The International Commission on Nobility and Royalty
SOVEREIGNTY: Questions and Answers, Part 3
Books and DVDs:
This article focuses on deposed monarchs --- the "de jure," internal or non-territorial sovereignty of authentic and genuine royal houses. The concepts and principles of law explained herein are not to be confused with the requirements for reigning houses that possess defacto rule although many of the fundamentals apply to both.
Each of the questions and answers below, although specific to the inquiry made, are also designed to be more or less complete in regard to the idea of how internal non-reigning sovereignty can be preserved forever or irretrievably lost. The articles as a whole add tremendous evidential weight to the legal rights and royal privileges of non-reigning royalty.
"De jure" or legal sovereignty is extremely important to the field of nobility and royalty. Without these priceless rights and entitlements, eveything is make-believe and fantasy --- nothing is real. The reason for this is that no sovereign rights means there is no "fons honorum" or right to honor, which means no authentic or genuine orders of chivalry are possible. In other words, no sovereignty means no right to use the royal prerogative, because there is no royal prerogative.
/browse/royal#wordorgtop) It is now generally used to describe monarchs of large territories and their close family members, but in the past, it always revolved around "the office, state or right of a king," which is sovereignty. (A Compendious Dictionary of the English Language, "Royalty" & "Royalties," 1806) ". . . The nation has plainly and simply invested him with [all the glory of] sovereignty . . . invested with all the prerogatives. . . . These are called regal prerogatives, or the prerogatives of majesty." (Emerich de Vattel, The Law of Nations, Book 1, chapter 4, no. 45) Thus, a king or sovereign prince has ". . . in his own person all the rights to sovereignty and royalty. . . ." (William Rae Wilson, Esq., Travels in Norway, Sweden, Denmark, Hanover, Germany, Netherlands, &c., Constitution of the Kingdom of Denmark (1826 time frame), appendix no. 16, article 6, 1826, p. 72) No one else in the kingdom has all these rights in their fullness other than the king or ruling prince. Royalty belongs only to monarchs and close family members -- not to distant relatives or offshoot lines, who are not dynasts and have no succession rights.
It is important to understand that you can have true sovereignty without royalty, as in a republic and other forms of non-royal government, but you cannot have royalty without sovereignty as it is the highest and most importance secular right on earth above all others. The subordination and dependence of royalty, or sovereign grandness, on sovereignty itself is of great importance to discern what is fake from what is genuine, true and authentic. All royal rights come from and grows out of the rights, entitlements and privileges of sovereignty. A king or sovereign prince is royal only because he holds these sovereign rights.
The president of a republic, especially in modern times, may actually be more powerful than any king that ever lived, yet he is not a sovereign, nor does he hold any kind of regal status. A president is merely a representative of his nation or country and nothing more. Whereas, a monarch is a royal, because he is the personification of all the glory of sovereignty over the people or the land of his forefathers. This is to be the embodiment of something grand and exalted.
Thus, royal rank and status are "the [exclusive] prerogatives of sovereignty," the "emblems [or symbols] of sovereignty," and the "embodiment of sovereignty." (Webster's Third New International Dictionary, unabridged, Philip Babcock Gove, ed., "royalty," 1961, p. 1982) Sovereignty is, therefore, a central concern or core issue --- crucial to all the privileges and honors that go with it.
All of the following regal rights are inseparably connected to reigning and non-reigning sovereignty. Some of the qualities are inactive with monarchs, who are limited or deposed, but all true sovereigns hold all the following rights either in abeyance or in an active state:
(1) Jus Imperii, the right to command and legislate,
(2) Jus Gladii, the right to enforce ones commands,
(3) Jus Majestatis, the right to be honored, respected, and
(4) Jus Honorum is the right to honor and reward.
The above rights are inseparably connected as fundamental attributes of sovereignty. If legal internal sovereignty is lost or forfeited, there are no royal (grand, exalted or special) rights left. In other words, all the special qualities of royalty are lost if sovereignty is lost.
There are many royal families on the earth, who have legally maintained their sovereign status even though they no longer are in power reigning over a territory, kingdom or principality. For example:
There are in all more than forty sovereign houses of Europe, but all do not reign over independent lands or principalities. Although many of these houses possess only the title of sovereignty and the right of royal privileges, they are equal in rank to all reigning houses, and their members intermarry freely without loss of title or rank. (George H. Merritt, "The Royal Relatives of Europe," Europe at War: a "Red Book" of the Greatest War of History, 1914, p. 132)
In other words, deposed sovereignty is never ending, but we must add that the royal rank is maintained or lost by the rules and principles of "prescriptive" law. If the rules are not followed, royal status is irretrievably lost, which means all regal rights and privileges are forfeited. A person who has no rights cannot restore or pass on to posterity something he does not have.
Those who say that dynastic rights of deposed houses, which is de jure internal non-territorial sovereignty, cannot be lost, except by perhaps by debellatio, really have no idea what they are talking about. Sovereignty and royalty can be permanently lost in many different ways, not only for individuals and their posterity, but for whole dynasties:
A. Abdication and/or renunciation
B. Dereliction and neglect
C. Cession by treaty, will or some other arrangement
D. "Inter-vivos" transfer, sale or mortgage in ancient times
E. Tyranny, oppression or crimes against humanity
F. Papal or Imperial confiscation of all royal rights and instituting a new dynasty
G. Abandonment either overtly or by acquiescence
H. Marriage without permission
I. Unequal marriage
J. Religious Laws regarding succession
N. Disinheritance and exclusions
O. Consitutional stipulations and house rules
P. Designations of who or what family will or will not have direct or collateral succession rights.
Some of the above methods of loss would affect individuals and their families only, while others would impact a whole dynasty wherein the regal claim would cease to exist and they would become mere commoners with no entitlement greater than anyone else in the nation.
The point is, "The extravagant doctrines [that deposed dynastic rights can never be lost, in other words] . . . concerning the indefeasibility of hereditary claims, and the imprescriptibility of royal titles, form no part of the law of nations." Philipp Melancthon (1497-1560), "Art.18: Melancthon’s Letter to Dr. Troy, " The Annual Review, and History of Literature, vol. 4, Arthur Akin, ed., 1806, p. 263.
"Prescription," one of the above ways to forfeit a whole dynasty, which is a natural law concept in international law, is so important to the future of "de jure" nobility and non-reigning royalty, chiefly because this law is part of what governs the ". . . position and status of unlawfully dethroned Sovereign Houses." (Stephen P. Kerr, "Resolution of Monarchical Successions Under International Law," The Augustan, vol. 17, no. 4, 1975, p. 979) Prescription is a core concept of royalty and sovereignty. For example:
Dynasticism . . . [is] bound up with the principle of prescription. Indeed it might almost be said that prescription, not dynasticism, [or, in other words, prescription rather than dynastic law] provided the original rule [or key for the determination] of legitimacy." (Martin Wight, "International Legitimacy," International Relations, vol. 4, April 1972, pp. 1-28)
The rules and principles of "prescription," as juridically binding actions, are still used to determine the validity and legitimacy of "de jure" internal non-territorial sovereigns in our day and age. Much of the following "Questions and Answers" relate to both the loss and the preservation of the royal prerogative in international public law. For example, ". . . international law cannot be said to admit the imprescriptibility of sovereignty." (Eelco van Kleffens, Recueil Des Cours, Collected Courses, 1953, vol. 82, 1968, p. 86) Why? Because not only have ancient royal houses lost their internal "de jure" claims to sovereignty for centuries by this fundamental means, but modern international courts have also sustained and upheld the forfeiture or permanent loss of deposed sovereignty by the same formal rules and principles of "prescription."
These important concepts need to be explained and understood. For example, to believe the idea that ". . . sovereignty formally implies a power that is absolute, perpetual, indivisible, imprescriptible and inalienable" is to believe in fairy tales or nonsense. Sovereignty may imply the above, but in real life sovereignty is not almighty, supernatural and everlasting as some want to you to believe. The truth is:
[Sovereignty] has been dividied and subdivided, acquired and lost, restricted and enlarged, times without number, and by various means, during the world's history. . . . The history of the world is full of examples of two or more nations being merged into one, and of one divided into two or more; of sovereignty lost by conquest or by voluntary surrender, and sovereignty acquired by rebellion or voluntary association. To say that a State cannot surrender or merge her own sovereignty, is to deny the existence of sovereignty itself; for how can a State be sovereign [having supreme power above all other things in life and not be able to] . . . dispose of herself? (Amos Kendall, Autobiography of Amos Kendall, William Stickney, ed., 1872, p. 597)
If sovereignty was indivisible, ". . . what became of the "indivisible" sovereignty of the British Empire when it was divided into twelve or thirteen independent States?" (Ibid., p. 596) Obviously, sovereignty is not absolute, perpetual, indivisible, imprescriptible, because it has always been limited, divisible, prescriptible and alienable. The point is:
Indivisibility of sovereignty . . . does not belong to international law. The power of sovereigns are a bundle or collection of powers, and they may be separated one from another. (Sir Henry Maine, International Law, 1890, p. 58)
"Sovereignty is divisible, both as a matter of principle and as a matter of experience." (Ian Brownlie, Principles of Public International Law, 2008, p. 113) ". . . Defining sovereignty as inalienable, unlimited, irrevocable, and imprescriptible, ran time and again into inherently fickle dynastic practice." (Benno Teschke, The Myth of 1648, 2003, p. 228) Examples of the how dynastic sovereignty was alienable, revocable and prescriptible, etc. are myriad. Example after example exists in the history of mankind to prove this. (Ibid., pp. 228-229) Johann Wolfgang Textor, considered to be one of the late founders of international law, made it clear and unmistakable that "prescription of kingly sovereignty" is a well-known legal fact. (Synopsis of the Law of Nations, chapter 10, no. 18) How this takes place is a serious matter, because dispossessed hereditary sovereignty can be lost, and lost forever, without any recourse for recovery or renewal.
In fact, "Any right . . . [even] the right of sovereign title, may be prescribed. . ." or lost. (William Cullen Dennis, Chamizal Arbitration: Argument of the United States of America, 1911, p. 114) The point is, ". . . There is not strictly, in human nature, any such thing as an absolutely indefeasible right [that is, by definition, something incapable of being annulled or rendered void]. Sovereign right itself furnishes no exception to this general principle." (Edward Smedley and Hugh James Rose, Encyclopaedia Metropolitana; or, Universal Dictionary of Knowledge, vol. 2, 1845, p. 714)
The point is, "[Both internal and external] sovereignty is . . . merely [a] legal conception. . . ." (Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127) Since sovereign right ". . . is conferred by law. . . ," it can also be taken away by law. (Ibid.) Dynasic or hereditary rights are:
. . . human laws . . . [that] enable men to transmit with their blood property, titles of nobility, or the hereditary right to a crown. These privileges may be forfeited for himself and his posterity. . . . They may be forfeited for posterity, because they are not natural rights. ("Problems of the Age," Catholic World, vol. 4, October 1866 to March 1867, p. 528)
They are created rights and any man-made right can be altered and changed by law, more especially by a higher law, such as, prescription, which is an integral part of the natural or higher law. These are important points in clarifying legal realities.
. . . In a [deposed] hereditary monarchy, the right to rule [which is sovereignty] remains with the royal descendant until he has lost it through the long process of prescription. (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 444)
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. . . . (Charles Molley, De Jure Maritimo et Navali: or, a Treatise of Affairs Maritime and of Commerce, 1722, p. 90)
[Prescription] opposes the revival of claims from former regimes, including those of pretenders from previous dynasties, which are to be deemed [legally and lawfully] obsolete and void after the passage of a certain amount of time [50-100 years of silent abandonment]. (Frederick G. Whelan, "Time, Revolution, and Prescriptive Right in Hume's Theory of Government," Utilitas, vol. 7, no. 1, May 1995, p. 112)
. . .The revival of ancient, even [antequated and unreal] claims of sovereign rights [by deposed princes] which, on a proper view, have been lost by prescription [are to be "condemned"]. . . . (Adam Smith, Lectures on Jurisprudence, R. L. Meek, D. D. Raphael and P. G. Stein, eds., 1982, p. 37)
. . . All royal rights were and are prescriptive [that is, they can be terminated]. . . . ("The Saxons in England," Hogg's Instructor, vol. 3, 1849, p. 52)
The point, dynastic rights can be lost permanently. They can also be permanently maintained and perpetuated by the most fundamental law in existence. The "Law of Nations" is nothing more or less than the "Principles of the Law of Nature applied to the Conduct and Affairs of Nations and Sovereigns." (Emerich de Vattel, full title of his book The Law of Nations) Prescription forms part of the universal, binding and "necessary" (most essential) law of all nations, rather than the "temporary," changing or "voluntary law of nations." (Hugo Grotius, The Law of Nations, "Preliminaries," no. 7-13, 21) ". . . One part of international law [is] stable and eternally the same . . . another part as shifting and changeable with the changing manners, fashions, creeds, and customs [of man]. . . ." (Sheldon Amos, The Science of Law, 1874, p. 341)
Prescription being an important part of the immoveable, enduring and changeless natural law is not just for Europe, but it is an ancient law for all ages and all people. It is immutable and eternal. Or as the Sir William Blackstone declared:
It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." (Commentaries on the Laws of England, vol. 1, 4th ed., 1770, p. 41)
. . . As this law [natural law of which prescription is a part] is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it. (The Law of Nations, "Preliminaries," nos. 8-9)
The transfer of rights by prescription is a just, time-honored method, of ancient date and modern usage, for the acqusition of sovereign and royal rights. As stated by Johann Wolfgang Textor (1693-1771), a well-known international lawyer and publicist, "The modes of acquiring Kingdoms [principalities or territories] under the Law of Nations are: Election, Succession, Conquest, Alienation and Prescription." (Johann Wolfgang Textor, Synopsis of the Law of Nations, vol. 2, 1680, p. 77)
Literally thousands of former sovereign houses have lost all their royal rights and prerogatives throughout history. These de jure rights automatically transfer from the dispossessed former rulers to the new subsequent governments by natural law. It terminates all the entitlements for the neglectful, the silent or acquiescent, and justly and ethically gives them, in their entirety, to the new possessor.
