiquated royal or governmental claims, and it makes the title of the possessor legally perfect such that it cannot be challenged. Prescription, if followed, is for the good and benefit of a more stable, secure, and peaceful world. It is an integral part of de jure, non-territorial sovereignty, to preserve and safeguard rights, under certain conditions, or to extinguish and terminate them under other situations.
Valid [customary law] must be both old and good; it must conform to natural law. . . . The [old natural law] Roman principle of prescription (usucapio, praescriptio longi temporis) . . . held that a [sovereign or royal] right may be established by long exercise of the power or that the same right may be extinguished by prolonged failure to exercise the same power. . . . [Prescription establishes] the . . . prescriptive acquisition [or attainment] of regalian rights. . . . (emphasis added)
“. . . Regalian rights are deeply attached and inseparable to the crown. . . .” And the crown is inseparably connected to the highest secular entitlement on earth, which is the transcendent and crowning power of sovereignty. “Prescriptive acquisition of regalian rights” means the loss of those rights for the negligent deposed and their transference to the possessor or the one who is presently exercising it on a de facto basis. “Regalia (jura regalia); in general [are] the privileges connected with the sovereign power.” But “the more considerable royal rights, which are called greater, (regalia majora) . . . are annexed to [are a lesser part of that] sovereignty. . . .” That is, royalty is a portion of the greater and more advanced and full quality of sovereignty, not the other way around. Sovereignty is the greatest or highest of all rights and without it, royalty does not exist. In other words, sovereignty is greater than royalty. “Regalia majora [the most important and significant of royal dynastic rights] . . . are [not the whole, but are only a] part [or portion] of the King’s sovereignty [or supremacy rights]. . . .” In terms of prescription for the most:
. . . important rights of sovereignty (regalia majora) time immemorial is required, while for lesser rights of sovereignty (regalia minora) ordinary prescription (praescriptio ordinaria) is necessary.
Prescription can either preserve or destroy both regalia majora and regalia minora. In summary, dynastic royal rights, held by the dispossessed, are “. . . regalian rights [and they can be totally lost, forfeited and] acquired . . . by . . . prescription.”
. . . International law incorporated at first the assumptions of dynasticism. It incorporated also something more important: the principle of prescription. [That is, prescription was more important, because it is what preserved dynastic rights on both a de facto and non-reigning basis]. [It is so vital to note that] nothing is more remarkable about international history up to the French Revolution than the regard for prescriptive right. . . . Prescriptive rights were sacrosanct [which meant it was “. . . regarded as too important or valuable to be interfered with”]. . . . Grotius has a chapter on usucaption [prescription], the right by which a thing long used becomes the property of the possessor against a known former owner. “The reason for . . . this right,” says Pufendorf, “was partly that a man who neglected for a long time to reclaim a thing was considered to have abandoned it, . . . was partly because the interests of peace and quiet required that possessions should finally be put beyond controversy. . . . [Therefore] immemorial prescription founded on a possession . . . afford[ed or legally created] an inexpugnable title [that is, a title that cannot be repudiated, terminated, annulled or made void].”
Dynastic rights and prescription are so intertwined and connected up together that they have been used to express the same thing. For example, “Sovereignty can be expressed either by prescriptive right [that is, by the right of a royal dynastic house], or under representative [governmental] arrangements designed to reflect, ‘the will of the people.’” In other words, “. . . rule is exercised by prescription [through a king or sovereign prince] or on the basis of representation [in a republic]. . . .” It all boils down to the important fact that both sovereignty and “dynastcism . . . [are] bound up with the principle of prescription.” This link is so solid that, “Indeed it might also be said that prescription, not dynasticism, provided the original rule of legitimacy.”
Dynastic rights, sovereignty, prescription and legitimacy are inseparable principles of all true dynastic monarchy whether reigning or in a deposed non-territorial situation. That is, the position and status of both regnant and unlawfully deposed sovereign houses are governed by the natural law rules of prescription.
Doctrines of International Law recognizing the Right to De jure Existence of Governments-in-Exile and Deposed Royal Houses
Traditional international law, which is still binding and upheld today, under the provisions stipulated by the doctrines of natural justice, upholds the validity and legitimacy of de jure kings (sovereign princes), and their successors, as well as governments-in-exile.
. . . Where a dynasty was expelled from their territories [in other words, illegally deposed or dispossessed] and their states incorporated into another state, the dynasty just lost their territory, but neither their status as a sovereign family nor their dynastic independence [or royal rights and privileges are lost].
This can be found in Grotius’s master work on international law, On the Law of War and Peace, which states that:
. . . A ruler who is deprived of the actual control of his country by either an invader or by revolutionaries nevertheless remains the legitimate de jure sovereign of his country while the de facto government set up by the revolutionaries or the invader is considered as an “usurper,” both constitutionally and internationally.
Under international law, this constitutes the test of the international title to govern. However, like most rules, this is usually observed in its breach, especially in modern times. It is, nevertheless, recognized as the ideal or what is ethically and morally right by the highest of all laws – the law of nature.
The preserving side of prescription can enable a deposed monarchy or government-in-exile to perpetuate rightful claims to non-territorial sovereignty forever and the acquisitive side, where a royal house or government-in-exile can lose their sovereign and/or royal rights totally, are both built on the “. . . basic values and principles of justice . . .” or what is right and good in the world.
To understand these facts, one needs to comprehend both the internal and external facets of sovereignty. Both are crucial to an adequate knowledge of de jure non-territorial sovereignty so that the law is more easily comprehended and not confused. The four most important qualities will be summarized. Consider first that:
As internal sovereignty is a matter of supremacy, external sovereignty is a matter of independence. External sovereignty is independence, or freedom from interference, not only in relation to any would-be higher, that is, international or supranational, authority, but also in relation to other states. As independence, external sovereignty is the freedom of self-governance. . . . As internal sovereignty implies unlimited freedom to interfere within, external sovereignty implies unlimited freedom from interference from without.
In reality, internal sovereignty and external sovereignty are two quite distinct, though closely related, concepts. Internal sovereignty is the legal supremacy of the state over all persons and associations within it. External sovereignty is the independence of the state from interference by other states. If the term “sovereignty” were limited to the former meaning, and the term “independence” were used for the latter, clarity of thinking would be furthered. . . . Internal sovereignty is legally absolute, while external sovereignty is always relative [changing] and often decidedly limited.
Perhaps the following can best illustrate the important difference:
[There are] two conceptual facets: like two sides of a ship’s hull, inside and outside. The ship of state is sovereign internally: its crew and passengers are subject to the captain’s supreme authority. The ship of state is also sovereign externally: it independence is recognized or at least tolerated and not extinguished by other independent ships sailing on the ocean of world politics, each with its own captain, crew, and passengers.
Supremacy is fundamentally an internal dimension and is the major focus of this book’s research and findings on the de jure rights of deposed monarchs and legitimate governments-in-exile. As stated above, external sovereignty is best thought of as independence without supremacy. It deals with the relationship that nation states have with each other. The Friendly Relations Declaration (UN Doc. A/RES/2625 (XVV) of 24 Oct. 1970) identifies some of it most important traits as follows:
In particular, sovereign equality includes the following elements:
(a) States [reigning or deposed] are juridically equal;
(b) Each State enjoys the rights inherent in full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political independence of the State are inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic and cultural systems;
(f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.
These characteristics are essential to getting along together in a world of many nations. Respect for the independence or external sovereign rights of each nation is the heart and soul or fundamental needed to make peace, prosperity and the advancement of the human race possible.
However, in addition, there are two more basic and important qualities of sovereign to comprehend. These traits are just as necessary as internal and external dimensions of sovereignty. That is, “When analyzing the internal and external aspects, it is important to acknowledge that there exists . . . de jure and de facto sovereignty.” “The de jure sovereign is the legal sovereign and the de facto sovereign [that] which is actually obeyed by the people whether it has legal status or not.” Another way to put it is, “. . . the government de facto is one which is actually in possession of power while a government de jure is one which ought (apparently in law) to possess it.” Note the following descriptions:
De Jure Sovereignty:
Sometimes a forcible displacement of the legal sovereign of a state may occur and its place may be usurped by another authority not recognized by law; but the legal sovereign may still continue its claim of sovereignty over the territory of the state concerned. Under such circumstances, the sovereignty held by the displaced legal sovereign is known as De Jure Sovereignty. There are innumerable examples of De Jure Sovereignty. When Germany occupied the territories of many of the European states during the second World War, leaders of many of those states formed governments-in-exile in London and continued their De Jure Sovereignty over their respective territories.
