In Oppenheim’s words, “Sovereignty is supreme authority, an authority which is independent of any other earthly authority” and “in the strict and narrowest sense of the term includes, therefore, independence all round, within and without the borders of the country.”[1] However, although a State might appear as possessing independence all round, there are States which certainly do not possess full sovereignty and hence are named not-full Sovereign States. “All such States as are under the suzerainty or under the protectorate of another State or are member-States of a so-called Federal State, belong to this group.”[2] All these States possess supreme authority and independence only for a part of the tasks of a State while for another part they are under another State’s authority.[3] Oppenheim does not give jurists’ definition of “authority” but political scientist Krasner’s description of it may come handy: “Authority involves questions of whether or not an agent is regarded as having a legitimate right to act in a particular sphere” while “control involves the actual exercise of authority.”[4] Such a legitimate right or title (權源), in the context of international law, may come from custom, clear and continuous habit of doing things with the conviction that these actions are legally necessary or legally right, and (law-making) treaties, as either stipulating new rules for future international conducts or confirm, define, or abolish existing customary rules.[5]
The 1637 agreement between the Ching emperor and King Injo (仁祖, 1595-1649) served as the legitimate right or title as it was the product of the completed conquest. Though not ‘international’ in Western sense, it had since become customary rules, being sustained by the shared consistent practices of sending and receiving tribute envoys[6] from Chosŏn and investiture envoys[7] from the Ching, until January 1895 when King Kojong proclaimed, albeit under Japanese pressure to do so, a policy principle of independence from the Ching as the first article of Hongbum (洪範). The preamble of the 1882 trade regulations reconfirmed the bilateral hierarchy. But which part of tasks of the Chosŏn state would be affected by such Ching authority was not specifically prescribed in either one.
On the nature of “suzerainty”, Oppenheim argued:
…a general rule regarding the relations between the suzerain and vassal and the position of the vassal within the Family of Nations cannot be laid down, as everything depends upon the special case. Suzerainty is a term which originally was used for the relation between the feudal lord and his vassal; the lord was said to be the suzerain of the vassal, and at that time suzerainty was a term of Constitutional Law. With the disappearance of the feudal system, suzerainty of this kind likewise disappeared. The modern suzerainty scarcely contains rights of the Suzerain State over the Vassal State which could be called constitutional rights. The rights of the Suzerain State over the Vassal are principally international rights only, of whatever they may consist…[8]
According to Wheaton’s Elements of International Law, “semi-sovereign or dependent States” seem to be a broader category that includes vassal states although “semi-sovereign or dependent states” and “tributary and vassal states” are dealt with in different sections therein.[9] On “suzerain” and “vassal”, Westlake writes that:
Superior and inferior or protecting and protected states are sometimes called suzerain and vassal, but this is a loose diction, and should be avoided. “Suzerain” and “vassal” are terms of mediaeval origin… The term “suzerainty,” little used in Western or Central Europe since 1806 [when the Holy Roman Empire ended], has since been revived in connection with the gradual emancipation of the provinces of the Turkish Empire chiefly inhabited by Christians. The Ottoman Sultans created a privileged position for Moldavia and Wallachia by ordinances, called capitulations … and when in 1856 those provinces and Servia were erected by the treaty of Paris into autonomous principalities, that is principalities enjoying separate internal government, the name of suzerainty was given to the position reserved to Turkey with regard to them. Similarly, when in 1878 these principalities became independent states by the treaty of Berlin, Bulgaria was made an autonomous principality under the suzerainty of the sultan, which she remained until she became an independent kingdom in 1908… The mention of the privileged portions of the Turkish empire makes this an appropriate place for speaking of Egypt, a privileged province in which the family of Mehemet Ali governs under a series of firmans granted by the sultans… The practical authority is however in the hands of Great Britain under an occupation which began in 1882, and the case is too anomalous to admit of classification.[10]
As Westlake noted and as of Wheaton’s examples, most of the semi-sovereign states under the “modern suzerainty” were former Ottoman dependencies.[11] Oppenheim mentioned that Romania [previously Wallachia and Moldavia], Servia, and Montenegro had been under Ottoman suzerainty before 1878, and Bulgaria, Egypt, and Crete remained so until after 1878, although Egypt was actually under the British administration.[12] Bluntschli in his discussion on suzerainty listed Tunisia, Libya, Egypt, Serbia, Romania, and Montenegro before 1878, and Bulgaria after 1878.[13] All these polities were indeed both claimed by the Ottoman Porte and “recognized” by the so-called Great Powers as having once been under either the Porte’s suzerainty or even its sovereignty: semi-sovereign states like the Ionian Islands, Romania, Serbia, Montenegro under its suzerainty; Egypt, Tunisia, Samos, and Eastern Rumelia under its sovereignty.[14]
Oppenheim opined that “suzerainty is by no means sovereignty” because “if it were, the Vassal State could not be Sovereign in its domestic affairs and could never have any international relations whatever of its own.[15] But this observation is one that does not consider historical developments concerned. The term “suzerainty” was deliberately chosen because it was not clearly distinguished from sovereignty and many European jurists only saw the nominal Ottoman suzerainty, even in areas over which the Great Powers admitted Ottoman “sovereignty”, such as Egypt and Crete.[16] The major European powers opted for holding practical power mainly by military occupation, irrespective of the nominal authority the Ottomans wished to retain, and, in so doing, the diplomatic circles of the major powers did not always use sovereignty and suzerainty as two clearly distinct terms.[17] In particular, “”modern suzerainty” was a concept invented for Westerners to enhance, control, and explain the dissolution of the Ottoman Empire. In the context of the Eastern Question, the Great Powers employed this concept to sustain the European balance of power at the expense of the Ottomans but without – at least theoretically – hurting the “territorial integrity of the Ottoman Empire”.”[18]
Turning back to the concept of sovereignty, what to make of the (in-)divisibility of sovereignty? Bluntschli, in his Le droit international codifié, observed that:
Comme la souveraineté tend naturellement à l’unité, elle ne peut laisser longtemps subsister ce dualisme entre la souveraineté vassale et la souveraineté suzeraine. Les états vassaux s’élèvent avec le temps au rang d’états entièrement souverains, ou l’état suzerain retire peu à peu les droits qu’il avait conférés à l’état vassal et se l’annexe.