Lose of rights, however, is only one facit or aspect of prescription on both an international and domestic level. The other is, it can preserve and perpetuate deposed sovereign rights indefinitely into the future. However, certain actions are required for this. Emerich de Vattel, one of the fathers of international law, declared:
Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it. (Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 145)
Others have also discussed these important rules to safeguard and protect such rights:
. . . The [actual] form of the objection [or protest] is irrelevant, so long as the dispossessed state [or exiled royal house] make clear its opposition to the acquisition of title by someone else. (Martin Dixon, Textbook on International Law, 6th ed., 2007, p. 159)
If anyone sufficiently declares by any sign that he does not wish to give up his right, even if he does not pursue it, prescription does not prevail against him. . . . If any sufficiently declares by any sign [for example, use of royal titles and symbols of sovereignty] that he does not want to give up his right, even if he does not pursue it [does not go to war over it], prescription [or loss] does not avail against him. (Christian Wolff, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., chapter 3, no. 361, 1934, p. 364)
[In other words] one’s right is saved by protesting. Here likewise belongs the case of one who, being unwilling to give up the right of sovereignty [and royalty], claims the title and royal insignia, although [or even though] he does not possess the kingdom. (Ibid.)
[If one is] unwilling to give up the sovereignty, [he must] claim the title and royal insignia. . . . It is undoubtedly wise that the one who wishes to preserve his right, and does not wish to give it up, should give plain indications of his desire, so far as is in his power. (Christian Wolff, The Law of Nations Treated According to a Scientific Method, chapter 3, no. 364, 1974, pp. 187-188)
. . . The use of titles, shields, protests, public and solemn notifications [were all ways of interrupting prescription or maintaining internal non-territorial claims for territorially dispossessed royal houses]. (de Martins, Summary of the Modern Law of Nations of Europe,  1864 as quoted in Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898, p. 295)
Some of them [the dispossessed] have retained the Titles of their pretended [that is, rightful claims to] Kingdoms and Lordships, others the Arms, and a third Sort both the Arms and Titles of those Dominions, tho' not in Possession of one Foot of Land in them. (Hugo Grotius, The Rights of War and Peace, vol. 2, Jean Barbeyrac trans., ed. & writer of notes, and Richard Tuck, ed., book 2, chapter 4, no. 1, note 5, , 2005)
. . . International law states that the heads of the Houses of sovereign descent . . . retain forever the exercise of the powers attaching to them, absolutely irrespective of any territorial possession. They are protected [by law] by the continued use of their rights and titles of nobility. . . . (Monarchist World Magazine # 2, August 1955)
In other words, the head of the royal house preserves and safeguards his family’s most sacred entitlements or rights by this means.
Here likewise belongs the case of one who, being unwilling to give up the right of sovereignty [and royalty], claims the title and royal insignia, although [or even though] he does not possess the kingdom. (Christian Wolff, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., chapter 3, no. 364, 1934, p. 187) (emphasis added)
[In other words] one who, being unwilling to give up the sovereignty, [must] claim the title and royal insignia. . . . It is undoubtedly wise that the one who wishes to preserve his right, and does not wish to give it up, should give plain indications of his desire, so far as is in his power. (Ibid., pp. 187-188) (emphsis added
In terms of arms in heraldry, the well-known practice is to make one's claim known to all by one's coat of arms as well as by use of title and protest:
. . . Arms of Pretension are those borne by [genuine] sovereigns who have no actual authority over the states to which such arms belong, but who . . . express their prescriptive right thereunto. (Henry Gough, A Glossary of Terms used in Heraldry, 1894, p. 18)
Use of one's exalted titles and arms are central to the preservation of rights in international law as a consistent public protest to protect a claim from prescriptive legal transfer.
However, once non-territorial sovereignty is lost, all, not some, but all royal rights are lost with it. This includes the right to honor others or use the exalted titles of a sovereign. This is because such an individual is no longer royal, no longer sovereign, no longer holds the rights of supremacy, but is merely a commoner with no more authority than anyone else.
Having illustrious ancestors makes no difference. If the precious quality of sovereignty is gone or lost in any of a number of different ways listed above, so is the legitimate right to use royal titles and honor others.
One must be wary and careful and be fully informed not to be deceived by some of the charlatans or bogus princes who skillfully fight the truth and purposely blur legal realities in order to lead people astray or take advantage of innocent, unsuspecting potential victims. It is very important to understand the basic inherent facts about sovereignty and royalty, so one is not taken in by those who masquerade as authentic, but who are really only impostors, who impersonate what is real, genuine and true.
The following principles are based on the writings of the founders of international law as well as modern scholars and jurists. This includes treaty law, court decrees and the International Commission on Law (ICL). You will find quotes from many of the above sources throughout the following review.
We received a number of questions from one individual. His questions appeared to be sincere and were worthwhile to enlarge one's understanding of nobility and royalty and its future. He wrote, "Please answer the following objections to 'prescription' I found on the internet. I have a lot of questions. It is important to me." No all of his questions have been answered here as they were not all relevant or important, but the ones chosen and listed below are worth reading as they provide information on a great subject of great interest and importantce to us.
Since most of these questions are answered either in Part I or Part II of "Sovereignty: Questions and Answer," answers will be very brief and use referrals to answers already provided. However, new proofs and new evidence have been added to confirm important truth.
Questions and Answers
(a) Isn't it true that in international law, if a claim is never surrendered, it lasts forever?
No, international law is legally binding whether nations, or a deposed monarch, or his successors, want to obey it or not. (The deposed may continue to argue, but legally they don't have a leg to stand on. Legal "juridical" abandonment, whether overt or implied, is permanent forfeiture.)
(b) Isn't a "prescriptive" dispute pending forever, if no tribunal or arbitration court solves the problem?
No, "prescription" was created, or re-established, in the 17th Century when no international courts existed. In fact, it operated from at least 1,000 BC. "Prescription" is a "juridical act" which is legally binding outside of court. It has always has been that way for thousands of years. (See number fourteen (#14) in Part I, "Is court or arbitration necessary to effect the loss of sovereign rights for a deposed monarch?"
(c) I read that there is not even one single case that international law has ever decided over a deposed monarch.
Actually, the opposite is true. Keep in mind that, ". . . In some degree every civilized nation must ultimately fall back upon a prescriptive root [or beginning] of title." (Frederick Edwin Smith, Earl of Birkenhead, International Law, 2009, p. 63) In fact, Edmund Burke made it even more inclusive, he said, ". . . All titles terminate [or end] in Prescription. . . ." (Edmund Burke, Works of Edmund Burke, vol. 9, p. 449, 2005, p. 450) In other words, "prescription" or the permanent loss of dynastic rights was a very common occurrence as it happened hundreds and hundreds of times over and over again throughout history. The point is, ". . . Title to the exercise of the royal power [or any other kind of sovereignty] arises only by prescription." (Edwin Robert Anderson Seligman and Alvin Saunders Johnson, Encyclopedia of the Social Sciences, vol. 14, 1957, p. 429) 99% of all countries hold their titles to sovereign majesty over their nations originally ". . . by a successful employment of force [that is, by violence], confirmed by time, [long] usage, [and then by] prescription. . . ." (John Randolph, American Politics, Thomas Valentine Cooper and Hector T. Fenton, eds., Book III, 1892, p. 20) Literally hundreds of monarchs were deposed or dispossessed through these principles. And no court declared the right of the new nations. "Prescription" as a "juridical act" gives legitimacy without formal or official decree from a court or tribunal.
". . . There can be no doubt that prescription has conferred title [sovereignty] to the European discovers and their successor states over the hundreds of years that they have controlled the New World." (Thomas Flanagan, First Nations? Second Thoughts, 2000, p. 61) The deposed hereditary Aztec and Inca kings and emperors lasted dynastically for many many years after being conquered, but eventually lost all their sovereignty by acquiescence, submission or giving in when they could have continued their claims and maintained their rights even to this present day. This same scenario took place all over the world hundreds and thousands of times as monarchs were deposed by usurpers and failed to maintain or keep their claims alive.
All a royal house needs to do to lose their rights on a permanent basis is to abandon them through acquiescence or neglect; that is, by a failure to protest or use their titles and arms in every generation for a hundred years. See number seven (#7) in Part I on how to maintain royal and sovereign rights, "How does a royal family maintain their rights? What is required? What is the proper protest that is acceptable and protective?"
(d) I read that nothing is official before a verdict from a competent court is achieved.
This might be true in domestic law, but not in international law. There were "no tribunals" for international "prescription" for at least 300 years since "prescription" was re-established in the 1600's. (William Edward Hall, International Law, part II, chapter 2, number 36, 1880, p. 100) For thousands of years, "prescription" operated outside of any kind of court decree or verdict for thousands of years. One of the major founding fathers of international law declared during the time that no international court existed. He wrote:
. . . Every proprietor who for a long time and without any just reason neglects his right, should be presumed to have entirely renounced and abandoned it. This is what forms the absolute presumption (juris et de jure) of its abandonment. . . . (Emer de Vattel, The Law of Nations, Book II, chapter 11, no. 141)
"Juris et de jure" means by definition, "conclusive presumptions of law which cannot be rebutted by evidence." (www.lectlaw.com/def/j050.htm)
Emer de Vattel expressed it this way, ". . . immemorial prescription admits of no exception: both are founded on a presumption which the law of nature [not a court] directs us to receive as an incontestable truth [truth that cannot be impeached]." (The Law of Nations, Book II, #143)
In other words, in the day and time when there were no competent courts with proper jurisdiction, powerful "prescriptive" presumptions were legally binding and could not be altered. This is true today as well, because ". . . there is no requirement [in international law] to refer a dispute to international tribunals or other settlement mechanisms." (Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12)
In other words, dynasts can and did lose the royal prerogative outside of any court decree or verdict. Note the 12/19/2010 answer of Professor of International Law Noel Cox. He was asked about the loss of dynastic sovereignty. He wrote, ". . . Dynastic rights of a Sovereign may potentially end without a court ruling." As a declarative statement on this subject to make it clear and unmistakable, he wrote, "Legal rights can expire without the intervention of a court." (http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm) This is, of course, merely a confirmation of what is a well-known fact. "Prescription" does not require court involvement. This practice is especially true for all cases before about 1900 when international arbitration first began and no competent tribunals existed. "Prescription" was recognized and has operated in world events for centuries and thousands of years. No tribunal decree or verdict was needed for them to forfeit their sovereignty and royal rights. (See the answer to question number fourteen (#14) in Part I for more legal details and specific examples on this very important question, "Is court or arbitration necessary to effect the loss of sovereign rights for a deposed monarch?")
(e) I read that a dynasty never loses its rights ever no matter what.
Please read the answer number six (#6) in Part I, which is "Dynasty never forfeits its rights. Those rights cannot be forfeited. The principle of 'juris sanguinis' (right of blood) operates here. Is this true, or is it only partly true?" and answer number thirty-two (#33), which is, "The statement has been made that, 'In all the history of mankind, no deposed monarch has ever lost his rights except through debellatio.' What about it?" in Part II of "Sovereignty: Questions and Answers." The short answer is dynastic sovereignty can be lost and, if it is, it is permanent and final. The rules of "prescription" control this destiny.
Sadly, some only tell half the story. They quote how dynastic sovereignty cannot be forfeited, but fail to tell the whole complete truth about how it must be maintained or it will be lost irretrievably. That is, they fail to discuss the immense power of dynastic "prescription" as it relates to deposed monarchs and their successors. (See "Question #q" below.) When asked about the idea that a dynasty can never lose its rights no matter what, Noel Cox declared:
There is a principle that the legal rights of a Sovereign are not automatically lost if they are deposed – equally, that the rights of a Government in exile may persist for some time after a revolution, invasion etc. However, it is also true that legal rights, unless exercised or acknowledged by others, do die out. I would suggest that after a few generations the rights of exiled Sovereigns could well be deemed to have ended. . . . (Letter 5/3/2011)
The rules and principles of prescription are extremely clear. Rights can be maintained forever or permanently and irrecoverably lost. This is a certainty as expressed by Emer de Vattel, ". . . immemorial prescription admits of no exception: both are founded on a presumption which the law of nature [not a court] directs us to receive as an incontestable truth [truth that cannot be impeached]." (The Law of Nations, Book II, #143)
(f) What about "res judicata," it cannot be applied outside a court decree.
"Prescription" has nothing to do with "res judicata" unless the case goes through a court. Keep in mind that deposed monarchs and legitimate governments-in-exile are excluded from all international courts as pertaining to the principle of sovereignty. Hence, the legal principle of "res judicata" is immaterial and irrelevant to the deposed royal, imperial or the princely right to rule.
What does have a powerful impact are "juridical acts" or legal presumptions made outside of court, which are binding and cannot be annulled, set aside or overturned outside a competent court. In other words, if a deposed monarch, or his successors, fails to protest or use their titles and arms in every generation, they permanently and irretrievably forfeit their sovereignty and royal claims. This is because, "immemorial prescription cuts off [bars or destroys] all claims." (Adam Smith, The Glasgow Edition of the Works and Correspondence of Adam Smith (1981-1987), vol. 5, Lectures on Jurisprudence, R. L. Meek, D. D. Raphael and P. G. Stein, eds., 2004, p. 72) And that is the end of it.
The only way this could be changed is if the usurping government by their sovereign domestic powers reinstated the once royal house --- the family, who are now commoners, could be restored. In other words, international law can lawfully take all internal sovereign and royal rights away from a deposed royal house by virtue of their negligence or "juridical" abandonment by extinctive "prescription," but only domestic sovereignty could give it back to them.
(g) Confusion is created because there is a difference between "Sovereign Dynastic Title" to sovereignty and "Territorial Sovereign Title." Territorial "prescription" cannot be applied to kings and monarchs.