[De jure Sovereignty] does not depend for its validity upon obedience actually rendered. . . . As a matter of fact it may not be the actual sovereign, for it may be expelled . . . from its rightful place or may have temporarily disappeared through disorganization or disintegration; but, however this may be, it has legal right on its side and is lawfully entitled to command and exact obedience [even though it cannot enforce any of its commands having no actual control over the territory].
De Facto Sovereignty:
De Facto Sovereignty refers to sovereignty claimed by the usurper of a legal sovereign. Such a usurper may be either a person or a group of person or an external aggressor. This kind of authority has no legal basis, because it is not recognized by law, but it exists in fact, because it actually occupies the territory of the state. Such an occupation, however, may be established over the whole of the territory or over some part or parts of it. To cite an important example, De Facto Sovereignty was claimed by the Communists over China after driving out, by force, the government of Chiang Kai-Shek from the mainland of China to Taiwan (Formosa).
So we have four distinct and different dimensions of sovereignty that need to be observed if one is to understand the important legalities behind deposed and regnant situations as well as discern the meaning of many of the citations that describe the lawful certainties important to dispossessed governments:
(1) Internal De jure: internal legal or de jure sovereignty, which is the right or entitlement to rule by law. It is internal legal and lawful legitimacy,
(2) Internal De facto: actual rule of a state via internal de facto power or governmental control of the people and the land inside the boarders of the nation,
(3) External De jure: outside, international, or external recognition on a political rather than legal basis (political acknowledgement does not legitimize the sovereign of a government), and
(4) External De facto: external de facto sovereignty is again political, rather than legal recognition, that the nation is functioning and independent.
The sovereignty impacted by prescription chiefly concerns the internal, legal right to rule, which is sovereignty that is truly lawful and legitimate but is often dispossessed or has no territory to rule over. It is the sovereignty of deposed monarchs and legitimate governments-in-exile. Worldly or political recognition of the usurper who has control of the government is always either external de jure or external de facto or both.
“Internally, sovereignty can be generally defined with little controversy as the ability [that is, the right or entitlement] to have supreme authority within a defined territory. . . .” Problems, however, most often arise when discussing external, as opposed to internal sovereignty, because, “externally, no single meaning of sovereignty exists. . . .” Such naturally creates misunderstandings and misconceptions. “External sovereignty [the poorly defined term] of the state is what international lawyers [usually or most often] have in mind when they speak of sovereignty. . . .” Yet this kind of sovereignty does not hold supremacy. External and political are of lesser importance than internal sovereignty – the kind of sovereignty that is supreme or the highest of all.
The rights of internal sovereignty [are many and they] include:
(1) The right to a free choice, settlement and alteration of the internal Constitution and Government, without the intermeddling of any Foreign State.
(2) The right to territorial inviolability, and the free use and enjoyment of property.
(3) The right of self-preservation, and this by the defense which prevents, as well as by that which repels, attack.
(4) The right to a free development of national resources by commerce.
(5) The right of acquisition, whether original or derivative, both of territorial possessions and rights.
(6) The right to absolute and uncontrolled jurisdiction over all persons and things within and, in certain exceptional cases, without the limits of the territory. (emphasis added)
. . . In order to consider the sovereignty of a State as complete in the Law of Nations, there is no need for recognition by foreign powers, though the latter may appear useful, the de facto existence of sovereignty is sufficient.
In others words, “. . . sovereignty is not something that is decided by other countries. They can only recognize it or not.”
Internal sovereignty is not to be confused with internal politics or power plays inside a country, but with what is legally, morally and ethically, legitimate, and lawful, which is often defined by the word de jure. What is meant by “de jure” in a broad legal sense is by right, fitting, fair, constitutional, just, morally and ethically right, lawful, rightful entitlement or claim and as a matter of law – legitimate, real, genuine and true. Sir Frederick Pollock, the famed British jurist, provides us with a modern restatement of what constitutes de jure sovereignty:
A de facto Government is also de jure, or in English lawful, when (1) it derives its power by regular succession under the Constitution or custom of the land, which is the most normal case; or (2) it had not a legal origin, but has acquired the consent of the governed by express ratification, such as, in our time, a popular vote, or by general acquiescence coupled with the absence of any effective adverse claim. These are often not plain matters of fact, but the subject of conflicting opinions. There may be a considerable unsettled interval, as in France between the Ancient Regime and the Consulate. Modern history is full of dispossessed princes and rulers claiming to be still the de jure heads of their States, and recognized by some foreign States and not by others. Such were the Stuarts in the 18th century, who failed after seeming to be on the point of success, and the Bourbon dynasty in France, who, two generations later, succeeded for a time after a seemingly hopeless exile. (emphasis added).
The distinguished American jurist, Henry Wheaton, differentiates a de jure Government from a de facto one as follows:
A de jure government is one which, in the opinion of the person, using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them, although the possession may be wrongful or precarious.
Other writers confirm the same:
A king [or republic] de facto [the usurper] is one that is in actual possession of a crown [or nation], and hath no lawful right to the same; in which sense it is opposed to a king de jure [who is legitimate], who hath [the legal and lawful] right to a crown [the throne of his forefathers] but is out of possession [or is deposed by the de facto usurper].
De Jure or Legitimate Government: It is one established according to the constitution of the nation, and lawfully entitled to recognition and supremacy and administration of the nation, but which is actually cut off from power or control. It is a government deemed lawful or deemed rightful and just, but which, nevertheless, has been supplanted or displaced.
The next logical question is how long may a de jure Sovereign or Government-in-Exile continue in this status and what must be done to keep such right alive? The first part of this question is answered in Synopsis Juris Gentium, by Johann Wolfgan Textor, the famous German publicist and International Lawyer:
I think, however, that the following distinction is a sound one, namely, that those Republics which have wrestled their liberty by force from Kings or Princes, need after the event the completion of the title by an abdication [an official ceding or surrender] of Royal Power on the part of the King or Prince. . . . The Principle is the same as would apply to a Kingdom or Principality if a Republic were turned into a Monarchy. Julius Caesar may have been able to dominate at Rome after his victory at Pharsalia, but this was a matter of fact and not of Law; it, however, became a matter of Law and irrevocable when the people by its consent transferred to the Prince the right and power which was in itself. By parity and conversely, a King who has been driven from his Kingdom by force and arms, and has lost possession of his sovereignty, has not thereby lost his right, or at any rate not irrevocably, unless he has in the meanwhile given his assent thereto; but he loses it conclusively at the moment when he consents to a transfer of it to the Estates (i.e., to Parliament) or to his rebel subjects, and then it must be recognized that the Kingdom has been made into a State which has been founded in accordance with the Law of Nations. (emphasis added).
Thus, de jure sovereigns and governments-in-exile retain their status as long as they do not surrender their sovereignty to the de facto ruler(s). Governments-in-exile keep their claims alive by filing diplomatic protests against the usurpation of their rights. De jure sovereigns make such protests upon their accession, at other significant times during their lives, or when the acts of the de facto usurper would make a protest appropriate. In other words, “. . . Continued protests on the part of the dispossessed State, are sufficient to rule out the legalization [of the usurper or subsequent government over the land]. . . .” Competent protests will keep a de jure claim alive indefinitely. A claim is deemed abandoned only when the protests cease. Emerich de Vattel, second in authority only to Grotius, states this proposition of international Law in his book The Law of Nations, as follows:
It is likewise plain that prescription cannot be set up against an owner who, not being able to prosecute his right at the time [i.e., by force], can do no more than merely give sufficient signs, in one way or another, that he does not mean to abandon it. This is the purpose of protests. With sovereigns the title and the arms of a territory or province are retained, as an evidence that the right to it has not been abandoned. . . .
