Open Jagiellonian University lectures on the state published by the G. Gebethner and Company Bookshop, Kraków 1916, pp. 33–55.
How do states arise in our times?
First of all, the subject matter of our deliberations requires a preliminary explanation. Why this additional constraint: in our times? Are the ways and forms in which states emerge now different than they used to be before? To this question, the theory of political law has the following answer: separating the present moment from what went in the dozen preceding centuries or so is justified insofar that the number of these forms has decreased significantly to date, and this fact is closely related to another phenomenon that has occurred in history only once so far, and not too long ago. I am referring here to the division of the last continent that remained uncharted for the longest time, i.e. Africa. By the time civilised states divided that continent into plots called colonies or spheres of influence, all area of the globe had been exhausted – unclaimed lands for bold conquistadores or vigorous entrepreneurs to found new states in. The last example of such a state being established was the creation of the Congolese state under the auspices of the Belgian King Leopold II; this was a state which was indirectly his own work and his own property. It was relatively short-lived, being born at the Berlin Conference of 1884 and disappearing in 1908 in accordance with the will of his founder of 1899, having been turned into an ordinary Belgian colony referred to as Congo belge (Belgian Congo). When diplomats, aided by geographers and technicians, divided the last few patches of the unclaimed continent with borders, the epoch of expeditions into unknown countries inhabited by more or less savage and barbaric peoples, of enterprises whose purpose was to found new states there, ended. Expeditions are still possible today, but for other purposes: to increase the colonial areas of one’s own homeland rather than to create a new one.
And yet even today, one can say: in front of our eyes, states are being created and states perish. All these phenomena are taking place within the same group of current state owners. The number of states may increase or decrease; borders may move east or west, north or south, but each territorial change must be at the expense of an area that used to be held by someone else. So new states may still be formed, but no longer on no man’s land but on someone else’s land instead, at the expense of the state shrunk in this manner. Now, origins of states have been reduced to the only available area – the area of war, diplomacy or both war and diplomacy, to the exclusion of all former ways in which states used to be created and that owed their existence to the presence of territories beyond the colonial borders of those states that constituted the societas civitatum (community of nations).
The ways available today can be grouped into two major categories: I. the first one can be described as a symptom of centrifugal trends and referred to as emancipation or liberation; II. the second one is a symptom of centripetal trends and referred to as a union.
1. The purest, and at the same time simplest form of emancipation is the spontaneous liberation of a province, which ceases to be subordinate to its former mother state or even severs all bonds with it. This is the purest form since emancipatory forces are centred in the nation that liberates itself, and it is also the simplest one, since in principle (i.e. if there are no special considerations) only the two sides directly concerned are facing each other: the former state and the seceding province. The amicable completion of this operation is theoretically possible, although usually unlikely. By way of such an arrangement or of a special privilege, the former province may be elevated to the rank of a state and the subordination relationship replaced with equal status. In this manner Hungary, which had been subject to the government in Vienna, achieved statehood through the introduction of dualism in 1867, and a status equivalent to that held by Cisleithania from that time onwards. A similar transformation was dreamt of in the Kingdom of Poland under Russian rule, but the Russian government – unaware of its obligations towards Europe and towards Poles – failed to make this decision in a timely manner. However, when it comes to severing all bonds, i.e. achieving a complete separation from the mother state, the latter is usually reluctant to surrender its sovereignty and attempts to counteract the secession, even by violent means; it only gives up when it is convinced that further resistance would be fruitless or that harmonious coexistence has become impossible. The process of spontaneous liberation against the mother state’s will includes the following stages:
a) Disobedience to the central government and all its local authorities and thus denying the ruler this fundamental basis of his rule, which is the unconditional obedience of the society he rules.
b) The second necessary step (which, in contrast to the first negative step, has to be positive) is the establishment of the province’s own civilian government, even if it is only provisional. Anarchy, which is an inevitable manifestation of paralysis of the mother state’s central government, would herald the ruin for the emerging province, which should show maximum strength particularly at that critical moment. Thus it cannot do without its own government, which should be as strong as possible. This government does not have and cannot have any legitimacy at first; it needs to win it first, primarily among its own people. When no one has the right to function as a government, everyone can claim this right. Not everyone has equal chances of winning the nation’s recognition, however. The faster and more widespread this recognition, the better for the government so that it does not squander its energy, which is needed elsewhere, to fight and squabble with other pretenders; however, without recognition it will not be able to fulfill the functions that are required in further stages. Hence there is a simple and practical rule – one should appoint to the government people who enjoy relatively high popularity, are known to the general public and are able to immediately rally a sizeable group of supporters.