Territorial sovereignty is defined as the supreme internal ruling power within a territory. Interestingly the definition for internal sovereignty is identical to the definition for territorial sovereignty making the two inseparable. (See number fifteen (#15) in Part I, "I've heard that even scholars get the internal and external dimensions of sovereignty confused?") (See also "Question #o" below entitled, "The author believes that "prescription" involves external sovereignty and therefore it could not impact the internal sovereignty rights of deposed kings and sovereign princes."
"'Dynastic' or monarchical 'territorial' sovereignty" is a real and genuine reality. But so is republican territorial sovereignty. (Paul W. Schroeder, Reviewed work(s): "National Collective Identity: Social Constructs and International Systems by Rodney Bruce Hall," The International History Review, vol. 22, no. 1, March 2000, p. 145)
The conceptual error in the statement above about "Sovereign Dynastic Title" and "Territorial Sovereign Title" is that, "There is no essential difference between the sovereignty of the king and the sovereignty of the people." (Robert G. Haverton-Kelly, "The King and the Crowd," Contagion 3, 1996, p. 68) Trying to make a difference when there is no basic difference is problematic. It muddies the water. "The principle of monarchical [dynastic] sovereignty and the principle of popular sovereignty are really only . . . differences in the form of government." (Sources of Japanese Tradition, vol. 2: part 2: 1868 to 2000, Carol Gluck and Arthur E. Tiedemann, compilers, p. 162) "A traditional republic legitimately established under the natural law has the same moral and legal right to de jure sovereignty as that possessed by a sovereign royal house. . . ." (Stephen P. Kerr, "Theoretical Basis for and Functions of Non-Territorial and De jure Sovereignty under International Law," Master's Thesis, George Washington School of Law, 1977, p. 103) Why? --- because, "Dynastic sovereignty" is nothing more or less than "sovereignty vested in a monarch and the monarch's heirs." (Richard W. Mansbach, Kirsten L. Rafferty, Introduction to Global Politics, 2008, p. 66) By the same token, Repulican sovereignty is nothing more or less than soverignty vested in a Republic. There is no basic difference.
Dynastic sovereignty, republican sovereignty and territorial sovereignty are distinctions without a primary or fundamental variation. Why? Because, "There are not different kinds of sovereignty. A sovereign . . . is not a particular form . . . such as a monarchy or republic or democracy. . . . Their ruling authority will have the same basic characteristics. . . ." (Robert Jackson, Sovereignty: Evolution of an Idea, 1988, pp. 10-11) Thomas Hobbes declared that ". . . the power of sovereignty is the same in whomsoever it be placed" whether a king or a republican president and legislature. ("Readings from the Leviathan," Readings in Potential Philosophy, Francis Coker, ed., 1914, p. 326) In other words, the same principles apply to all. This was emphasized in the 1648 Treaty of Westphalia and in the writings of the founding fathers of international law, who saw no basic or seminal difference between them.
In terms of "prescription," the rules are the same for a kingdom or principality as they are for any of the other kinds of ousted governments. In other words, ". . . In a hereditary monarchy, the right to rule remains with the royal descendant until he has lost it through the long process of prescription." (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 444) Dynastic sovereignty, just like territorial sovereignty, which is internal sovereignty, is permanently lost by "prescription." Samuel Pufendorf (1632-1694), another one of the founding fathers of international law, confirms this important truth. In a chapter entitled, "Of the Way of Acquiring Sovereignty especially Monarchical," it states that "prescription" is one of the ways of losing dynastic sovereignty to a usurper, it declares that, ". . . the rightful Prince shall labor to reduce the Rebels to Obedience or at least by solemn declaration shall protest and preserve his right over them; till by long Acquiescence and silence he may be presumed to have given up his claim [which is legal abandonment or an irretrievable loss of royal and sovereign rights]." (Of the Law of Nature and Nations, Jean Barbeyrac and William Percivale trans., Book VII, chapter 7, no. 5, p. 577)
Or, on the other hand, dynastic sovereignty can be preserved endlessly and forever, if the claim is kept alive in the way specified by law. The point is, in terms of "prescription" and sovereignty:
. . . there is not strictly, in human nature, any such thing as an absolutely indefeasible right [that is, by definition, something incapable of being annulled or rendered void]. Sovereign right itself furnishes no exception to this general principle. (Edward Smedley and Hugh James Rose, Encyclopaedia Metropolitana; or, Universal Dictionary of Knowledge, vol. 2, 1845, p. 714)
In other words, "[Sovereignty] is conferred by law. . . ." (Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127) It can also be destroyed by law. The juridical rules of "prescription" are a part of those laws which can totally destroy internal and external sovereignty.
It is as Sir William Blackstone, the great jurist wrote, ". . . the law maketh the king." (Commentaries on the Laws of England, 1922, p. 213) Again, "Sovereignty is . . . merely [a] legal conception. . . ." (Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127) Certainly, it is time honored, and doubtlessly the most precious and important of all governmental rights, but it can be permanently lost to a once "de jure" deposed monarch and his successors. That is, after a hundred years or immemorial "prescription," it is irreparably broken into dust or permanently torn apart:
To object that sovereign rights will thus be arbitrarily destroyed [ruined or lost] is an unwarranted assumption, since those rights cannot reasonably be shown to exist [any longer]. (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347) (See (#33) in Part II)
"Prescription" has eliminated the rights of deposed monarchs for centuries. There are hundreds of historical examples all over the world (about 400 in the 19th and 20th centuries) as nations illegally cast aside their rightful monarchs and became republics or democracies or replaced dethroned tyrants and legitimate monarchs. Most are lost to history and immemorial "prescription," because of binding legal or "juridical" abandonment wherein all internal rights and privileges devolve to the usurpers who have governed for a long period of time. (http://en.wikipedia.org/wiki/Abolished_monarchy)
Please see ("Question #q") below on this page. It is entitled: "Are there any statements that directly links deposed dynasties, the loss of royal privileges, and 'prescription?'"
(h) I read that deposed royal houses can keep their rights forever.
See answer number seven (#7) in Part I entitled, "How does a royal family maintain their rights? What is required? What is the proper protest that is acceptable and protective?" Most of the answers on both Part I and Part II reiterate the same principle. As Dr. Oldys declared in a legal battle, ". . . the late king, being once a king, had, by the Law of Nations . . . tho’ he had lost his kingdoms . . . still retained a right to the privileges that belong to Sovereign Princes." (Sir Robert Phillimore, Commentaries upon International Law, vol. 1, no. 256, chapter 13, p. 433) This, of course, no longer includes the command of armies, etc., but all the rights are still intact even though they are mostly dormant; that is, the power to exercise most of those rights are gone. Such a prince, and his legitimate successors, can, however, honor and be honored and make laws as any government in exile can do as long as their rights are legally preserved. It is important to know how rights are both legally terminated and how they can be preserved and kept alive forever. The whole future of nobility and royalty depends on this important legal knowledge. We attempt to answer questions to ensure that people understand these principles.
(i) "Prescription" according to one judge is not relevant as an international legal principle, or at least it is extremely or excessively doubted according to an internet writer.
The core principles of "prescription" have always been considered to be a just and important. On this subject, it should ". . . be borne steadily in mind . . . [that it is] in the highest degree irrational to deny that prescription is a legitimate means of International Acquisition. . . ." (Sir Robert Phillimore, Commentaries upon International Law, vol. 1, no. 256, chapter 13, p. 300) From the first attempt to codify international law in 1795 under ". . . General Principles of the Law of Nations," we read, "(11) Possession from time immemorial creates among nations the right to prescription." (Edmund Jan Osmañczyk, Encyclopedia of the United Nations and International Agreements: G to M, Third ed., vol. 2, Anthony Mango, ed., "Law of Nations, Gregoire's Principles, 1795," 2003, p. 1280) The International Law Commission upholds "prescription" as part of the most important rules of International law. They wrote in one of their reports that:
The salient aspect of this part of international law lies in the rules relating to the original acquisition of territorial sovereignty by discovery, occupation, conquest and prescription. Rights and claims . . . [that] have been traditionally regarded as synonymous with the most vital interest of States. . . ." (Survey of International Law 1949, Chapter III: Jurisdiction of States, (5) The Territorial Domain of States, No. 64, pp. 38-39)
In international law, "prescription" is considered to be among the highest and most important of all laws, because it is part of the law of nature. The lessor law is called the "voluntary law," which is gleaned from customs and is called "temperamentum," because it is ". . . shifting and changeable with the changing manners, fashions, creeds, and customs [of people]." (Sheldon Amos, The Science of Law, The International Scientific Series, vol. 10, 1885, p. 341) The other is the essential, fundamental moral principles called the "laws of nature," which never change and are called "summum jus." (Ibid.) Sir William Blackstone, the renown English jurist, declared the following about this greater law, which is part of the law of nations. He explained that the:
. . . law of nature [the higher law], being co-equal with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ("Of The Nature of Laws in General" 2009: http://libertariannation.org/a/f21l3.html)
Hugo Grotius, considered to be the father of international law, was "persuaded that nations, or sovereign powers, are subject to the authority of the law of nature . . . [he calls this law which even sovereignty must comply with] the internal law of nations. . . ." (Emer de Vattel, Preface to his book The Law of Nations, 1758: http://www.constitution.org/vattel/vattel-01.htm) He made it clear that ". . . Prescription doth truly belong to the Law of Nature. . . ." (Samuel Pufendorf, Of the Law of Nature and Nations, Book IV, chapter 12, no. 8, p. 357) "Sovereignty [of course] is essentially an internal concept, the locus of ultimate authority in a society. Its origins are in 'sovereign princes. . . .'" (Louise Henkin, "The Mythology of Sovereignty," Essays in Honour of Wang Tieya, Ronald St. J. Macdonald, ed., 1994, p. 352) As such both sovereignty and dynasties are subject to the law of nature. Jean Boden (1530-1596), one of the great champions of sovereignty, made it clear that ". . . kings were subject to the law of nature," and thus to the rules of "prescription" as well, because they are a part of the highest laws known to man. (On Sovereignty: Four Chapters from the Six Books of the Commonwealth, Julian H. Frnaklin, ed., 2004, p. xxiv) The point is:
The laws of nature . . . emanate from a higher authority than any human government. They are written upon the hearts of all men; exist before governments are organized . . . "and are binding all over the globe, in all countries and at all times." Adams v. Peo., 1 N. Y. 173, 175. (William Mack and William Benjamin Hale, Corpus Juris, "Allegiance," note 41[e], 1915, p. 1150)
"Prescription" is part of the "Internal Law of Nations," which is involved with internal sovereignty --- the sovereignty of royal houses and legitimate governments in exile. It is part of the "Arbitrary Laws of Nature." (op.cit., Vattel) That is, ". . . By the law of nations, prescription, when of so long standing, has been always allowed to give a right. And this the public peace and tranquility of the whole world makes necessary; which general peace and wealth of the community is the great end of society and government. . . ." (Alban Butler, The Lives of the Fathers, Martyrs, and Other Principal Saints, vol. 4, note, 2006, p. 417) "Prescription" is universally accepted in every civilized nation and is binding on royal as well as republican sovereignty. See the answer to number twenty-two (#22). The answer is very pertinent, it is, "Some scholars have denied "prescription" in international law. If so, how can you promote it as something of such great importance to nobility and royalty?" in Part II.
(j) "Prescription" does not "operate in cases where possession was maintained by force."
This is a true principle. But be sure you do not confuse belligerent occupation with "prescription." They are two different things. See the answer to number twenty-eight (#28) in Part II of "Sovereignty: Questions and Answers" entitled, "After belligerent occupation ends and the new regime takes over, it is a well-known fact that "de jure" sovereign recognition is generally given to the usurping or newly formed government. In that case, how can a legitimate government in exile or exiled monarch still rightfully claim sovereignty?"
(k) "Prescription" according to this article I read cannot transfer sovereignty if the original occupation by the usurper was by force.
This is merely a confusion between domestic and international "prescription." International "prescription" rectifies violent usupations of sovereignty after 100 years of undisputed rule. In other words, ". . . [international] prescription . . . mellows into legality governments that were violent in their commencement." (William Edward Hartpole Lecky, The French Revolution: chapters from the author's History of England during, 1904, p. 215) To clarify this further please see the answer for question number twenty-six (#26) in Part II of "Sovereignty: Questions and Answers." The question is, "How does civil "prescription" differ from international "prescription?" Are there some important differences?" The differences are profound and very important.
(l) In addition, the author says that "prescription" cannot take place unless the reign of the usurper is "peaceful." Which he interprets to mean serene and without any conflicts.
No, this interpretation is wrong. "Peaceful [means] acquiescence by any state that has any title." (Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12) Disturbance by anyone else is immaterial. The following paragraph is from the answer to question number twenty-four (#24) in Part II.
". . . Peaceful possession is finding that the dispossessed state has acquiesced [abandoned overtly or by implication discarded] the possession." (Ibid.) In other words, "This meant that the possession had to go unchallenged." (Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription," The European Journal of International Law, vol. 16, no. 1, 2005, p. 50) The original holder of sovereignty, or his successors, must not challenge the usurper's right to rule. They must neglect their rights in silence till legal abandonment occurs, which in immemorial "prescription" takes 100 years. In other words, ". . . There cannot be peaceful possession unless there is an absence of objection [by the deposed monarch or government in exile]." (John O'Brien, International Law, 2001, p. 211) War, or lack of peaceful rule, does not stop "prescription." Peaceful does not refer to tranquility of rule, or a rule without problems, but to a lack of protest from the deposed former government. ". . . Acquiescence . . . is a precondition of that possession being peaceful. . . ." (D. P. O'Connell, International Law, 2nd. ed., 1970, p. 110) "'Peaceable' thus meant acquiescence [implied consent and abandonment] by the opposing party." (Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription," The European Journal of International Law, vol. 16, no. 1, 2005, p. 51) One of the essential requirements for "prescription" to succeed is that there must be acquiescence, silence, implied consent or a lack of protest from the former sovereign or government in exile. That is what "peaceful" means, that is, the original king, sovereign prince or government in exile does not contest or dispute the usurper's "defacto" rule. So, "what conduct is sufficient to prevent possession from being peaceful and uninterrupted? Any conduct indicating a lack of acquiescence, e.g. protest. Effective protests prevent acquisition of title by prescription." (Alina Kaczorowska, Public International Law, 4th ed., 2010, p. 281) It could hardly be more clear.