Every owner who does, or expressly omits to do, certain things which can not be done or omitted without renouncing his right, thereby gives sufficient sign that he does not mean to keep it, unless he makes a definite statement to that effect. One is certainly justified in regarding as true what the owner makes sufficiently evident on occasions when he should speak the truth; consequently it is lawful to presume that he has abandoned his right, and if he attempts later on to revive it prescription can be set up as a bar to his claim. (emphasis added)
Therefore, under international law, the legitimate claims of a de jure sovereign or government-in-exile continue indefinitely and are kept alive by protests against the usurper. The regular use of regal titles and arms is equivalent or equal to a lifelong series of diplomatic protests, because title and arms were the way kings and princes proclaimed their absolute sovereign rights and identity under heraldic law, so that no one can say the claim is abandoned. In other words, to bear the royal title and sovereign arms of a country was to claim sovereignty over that country. Only when such protests cease does a prescription arise against the de jure rights of a legitimate royal or governmental claimant. At this point, sovereignty would return to the people of the country concerned, who may directly or by acquiescence indicate the designation of the institutions of the de facto government, which at this point would be legitimized and acquire the full de jure rights of the former sovereign. Acquiescence should never be presumed when there is any reason to suspect that the usurper is terrorizing the populace or retaining his position by means other than the full consent of the people, freely given.
Vattel is confirmed by modern publicists who likewise hold that the de facto possessor does not acquire sovereignty by prescription over the territory in question so long as the de jure sovereign keeps up his claims and protests:
As long as other States keep up protests and claims, the actual exercise of sovereignty is not undisturbed, nor is there the required general conviction that the present condition of things is in conformity with international order. But after such protests and claims, if any, cease to be repeated, the actual possession ceases to be disturbed and thus in certain circumstances matters may gradually ripen into that condition which is in conformity with international order. The question at what time and in what circumstances such a condition of things arises, is not one of law but of fact.
With respect to the position of sovereign royal houses in natural law, Dr. John F. Cronin states that as the sovereignty of the nation resides in the person of the legitimate prince, it is his consent that must be obtained before the usurper can acquire legitimate sovereignty. Likewise, the people are morally bound to refrain from doing anything that might help the usurper consolidate his position:
In the case of a monarchy . . . the people are not the authority from whom consent is to be sought; and as long as the monarch. . . is in existence, it is on their authority and by their consent only that legitimation can be effected. During that period, too, the people are bound to refrain from giving their consent to the new regime or doing anything that would directly help to consolidate the usurper’s position; they should abstain from those acts that we shall describe later as indicating popular consent, since, by our hypothesis, all such acts are essentially acts of cooperation in wrong-doing. The people, however, not only may, but ought to obey all such laws of the usurper as are not tyrannical or unjust, at least for the sake of public tranquility.
As the distinguished American international lawyer, Phillip Marshall Brown, stated upon the occasion of sending an ambassador to the eight legitimate sovereigns and governments-in-exile dispossessed by Nazi aggression during World War II:
There is a still deeper significance to this anomalous condition of sovereignty in exile. There is no automatic extinction of nations. Military occupation may seem final and permanent, and yet prove to be only an interregnum, though a prolonged nightmare for the inhabitants. A nation is much more than an outward form of territory and government. It consists of the men and women in whom sovereignty resides. So long as they cherish sovereignty in their hearts their nation is not dead. It may be prostrate and helpless and yet revive. It is not to be denied the symbols and forms of sovereignty on foreign soil or diplomatic relations with other nations.
. . . This sovereignty may be suspended, and in exile, a mere figment even of reality, derided and discouraged, and yet entitled to every respect. Ambassador Biddle in London therefore is not dealing with fictions: he speaks to those valiant standard bearers of sovereignty in England the language of faith and confidence as well as of inalienable, immutable rights. (emphasis added)
Whether one is speaking of the rights of sovereignty over a people and/or national territory, normally there can only be one fully rightful and true ruler, except in rare cases where a lawful condominium, conjoint or dual sovereignty was established in which two or more share the same supreme title as heads of state: such as, in the principality of Andorra where one Prince is the residing Catholic Bishop and the other is the President of France. In France, there are three royal or imperial dispossessed claimants to their ancient throne. However, only one is rightful – only one claim is the true claim over a particular land and its people. The others are legally defective or inferior, in one way or another; and are therefore invalid when compared to the one with the superior claim. The best or most legitimate claim is always the oldest one that has fully complied with prescriptive rules which can be proved with indisputable public records and confirmed public facts and that not by assumption or conjecture. This is where the legal principle of “prior claim” is binding and obligatory. If, for any reason, the oldest claimant’s house became extinct or failed to maintain its regalian privileges, or the proof is lost, the next best claimant, who obeyed the rules that preserve regal rights, would then hold the full and complete legal right to the crown. Hence, the general statement that, “Modern dynastic and territorial sovereignty share a unitary conception: one sovereign per polity.” That is, only one monarchy or government holds the most perfect de jure right in each jurisdiction. In other words, possession, by its very nature is exclusive, proprietary and unshared belonging solely to one person, one group, one family or a single nation.
The deposed, non-territorial, de jure entitlement to rule, on the one side, can be co-existent with the de facto ruler, on the other side, who is in actual control of the nation. This latter ruler has a superior title on a de facto basis, but not full title – someone else, the unjustly deposed monarchy or legitimate government-in-exile, holds the highest moral, ethical, and legal right – the entitlement to the sovereignty and supremacy of the kingdom, principality, or nation. However, neither the de facto nor de jure ruler has a full and complete title to the nation – each one’s right is qualified, handicapped, or incomplete in some important way. Nevertheless, to most, the in-control possessor seems the most proper as he holds de facto rule and is recognized by other nations as externally legal and independent. However, even though the internally de jure royal dynastic house or exiled government are often overlooked or ignored by the world in importance, such hold the highest internal right to rule the particular sovereign entity – a right that is greater or above all others on a legal, and therefore, rightful basis.
It may, therefore, be seen that under traditional international law based on the ageless and universal law of nature, de jure sovereignty survives the unlawful loss of territorial authority and continues as the legitimate government of the country concerned, retaining valid title to govern and is entitled to the allegiance of its de jure subjects. As de jure sovereignty represents the moral principle that “might does not make right,” it is entitled to recognition by other sovereigns adhering to the moral principles implicit and still binding in international law. This recognition can take many forms short of full diplomatic recognition. De jure royal sovereigns can, among other things, negotiate international agreements and, when appropriate, recognize worthy individuals with knighthoods and other decorations of honor at their command.
Currently, de jure governments-in-exile (which includes deposed monarchs) exist for Albania (King Leka, who succeeded his father, King Zog, on 9 April 1961), Bulgaria (King Simeon II), Estonia, Hungary (the de jure Sovereign of Hungary is the Chief of the Royal and Imperial House of Habsburg, who has never renounced his rights as Apostolic King; Archduke Joseph-Arpad, Palatine [hereditary viceroy] of Hungary, is President of the High Counsel for the Defense of the Nation of Hungary in Exile), Latvia, Lithuania, Poland (the original government-in-exile which fled from Poland to London upon Hitler’s invasion in 1939; chicanery in the U.S. State Department obtained American recognition of the Communist-backed Lubin Government by President Roosevelt in 1944), Romania (King Michael is abdication of 30 December 1947 was invalid under international law as it was obtained by force by the Communist Government), Tibet (the Dalia Lama proclaimed on 20 June 1959 that “wherever I am, I am accompanied by my government, which the Tibetan people recognize as the government of Tibet”), Yugoslavia (King Peter II maintained a complete government-in-exile during his life), the ancestors of the present King of Bunyoro-Kitara never ceded or renounced their rights as sovereign kings in spite of forced exile, and the Kings of Georgia never abdicated by continued to use their titles in spite of Soviet occupation and prison. This is not meant to be a complete list as there may be more. Up to the 1980s, the United States officially recognized the de jure sovereignty of the Estonian, Latvian, and Lithuanian governments-in-exile. Till 1979, the United States also recognized the Nationalist Government of China, now based on the Isle of Taiwan as the legitimate sovereign of all China, despite the fact that mainland China was usurped by Communist aggression in 1949. Of course, “. . . Sovereignty is neither created by recognition nor destroyed by nonrecognition.” “These rights [the rights of internal de jure sovereignty] are all absolute, and quite independent of any recognition of the external sovereignty by other States. . . .”