c) The third step is to build around the government, and under its command, an organised armed force in order to maintain internal order and counteract the inevitable anarchic tendencies of individuals and also to enable potential military action against the mother state either to force it to surrender its claims to sovereignty by shifting the war to its territory or to defend the newly proclaimed and still threatened independence within the province itself.
d) The fourth step, if the mother state does not wish to give up without armed confrontation, is armed struggle itself, which may be branded a rebellion by the mother state’s government, but which has, given some balance of strength between the two sides, certain characteristics of an international war. Namely, when the entire area of an insurgent province together with the population that inhabits it is actually and undisputedly subject to a single civil or military government, the state has already emerged, although it is still fighting for its sovereignty, for the recognition of its independence and for the desired shape of its borders.
e) Provided that the campaign has been successful, the next step is a peace treaty in which the mother state surrenders its past sovereignty and which determines as accurately as possible the potential future common border and the fate of the population who change their allegiance or citizenship and also includes other, less important, provisions that are deemed to be appropriate – a treaty that finally determines the outer contours of the new state that have not been clearly delineated so far or are still being questioned and also endows it with undoubted legitimacy in the international arena.
f) The last step in this operation is the emergence of the state within these finally defined borders, the final determination of its internal political system and the provisional government giving place to the final one, if this has not taken place already.
Even in the time of struggle, the province that is fighting for its sovereignty has its own provisional system, but it is of course a summary one, which is based, as we have seen, mainly on recognition by its society. The issue at hand is to create a lasting basis for the internal legal order and to build state authorities: the legislature, government and judiciary, and to define civil liberties. All these issues should be resolved in a constitution. The task of the provisional government is to facilitate its adoption by a special national assembly called the Constituent Assembly, and the government may facilitate this adoption by proclaiming an electoral law that is deemed appropriate and urging the population to elect the Constituent Assembly on this provisional basis. As soon as the Constituent Assembly has been convened, its competences include not just the future shape of the state, the form of its government, the contents of its constitution and possibly the election of its monarch, but also the further fate of the provisional government, which may, however, be temporarily retained as a delegated government until the future constitution comes into force.
An example of a state emerging exclusively as a result of emancipation could have been the Polish revolution of 1830–1831 if it were not for the fact that armed struggle against the mother country ended in defeat, and thus the liberated Poland did not manage, in the face of its opponent’s military superiority, to force the mother country to surrender its sovereignty or even to conclude a peace treaty that would recognise it as a separate state.
Although the Kingdom of Poland had been produced by the Congress of Vienna and the Polish public was counting on foreign aid at least at that critical junction, those hopes came to nothing, and defenceless Poland fell victim to vindictive Russian policy.
2. A process of state emergence opposite to the spontaneous one described above should also be considered whereby emancipatory forces are concentrated not in the seceding province but rather outside it and are directed by a foreign state or foreign states which, without any aid from or complicity by the liberated population (which may remain completely passive), persuade the former sovereign, by way of an international treaty, to surrender all claims to sovereignty over the part of the country and the population in question. If the first process had the characteristics of a rebellion, insurgency or revolution, the second one is entirely lawful.
From this point onward, the province liberated in this manner is recognised by these foreign states together with their counterpart as a more or less independent state either connected or unconnected by union with some other state and encumbered or unencumbered with some specific obligations. I do not wish to examine the reasons that may cause the local population to maintain such passivity when its political fate is being decided or to study the motives that cause the victorious states to choose to establish a new state rather than annexing the liberated province to their territories. What is undoubtedly true here, however, is that such a creation, based solely on diplomatic combinations and exploiting the momentary powerlessness or inertia of a nation which is meant to live its own political life from now on, conceals many riddles and is an experiment that may proceed as planned as well as go wrong. This category includes all attempts at creating a so-called buffer state, which, since it exists for its neighbours’ convenience, it necessarily a very unstable entity and may collapse for the same reasons during a later period. An example of such an artificial state that was delineated by diplomacy within the living organism of the Duchy of Warsaw was the Republic of Cracow, which was born in 1815 and buried in 1846.
A similar Congress creation of 1815 was the Kingdom of Poland itself, which consisted of those parts of the Duchy of Warsaw that remained after the separation of the aforementioned Republic of Cracow and two more departments (Poznań and Bydgoszcz) that were incorporated into Prussia; the Kingdom of Poland was subsequently joined by a dynastic and constitutional union with the Russian Empire.