However, because some misinterpret "peaceful" to mean without any kind of conflict, many jurists and international scholars have not and do not use this word. Instead they write similar to the following citations, "Long continued and undisputed possession is accepted as conferring a sound international title by prescription. . . ." (Thomas Alfred Walker, A Manual of Public International Law, Part II, no. 13, 1895, p. 34) Or, "continuous and undisturbed exercise of sovereignty," by the usurper. (Lassa Francis Lawrence Oppenheim, International Law, a Treatise, vol. 1, Ronald F. Roxburgh, ed., 1920, pp. 401-402) Again, "Peaceful" means undisturbed or undisputed:
The great preponderance of opinion is to the effect that long undisturbed possession by a sovereign of a particular piece of territory gives him a strong prima facie claim to such. . . . 'The general consent of mankind,' says Mr. Wheaton, 'has established the principle that long and uninterrupted possession by one nation excludes the claim of every other.'" (Francis Wharton, Commentaries on Law, chapter 4, no. 153, 1884, pp. 231-232)
Misinterpretations obviously do not promote accuracy. They encourage false beliefs. Our efforts are focused on providing clear and solid answers that empower people to see things as they really are. This is not always easy, but it is our endeavor nonetheless. Explaining things and providing proof, however, is worth it to us, because true "knowledge is power." We will do our best to provide the facts and evidence needed to promote the ideals of nobility and protect the public from errors. "Truth is a Treasure." (See "The Standard for All that We Do")
(m) The author brings up the excuses of fear and/or ignorance saying that such prevents "prescription" from destroying rights.
These problems must be dealt with before 100 years expires in immemorial "prescription." For example, acquiencence, the lack of protest, neglect or implied abandonment is essential for prescription to work. "Acquiescence occurs in circumstances where a protest is called for and does not happen," but it also means that the protest "does not happen in time in the circumstances. Essentially [it was] on this basis that Huber found in favour of the Netherlands in the Island of Palmas Case." That is, a protest can be given too late to count. Evidence of duress, etc. must be given before the final deadline of 100 years, or the various valid justifications become inadmissible or irreversibly precluded from consideration. They simply cannot be admitted after the "prescriptive" transfer of internal sovereignty becomes conclusive and final.
(See the answer to question number twenty-four (#24) in Part II, which is, "Are there no exceptions to the loss of de jure internal sovereignty through "prescription?" to see how various justifications are invalid or must be dealt with early on. Also see the answers to (#14) in Part I and (#33) in Part II)
(n) It was declared that no deposed heir apparent can lose his rights except by a voluntary formalized or official act.
Actually, "prescription" works without a formalized or official act. Note the following:
. . . a state may acquire territory, without formal annexation, by means of prescription, or uncontested occupation of territory of another state over a long period of time. . . . (The Encyclopedia Americana, vol. 1, "Annexation," 1985, p. 10)
What is significant here is a usurper may acquire territory "without formal annexation," that is, without an official takeover or formal legal act of establishment. If it is formal, it is legalized by court or treaty. If not, it is informal, which means there is no court, treaty or legal document involved. The point is, loss of rights is usually never completed by a formal proclamation.
Again, hundreds of royal houses completely lost all their royal and sovereign rights to revolutions and/or illegal referendums all over the earth, because they never protested or continued to use their titles and arms. After 100 years, the highest legal presumption on earth "juris et de jure" takes effect making the loss permanent, conclusive and irreversible. In over 90% of these situations "without formal annexation," the new republican governments obtained the only thing that these monarchs had left, that is, internal, "de jure," nonterritorial sovereignty. This loss is set in legal cement and cannot be undone, because it is like sure and solid legally as granite rock.
(o) The author believes that "prescription" involves external sovereignty and therefore it could not impact the internal sovereignty rights of deposed kings and sovereign princes.
This assertion contradicts all the facts known about "prescription." To understand this clearly go to the answer to number fifteen (#15) in Part I entitled, "I've heard that even scholars get the internal and external dimensions of sovereignty confused?" The answer to this question is definitive. However, various other answers also elaborate on this important understanding. See also, number twenty-four (#24) in Part II, "Sometimes it is confusing to understand all the ins and outs of "prescription" and the law. What are the basics of recognition, international tribunals, and their relationship to deposed monarchs? Please clarify."
Briefly the fact that "prescription" is legally binding on internal sovereignty can easily be distinguished by understanding what territorial sovereignty is, and then noting that territorrial sovereignty is subject or answerable to the rules of "prescription." Note the following defintion, "Territorial sovereignty was described in the Isle of Palmas Arbitration (The Netherlands v US) as being the 'right to exercise therein (i.e. on the territory) . . . the functions of a sovereign.'" (Alina Kaczorowska, Public International Law, 4th edition, 2010, p. 265) Internal sovereignty is identical in meaning, it is also "the right to exercise therein (i.e. on the territory . . . the functions of a sovereign." In other words, internal sovereignty and territorial sovereignty have one and the same definition. Internal sovereignty is defined as the right ". . . to exercise supreme authority over all persons and things within its territory, [in other words] sovereignty is territorial supremacy [which is another word for territorial sovereignty]." (Lassa Oppenheim, International Law: a Treatise, vol. 1, 1905, p. 171) These two concepts (internal and territorial sovereignty) have identical meanings. In fact, because they are synonyms and are interchangeable, "territorial sovereignty or internal sovereignty" can be used together because they mean the same thing. (Rodrigo A. Gómez S., "Rapanui and Chile, a debate on self-determination," Master’s Thesis for Victoria University of Wellington, 2010, p. 31) "Territorial sovereignty. . . [is] 'an aspect of sovereignty connoting the internal, rather than the external, manifestation of the principle of sovereignty.'" (Wang Tieya, "International Law in China," Recueil Des Cours, vol. 2, 1990, p. 297) (Clive Parry and John P. Grant, Encyclopaedic Dictionary of International Law, 1986, p. 360)
Traditional international law allows states to acquire territorial sovereignty [which is internal sovereignty] through one of five different methods including "accretion," "occupation," "prescription," "conquest," and "cession." However, after World War II, the United Nations Charter prohibits the illegal use of force, thus forced cession and conquest are no longer valid methods of acquiring territorial [or internal] sovereignty for a state. (Zoe Keyuan, "South China Sea Studies in China: A legal Perspective," Southeast Asian Studies in China, Saw Swee-Hock and John Wong, eds., 2007, p. 174)
Now, note that "prescription" is legally binding on territorial sovereignty, which is the sovereignty of all "de jure," deposed royal houses and legitimate governments in exile. In fact, ". . . Dynastic sovereignty and territorial sovereignty [are] so closely intertwined and overlapping. . . ." that there is little difference between them. (Paul W. Schroeder, "Reviewed work(s): National Collective Identity: Social Constructs and International Systems by Rodney Bruce Hall," The International History Review, vol. 22, no. 1, March 2000, p. 145) In fact, they can be used together as in "territorial/dynastic sovereignty." (Victor Segesvary, World State, National States, or Non-Centralized Institutions, 2004, p. 19) In other words, deposed dynasties are vulnerable and subject to the provisions of "prescription." Why? Because internal sovereignty, also known as territorial sovereignty, is the sovereignty of deposed monarchs. In other words, deposed sovereignty is territorial or internal.
Under the chapter heading of "International Law of Territorial Sovereignty," it states, "There are several recognized modes of acquiring territorial sovereignty under international law." (Thomas J. Schoenbaum, Peace in Northeast Asia, chapter 3.3, no. 3.3.1, 2008, p. 30) "Prescription" is one of them. Again, by another international scholar, ". . . Territorial sovereigntly may be acquired by . . . prescription." (Lowell S. Gustafson, The Sovereignty dispute over the Falkland (Malvinas) Islands, 1988, p. xi) Again, ". . . On questions of territorial sovereignty [which by definition is internal] . . . immemorial prescription is admitted . . . by the great majority of jurists. . . ." (John Westlake, International Law, part 1, 1910, p. 364) "Prescription," because it has authority over internal or territorial sovereignty, can and has both destroyed or preserved the sovereignty of deposed monarchs for hundreds and hundreds of princely and royal houses thoughout the centuries and for thousands of years.
Confusing the characteristics, concepts and principles of internal and external sovereignty, belligerent occupation with "prescription," dynastic law with the defunct, rejected and extinct philosophy of divine right of kings, domestic "prescription" with international "prescription," municipal law with international legal principles, dynastic "prescription," used for thousands of years outside of court, with modern territorial "prescription," proprietary sovereignty with usufructuary sovereignty, and regular sovereign "prescription" with immemorial "prescription," all creates a distorted mixture of truth and half-truth. Confusion, of course, gives birth to more confusion and an unfortunate blurring of reality. In other words, confusion never results in clarity.
The purpose of these question and answer articles, Part I and Part II as well as Part III, are to clarify or make the law easy to understand and apply to various cases. The goal is to educate and empower the public, so what is legitimate and valid may be recognized and clearly discerned; and, any of the hundred or so, invalid claims may be identified and known for what they are; that is, flagrant falsehoods wherein a self-deceived imposter or a charlatan is impersonating what is real and authentic.
(p) I read that dynastic rights cannot be sold.
This is a myth as history is full of such examples. Note the answer to question number thirty (#30) in Part II entitled, "Some experts believe that monarchs could never cede, sell or alienate their realms." It is clear that such can be bought and sold, however:
Whatever might have been true in earlier times, it is certain that there is no such patrimonial kingdom or nation at the present day in Europe, and of course not in America. (John Norton Pomeroy, Lectures on International Law in Time of Peace, Theodore Salisbury Woolsey, ed., no. 117, 1886, p. 133)
In modern times, this kind of things is very unlikely, but could be done, but it was not an uncommon experience several hundred years ago:
. . . Grotius and the early writers upon public law [taught that] kingdoms were divided into patrimonial or proprietary, and usufructuary. The patrimonial, as it were, belonged to the monarch as a kind of private domain which he might alienate or dispose of it at will. (Ibid.)
"As far as the Law of Nations is concerned, every State as a rule can cede a part of its territory to another State, or by ceding the whole of its territory can even totally merge in another State." (Lassa Francis Lawrence Oppenheim, International Law: A Treatise, vol. 1, no. 215, 1920, p. 377) Thus whole nations can be ceded. Hugo Grotius explained that, ". . . The law of nature . . . allows every man [even a sovereign] the right to relinquish what is his own. . . ." (Hugo Grotius, The Rights of War and Peace, Book II, chapter 4, no. 4) ". . . A right to property may be renounced, not only by words but also by actions, or any other indication of the will. . . . Nor is there any reason, why the same rule [concerning the transfer of sovereignty] may not take place between sovereign princes, and independent states, as [the transfer of property] between individuals." (Ibid.) Dynastic sovereign territory was ". . . a disposable mass for inheritances, compensations, exchanges, securities, cessions, donations, partitions, indemnities, satisfactions, sales, and purchases (Arentin 1981; Grewe 1984: 462-3; Klingenstein 1997: 442)." (Benno Teschkee, The Myth of 1648, 2003, p. 231)
The answers to two more questions are extremely relevant to the above question statement. They further elaborate on the principle of dynastic rights. See the answer to question number thirty-one (#31) in Part II, "But I thought sovereignty was inalienable?" And the answer to question number thirty-two (#32) in Part II, "Yes, it is obvious sovereignty can be sold, at least in olden times, but can a "de jure" sovereign sell his sovereignty? I believe the only example of such is Andreas Palaiologos, who sold all his "de jure" imperial rights to the Byzantine Empire to the King of France."
(q) Are there any statements that directly links deposed dynasties, the loss of royal privileges, and "prescription?" It was stated that no scholarly work associates "prescription" with deposed monarchs.