A new State [or new government] does not require recognition of other States to confirm its internal sovereignty. So long as it confines its actions to its citizens and to the limits of its own territory, it may dispense with such recognition; but, if it desires to enter the society of nations, recognition becomes necessary to entitle it to participation.
Constitutional Power of Governments-in-Exile Under International Law
Under international law, a government-in-exile is deemed to have the implied constitutional power to perform all normal acts of state, including those acts that under its own constitution would require the consent of an organ of government, such as a parliament, that is suspended due to the exile condition.
During World War II, the governments-in-exile of Belgium, Czechoslovakia, Greece, Luxembourg, the Netherlands, Norway, Poland, and Yugoslavia resident in London performed the normal day-to-day activities of governments, such as legislation, taxation, making treaties, declaring war, appropriating money, and raising armies – all of which required the concurrence of their respective parliaments. This activity is particularly interesting in light of the fact that most of the constitutions of these governments then contained no provision to deal with an exiled situation.
For example, Article 21 of the Dutch Constitution expressly prohibited the transfer of the Government abroad, and Article 11 of the Norwegian Constitution states that “the King forfeits for his person his rights to the Crown if he stays outside the Kingdom for more than six months at a time without the consent of the Storting [Norwegian Parliament].”
Nevertheless, courts that had occasion to rule on the validity of Dutch legislation enacted by the government-in-exile universally upheld it. In the case of Anderson v. N.V. Transadine Handelmaatschappi, the plaintiff questioned the validity of a Netherlands decree signed by only the Queen and issued by the Government-in-Exile. The British court held that the government-in-exile had the implied constitutional power to issue such a decree even though it apparently violated Article 21 of the Dutch Constitution:
The Netherlands Decree is a valid act of the State of the Netherlands and has vested in the State of the Netherlands title and property sought to be attached. . . . the acts of the Royal Netherlands Government must be deemed to be the acts of the State of the Netherlands. . . . The circumstance that the Royal Netherlands Decree of May 24, 1940, was promulgated in London, England, rather than at The Hague, is immaterial, in view of the fact that our government has officially recognized the Netherlands Government since its temporary residence in London.
On appeal, the British Court of Appeals held:
There can be no doubt that the Decree of May 24, 1940, promulgated by the recognized Government of the State of Netherlands is part of the law of a friendly sovereign State. . . .
Likewise, the case of Moraitis v. Delany dealt with the competency of governments-in-exile to deal with ordinary governmental matters:
. . . These international relationships the governments in exile are thoroughly competent to deal with. They are true governments set up and organized to protect the interests of their nationals, and their powers with regard thereto are recognized and respected by the friendly nations in whose territories they function. They exercise sovereign power, moreover, not only with respect to their nationals, but also with respect to the vessels of their countries. . . .
In the Amand Case before the King’s Bench Division, the British Attorney General supplied information to the court that the Dutch Government was thoroughly competent to act in all matters, including legislative matters, notwithstanding Article 21 of the Dutch Constitution :
H. M. Government recognizes Her Majesty Queen Wilhelmina and her Government as the sovereign and Government of the Netherlands and as exclusively competent to perform the legislative, administrative and other functions appertaining to the Sovereign and Government of the Netherlands.
Perhaps, the best explanation of how a government-in-exile becomes vested with the implied constitutional power to perform the normal acts of state can be found in a series of decisions by the Belgian Supreme Court, the Cour de Cassation, which upheld the power of King Albert to legislate by Royal Decree during World War I when it was impossible to convene the Belgian Parliament even though the Belgian Constitution does not give the King the power to so legislate in such an emergency.
In the judgments of the Cour de Cassation of February 11 and June 4, 1919, February 18 and April 27, 1920, published in Pasicrisie Belge, 1919, Pt. I, 180 pp. 9-16, 97-110, and 1920, Pt. I, pp. 62 and 124-125, the court stated that, as a matter of Jurisprudence, the decrees issued by the King on his sole authority as king without the consent of parliament, as required by the Constitution, were valid, since as a result of the German invasion the legislative bodies could not function.
The Cour de Cassation based these decisions on the broad principles of General Public and International Jurisprudence that (1) belligerent occupation and invasion does not suspend or destroy the sovereignty of the occupied state; (2) no nation can live without a sovereign government; and (3) the legislative power is indispensable for the existence of a government. Therefore, the Cour de Cassation concluded that since the Chamber of Deputies and the Senate were paralyzed due to the conditions of occupation and exile, that the legislative power was vested in the King alone.
It is noted that these highly important decisions were based on general principles of international and public jurisprudence. Hence, the reasoning of the Cour de Cassation is applicable to any exile situation and is, indeed, the principle cited by most governments-in-exile as the justification for their exercise of the powers belonging to their parliaments.
The theory behind this principle is discussed at length in F.E. Oppenheimer’s important article, “Governments and Authorities in Exile.” Oppenheimer first deals with the Dutch situation where the Royal Dutch Government constituted itself as a government-in-exile in direct violation of Article 21 of the Dutch Constitution forbidding the transfer of the Government abroad. Then Oppenheimer applied the reasoning used to resolve the Dutch situation to formulate a general constitutional principle of international public jurisprudence applicable across-the-board to all sovereigns finding themselves in a similar situation:
The Queen of the Netherlands and her government followed a different course. The invasion of the kingdom in Europe was so sudden and overwhelming that no time was left to consider or to fulfill constitutional technicalities. In view of such extreme emergency, a temporary deviation from the wording of the constitution is justifiable if this is necessary to conserve the sovereignty and independence of the country. It is significant that the King’s Bench Division of the High Court of Justice in England in the Arnand Case (1942) 1 All E.R. 236, 250], held unanimously with regard to the Netherlands constitution, that there was in Netherlands law an inherent power in the Netherlands governing bodies, or such of them as survive to make and execute acts of state legislation, which have the force of law during an emergency. “The Royal decrees Koninklijk Besluit are issued by the Queen in London upon the presentation of the competent Minister and published in Staatsbland van het Koninkrijk Nederlanden in England, but no article of the constitution as source of the powers of the Queen is mentioned.
It is not believed that this power of the executive to enact crisis legislation for the duration of the emergency, subject to ratification or revocation by parliament at its next meeting to be convened at the end of the emergency, is peculiar to Netherlands law. It is rather believed to be a more general constitutional principle. If there is a written charter and its authors did not have the foresight to legislate for an eventuality, a sound judge called upon to interpret the constitution will have to reply to the questions: Is it in the interest of the people, whom the constitution is supposed to protect, that the government does not legislate for the defense of the country, because the proper legislative body is in enemy control and the invader did not allow sufficient time to amend the constitution authorizing its government to legislate abroad? Or would the fathers of the Constitution, had they anticipated at the time of drafting it the possibility of an occupation of the country - or would the people today if they were free to express an opinion, have refused legislative powers to the sovereign government for the duration of such emergency and within the limits dictated by state necessity? The answer cannot be doubtful. This method of interpretation coincides with the instructions laid down in the Swiss Code. The Swiss lawyer is bound to apply the law in all cases which come within the letter or the spirit of any of its provisions, and where no provision applies, the judge shall be guided according to the existing customary law and, in default thereof, according to the rules which he would lay down if he had himself to act as legislator. (emphasis added)
It can, therefore, be stated as a doctrine of international law that a sovereign-in-exile possesses the implied constitutional power to perform the normal acts of state that constitutionally require the consent of an organ of government that has become unavoidably suspended due to the condition of exile. Thus, the Chief of a Royal House in his capacity as de jure King (Head of the Government-in-Exile) has the authority to act in the place of Parliament and to perform those acts of state which under the various Constitutions requires the consent of Parliament.