Where the borders of an area, its political orientation, form of government, constitution and certain obligations are imposed in advance from the outside, it is no surprise that a nation with its own political traditions and a sense of individuality, having awakened from its torpor, will also develop its own ideology, which cannot always be accommodated within the official framework of statehood created artificially for it by third countries.
3. The most common mechanism by which states emerge is no longer pure but rather mixed and involves the combination of its own and foreign emancipatory forces: when the states that wage war incite a liberation movement in the enemy’s province or vice versa, when the province that seeks liberation invites military or diplomatic intervention from third countries and this intervention proves effective. The more disinterested this intervention is with respect to the new state and the more closely it listens to the pulse of the nation that pursues liberty, the easier it will be to create a viable organism that is capable of further normal development. Conversely, the more appetites and claims of the intervening party are involved and the sooner it moves to collect on the supposed debt of gratitude, the less the emancipatory rhetoric will resonate. The point is not to exchange one master for another – it is to gain freedom.
Examples of such mixed state origins include the Duchy of Warsaw created by Napoleon on the ruins of the Prussian monarchy in 1807, subsequently Belgium in 1830 and 1831, and finally several Balkan states, Greece, Serbia, Bulgaria and Romania. The emancipation of those states involved insurgent struggles as well as international wars and treaties that more or less sanctioned the spontaneous actions undertaken by nations that sought liberation. As the latter examples demonstrate, intervention by third countries may not be purely arbitrary, but may instead be based exclusively on a treaty basis if the intended emancipation is meant to change an earlier international treaty from which the old political system originated. The establishment of Belgium in 1830 was contradictory to the provisions of the Treaty of Vienna of 1815 and consent had to be obtained from the European powers that had signed that Treaty. Similarly the Treaty of Paris of 1856, the Treaty of Berlin of 1878 and the London Conferences related to the Treaty of Bucharest of 1913 have been the basis for constant European interference in the process of emancipation of the Balkan nations and their disputes both with Turkey and among themselves.
These three mechanisms by which states can arise show us how emancipatory forces that are: a) already present in a nation that seeks liberation itself; or b) exist outside it and act in line with the raison d’état of foreign states; or finally c) are an equal or unequal combination of both may result in the emergence of new statehood within new geographical borders and under new authorities. The legal basis for this new entity is the arrangement (or arrangements) with the former mother state, which, accepting its fragmentation and loss of territory together with population and surrendering its sovereignty, opens the way for the undisputed existence of the new state. However, the description of formal stages of this procedure will make it look overly mechanical if we do not look at its sociological and social aspects.
Let us examine a province of some state, observing it in the era that precedes the entire process of its emancipation. Irrespective of any bonds of a social, national, religious, economic or cultural nature that exist within a given province and perhaps even go beyond its borders, connecting it to ethnic groups in neighbouring countries, it is obvious that for the very reason that the province belongs to a state (and it is linked to this state), special social bonds must necessarily form, apart from legal and political ones, with the remaining population of the mother state. Suffice it to look at the history of the Kingdom of Poland at the time when it belonged to Russia. State membership results in an inevitable symbiosis, coexistence within shared state borders and under the rule of shared authorities and political arrangements, within a shared foreign and domestic policy framework.
This inevitable cohabitation results in all kinds of mutual similarities, interdependences and interactions, which serve as the basis for the special social bonds that are formed within this great human mass. They may be modest or considerable in number and significant or negligible in strength, but a certain number of such bonds with a certain energy will certainly be created. The pursuit of independence and the wish to separate from one’s mother state presupposes, on the one hand, a very strong sense of stronger social bonds within the society that seeks liberation on the one hand, and on the other hand a certain resentment or fear of the increasing number of bonds formed between this nation and the rest of the mother state’s population. The pursuit of one’s own state is justified by the desire to supplement the existing social bonds with new ones resulting from independent statehood and from having one’s own government, laws and political arrangements that would supersede the bonds severed with the old mother state.
Thus the emergence of a new state is not a matter of indifference and a purely external fact. It reaches deep into our social nature, destroys the already existing bonds with the foreign population and strengthens the cohesion of the liberated society by forming a network of new bonds that arise from the common belonging to the new state. This is why the pursuit of statehood by a nation that has a sense of unity is one of the most natural manifestations of the self-preservation instinct; the more closely this statehood is aligned with the nation’s historical past, its traditions and its sphere of cultural influence, the greater and more valuable gift it will be. On the other hand, if it is squeezed into a narrow, artificially constructed framework, it will cause a great disruption in the social structure, severing and destroying these social bonds or preventing their even development in the entire nation. As a result, diplomatic creations that are only based on the raison d’état without due regard to this matter will not be stable.