There are a number of statements that directly link "prescription" with deposed monarchs and the loss of the royal prerogative. They are sprinkled throughout the answers given in Part I and Part II, but three citations should be more than sufficient to show that the sovereignty can be lost for a whole kingdom. Johann Wolfgang Textor, one of the founding fathers of international law, declared:
I can only repeat what I said about prescription of Kingly [or dynastic] sovereignty; namely, that it is completed by such a number of acts [juridical acts, such as, acquiescence, silence, neglect, or implied abandonment] as enable us to be morally certain of the King’s intent to surrender or concede his power and authority. This cannot be wisely settled by reference to any precise period of time alone, but also by other indications and inferences and of consent to the surrender. (Johann Wolfgang Textor, Synopsis of the Law of Nations, 1680, John Pawley Bate, trans., chapter 10, no. 18, 1916, p. 90)
These implications, inferences and indications of legal abandonment are well-known. They can be overt or implied. ". . . If the King [a dynastic sovereign] makes an attempt to regain his position [makes the proper protests, etc.] during the running of this prescriptive period . . . [then] the Republic’s quasi-possession of liberty [that is, a democracy] will be interrupted [ruined or foiled]." (Ibid.) In such a situation, the king, and his successors, if they use their titles and arms in every generation, can hold onto "de jure" internal dynastic sovereignty perpetually and without end. Another very pertinent "scholarly work" showing dynastic vulnerability to "prescription" is as follows:
The question of how long a "de jure" king may continue in this status [the status of being a deposed, non-territorial dynastic sovereign] is answered in Textor's "Synopsis Juris Gentium," which says that the "de jure" sovereign in exile retain their status as long as they do not surrender their sovereignty to the "de facto" government. . . . A dispossessed dynasty may keep its claims alive by filing diplomatic protests against the usurpers, which the Stuarts did in every generation and/or with every Hanoverian succession as required by international law, and, that a claim is deemed abandoned only when the protests cease. . . . Only when such protests cease does a prescription arise against the "de jure" rights of a legitimate claimant. . . . (David Hughes, The British Chronicles, vol. 1, 2007, p. 358)
If "prescription" takes place, then ". . . an absolute right has accrued to that [usurping] state. . . ." (John Norton Pomeroy, Lectures on International Law in Time of Peace, Theodore Salisbury Woolsey, ed., no. 117, 1886, p. 120) The preserving side of "prescription," achieved through protests, prevents this great loss. It is one of the most precious of privileges a family can have, which includes all the rights of royalty and full sovereignty; only that sovereignty is dormant or inactive in some areas; such as, the right to command the military. Other areas are fully active, such as, the right to honor others, be a genuine and authentic "fons honorum," and create laws like any government in exile. Textor again made it perfectly clear that dynastic sovereignty is subject to the rules of "prescription." He wrote:
. . . A King [a dynast] who has been driven from his Kingdom by force and arms, and has lost possession of his [defacto] sovereignty, has not thereby lost his [internal legal] right, or at any rate not irrevocably, unless he has in the meanwhile [while in exile] given his assent [either overtly or by implication] thereto; but he loses it [that is, all his de jure internal right to rule] conclusively at the moment when he consents [either overtly or by neglect] to a transfer of it to the Estates or to his rebel subjects, and then it must be recognized that the Kingdom has been made into a State [probably a republic] which has been founded in accordance with the Law of Nations [the rules of extinctive prescription in this case]. (op.cit., Textor, p. 88)
The article "Dynastic Law" addresses different ways dynastic sovereignty can be lost or maintained and kept alive by deposed dynasties. See also answer number two (#2) in Part I entitled, "How is international law connected to dynastic law and sovereignty?" Keep in mind that ". . . Dynastic rights of a Sovereign may . . . end without a court ruling. (op.cit., Noel Cox) All of these things impact the future of what we hold near and dear in monarchy and in the shining ideals of true nobility and knighthood. Maintaining rights is an essential or core issue. Most former monarchies (about 400 in the 19th and 20th centuries) did not keep their royal rights alive. Therefore, they have permanently lost all claim to any royal prerogative. Thankfully, many have kept them as in Europe, India, Indonesia and others. So the future still looks bright for deposed royalty and their nobility.
(See also ("Question #g") above for more on the loss of dynastic sovereignty and "prescription." It is very important to understand this.)
(r) I read that all 15 accepted dynasties of the Byzantine Empire are entitled to claim imperial rights according to Dynastic Law.
"In an hereditary monarchy [whether reigning or deposed], this right [of dynastic sovereignty] is indissolubly linked to the person of the members of the reigning family in the established order of succession." (Charles Maurice de Talleyrand-Périgord (prince de Bénévent, Memoirs of the Prince de Talleyrand, Raphael Ludos de Beaufort, ed., vol. 2, 1891, p. 120) However, if a monarchy is not hereditary, there is no family succession or inheritance rights to pass on. For the first approximately 800 years there was no legal family succession in the Byzantine Empire till the last 200 years of its existence. In other words, dynastic law did not apply because there were no hereditary dynasties. No one could legally pass on any rights to any other family member. There was also no such thing as a "de jure" deposed sovereign, since only one person held all rights. There was no internal and external sovereignty, only one emperor without hereditary rights.
. . . Byzantium [simply] did not fully develop the notion of hereditary rule. Many able and ambitious men (and at least one woman) from very humble beginnings managed to rise to the top over those who had a 'better' claim in terms of their family background. The Byzantine idea that the Emperor was ultimately selected by God also, perversely, helped successful rebels and usurpers: If you were able to depose the existing Emperor and rule in his place you obviously had God's approval --- otherwise He would never have allowed you to succeed. (http://byzantium.seashell.net.nz
The Byzantine Empire had what is called "cut-throat" succession. No family, no dynasty held legal succession rights to the throne. Nothing was hereditary. Nothing could rightfully be passed on down the line. Rights totally ceased to exist when a family was out of power. There is no such thing as "de jure" or legal sovereignty is such a system outside of the emperor himself.
Since there was no familial [that is, dynastic] succession to the throne, imperial power was never considered as belonging to a particular family [or dynasty], thus automatically excluding all outsiders from ascension to the throne. . . . As a result, there was an extraordinary instability of individual imperial power. Half the Byzantines emperors were forcibly removed from power." (Aleksandr
Petrovich Kazhdan & Giles Constable, People and Power in Byzantium, 1982, p. 146)
"[This practice] was later replaced by succession within a family and by strict hereditary succession [about 1100 AD.]" (Ibid. and Alfred Rambaud, L'empire grec au dixième siècle: Constantin Porphyrogénète, 1870, p. 23) Andreas Paleologus was the last of this direct legal line of successors. He ". . . was the only legitimate representative of the dynasty of the Palaeologi, who possessed the rights to the lost Byzantine throne." (A. A. Vasiliev, History of the Byzantine Empire, 324-1453, vol. 2, 1952, p. 590) He legitimately sold all his "de jure" royal and imperial rights, titles and prerogatives, "which were genuine," to Charles VIII, the King of France, in 1494. (http://web.archive.org/web/20030404070252/www
.kwtelecom.com/chivalry/fons.html) Several kings of France continued to use the title of Emperor of this former sovereignty, then they lost interest in it and stopped using both the titles and the arms of the Byzantine empire. Their acquiescence, neglect and disinterest resulted in a "prescriptive" loss and transfer to the Ottoman Empire of all their Byzantine rights. And since the Ottoman Empire also failed to perpetuate these rights, they ceased to exist on a legal and solid perpetual basis. This is what dynastic law decrees through the implicit juridical acts of abandonment by dynastic "prescription." That is, the absolute and total extinction, so that no one holds any Byzantine rights. There are permanently and irretrievably eliminated. In other words, if anyone believes they have Byzantine rights, they believe in fairy tales, false principles and historical nonsense. (See the article, "Sovereignty in the Holy Roman and Byzantine Empires" for more details on this important consideration)
(s) If a member of a family or branch has reigned even one day and even if it was 3,000 years ago, the head of that dynasty can claim rights.
First of all, if the constitutional or supreme law of the land created an elective monarchy, there is no succession, therefore, no descendant can claim any rights as they cannot be passed on. Cut-throat succession is similar in its results --- there is no sovereignty left to inherit, because nothing is hereditary.
Second, 3,000 year ago is beyond the memory of man, that is, it is beyond the privilege of living witnesses; and any proof is inadmissible because it cannot be documented as a sure and reliable fact. History, especially history from such ancient times, is very subjective and any evidence is tainted with hearsay, hunch, guesswork, assumption and supposition. History is not an exact science, which is why immemorial "prescription" cannot take longer than 100 years to become final and conclusive because no one will be alive to properly testify about the truth at this time.
Emerich de Vattel (1714-1767), one of the founding fathers of international law, wrote in an age when no international courts existed. Not for, at least, another 200 years where international courts of arbitration created sometime around the early 1900's. In other words, "prescription" operated and impacted deposed monarchs and dynasties for thousands of years completely independent and completely outside of any kind of court decree or verdict. (See the answer to question number nineteen (#19) in Part I entitled, International law is modern (created in the 16 hundreds), how can it apply to ancient kingdoms that existed ages before this time? Isn't it wrong to apply law that didn't exist to ancient cultures?"
[In] immemorial possession . . . [the] origin [or true legal status of the former deposed sovereign house] is unknown or uncertain [because of so long a period of time] and it is almost impossible [after such a long period of time] to prove its legality or illegality. . . . (Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 108)
That is, after 100 years, the transfer of rights, it is irrefutably presumed that the possessing sovereign had acquired sovereignty by a valid transaction.
"'Time immemorial' according to Littleton, as well as the Roman lawyers, meant `within the recollection of those living and what they had heard from others speaking from their own recollection.'" (Sir William Markby, Elements of Law, 4th Ed., Sec. 565, p. 277) In other words, there must be living witnesses and therefore 100 years is considered the end of the matter. That is, the derelict and neglectful sovereign house loses all rights and this determination is final and cannot be argued. All objections must be considered before this time. (See "Question #d" and ("Question #m" above) Vattel declared that:
. . . Immemorial prescription secures the possessor's right [the current "defacto" sovereign’s right to rule without question and it is] beyond the power of [ loss or legitimate challenge, that is, all excuses such as ignorance, fear, etc. no longer apply] . . . for, it affords a legal presumption that he [the current ruling government] is the [true and rightful] proprietor, as long as the adverse party [the "de jure" claimant] fails to adduce substantial reasons [or adequate evidence of protest before 100 years pass away] in support of his claim: and, indeed, [how could such] . . . be derived, since the origin [all proof] of the possession is lost in the obscurity [or uncertainty of the distant past and no longer exists] . . . [that is, all] means of proving [it valid by living witnesses has been] . . . destroyed by time. . . . Immemorial possession [possessing a kingdom for a long, uncontested, undisputed period of time over one hundred years], therefore, is [or creates] an irrefragable title [in other words, sovereign ownership that is impossible to refute or is indisputable], and immemorial prescription admits of no exception: both are founded on a presumption which the law of nature directs us to receive as an incontestable truth [truth that cannot be impeached]. (The Law of Nations, Book II, #143)
Stated in very strong language that is unmistakable "prescription" destroys all the royal and sovereign rights of deposed dynasties after one hundred years of neglect and abandonment. In other words, the only way a dynasty could protect and preserve its regal rights and privileges was, as stated, to continue to use their titles and arms and/or protest in every generation. Failure meant absolute loss and destruction. (See number seven (#7) in Part I on how to maintain royal and sovereign rights, "How does a royal family maintain their rights? What is required? What is the proper protest that is acceptable and protective?"
(46) I am not convinced that the exercise of the honours prerogative [use of royal titles and arms] is a sufficient step to constitute a "protest," as they comprise domestic powers, and would not necessarily be recognised in international law.
As a quick answer, Dr. declared that the consistent use of regal titles and arms is equal or equivalent to ". . . a series of competent protests [which] will keep a de jure claim alive indefinitely." This is "implicit" in the international law and domestic law has nothing to do with it. The acknowledgment or actual protest against a usurper can ". . . take may forms short of full diplomatic recognition." ("King and Constitution in International Law," The Augustan, vol 18, no. 4, 1977, p. 126) That is, full diplomatic protest is not the only way to protest the usurpation of defacto sovereignty. (See the answer to question number seven (#7) in Part I entitled, "How does a royal family maintain their rights? What is required? What is the proper protest that is acceptable and protective?"
It is believed that the question above is really asking, does international law apply to domestic, "de jure" sovereignty of deposed monarchs? Or, is this a domestic problem? Dr. Kerr answers this question. He states that:
Public international law recognizes that the inheritance of dynastic rights of succession to a usurped crown conveys a valid claim to Sovereignty over that Country. (See Hugo Grotius, De jure belli ac pacis libri tres, Book I, Chapter 4, Nos. 15-19; and Johann Wolfgang Textor, Synopsis juris gentium, Chapter 10, Nos. 9-11) (Stephen P. Kerr, "A Discussion by Prof. Kerr of the Original 1973 Analysis of the Disputed Bourbon-Two Sicilies Succession under the Doctrines of Public International Law, part 1:" http://web.archive.org/web
But he explains:
. . . de jure Sovereignty [that is, the sovereignty of deposed monarchs and legitimate governments in exile] represents the moral principle that "might does not make right," it [the deposed monarch] is [therefore] entitled to [full] recognition by other sovereigns [and all nations and all people] adhering to the moral [and ethical] principles implicit in International Law. ("King and Constitution in International Law," The Augustan, vol. 18, no. 4, 1977, p. 126: see: www.augustansociety.org/products/r28)
However, like most rules [for deposed "de jure" sovereignty] this [one] is usually observed in its breach [that is, in an unrealized form, such as, a broken promise] . . . in modern law. It is nevertheless, recognized as the Ideal [or what is both morally and ethically right]. (Ibid., p. 125)
"Implicit in International Law," means certain, definite or implied, rather than expressly stated, so it does exist in the law of nations, but it is usually ignored as unimportant. That is, once the usurping regime has obtained external "defacto" recognition, and perhaps external "de jure" recognition as well, that is all they want or care about. Thus, the former king or ruling prince is totally ignored. He is rarely considered to be a threat or a rival especially now-a-days. This is especially true since, "Resort to force is not allowed in today's international law." (Boleslaw Adam Boczek, International Law: A Dictionary, no. 219, 2005, p. 243) Nevertheless, dethroned monarch's right is real and authentic. He is the actual, true and rightful sovereign, on a "de jure" legal or internal basis, though he has no power or ability to obtain his former throne or rule the people of the land.
Both deposed monarchs and governments-in-exile are ignored, brushed off and hindered from making any progress in re-obtaining their former rule. There seems to be a strong bias against them, not in the law, but how it is applied or administered. "Prescriptive" principles give them rights, but only "defacto" states can bring a case of sovereignty before an international tribunal. In addition, the dethroned cannot legally use force of arms to obtain their thrones. All they have left is to continue to use their regal titles and arms, proclaim their rights, their history, their former glory and honor others with knighthoods occasionally to make it clear that they have not given up their rights. By doing so "prescription" cannot take their rights away from them.