1. L’histoire nous montre la vérité de ce principe. Il existait au moyen âge une foule d’états vassaux, tant en Europe qu’en Asie. Aujourd’hui ils ont presque tous disparu, parce qu’ils se sont transformés en états souverains, ou ont été absorbés par un état puissant. Cette transformation ne reste plus à opérer qu’en Turquie…[19]
As sovereignty naturally tends towards unity, it cannot allow this dualism between vassal sovereignty and suzerain sovereignty to subsist for long. The vassal states rise over time to the rank of fully sovereign states, or the suzerain state gradually withdraws the rights it had conferred to the vassal state and annexes it to itself.
1. History shows us the truth of this principle. There were in the Middle Ages a host of vassal states, both in Europe and Asia. Today they have almost all disappeared, because they have turned into sovereign states, or have been absorbed by a powerful state. This transformation only remains to be carried out in Turkey…
Leaning toward the indivisibility of sovereignty, he held that both vassal sovereignty and suzerain sovereignty are inherently unstable and both would soon have to be terminated. But this question can again be understood as an expedient narrative in anticipation of the coming European sovereign state system to be imposed worldwide. Viewed from the Ottoman Porte’s decline vis-à-vis the European powers, this indicates that the designation of “suzerainty” could be an expedient to phase out insubstantial claim of authority and to replace it with substantial title of protection under balance of power. This Ottoman experience was introduced and appropriated by the European and Japanese imperialists in East Asia. When asked by the Japanese government to provide legal advice on how best to deal with the aftermath of the 1882 Imo incident, Gustave Boissonade, French legal scholar, produced a document, which was translated with terms such as han-zoku (半屬) in kanji and shusurenti in katakana, transliteration of the French suzeraineté and juxtaposed with kankatsu-ken (管轄權, jurisdiction).[20]
[1] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, p. 101. But he adds that the conception of sovereignty “has never had a meaning which has universally agreed upon.” Ibid., p. 103.
[2] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, p. 101.
[3] Ibid.
[4] Krasner, Stephen D. (1997) “Pervasive Not Perverse: Semi-Sovereigns as the Global Norm,” Cornell International Law Journal: Vol. 30: Iss. 3, Article 3, p. 654.
[5] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, pp. 22-23.
[6] According to a Ching Board of Rites record, the last tribute mission to the imperial court was apparently dated as December 24, 1894, in lunar calendar, which falls on January 19, 1895, in the Gregorian calendar. 中國第一歷史檔案館 淸代檔案 內務府, 檔號: 05-13-002-001745-0111, 責任者: 禮部, 原紀年: 光緖二十年十二月二十四日, 題名: 爲査收朝鮮國進來貢物綿紬等項
[7] The first investiture was done in December 1637 when the Ching emperor sent three officials with his imperial message (敕書) and letter of appointment (誥命) to officially invest Lee Jong (李倧) as king of Chosŏn (朝鮮國王). 太宗文皇帝實錄 卷之三十九 崇德二年十月二十六日 (1637-12-11). Two Ching officials came to Hansŏng in November 1866 to invest Queen Min.
[8] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, pp. 133-134.
[9] Wheaton, Henry, Elements of International Law, Eighth Edition, Boston: Little, Brown and Company, 1866, pp. 53-60.
[10] Westlake, John. International Law Part 1 Peace, Cambridge University Press, 1910, pp. 25-27.
[11] Nobuyoshi, Fujinami. “Between Sovereignty and Suzerainty: History of the Ottoman Privileged Provinces” in Takashi Okamoto, ed. A World History of Suzerainty – A Modern History of East and West Asia and Translated Concepts, Tokyo, The Toyo Bunko, 2019, p. 65.
[12] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, pp. 135-137.
[13] Nobuyoshi, Fujinami. “Between Sovereignty and Suzerainty” in Takashi Okamoto, ed. A World History of Suzerainty, The Toyo Bunko, 2019, p. 65.
[14] Ibid., p. 64.
[15] Oppenheim, Lassa. International Law: A Treatise Vol I. Peace, London: Longmans, Green, and Co., 1905, p. 134.
[16] Nobuyoshi, Fujinami. “Between Sovereignty and Suzerainty”, p. 66.
[17] Nobuyoshi, Fujinami. “Between Sovereignty and Suzerainty”, p. 48.
[18] Ibid., p. 66.
[19] Bluntschli, Johann Caspar, Le droit international codifié, translated by Charles Lardy,
Paris: Librairie de Guillaumin et cie., 1874, p. 92.
[20] Dudden, Alexis. Japan’s Colonization of Korea: Discourse and Power, University of Hawai’i Press, 2005, pp. 46-47.