The question also arises if a government-in-exile might not lose its legitimate status by acting in seeming contradiction to some provision of its written constitution. This is important as governments-in-exile are often faced with situations requiring a course of action that would otherwise violate a direct constitutional guarantee. The answer to this question lies in the designee of the sovereignty of the particular government-in-exile.
In a monarchy, the sovereignty or power to govern the state resides in the King; whereas, in a republic, it rests in the people who have indicated certain institutions as the designated organs of the state. The organs of a republic are, thus, mere agents of the sovereign people. A monarch, on the other hand, is a principal or a master, not an agent, because the Sovereignty of the state resides uniquely in his person. As Grotius observes in The Law of War and Peace, a King retains full sovereignty even though there is a constitution limiting the exercise of his sovereign powers:
A third comment is, that sovereignty does not cease to be such even if he who is going to exercise it makes promises – even promises touching matters of government [i.e., a constitution limiting the exercise of a King’s powers] – to his subjects or to God. I am not speaking of the observance of the laws of nature and of divine law, or of the law of nations; observance of these is binding upon all kings, even though they have made no-promise. I am speaking of certain rules, [constitutions], to which kings would not be bound without a promise.
That what I say is true becomes clear from the similarity of the case under consideration to that of the head of a household. 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. (emphasis added)
In a limited monarchy, summa potestas [the final or supreme authority in the kingdom] resides exclusively in the monarch, and it is only its “exercise” which is monarchy limited: the monarch can therefore, in case of need, break even the rules of the constitution, which can never be anything more than a contract to which he has freely assented. The obligation imposed on him by an oath to the constitution is only a religious [or ceremonial] obligation . . . .
Thus, the constitution is not binding if he is deposed or under emergency situations. Unrestricted by a constitution a monarch exercises the full plentitude of sovereign power, executive, legislative, and judicial. The fact that a monarch has agreed to restrict the exercise of his sovereign power by swearing to a constitution in no way derogates from the unalienable sovereignty residing in his person. Although a monarch may restrict the powers he personally exercises by granting a constitution, he, nevertheless, remains the source of power for all other branches and instrumentalities of his government. However, while in the exiled state in a foreign nation, that country's domestic laws must be respected and they will limit the what the exiled government or sovereign can do within the confines of that nation. That is, it is:
the duty [of the exiled] to respect the territorial sovereignty [of the hosting government, and its rules] must prevent a state [or monarch-in-exile] from performing acts which, although within its competence, in accordance with its personal supremacy, would violate the territorial supremacy [of the host]."
This has a limiting effect, but it does not extinguish a dispossessed entity from holding a fulness of its rights. It only limits the exercise thereof to some degree. A monarch is a true sovereign in every sense of the word, but curtailed. Many of his rights are dormant or inactive, but he still holds supremacy.
In a republic, no official, even a president, is the source of the powers he exercises; his powers go no further than those indicated as designated by the people in the constitution. A constitutional monarch, on the other hand, retains full Sovereign or supreme rights over the state. The constitution derives its force from his assent to it. He is the grantor of whatever rights the constitution bestows; whereas a republican official is merely the beneficiary of the provisions of the constitution.
A dethroned monarch has the right of full power under international law, but is unable to actively use it. “[It can seem] strange and unjust . . . that a [sovereign -- a deposed] Prince should have a legal Right and Title to the Crown, without a right [any actual opportunity] to exercise the Authority belonging thereunto.” But even though reigning or regnant monarchs presently have a more active and respected “Right and Title to the Crown,” than deposed monarchies, they also cannot “exercise the [full] Authority belonging thereunto,” because reigning monarchs in the past have permitted or granted limitations on the actual use of this right by the constitutions they willingly approved and instituted. These and other limitations on ruling governments create checks and balances which are rightfully designed to protect society from the abuse of power and thus protect one of the greatest and most precious things in life – freedom and liberty from being plundered.
The dispossessed de jure right to the majesty of non-territorial sovereignty, which a deposed royal house holds, is based entirely on the rules and principles of prescription rather than on the former constitution, which usually says nothing about this important status. Thus, as explained, non-territorial sovereigns operate without curtailment and are free agents as the personification of all the glory of the right to rule the land of their forefathers. However, even though they embody this magnificence and hold the full and complete “Right and Title to the Crown” as authentic and genuine royal persons, they cannot actively “exercise the [full] Authority belonging thereunto” without de facto control of the nation. There are many things they can do with this great authority, which will be discussed later on, but they cannot change succession laws without the official approval of the vast majority of all the princes who hold a portion of the legitimate and rightful claim to the throne. The law of nations forbids and prevents the unlawful plundering of the royal, imperial or princely birthright of both reigning and non-reigning heirs of the blood royal. The House Rules that impact succession rights can only be changed by a grand council of all true dynasts who are either present or are properly represented; only as a group have they the right to change these important rules. (See the important sub-chapter entitled, “Legal and Lawful Solutions to Succession Conflicts provided under International Public Law” in Chapter VI in Volume II).
The position of a republic and its chief of state is far different under International Law then that of a monarchy:
In contradistinction to monarchies, in republics the people itself, and not a single individual, appears as the representative of the sovereignty of the State, and, accordingly, the people styles itself the sovereign of the State. Moreover, the Head of a republic may consist of a body of individuals, such as the Bundesrath in Switzerland. But in case the Head is a president, as in France and the United States of America, the president represents the State, at any rate in the totality of its international relations. He is, however, not a sovereign, but a citizen and a subject of the very State of which, as president, he is Head.
Consequently, his position at home and abroad cannot be compared with that of monarchs, and International Law does not empower his home State to claim for him the same, but only similar, consideration as that due to a monarch. Neither at home nor abroad, therefore, does a president of a republic appear as a peer of monarchs. Whereas all monarchs are, in the style of court phraseology, considered as though they were members of the same family, and therefore address each other in letters as “my brother,” a president of a republic is usually addressed in letters from monarchs as “my friend.” His home [republican] state can certainly claim for him such honours as are due to its dignity, but no such honours as must be granted to a sovereign monarch. (emphasis added).
This highly important distinction provides the answer to the question of whether a Government-in-Exile or deposed sovereign, as the personification of all legal sovereignty, may rightfully act in seeming violation of a constitutional provision: as a monarch is the source of the sovereign power of the state and the grantor of any constitution, he is not deprived of the power conferred on him by his kingship merely because he has promised to exercise it in a certain way.
Whatever gift of land or lordship a sovereign prince may make [say to a constitution], the royal rights inherent in his majesty are always reserved, even if they were not spelled out explicitly. . . [These rights] cannot be prescribed or usurped by any period of time no matter what its length. . . .
The right or title of the king or sovereign prince to rule is absolute, but the use of this power can be limited or delegated as he sees fit.
Given the emergency created by an exile situation, he is undoubtedly morally justified in receding certain restrictions that he (or his ancestors) placed on the exercise of his sovereign powers in the initial grant of the constitution in order to aid the recovery of his territorial sovereignty. The vastly changed conditions of exile and the absolute imperative goal of recovering territorial sovereignty would certainly provide the needed moral justification for acting contrary to nonessential provisions of a constitution. Of course, a monarch could not use this justification for acting contrary to provisions of a constitution incorporating portions of divine law or natural law; he is bound by such, even in the absence of a constitution. A republic official is only the creature of a constitution and not the grantor of it, and he possesses no residual or ultimate sovereignty with respect to it. As the citizens of a republic have indicated certain institutions as designated by their constitution, only they can determine the conditions that would justify derogation from its provisions. Thus, in an exile situation, an official of a republican executive branch would not possess the authority to act contrary to a provision of the constitution. This probably could only be authorized by the last elected representatives of the people sitting as a parliament-in-exile. Like a monarch, a republican parliament-in-exile could not derogate from the parts of its constitution that incorporate divine or natural law.
From the criteria and court decisions for the well-known exiled governments of World War II (Belgium, Czechoslovakia, Greece, Luxembourg, the Netherlands, Norway, Poland and Yugoslavia, that resided in London), the following can be concluded.