However, in most cases, not involving the deposed, in the rules of "prescription," ". . . mere diplomatic protest is not sufficient. It must be followed by a reference to an appropriate international organization or international tribunal unless it is not possible to do so." (S. K. Verma, An Introduction to Public International Law, 2004, p. 121) Note the exception, "unless it is not possible to do so." It is simply "not possible" for deposed kings and sovereign princes to take their case to any competent court on earth nor would the United Nations take up such a claim. Exceptions have been expressed a number of times that protests are adequate under such circumstances. Note the following example:
From a perusal of these authorities it seems to emerge that a single and simple protest which is not followed up by further action cannot be regarded now as an adequate remedy for preventing indefinitely an historic title from maturing [that is, from preventing "prescription" from transfering sovereignty to a usurper]. Protests, according to the prevailing trend, will be sufficient [adequate or all that can be required] only in those cases where the circumstances were such that it constituted the only feasible method for the assertion of a state [king or sovereign prince or their successors] of its [or their] rights. (Yehuda Zvi Blum, Historic Titles in International Law, 1965, p. 160)
Hence, in spite of the fact that, "Since 1919 it was reference of the matter to the League of Nations or the Permanent Court of International Justice [that effectively stopped 'prescription']. [And] since 1945, it has been, where possible, reference of the matter to the United Nations or the International Court of Justice," which was needed to stop "prescriptive" transfer of sovereign rights, if this is not possible, as in the case of a deposed royal house, the new requirements cannot be applied to them. It is only "where no such action was possible" that this would be required. (D. H. N. Johnson, "Acquisitive Prescription in International Law," British Yearbook of International Law, vol. 27, 1950, p. 346)
Emer de Vattel, being aware of the plight of many such claims where prosecution is impossible, where it is, in fact, blocked or very effectively thwarted, declared that:
It is also very evident that we cannot plead prescription [loss of rights] in opposition to a proprietor [the former deposed monarch, king or sovereign prince] who, being for the present [or for a long time is hindered and] unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient to show that it is not his intention to abandon it. Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty . . . as an evidence that they do not relinquish their claims to it. (The Law of Nations, Book 2, chapter 11, no. 145)
This is actually their only option; and it is where what is "implicit in International Law" kicks in with what is ethically and morally right to protect the the deposed, who have been unlawfully robbed of their rights. "Title based on prescription without acquiescence [consent] of the former owner [who protests as required by law] is akin to title based on conquest [using coercion or force]." (Lowell S. Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands, 1988, p. 35) In law, what is forced or is under duress, is illegal. It is not only reprehensible, but it is null and void. That is, "might does not make right." Nor does it make it legal. "Prescription" cannot be applied to the deposed who have no other option, but to object by ineffective means. In their situation, "Protests are sufficient to avoid prescription. . ." --- the loss of sovereignty and royalty, especially when "it is not possible" for them to do anything else. (Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12) For a deposed monarch, retaining one's "title and arms" is the recognized "protest" and it provides an unmistakable notification to the world that those rights are not given up, surrendered or lost.
As a result, "The absent sovereign remains the de jure government of the country [even though they are never officially or even unofficially recognized as such]." (Oppenheimer, "Governments and Authorities in Exile," American Journal of International Law, p. 571) (Hersch Lauterpacht, C. J. Greenwood, International Law Reports, p. 559) However, as stated before, just because one has a right does not mean that that right will ever be enjoyed. But the dormant right of sovereignty is a wonderful privilege, unique, rare and exclusive, such that, few will ever share in it. Nevertheless, the "defacto" privilege may be gone forever:
For example, a man may violate your right to your property by taking it away from you, but your right to that property has not been alienated [you still hold the right], i.e., you are in the right and the robber is in the wrong. (www.capitalism.org/faq/rights.htm)
But this robbed person still may never get his property back again. The legitimate and authentic deposed royal houses, who have kept their rights alive, may never get their thrones back, but they can legally and lawfully keep their ancient honors and enjoy real sovereignty and royal honors even if it is only an inactive/dormant basis; because, and this is important:
De jure [internal, non-territorial, deposed] Sovereignty [ of kings or sovereign princes] lasts as long as the claimant keeps up his protest against the usurpation of his Sovereignty [and royal rights]. This is done by means of diplomatic protests. Such diplomatic protests are issued on the death of one claimant upon the occasion that the new claimant takes up the claim." (Dr. Kerr letter January 21, 2010)
Remember that under "implicit" International Law, the use of regal titles and arms is enough as a minimum to keep the claim alive without end or endlessly if it is consistently maintained. (op.cit., "King and Constitution in International Law") Otherwise, all rights are lost by immemorial "prescription" after 100 years, and are irretrievably forfeited to the end of all time. The once royal family then become commoners with no special rights beyond anyone else on earth, that is, all they have left is a memory of their once royal and regal family nature.
It is quite obvious in theory, in principle on both an ethical and moral standing as well as being "implicit in International Law" that deposed kings and sovereign princes, and their rightful heirs, may premanently perpetuate their internal, "de jure" sovereign rights forever. But are there any judicial confirmations of such other than the writings of some jurists and legal scholars? Has any court of law anywhere on earth actually ever sustained these principles as binding and active in our own time and age. The answer is a powerful, "yes." For details, please see the answer to question numbers fourty-one (#41) and fourty-two (#42) of Part II entitled, "Are there any court decrees that sustain the rights of deposed kings or recognize their 'de jure' internal sovereignty as genuine and never ending?" and "But didn't some expert say the Italian Courts are unreliable and made bad decisions?"
(47) International law is "vague and uncertain" and "the actual application of the principle [of prescription] is extremely uncertain." "Thus, whether an exiled ruler is still the head of state of a country is not clearly a question of prescription at all." What do you have to say about that?
The author of these statements also admitted that, "In principle international law recognizes extinctive prescription, where one sovereign state loses pre-existing rights to another, through failure to assert them." (January 11, 2011 e-mail) So there is both a recognition of "prescription" or the permanent loss of royalty "in principle," and a acknowledgment of problems with it in the current practice international law. This needs to be explained. First, since the answer to this question is, in part, answered above in question number fourty-six (#46), please read it first, then come back and finish reading the following explanation for this question.
But before we go on, the phrase "in principle," needs to be defined. It is:
. . . an accepted or professed rule of action or conduct . . . a fundamental, primary, or general law or truth from which others are derived . . . a fundamental doctrine or tenet; a distinctive ruling opinion . . . [a] guiding sense of the requirements and obligations of right conduct . . . a determining characteristic of something; essential quality. . . . (http://dictionary.reference.com)
So when this author declared that, "In principle international law recognizes extinctive prescription, where one sovereign state loses pre-existing rights to another, through failure to assert them," it means that this is a fundamental truth that is rock solid.
However, much of international law is not codified or reduced to a definitive and specific code, but has been left in a "vague and uncertain" level to be flexible. One author even went so far as to declared that "international law can mean anything, like beauty which is in the 'eyes of the beholder.'" (Dr. Putnam B. Porter: www.womensgroup.org/INTERLAW.html) This particular political scientist concluded that since "international law is largely based on custom," and customs can be broken or have no real force behind them, therefore, international law is always in a state of flux. (Ibid.) It is a work in progress. In fact, flexibility goes very deep to the point ". . . that there is no hierarchy of sources in international law, and customary law and conventions may freely interact and influence, one another." (Mark Eugen Villiger, Customary International Law and Treaties, 1985, p. 292-293) Why?, because ". . . jus scriptum, namely codification, 'freezes' or immobilizes law." The results is a "straight-jacket" of "inflexibility." (Ibid.) For this reason, flexibility is a governing principle, not exactness and precision. The point here is, "The rules of international court are indeterminate and vague compared to those of their national counterparts." (Gernot Biehler, Procedures in International Law, 2008, p. 42) In other words, ". . . the liberty [is given to the International Court of Justice] to decide ex aequo et bono ("in justice and fairness"[rather than by rules or codes]), granting the ICJ the freedom to make an equitable decision based on what is fair under the circumstances [instead of what the law suggests]." (http://en.wikipedia.org/wiki/International_Court_of_Justice) With such fluidity, no wonder international legal experts can disagree at times.
The statement that "the actual application of the principle [of prescription] is extremely uncertain" is both true and untrue at the same time. It depends on one's perspective or the theoretical framework from which one views a situation.
There is nothing uncertain is such statements as the following. As quoted earlier, in a chapter entitled, "Of the Way of Acquiring Sovereignty especially Monarchical," Samuel Pufendorf (1632-1694), another one of the founding fathers of international law, states that "prescription" is one of the ways of losing dynastic sovereignty to a usurper. He declares that, ". . . the rightful Prince shall labor to reduce the Rebels to Obedience or at least by solemn declaration shall protest and preserve his right over them; till by long Acquiescence and silence he may be presumed to have given up his claim [which is neglect or legal abandonment which causes a permanent and irretrievable loss of royal and sovereign rights]." (Of the Law of Nature and Nations, Jean Barbeyrac and William Percivale trans., Book VII, chapter 7, no. 5, p. 577) In other words, ". . . In a hereditary monarchy, the right to rule remains with the royal descendant until he has lost it through the long process of prescription." (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 444) These facts resulted in the forfeiture under international law of sovereign rights for thousands of deposed royal houses throughout the centuries.
However, in our day and age where such things hardly ever occur, it can appear that "prescription" only involves small territorial or border disputes and never involves whole nations or dispossessed dynasties. But in the days of kings, when monarchy existed in practically every nation on earth, the above rules prevailed. So from a more modern perspective, such things seem "extremely unlikely." But in the days of the kings, it was a common experience and very well known to the people of that time.
A good example of the above, is the fact that a "proprietary" king or sovereign prince could actually sell that sovereignty, that is, sell the whole kingdom or principality to another person. This was quite common in the medieval ages, but such would obviously be "extremely unlikely" in modern times or at least unheard of. (See the answer to "Question #p" above, "I read that dynastic rights cannot be sold" and the answer to question number thirty (#30) in Part II entitled, "Some experts believe that monarchs could never cede, sell or alienate their realms." The same is true of the "prescription" of whole nations and the total loss of all a monarch's rights if he fails to maintain them. It is just unknown in an age of republics except in regard to governments in exile, whose "de jure" internal sovereignty is fundamentally similar to that of dispossessed monarchs. (See the answer to question number nine (#9) in Part I entitled, "Some claim that "prescription" is territorial only, not for whole nations or kingdoms. What do you say?")
The statement "whether an exiled ruler is still the head of state of a country is not clearly a question of prescription at all" can be accepted on an external international legal basis because of the general principle that international law should not interfere or meddle with the domestic internal affairs of any nation; or, it can be looked at through the lens of the fact that international law does impact internal domestic affairs on a regular basis. Even from the very beginning this was so. For example, the 1648 Treaty of Westphalia removed the right of sovereigns to restrict religion in their domestic domains. That was a loss of a domestic sovereign right. (For more information on how international law covers internal domestic affairs, please see the answers to questions number sixteen (#16) and seventeen (#17) in Part I entitled, "Does international law have the power to limit domestic internal sovereignty, which is the highest secular power on earth?" and "How can sovereignty be both limited and absolute at the same time" Isn't this a contradiction in terms?")
"Prescription" regularly destroyed the rights of neglectful deposed monarchs, who acquiesced, gave in or failed to keep protesting the illegal and wrongful takeover of their kingdom or principality. It still has that power today. It is not merely a moral principle, it is a legal fact that is "implicit in International Law" as declared by Dr. Kerr. (op.cit.)
(48) I think you may have confused dynastic law with international law. Aren't they different? And what are the implications of that difference on deposed monarchs and their dynastic rights?
The short answer is the two are inseparably connected, yet they are also unique to each individual situation. Deposed royal houses may or may not have a written or even unwritten set of house rules, which may be superseded, altered or influenced by the constitutional or domestic law of the nation before they were ousted. Now, we need to go into specifics.
First, it should be very clear that the usurping and subsequent nation, probably a republic does not have any authority over the rights of the deposed monarch, and his successors, who they dethroned as far as their "de jure" and rightful sovereignty goes. International law by "prescription" preserves and protects the internal legal right to rule even though the illegally dispossessed royal or imperial house no longer has any control over their former lands and its people. The republic may restrict the use of titles and arms or whatever they see fit, but this does not have any impact on the legal legitimacy and rightfulness of their "de jure" sovereignty nor does it have any lawful effect on anything beyond the borders of that nation. Everything outside the boundaries of their territory are outside of their jurisdiction. Neither can they make laws by their current "defacto" control of the nation that can rob the past of its lawful rights. That is, they cannot by their domestic law cheat the deposed ruler out of his internal domestic right to rule. Sovereignty of this nature is the exclusive domain of international law for a deposed dynasty or government is exile, which will be explained shortly.
Although international law does have jurisdiction through "prescription" on the "de jure" sovereignty of the dispossessed, other counties individually do not. As Emer de Vattel declared:
When an unjust conqueror, or any other usurper, has invaded the kingdom, he becomes possessed of all the powers of government when once the people have submitted to him. . . . [This is called "defacto" internal sovereignty.] Other states, as having no right to intermeddle [or interfere] with the domestic concerns of that nation, or to interfere in her government, are bound . . . to look no farther than the circumstances of actual possession. They may, therefore, broach and conclude a treaty of peace with the usurper [the new government]. [But] they do not thereby infringe the right of the lawful sovereign [the deposed monarch or his rightful successor, who owns and possesses internal "de jure" non-territorial sovereignty --- the right to rule the country]: it is not their [other countries] business to examine and judge of that right: they leave it as it is [they remain neutral], and only look to the possession in all the affairs they have to transact with that kingdom [or nation], pursuant to their own rights and those of the nation whose sovereignty is contested [by the ousted royal house]. (Emer de Vattel, The Law of Nations, Book IV, chapter 2, no. 14)
So other nations individually do not have any jurisdiction one way or another on the legitimacy of a former monarch or an ousted government in exile. They may give political recognition to them as took place in World War II, but their recognition has no legal significance one way or the other.
Phillip Marshall Brown, a distinguished international lawyer, wrote on the sovereignty of kings and princes in exile, living in England, who had been robbed of their right to rule their own territories during World War II by the illegal Nazi occupation of their countries, he stated that:
A nation is much more than an outward form of territory and government. . . . So long as they [those who hold sovereignty] cherish sovereignty in their hearts their nation [kingdom or principality] is not dead. It may be prostate and helpless. . . . [It] may be suspended, in exile, a mere figment even of reality, derided and discouraged, and yet entitled to every respect. [Why? Because we are] not dealing with fictions, [these] valiant standard bearers of sovereignty . . . in faith and confidence [have, and this is the point] . . . inalienable, immutable rights. ("Sovereignty in Exile," 35 American Journal of International Law, 1941, pp. 666-668) (http://links.jstor.org/sici?sici=0002-9300(194110)35%3A4%3C666%3ASIE
Dr. Brown went on to say, "The general conclusion we are warranted in reaching is that . . . their sovereignty, even though flaunted, restricted, and sent into exile, still persists. . . ." (Ibid.) Now, the qualifiers need to be added so a false impression is not created. The deposed must take responsibility to maintain those rights. If they neglect them, they lose them --- all according to the ancient rules of "prescription," which comes down to us from antiquity. (See the answer to question number (#19) in Part I on the ancient and modern use of "prescription")
Now the connection between international law and dynastic law needs to be elaborated to show how its impacts sovereign houses both reigning and non-reigning. First, we will show that this connection exists and that it is binding by "prescription" over dynastic houses. Dr. Stephen Kerr declares:
The rules of International Law [govern] the various modes of monarchical succession as well as the . . . position and status of unlawfully dethroned Sovereign Houses. (Stephen P. Kerr, "Resolution of Monarchical Successions Under International Law," The Augustan, vol. 17, no. 4, 1975, p. 979)
Note that international law governs or has jurisdiction over the "position and status of unlawfully dethroned Sovereign Houses." The way this takes place is through "prescription." Even the preservation of the succession of sovereignty is dictated by “prescription." That is, "When monarchs claimed to rule legitimately and lawfully by heredity, by inheritance, by marriage contract, etc. . . . . such claims are conventionally labeled as 'prescriptive.'" (Robert H. Jackson, Sovereignty: Evolution of an Idea, 2007, p. 62) This understanding is so clear and unmistakable that, ". . . It might almost be said that prescription, not dynasticism, [prescription rather than dynastic law] provided the original rule [key or understanding ] of legitimacy."(Martin Wight, "International Legitimacy," International Relations, vol. 4, April 1972, pp. 1-28)
Under the subtitle of "Dynastic Rules of Succession as Public International Law," the author of the book The Myth of 1648 states:
Given the vagaries of family dynastic relations, the fixation of rules of succession and inheritance became a matter of international concern; their internationally recognized codification was a form of preventative action. . . . In this context, 'private' family law [of a dynasty] became part and parcel of not only constitutional but also international public law. (Benno Teschke, 2003, p. 227)
This meant taking power and rights away from individual monarchs and ". . . investing it in codified laws of succession. . . ." (Ibid.) However, these ". . . succession rules and partition schemes were often secretly agreed upon. . . ." (Ibid., p. 229) Shrouded or not, these ". . . succession rules formed the 'hidden' . . . 'public' international law.'" (Ibid.) They were designed to prevent further wars and bloodshed and stabilize the whole continent of Europe. This was international law in action.
International law was thus originally ". . . directed at the conduct of Sovereigns. . . ," that is, to their internal sovereignty rights and privileges as they so powerfully altered international stability and continuity either for the better or the worse. No wonder international law applies to them so specifically and even curtailed their rights or preserved them through "prescription" and other requirements. That is:
The old (16th and 17th century) debates about sovereignty [by the founding fathers of international law] concerned principally with questions of internal sovereignty (e.g. who has de jure [that is, rightful legal] authority over whom within a political society, the limits of political authority [also defined as internal], etc.) (A. John Simmons, "On the Territorial Rights of States," Social, Political, and Legal Philosophy, Earnest Sosa & Enrique Villanueva, eds., 2001, pp. 977, 320)
"Civitas sidi princeps" was a "construct of prescription" from the 15th and 16th Centuries. (Magnus Ryan, "Bartolus of Sassoferrato and Free Cities," Transaction of the Royal Historical Society, vol. 10, 6th series, 2000, pp. 77-78) It was an elaboration of the rules of "prescription" to protect the sovereign rights of free republican cities and princes from the Holy Roman Emperor. From this doctrine came the famous saying, that "a king . . . is emperor of his kingdom." (Joseph Canning, A History of Medieval Political Thought, 300-1450, 1996, p. 169) It proclaimed that the long and undisputed exercise of sovereignty or "imperium" within the principality or free city transferred all the rights to rule to the prince or government of that city by right of "prescription." This left the Holy Roman emperor without any real or direct sovereignty over them except as suzerain. In other words, he legally lost the royal prerogative by neglect, silence and acquiescence. Importantly, "civitas sidi princeps" like "prescription" today, ". . . addresses what modern parlance terms problems of internal sovereignty, not those of external [or outward] sovereignty." (Magnus Ryan, "Bartolus of Sassoferrato and Free Cities," Transactions of the Royal Historical Society, vol. 10, 2000, p. 79) (Walter Ullmannn, Jurisprudence in the Middle Ages, 1980, p. 66) Internal sovereignty is very important, because, as stated a number of times, it is the sovereignty of both reigning and dispossessed monarchs and their successors. It is the "de jure" internal sovereignty right that is modified or transferred by "prescriptive" juridical powers.
The principles of International Law relating to monarchical succession [for reigning and deposed monarchs] were codified in the definitive works of Hugo Grotius (Father of modern International Law), Emerich Vattel (second in authority to Grotius), Samuel von Puffendorf (noted for his works regarding Sovereigns in International Law), Johann Wolfgang Textor, and Christian Wolff. In our own day there is Professor J. H. W. Verzijl's monumental nine-volumn treatise on International Law, International Law in Historical Perspective, which treats the application of International Law in great depth, and the works of Henry Wheaton, the most outstanding U. S. international lawyer of the last century. (Stephen P. Kerr, "Resolution of Monarchical Successions Under International Law," The Augustan, vol. 17, no. 4, 1975, p. 978)
International law and dynastic law are connected and "prescription" both protects rights and destroys rights.
(49) "Prescription" has existed as an international principle of justice for thousands of years. Its edicts where binding juridically without a court system in place for most of the generations of mankind. How, then, did the ancients apply it when there was a conflict and disagreement over the right to rule.
Conflict is a normal occurrence in life. Disagreement is a norm --- a common experience. However, conflicts can have devastating far-reaching consequences if not solved in a productive way. "In the absence of an international court of family law, the inheritance struggle [of dynasties] turned into a European-wide military conflict [impacting thousands and thousands of lives]." (Benno Teschke, The Myth of 1648, 2003, p. 229)
Conflicts could be solved in a number of ways: war where everyone loses and one wins at the expense of the thousands others, having the outcome settled by who wins in a conflict of champions chosen by two opposing kingdoms, submission where one country takes its lumps, treaty through diplomats, or by arbitration as there were no courts of international jurisdiction. In the case of immemorial "prescription," after 100 years, the outcome was considered to be final and conclusive and no new evidence after that time was admissible. Nor could the case ever be rebuttled. It had the highest finality of law that can be evoked. Emer de Vattel explains:
Immemorial possession [possessing a kingdom for a long, uncontested, undisputed period of time—hundreds or thousands of years], therefore, is [or creates] an irrefragable title [in other words, sovereign ownership that is impossible to refute or is indisputable], and immemorial prescription admits of no exception: both are founded on a presumption which the law of nature directs us to receive as an incontestable truth [truth that cannot be impeached]. (The Law of Nations, Book II, #143)
Immemorial possession [by the usurper] is legally presumed to have survived all proof of title on either side. . . . . [It is] considered as resting upon . . . a peremptory rule [that is, one which is "absolute and final, not entitled to a delay or reconsideration," which are part of] the law of nations. . . . (Richard Wildman, Institutes of International Law, vol. I, 1850, p. 51)
"Centennial [100 years] or immemorial possession gives rise to a presumption in law of iuris et de jure. . . ." (Alan McCormack, The Term "Privilege": A Textual Study of Its Meaning and Use in the 1983, 1997, p. 336)
Where the[re] is juris et de jure, the law . . . forbids the admission of counter-evidence. The inference (for it is absurd to call it a presumption) is conclusive. That is to say, proof to the contrary is inadmissible. (John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, vol. 1, no. 698, 2009, p. 347)
". . . 'Immemorial possession,' according to which possession for more than 100 years is presumed to be based on legitimate title, even without documentary proof." (Foreign and Comparative Government, The American Politicial Science Review, vol. 50, no. 2, June 1956, p. 577) In other words, outside of court after 100 years, the conclusion is final and cannot be rebuttled, and no proof is necessary as "juris et de jure" takes full effect and make. "Juris et de jure" means by definition, "conclusive presumptions of law [not of court, but of law] which cannot be rebutted by evidence." (www.lectlaw.com/def/j050.htm) Court decrees or verdicts do not dictate the outcome of "prescription." No international court existed until the early 1900's. For thousands and thousands of years, "prescription" has been legally or juridically binding and conclusive and no court had anything to do with it. Even in modern times, ". . . there is no requirement [in international law] to refer a dispute to international tribunals or other settlement mechanisms. (Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12)
In addition, deposed monarchs and governments in exile have no standing is such courts. They cannot bring a case or be a party before an international court or arbitration tribunal. So not only is court unnecessary for "prescription" to take effect to both protect and preserve rights and, on the other hand, to forfeit them, but no opportunity exists for the dispossessed to reclaim their rights. They cannot legally re-conquer and demand their rights. They cannot go to court over them. They are effectively severed from justice, one of the most important things in life. They are robbed and cheated. The only thing they have left --- the only recourse a legitimate deposed royal house has is that they can maintain and keep their "de jure," non-territorial, internal rights alive perpetually from generation to generation by effectively protesting.
So we are back to the original question. What if there is still a major conflict? First, legally, the royal house which failed to protest after 100 years, has irrevocably lost all their royal rights. No evidence is admissible. It can no longer be argued. It is a done deal. Juricially, the usurper has all the rights to sovereignty. At this point, it is legally mute to argue this. No rightful sovereignty exists any longer in the negligent and derelict former royal house, which judicially abandoned their intangible property by silence or legally binding acquiescence.
But what if they still complain and say it is unfair and unjust? Well, legally, they do not have a leg to stand on, but it is their right feign rights that they do not have. It is their right to impersonate and mislead others, but when money gets involved, criminal fraud can be attached to the deceit. This makes it a major crime. Sooner or later every foundation is exposed for what it really is. Falsehoods are falsehoods and should be exposed and shunned for the benefit and protection of innocent, unsuspecting people, who are hood winked and bedazzled by deceivers.
But what did the ancients do? The ancients could institute acts of war, which was done. They could use "Prescription" to demand their just rights, but like any rights or entitlements, it is not always honored. International law in ancient times as in modern times was binding, but is still voluntary. No enforcement mechanism existed except to declare war. There was another possibility, but it was still voluntary. That is, other than having two champions fight and see who wins, there was arbitration. "Arbitration is a very old method of settling disputes between people and even disputes between different nations." (Robert V. Massey, Jr., History of Arbitration and Grievance Arbitration in the United States, p. 1: www.laborstudiesandresearch.ext.wvu.edu/r/download/32003)
No one knows exactly when arbitration got started but it was long before the twentieth century as many workers wrongly believe. King Solomon was an arbitrator. Philip the Second, the father of Alexander the Great, used arbitration as a means to settle territorial disputes arriving from a peace treaty he had negotiated with the southern states of Greece as far back as 337 B.C. In England, arbitration is older than the common law system, which our United States courts later inherited. In fact, England used arbitration as a common means of commercial dispute resolution as far back as 1224. In ancient Rome arbitration was one of the preferred methods of settling disputes and was the preferred method of settling commercial disputes in the Middle Ages. Long before the white man ever arrived in what is now the United States early Native American tribes used arbitration as not only a means to resolve disputes within the tribe but also as a means to resolve disputes between different tribes. George Washington, our nation’s first president, had an arbitration clause in his will that basically stated that if any dispute should arise over the wording of the document that a panel of three arbitrators would be implemented to render a final and binding decision to resolve the dispute. President Washington stated that he considered any arbitration decisions rendered from his will to be as final and binding as is any decision of the Supreme Court of the United States. (Ibid., p. 2)
However, a king, sovereign prince, state, kingdom or principality must ". . . voluntarily consent to submit themselves to a verdict of one or more umpires chosen by themselves for that purpose." (Lassa Oppenheim, International Law: A Treatise, vol. 2, 1906, p. 15) Being voluntary, of course, means it is not necessary to "prescription" or any other conflict. In modern times, there a permanent arbitrary court has existed since the early 1900's, but it is not available for use by any deposed monarch or governments in exile. Deposed monarchs and governments in exile have little political clout and no legal recourse or power to do anything, but maintain their rights. No court or arbitration can change this, but a legitimate dispossessed king or sovereign prince can continue to make protests by using their titles and arms and thus keep their rights alive.
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. (Stephen P. Kerr, "Theoretical Basis for and Functions of Non-Territorial and De Jure Sovereignty," Master of Laws thesis for George Washington University, 1977, p. 166)
(See the answer to question number fourteen (#14) in Part I: "Is court or arbitration necessary to effect the loss of sovereign rights for a deposed monarch?")
(50) When the usurper is recognized by the world as the legal government, it seems to me that "prescription" is unnecessary and useless, because the world has already made the usurping government legitimate.