The legal [and rightful] title of . . . . exiled governments [and deposed kings and sovereign princes] is firmly anchored [or solidly rooted] in their internal legality [or in the internal legal sovereignty lawfully obtained in their former countries] and in their uninterrupted transmission of that power [to successors]. They left their respective countries as regular State organs [sovereign governmental entities]; there was nothing to deprive them of that character [that they rightfully held].
They already had the authority, the right to rule, from the former government, either as monarchs or representatives, before they were dispossessed or escaped to save their lives. Unlawfully deposed governments or monarchs:
. . . had been properly constituted in their own countries [invested with sovereignty] and simply transferred their [ruling rights] abroad, following [or contemporary with] the total occupation of their territories with no break in their legal and actual continuity.
They had the right to rule before they left their nations (it would be extremely difficult to obtain this right afterwards). Their validity comes from the fact that they already held the supreme right to rule in their respective countries.
. . . It is theoretically impossible to regard [them] as legal entities detached from their respective States [where their authority comes from]. . . . [Again] it is impossible to separate the [deposed] government [or royal house] from the legal order, wherever that government [or royal house] may be [in exile or in situ].
So-called governments-in-exile created after a revolution or conquest by individuals, who had no sovereign rights directly from the occupied State, are not legitimate. They are merely impostors, clubs, or associations involved in wishful thinking. Or, they could be self-deceived or ignorant of international law; or worse, they could be involved in misrepresenting themselves. But for those who are legit:
The relationship between the [deposed] legal order of the territorial State [represented by its exiled government or former monarch-in-exile or in situ in some cases] and that of the occupied [or de facto] State . . . is . . . one of . . . co-existence.
In other words, they both exist and they both have certain rights, but neither has full and complete title to the nation. The unjustly dethroned de jure sovereign has the highest supreme legal, moral, and ethical right to rule and govern, but the de facto usurping government has the actual control over the territory, and eventually, either formally or informally, receives external or outside international recognition as such. This recognition does not, however, in any way diminish the higher internal right to rule held by the dispossessed who maintain their rights through the preserving power of natural prescription law, which can perpetuate those rights indefinitely. The criteria presented above is in full accord with the rules and principles of prescription that preserve and maintain the rights and entitlements of dispossessed sovereignty.
Functional International Personality Short of Sovereignty
It would appear from our prior analysis of the elements comprising a perfect society that there are many international organizations which could not meet the test as a perfect society as well as hold non-territorial sovereignty by virtue of being deposed monarchies or exiled governments. However, some of these incomplete organizations might be entitled to special international consideration because of their role in international society even though their powers are delegated and not self-derived. Lacking this, such organizations could not be considered perfect societies or sovereign.
The famous decision of the International Court of Justice (ICJ – the Hague or World Court) in the case concerning “Reparation for Injuries Suffered in the Service of the United Nations” is especially appropriate. It was occasioned by the death of Count Bernadotte of Sweden, but the real issue at stake in this case was whether the United Nations had the legal capacity (international personality) to bring a claim against a state. The ICJ resolved this issue, finding that the United Nations possessed international personality on the theory that the member states in the act of entrusting certain functions, duties, and responsibilities to the United Nations must have necessarily endowed it with the international legal competence to effectively discharge those functions.
The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community. Throughout its history, the development of international law has been influenced by the requirements of international life, and the progressive increase in the collective activities of States has already given rise to instances of action upon the international plane by certain entities which are not States. This development culminated in the establishment in June 1945 of an international organization whose purpose and principles are specified in the Charter of the United Nations. But to achieve these ends the attribution of international personality is indispensable. . . .
In the opinion of the Court, the Organization was intended to exercise and enjoy and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organization, and it could not carry out the intentions of its founders if it were devoid of international personality. It must be acknowledged that its Members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.
Accordingly, the Court has come to the conclusion that the Organization is an international person. That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a “Super-State” whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its right by bringing international claims. (emphasis added)
Interestingly the decision of the ICJ holding that the United Nations possesses international personality is very quick to observe that this does not make the United Nations a State or give it the same rights and duties as a State. The gist of the ICJ’s opinion is that the United Nation’s international legal personality is limited by the extent that its functions need such personality to perform the duties assigned to the organization:
Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. The functions of the Organization are of such a character that they could not be effectively discharged if they involved the concurrent action, on the international .plane, of fifty-eight or more Foreign Offices, and the Court concludes that the Members have endowed the Organization with capacity to bring international claims then necessitated by the discharge of its functions. . . .
This concept could be termed “functional international personality,” a status devoid perhaps of the full ceremonial panoply of sovereignty (a perfect society) but conveying enough power to enable the organization to carry out effectively its duties with complete freedom of action for itself and its employees. “Functional international personality” is a highly useful concept: to bestow on an international organization only the degree of personality necessary for the actual performance of its mission.
The final point regarding “functional international personality” must necessarily treat the process by which such organizations are created. As distinct from a perfect society, an international organization must necessarily have derived its authority from some source. The ICJ answered this question as well in the Reparation for Injuries case, observing that the majority of sovereigns in the International Concert had power to bring into being an organization endowed with international personality that all sovereigns are bound to acknowledge:
The Court’s opinion is that fifty States, representing the vast majority of the members of the international community, had the power, in conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims.
It appears that the consent of nations, or at least a sizeable portion of them acting together can create an international organization endowed with functional international personality that all sovereigns (be they members or not) are obligated to recognize. This last factor is an especially interesting development marking a definite trend away from positivism. The idea that the actions of the majority, or at least a large number of sovereigns, can bind the others is a novel but very healthy development away from the librium veto (the veto power of the nobles in the Parliament of the old Kingdom of Poland where the negative vote of one noble would cause a bill to fail) of the positivist days when a sovereign could exempt itself from the operation of an international proposal by refusing to agree to it. Although the rights of a minority should always be respected it is a highly useful development that allows the majority of sovereigns to erect international organizations whose prerogatives must be recognized by all.
“Functional international personality” therefore, fills a need to provide for the legal position of international organizations that cannot meet the juridical requirements of a perfect society and therefore the right of sovereignty. It is a concept that should cause no controversy as it grants international organizations only such prerogatives as they actually need for the performance of their missions. Thus, the actual powers accorded will differ according to the needs of each organization: From the right of passive legation (the right to receive ambassadors) accorded to the United Nations to the diplomatic immunity enjoyed by officials of an international health organization, each organization would, therefore, have to be examined on a case-by-case basis to determine the actual extent of its functional international personality.
 Constantin Fasolt, The Limits of History, 2004, p. 115.
 Ibid., p. 114.
 Charles P. Sherman, “Acquisitive Prescription: Its Existing World Uniformly,” The Yale Law Journal, vol. 21, no. 2, December 1911, p. 147.
 Linda A. Malone, International Law, 2008, p. 25.
 Article 38 of the Statute of the International Court of Justice: 2011: www.icj- cij.org/documents/index.php?p1=4&p2=2&p3=0” \l “CHAPTER_II.
 Hugo Grotius, The Law of Peace and War, Book 2, chapter 4, no. 1; Note: “Prescription, both in domestic and international law [involves] the effect of the lapse of time in creating and destroying rights.” (Black’s Law Dictionary, 9th ed.,  2009, p. 1302 and Encyclopaedia Britannica eb.com, “Prescription,” 2011: www.britannica.com/EBchecked/topic/475119/prescription ) This can be either the full regal or imperial rights of a royal house or the non-territorial sovereignty of a government-in-exile; either way it represents the significant loss of one of the most priceless honors and privileges on earth – that of sovereignty. For a dynasty, if the internal sovereignty of a dispossessed monarchy is abolished, it removes all their royal entitlements. They no longer have the legitimate legal privilege to command (jus imperii), enforce (jus gladii), be honored (jus majestatis) or honor others (jus honorum) in the name of the former kingdom or principality. This is completely annulled or cancelled out. After this, the dynasty is barren of all that once was royal, grand and lofty in law and in reality. A descendant of this once royal house could say he had illustrious ancestors, but he is no more royal than any other regular person.
 John Lynch, Cambrensis Eversus, vol. 3, part 1,  1851, p. 45.
 Constantin Fasolt, The Limits of History, 2004, p. 114.