To understand the answer to this question, one must first understand that that there are four different types of sovereignty. In other words, "When analyzing the internal and external aspects, it is important to acknowledge that there exists both de jure and defacto sovereignty [as well]." (Matthew Derrick, "Revisiting 'Sovereign' Tartarstan," USAK Yearbook of International Politics and Law, 2009, p. 295) There is (1) Internal "de jure" and (2) internal "defacto" as well as (3) external "de jure" and (4) external "defacto" sovereignty. The sovereignty impacted by "prescription" is internal and "de jure" or legal sovereignty. It is the sovereignty of deposed monarchs and governments in exile. Worldly or political recognition of the usurper is always either external "de jure" and external "defacto" or both. The point being that recognition by the world is a totally different dimension or type of sovereignty and has no relationship or connection to the sovereignty of deposed monarchs and governments in exile. Therefore:
. . . The recognition of a usurper by foreign powers does not destroy the rights of the legitimate sovereign of the country. Such a recognition is nothing more than saying as the usurper is peaceable master of the country he governs, we may venture to treat him as a neighbour; but this is far from guaranteeing his right to the throne he [the usurper] possesses [illegally by plunder or rebellion]. (General View of the Political State of France, and of the Government of Louis XVIII, 1815, p. 9)
In other words, internal sovereignty is unaffected by outside recognition. (See the answers to numbers five (#5) on legality and number (#15) on "prescription" and internal sovereignty in Part I.) Internal "de jure" sovereignty can last forever if maintain, or irretrievably lost to the usurper:
In speaking of the usurpers of a throne, writers on the Laws of Nations . . . Grotius, Puffendorf, Suarez and Navare, [contend] that une possession seculaire is sufficient to remove the blot [of usurpation], because, in the lapse of one hundred years [immemorial prescription], all the guilty are supposed to be dead and the punishment duly inflicted by a Supreme Power [that is, by God]. This is the general principle of prescription, in public matters. . . . (William Walton, A reply to the "Exposé des droits de sa majesté très fidèle, Donna Maria II, 1830, pp. 148-149)
The internal "de jure" sovereignty of a deposed monarch can be lost in 100 years or less. (See the answer to number thrity-three (#33) in Part II, which explains more about this loss and the time it takes.)
(51) Aren't the political sovereign qualities of jus imperii and jus gladii, the only things lost by prescription? I believe I read that jus majestatis and jus honorum last indefinitely. Is this accurate?
First, legal sovereignty ("de jure" internal) and political sovereignty ("defacto" internal) are two different things. ". . . Political sovereignty is not absolute, since the ruling element in the State, however powerful, is never strong enough to be absolute in all things." (The New International Encyclopaedia, Daniel Coit Gilman, Harry Thurston Peck, and Frank Moore Colby, eds., vol. 18, 1906, p. 378) Political power will always be limited, incomplete and imperfect in some way or another. It is also divisible. It can be divided up between judicial, legislative and executive branches. It is best described as raw power. It is "defacto" or the actual use of government power by political means. Legal sovereignty, on the other hand, is all about legal rights and entitlements divorced or separate from power. It is called "de jure." It may or may not have the political clout to do anything, but it has the legal and lawful right to rule and reign forever. ". . . All governments whether monarchical, aristocratic or democratic in form, are [domestically, internally and legally] absolute." (Ibid.) However, unlike political sovereignty, legal sovereignty is supreme and indivisible, but they only hold the right, not necessarily the "de facto" power to do anything. (See the answer to question number seventeen (#17) in Part I, "How can sovereignty be both limited and absolute at the same time? Isn't this a contradiction in terms?")
Sovereignty consists of four different aspects or factors all of which are essential to true sovereignty:
1. Jus Imperii, which is the right to command;
2. Jus Gladii, which is the right to impose obedience to command;
3. Jus Majestatis, which is the right to be honored, respected, and protected; and
4. Jus Honorum, which is the right to reward and honor merit and virtue.
(Stephen P. Kerr, "A Factual and Juridical Study of The Dynastic Orders and Awards of the Habsburg Monarchy," Chivalry, 1986, p. 33)
If a dispossessed royal house only has "jus majestatis" and "jus honorum," they merely have what every human being on the earth has and nothing more. It is not supreme, because the last two rights are "private in nature," and anyone on earth can hold those rights: "jus imperii," "jus gladii," "jus majestatis" and "jus honorum." For example, by Article I of Protocol 1 of the European Convention on Human Rights, all people should "be honored, respected, and protected," also, all people have a right "to reward and honor merit and virtue." (Ibid., p. 35) Organizations such as the Rotarians, churches, the Boy Scouts and private charitable organizations all give out awards for merit. Individuals can do so as well. Hence, if a deposed king, or his successors, only has "jus honorum" and "jus mahestatis," he has nothing more than any other commoner or organization has the right to do. "The legal right to make and receive private awards is protected by Article 11(1) of the European Convention on Human Rights guaranteeing `freedom of association.'" (Ibid.) In fact, a commoner could legally give out bogus knighthoods in the name of any ancient kingdom he wants; and in most, if not all, countries he could do so legally. They would have no legitimacy, but the freedom or legal right to do so is there. If a king or sovereign prince only had this power (to honor and be honored), he would not be royal, sovereign or special in any way. He would merely be a normal citizen. He would not have any supremacy or supreme rights.
However, an authentic and genuine "de jure" non-territorial sovereign is much more than a private citizen. To have the supreme incorporeal or intangible right of sovereignty means the deposed has all four entitlements. Otherwise, he does not have "de jure" or legal sovereignty at all. A deposed sovereign, who has kept his rights alive by protest, has supremacy above all other people on the face of the earth for the ancient territory of his family's former throne and rightful crown. Legal sovereignty is absolute. If one right is missing, then no sovereignty exists. The point is, ". . . absolutes don't exist in degrees. You can't be partially pregnant, sort of dead, kind of human, or almost sovereign. These are not absolute conditions." (reference unknown) You either have legal "de jure" sovereignty or you do not. It is all or nothing when it comes to this priceless quality.
A deposed king or sovereign prince can legally hold all the four rights of legal domestic or internal sovereignty as defined above, and it can be genuine, but still not have any political sovereignty or power over the territory. The usurper may have all the "defacto" or political authority to rule.
Of course, the first two, "jus imperii" and "jus gladii" are dormant or inactive, because the deposed is no longer in control of the territory of his forbearers, but the legal right, the entitlement to them, is inalienable and forever. An important qualifier must be added here and never forgotten; that is, this is true only as long as the royal prerogatives are properly maintained by the juridical legal principles of international "prescription," and if they are, they never end. Otherwise, they are irretrievably lost by the same rules of justice and law. The expression "use it or lose it" applies, because a deposed monarchy must use their titles and arms as a minimum or entirely forfeit their regal rights. (See the answer to question number thirty-one (#31) in Part II on what inalienable actually means.)
This is extremely important, because royalty rights and sovereign rights are inseparable.
These rights [the right or royal prerogative of granting noble titles, honors and knighthoods] are ingrained in [that is, inseparably connected to] the concept of sovereignty. . . . In fact, they form an authentic [or true and genuine] 'privilege,' which cannot have any theoretical justification [or legitimacy] outside of 'sovereignty'. . . . (www.consiglioaraldico.com/eng/3/index.php)
Sovereignty is extremely important to the future of nobility and royalty.
(52) What is the standard required for a protest to overcome the presumption of acquiescence, and therefore the loss of all royal and sovereign rights?
In Island of Palmas Case, Clipperton Island Case, Case Concerning the Temple of Preah Vihear, and Case Concerning the Territorial Dispute, the tribunals ruled that a failure to protest the opposing state's sovereignty claim to disputed territory led to a presumption of acquiescence. In Chamizal Arbitration, Legal Status of Eastern Greenland, and Fisheries Case, the tribunals concluded that protests were sufficient to preserve the state's claim to the territory. (Jon M. Van Dyke, "Who Owns Tok-Do/Takeshima? Should These Islets Affect the Maritime Boundary Between Japan and Korea?," p. 17: www.kmi.re.kr/data/seminar/20041004-01.pdf)
For example, ". . . In the Champizal Arbitration, [it was held] that 'possession maintained in the teeth of constant opposition did not amount to prescription.'" (Husain M. Albaharna, The Legal Status of the Arabian Gulf States: a Study of their Treaty Relations and their International Problems, 1968, p. 191) In other words, it completely prevented it. In other words, "In the view of many writers, protest estops [completely prevents] the operation and continuity of adverse holding [or prescription]." (C. C. Hyde, International Law Chiefly as Interpreted and Applied by the United States, vol. 1, 1945, p. 387)
However, no clear cut criterion or rule was formed except for the general recognition that protests block "prescription." There is disagreement over this, however. "Some scholars, for example, argue that diplomatic protests are per se sufficient. Others believe that firmer measures are needed to abrogate a prescriptive claim. . . ." (Ibid., p. 18)
What then suffices to prevent possession from being peaceful and uninterrupted according to "prescription?" The answer is clear: any conduct indicating a lack of acquiescence --- an action that suggests that the claim is continuous, determined, solid and unending.
For deposed sovereigns, Dr. Kerr recommends additional actions beyond the use of the exalted titles and arms of a sovereign prince. He suggests "when appropriate, recognizing worthy individuals with knighthoods and other decorations or honor at their command" further confirms their royal status as active members of the international community and as rightful heirs to their former "defacto" thrones. ("King and Constitution in International Law," The Augustan, vol. 18, no. 4, 1977) Other actions that indicate a lack of acquiescence could be giving talks, creating a museum of the history of the royal house, writing a book on the dynasty's history and the successor's rights, making clear and unmistakable declarations, etc. It must be unquestionable to all that abandonment has never taken place to be truly safe against the threat of the legal presumption of extinctive "prescription."
"Scholars tend to agree, however, on the importance of attempting to bring the matter before an international tribunal." (op.cit.) However, ". . . in cases where no such action [is] possible --- [such as with deposed monarchs and their legitimate heirs, those who] have failed to manifest their opposition [by protest and/or the consistent use of their titles and arms] in a sufficiently positive manner . . ." --- permanently lose all their rights in a way that is conclusive, final and irreversible. ("Acquisitive Prescription in International Law," British Journal of International Law, vol. 27, 1950, p. 353)
(53) "Prescription" has been around for thousands of years destroying the rights of deposed monarchies throughout the centuries and millenniums of human history.
The kind of sovereignty destroyed by "prescription" throughout history has almost always involved royal families or whole dynasties, because monarchs have ruled the world since the beginning of time. No other form of government has been so numerous and extensive. And no court or tribunal settled these "prescriptive" claims as there were no international courts or tribunals in ancient days. International arbitration did not begin until about 1900 AD. But sovereignty and "prescription" have been around since, at least, 1000 BC and perhaps longer. "Prescription" rightfully took all the rights, the claim of being legitimate and rightful, away from those who neglected and therefore tacitly abandoned or discarded those rights. (See the answer to number nineteen (#19) in Part I for details, it is entitled, "International law is modern (created in the 16 hundreds), how can it apply to ancient kingdoms that existed ages before this time? Isn’t it wrong to apply law that didn't exist to ancient cultures?")
The point is, "It cannot be seriously doubted, that continued firm possession, especially if practically undisputed by force, is sufficient to create sovereign title. . . ." (Henry Wheaton, Elements of International Law, eighth ed., Richard Henry Dana, ed., note 101, 1866, p. 239) Wheaton then declares that this rightful prescriptive sovereignty is so strong that ". . . all attempts to subvert it [take on] the character of mere rebellion if by subject, or of attempted conquest, if by other nations." (Ibid.)
Again, it should ". . . be borne steadily in mind . . . [that it is] in the
highest degree irrational to deny that prescription is a legitimate means of International Acquisition. . . ." (Sir Robert Phillimore, Commentaries upon International Law, vol. 1, no. 256, chapter 13, p. 300) That is, one can acquire the internal right to rule over a whole nation or territory as the case may be. Again:
. . . the constant and approved practice of nations shews that, by whatever name it be called, the uninterrupted possession of territory or other property, for a certain length of time, by one state, excludes the claim of every other, in the same manner as by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. (Henry Wheaton, Elements of International Law, vol. 1, 1836, p. 206)
And again, "The general consent of mankind has established the principle that long and uninterrupted possession by one nation excludes the claim of every other. Whether this general consent be considered as an implied contract or as positive law, all nations are equally bound by it. . . ." (Ibid., p. 207)
The sheer number of deposed monarchies having irretrievably lost their regal rights is quite staggering and great. (See the Wikipedia articles on "Abolished Monarchies:" http://en.wikipedia.org/wiki/Abolished_monarchy) This is one of the reasons, we publish these things. We want all those who have maintained and kept their rights alive to continue to do so. The future is important to us, and it would be a shame if the authentic and genuine princely, imperial and royal houses gave up and cease to exist. We hold these things as too precious and important to throw away. The promotion of the ideals and realities of true and authentic royal houses is our first goal. The second reason for our existence is to protect the public from the charlatans and the self-deceive who impersonate and take advantage of innocent, unsuspecting people though their falsehoods.
The International Commission on Nobility and Royalty is a private, non-governmental association designed to promote the ideals of constitutional monarchy, nobility, royalty and chivalry as well as protect the public from counterfeit or bogus royalty and other related schemes, which are designed to fool and deceive innocent and unsuspecting people.
We are an evidence based society with the motto, "built on solid evidence." Everything must be proven to ensure that errors are not made and any kind of faulty assumptions are uncovered and exposed for what they are. It is our earnest desire that people be spared the humiliation and financial loss of being duped and cheated out of their money.
If you have a question on sovereignty, please feel free to inquire below!
We encourage you to read and enjoy the articles that follow, which are informative and can deepen one's understanding of the whys and wherefores as well as the true and permanent rights of royalty, nobility and chivalry. The following articles are considered to be especially important and valuable.
Authors and scholars are invited to contribute articles to the Board for possible inclusion into this collection of important and interesting papers pertaining to monarchy, nobility, chivalry and royalty.
Main articles written by the Commission:
For "Contact" information or to join the Commission as a contributor or apply for certification for titles, knighthood, status or ancestry, please first read the "Disclaimer and Obligatory Contract." If you fully agree with them, you are welcome to contact us, make contributions, answer our survey and/or become a part of this important cause. Our goals and mission are to protect the public from counterfeit titles, phony knighthoods and fake genealogies. We also want to certify the true and the genuine as well as promote chivalry, royalty and nobility. We need your support. There is so much that needs to be done. We invite you to contribute and join with us.
© Copyright 2005/2009 -- International Commission on Nobility and Royalty. All Rights Reserved.