 Robert Phillimore, Commentaries upon International Law, vol. 1, chapter 13, no. 258, 1854, pp. 218, 364-365.
[10 Julius Goebel, Jr., “The Recognition Policy of the United States,” Studies in History, Economics and Public Law, vol. 66, issue 1, 1915, p. 37.
 Quoting Gabriel Vasquez (1549-1604) in George Bowyer, Commentaries on Universal Public Law, 1854, p. 90.
 Heinrich von Treitschke, Politics, vol. 2, Authur James Balfour, trans., 1916, p. 75; Note: Even if sovereign dynastic house rights are “inherent,” that is, are a permanent natural innate part of something, there is still one modern and ancient law that can deprive such a house of this right. “Prescription . . . is the loss of an inherent right [i.e, the loss of a permanent natural innate right] by virtue of a presumed consent [or renunciation].” (Emerich de Vattel, The Law of Nations, chapter 11, no. 140). In other words, prescription is all about “. . . how a right may be forfeited by long neglect [silence when one should speak up or a failure to make any kind of protest]. . . .” (Ibid.). The point is, “. . . you lose your right by presumed consent. . . . The loss of your right by presumed consent is prescription. . . .” (Christian Wolff, The Law of Nations Treated According to a Scientific Method, chapter 1, no. 78, 1764, p. 46).
 A Collection of State Tracts published on Occasion of the Late Revolution in 1688, and during the Reign of King William III, vol. 1, 1705, p. 326.
 Adam Smith, Lectures on Jurisprudence, R. L. Meek, D. D. Raphael and P. G. Stein, eds., 1982, p. 37.
 James J. A. Murray, A New English Dictionary on Historical Principles, vol. 5, Part 1, “Imprescriptibility,” 1901, p. 108.
 Hugo Grotius, Grotius on the Rights of War and Peace: An Abridge Translation, William Whewell, ed. and trans., Book 2, chapter 4, section 1.
 William Cullen Dennis, Chamizal Arbitration: Argument of the United States of America, (June 24, 1910) vol. 1, 1911, p. 114.
 Grotius quotes in David Hume, A Treatise of Human Nature, David Fate Norton and Mary j. Norton, eds., 2007, p. 935.
 “The Saxons in England,” Hogg’s Instructor, vol. 3, 1849, p. 52; Note: “Prescription emerges ‘. . . from the peaceful [undisturbed] exercise of defacto sovereignty for a long time which either confirms an existing title or extinguishes a prior title.’” (U.O. Umozurike, International Law and Colonialism in Africa, 1979, p. 74)
 Mohammed Bedjaoui, Manual of Public International Law, 1999, p. 604.
 Comte Joseph Imbart de La Tour, “La Mer Territoriale au Point du Vue Theorique et Pratique,” The Extent of the Marginal Sea: a Collection of Official Documents and Views of Representative Publicists, Henry G. Crocker, ed., 1919, p. 243.
 Fritz Kern, Kingship and Law in the Middle Ages, S. B. Chrimes, trans., 2005, p. 101.
 Charles Molley, De Jure Maritimo et Navali: or, a Treatise of Affairs Maritime and of Commerce, 1722, p. 90.
 Samuel Pufendorf as quoted in Alexander Hamilton, The Papers of Alexander Hamilton, vol 15, Harold C. Syrett and Jacob E. Cooke, eds., 1969, p. 68.
 John A. Ryan, “Catholic Doctrine of the Right of Self-Government,” The Catholic World: A Monthly Magazine of General Literature and Science, vol. 108, 1919, p. 444.
 Hannis Taylor, A Treatise on International Public Law, 1901, p. 265.
 Taparelli as quoted in John Bassett Moore, History and Digest of the International Arbitration to which the United States has been Party, vol. 4, 1898, p. 4186.
 Daniel J Dzurek, The Spratly Islands Dispute: Who’s on First?, Maritime Briefing, vol. 2, no. 1, p. 49.
 Eschasseriauz the Elder, “Report of the Committee of Public Safety on the Principles which French Republic ought to adopt in her Diplomatic System, made in the Convention in November, 1794,” A Collection of State Papers relative to the War against France, vol. 2, John Debritt, ed., 1795, p. 220.
 Michael P. Socarras, “International Law and the Constitution,” The Federal Courts Law Review, vol. 4, issue 2, 2011, p. 21.
 Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 150; Note: “The basis of prescription is consent or acquienscence. Both in private law and in public international law this is evident.” (Shavarsh Toriguian, The Armenian Question and International Law, 1988, p. 52).
 Lord Macaulay, “Frederic the Great,” Literary and Historical Essays Contributed to the Edinburgh Review [April 1842], 1913, p. 650.
 John Lynch, Cambrensis Eversus , vol. 3, part 1, Matthew Kelly, ed., 1851, p. 45.
 Sir Travers Twiss, The Law of Nations Considered as Independent Political Communities, 1861, p. 178.
 Rocky Mountain Medieval and Renaissance Association, Journal of the Rocky Mountain Medieval and Renaissance Association, vol. 10-12, 1989, p. 39.
 Daniel Lee, “The Right of Sovereignty and the Exercise Thereof: Civil-Law Origins of a Public Law Distinction,” p. 4, 2012: http://www.polthought.cam.ac.uk/seminars/intros2011-2012/Lee_Handout_21_05_12.pdf; Note: “. . . A state [either as a reigning or non-territorial dynastic house or government] that fails to contest other states’ assertions of sovereignty over its territory [its failure to protest] can lose its rights for failure to insist upon them.” (Carlos Ramos-Mrosovsky, “International Law’s Unhelpful Role in the Senkaku Islands,” University of Pennsylvania Journal of International Law, vol. 29., no. 4, 2008, p. 915)
 The Popular Encyclopedia, vol.5, part 2, “Regalia,” 1837, p. 835.
 The Frederician Code: or, A Body of Law for the Dominions of the King of Prussia, part 2, book 3, title 5, article 3, no. 53, 1761, p. 60.
 Harvey Cortlandt Voorhees, A Concise Law Dictionary of Words, Phrases and Maxims, Revised ed., 1911, p. 300.
 Immanuel Clauss, “Die Lehre von den Staatsdienstbakeiten,” 1894, International Servitudes: English Translations of Extracts from Works by Argentenian, Austrian, Belgian, French, German, Italian, Russian, Spanish, and Swiss Publicists, together with Extracts from the works of British and American Publicists, James Brown Scott, ed., 1910, p. 65.
 Christopher W Koch, The Revolutions of Europe: being an Historical View of the European Nations, Andrew Crichton, trans., 1839, p. 50.
 Martin Wight, Systems of States, 1977, p. 158-159.
 James Mayall, “The Concept of Humanitarian Intervention Revisited,” Kosovo and the Challenge of Humanitarian Intervention, Albrecht Schnabel and Ramesh Thakur, eds., 2000, p. 322.
 Martin Wight, “International Legitimacy,” International Relations, vol. 4, April 1972, pp. 1-18.
 Klaus J. Meyer, The Quest for a Czar; 2016: http://macedonsky.narod.ru/meyer/quest.html#VI.
 Hugo Grotius, On the Law of War and Peace, Book I, chapter 4, nos. 15-19; Note: ". . . [An] occupying power may obtain de facto sovereignty [sovereignty 'in practice' or 'in fact'], but the ousted sovereign retains it de jure [that is, legitimately 'in principle,' or by lawful right 'in law']." (Karen Guttieri,"Making Might Right: The Legitimization of Occupation," p. 13; 2016: www.allacademic.com//meta/p_mla_apa_research_citation/0/7/3/8/3/pages73837/p73837-13.php)
 Brian Slattery, “Aboriginal Sovereignty and Imperial Claims,” Osgood Law Journal, vol. 29, no. 4, note 4, 1991, p. 688.
 Steven Lee Hobart and William Smith Colleges, “A Puzzle of Sovereignty,” 2011: www.bu.edu/wcp/Papers/Poli/PoliLee.htm.
 Raymond Garfield Gettell, Political Science, 1933, p. 26; Note: Internal sovereignty is said to be the “. . . concept of supremacy or superiority in a state by virtue of which some person or body or group in that political society is supreme and can, in the last resort, impose his or its will on all other body and person therein.” (Lowell S. Gustafson, The Sovereignty Dispute Over the Falkland (Malvinas) Islands, 1988, p. xi and Nonie Sharp, No Ordinary Judgment, 1996, p. 260)
 Robert Jackson, Sovereignty: Evolution of an Idea, 2007, p. 12.
 Anne Peters, "Humanity as the Alpha and Omega of Sovereignty," The European Journal of International Law, vol. 20, no. 3, 2009, p. 516.
 Matthew Derrick, “Revisiting ‘Sovereign’ Tartarstan,” USAK Yearbook of International Politics and Law, 2009, p. 295.
 R. K. Pruthi, The Political Theory, 2005, p. 72.
 Hersch Lauterpacht, Recognition in International Law, note 2, 1978, p. 288.
 Durga K. Sharma, Political Science, vol. 1, 1997, 2004, p. 70.
 James Wilford Gardner, Introduction to Political Science: a Treatise on the Origin, Nature, Functions and Organization of the State, 1910, p. 147.
 Op. cit., Durga K. Sharma, p. 70
 Turki Althunayan, Dealing with the Fragmented International Legal Environment, 2010, p. 97.
 Daniel Philpott, Revolutions in Sovereignty, 2001, p. 18.
 Charles St. Julian, The International Status of Fiji and the Political Rights, Liabilities, Duties and Privileges of British Subjects, and Other Foreigner residing in the Fijian Archipelago, 1872, p. 3 and Robert Phillimore, On International Law, vol. 1, sec. cxlv, 1854.
 Friedrich Saalfeld, Handbuch das positiven Volkerrechts, 1833, p. 189.
 Frank Muyard, Director, Taipei Office, French Centre for Research on Contemporary China (CEFC), April 1-2, 2005; Note: “There is no legal right of admission into the international community [of nations], nor is there a legal duty for governments to recognize other polities [that is, other sovereignties]. [Therefore], there is no legal right [necessity, requirement] or duty to be recognized. . . .” (Christopher C. Joyner, International Law in the 21st Century: Rules for Global Governance, 2005, p. 48).
 Sir Frederick Pollock, London Times, 5 February 1924 and Jean Gabriel Castel, International Law, chiefly as Interpreted and Applied in Canada, 1976, p. 98.
 Henry Wheaton, Wheaton’s Elements of International Law, 5th ed. Coleman Phillipson, ed., 1916 1: p. 36.
 Ludwic Herric, Archiv fur das Studium der Neueren Sprachen und Literaturen, 1862, p. 184; Note: “The legitimate Sovereign [though in exile] would still possess sovereignty over the occupied territory, although not being in a position to enforce this power anymore.” (Joeri Nicolaas Maria Elisabeth Michielsen, The ‘Nazification’ and ‘Denazification’ of the Courts in Belgium. Luxembourg and the Netherlands, 2004, p. 203).
 IN Slide Share: The Concept of State, p. 27; 2016: http://www.slideshare.net/rubyangela01/polsci-state.
 Johann Wolfgan Textor, Synopsis of the Law of Nations, chapter 10, nos. 9-11.
 Contemporary international law established that “. . . another claimant [the] dispossessed sovereign can bar [prevent] the establishment of title by prescription.” (Rebecca M. M. Wallace, International Law, 1997, p. 97) Note: “A State can only establish prescriptive title when contesting States acquiesce [fail to protest] in its adverse possession of the territory.” (The 2010 Phillip C. Jessup International Law Moot Court Competition, the Case concerning the Windscale Islands, team no. 248A, 2010, p. 12) “Acquiescence can only be inferred when these States have remained ‘silent without good reason in the face of acts in derogation of their rights.’” (Ibid. and Ian MacGibbon, “The Scope of Acquiescence in International Law,” British Yearbook of International Law, vol. 31, 1954, pp. 143, 171).
 Hersch Lauterpacht, Recognition in International Law, 1947, p. 428.
 Emerich de Vattel, The Law of Nations: or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, Book 2, chapter 2, nos. 145-146; Note: “. . . What is essential for the acquisition of a ‘prescriptive’ title in international law is not the mere passage of time, but specific conduct by the title holder showing that the holder had abandoned the title.” (Marcelo G. Kohen, The Law of Treaties Beyond the Vienna Convention, Enzo Cannizzaro. Ed., 2001, p. 354). Note also: “Prescription requires . . . the fact of longstanding possession and the absence of protest [or the consistent use of exalted regal tites and arms] on the part of the former possessor.” (Sharon Korman, The Right of Conquest: the Acquisition of Territory by Force in International Law and Practice, 1996, p. 27).
 Lassa Oppenheim, International Law, a Treatise, vol. 1, 1955, p. 576; Note: “Where the possession of the territory is accompanied by emphatic protests on the part of the former sovereign, no title by prescription can arise for such title is founded upon the acquiescence of the dispossessed state, and in such circumstances, consent of third states is of little consequence. However, over a period of time recognition may ultimately validate a defective title, although much will depend upon the circumstances including the attitude of the former sovereign [that is, he must acquiesce – fail to protest or consistently use royal titles and sovereign arms].” (Malcolm Shaw, International Law, 4th ed., 1997, p. 351).
 John F. Cronin as quoted by John A. Ryan, “The Right of Self-Government,” Catholic World, vol. 108, October 1918 to March 1919, p. 444.
 Phillip Marshall Brown, “Sovereignty in Exile,” American Journal of International Law, vol. 35, 1941, pp. 666-668.
 Jack Donnelly, State Sovereignty and Human Rights, 2013: http://mysite.du.edu/~jdonnell/papers/hrsov%20v4a.htm.
 The New Encyclopaedia Britannica, ed. 15, part 3, vol 17, 1981, p. 312.
 Charles St. Julian, The International Status of Fiji, 1872, p. 3.
 Wulfsohn at. v. Russian Socialist Federated Soviet Republic (New York Supreme Court, Appellate Division, Second Department, July 21, 1922) as quoted in West Publishing Company, The New York Supplement, vol. 195, 1922, p. 472.
 F. E. Oppenheim, “Governments and Authorities in Exile,” American Journal of International Law, vol. 36, 1942, pp. 568-595; Note: Even "in constitutional monarchies . . . sovereignty rests formally with the crown [even though] . . . politically [it is exercised by] 'the people,' . . . except in times of crisis [if the government must go into exile]." (Quizlet, Democracy 3rd Week Terms; 2016: https://quizlet.com/94076258/democracy-3rd-week-terms-flash-cards)
 Anderson v. N.V. Transadine Handelmaatschappi, Annual Digest, 1941-1942, Case No.4.
 Moraitis v. Delany, Annual Digest, 1941-1942, Case No. 96.
 Amand Case [(1942) all E.R. 236].
 F. E. Oppenheimer, “Governments and Authorities in Exile,” American Journal of International Law, vol. 36, 1942, p. 581-582.
 Hugo Grotius, The Law of War and Peace, Book I, chapter 3, no. 16.
 Otto Gierke, Natural Law and the Theory of Society 1500 to1800, vol. 2, Earnest Baker, trans., 1934, note 14, 1934, p. 336 from Christopher Horn, Augustinus: De Civitate Dei, chapter 10, nos. 1-15.
 F. E. Oppenheimer, "Governments and Authorities in Exile," The American Journal of International Law, vol. 36, no. 4, October 1942, p. 594.
 James Tyrrell, Diaologue XIII, Bibliotheca Politica: or, an Enquiry into the Ancient Constitution of the English Government, 2nd ed., 1727, p. 676.
 Lassa Oppenheim, International Law: A Treatise, vol. 1, nos. 354 and 355, 1955.
 Jean Bodin, On Sovereignty: Four Chapters from The Six Books of the Commonwealth, Julian H. Franklin, ed., 1992, p. 87.
 Krystyna Marek, Identity and Continuity of States in Public International Law, 1968, p. 97.
 Ibid., p. 91.
 Ibid., p. 71.
 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, I.C.J. Reports, 1949, p. 174.
 Ibid., p. 177.
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