Diplomacy created the Republic of Cracow, removing it from the Duchy of Warsaw, to which it belonged, but without binding it to Galicia. After thirty years of unsatisfying existence, it was shut down as one would shut down a warehouse. The Congress of Berlin, whose outcome was influenced by diplomatic considerations, created a statelet of Bulgaria that contained a fraction of the Bulgarian nation, alongside the autonomous province of Rumelia and alongside Macedonia which remained under the sultan’s rule. After thirty years of hard work, the Bulgarians managed to unite Rumelia with Bulgaria, raise it to the rank of a kingdom, annex part of Thrace and Macedonia by force, and, only recently, finally achieve a true Bulgarian state. Thus it not just statehood itself but rather one seen through the prism of national cohesion that gains true and permanent value.
I stated at the outset that these emancipatory and centrifugal origins of states consisting in the separation of a province and elevating it to the rank of a state must be contrasted with another, centripetal mechanism in which two or more states are mutually attracted and as a result they merge, amalgamate and produce a single new state.
In order to simplify this operation and present its technical side, let us also consider the simplest case where the states that are subject to this attractive force are properly constituted and functioning ones.
The intended merger, if it is to be implemented fully lawfully, should result from the will of those separate states, i.e. the will of their respective authorities which under applicable laws are authorised to enter into similar relationships with other states.
Such a treaty, where it is concluded by the respective governments, usually requires approval, i.e. consent by representatives of their people. So it is only this series of legislative acts adopted in all the states that are merging that produces an undisputed legal basis for the existence of the future state.
The significance of these acts lies in the sovereignty sacrificed to a greater or lesser extent by each of these states for the benefit of the future whole, i.e. the future greater state.
1. The closest connection occurs where the states merging to form a single new organism lose their individuality, where their territories cease to be separate, where their populations are dissolved in the general mass and where their individual state authorities cease to be and give place to the new single state authority.
On the ruins of their own statehood, which has been destroyed, as it were, with their own hands, a new edifice rises, and a new, greater unified state is created. The union of Scotland with England and later of both with Ireland or the merging of the statelets on the Apennine Peninsula into a single Italian kingdom are examples of this kind of merger or amalgamation into a single unified state.
2. A less close union is a so-called federal state (federation) whose characteristic feature is that while a new state undoubtedly arises from the unification, its territory is the sum of individual territories, its population comprises all formerly separate subjects, and finally the authorities of the federation – the government, the parliament, the judiciary, the treasury and the army – rule directly the entire area and the entire population, the parts that have been federated still do not lose their statehood and remain states. It was once considered impossible for a “state within a state” to function, yet these are still states, each with its own government, often with its own king or prince, parliament, judiciary and finances that all operate within the narrower territory of the smaller state and concern the population living there. The coexistence of these authorities of the entire federal state and of individual states is based on the demarcation of their mandates so that they can operate independently of one another, each in its designated territory. Although a federal state constitutes by design a looser union than a unified state, this does not prevent it from being internally cohesive and powerful; indeed, a federation may be very well organised and have the requisite energy both on the inside and on the outside precisely because it has its own authorities, mandates its citizens’ fiscal and military cooperation and has its own corps of officials.
The Swiss Confederation (Confoederatio Helvetica) or the German federal state, i.e. the German Empire, are examples of such organisms, since both Swiss cantons and member states of the Reich are undoubtedly states in their own right and their sums are included in the overarching framework of broader statehood.
There are still looser unions – a) confederations; b) real unions; and c) personal unions.
3. A union of states or confederation means a union in which the central authority is not independent of individual authorities, but rather most closely connected to them both in its origins and in its functioning. In this case, the centre of gravity lies within the fragments which are obviously states, but the existence of the state as a whole can be doubted and the sum of these fragments in clearly not a state.
Apart from the fragments, then, there is a sum, which may e.g. take a single position vis-à-vis other states, but the cohesion between these fragments is weaker, and their common authorities are hardly impressive either internally or externally. A union of states, or a confederation, is usually the first step, timid but also transitional in nature, towards a more powerful formation that was discussed above under the name of a federal state, i.e. a federation (that was the case with Switzerland before 1848 and with the German Reich before 1866).
4. A real union is a combination of (usually) two states where both combined states produce, apart from a common dynasty, certain common authorities to manage their common affairs, but without the need to endow these authorities with all attributes and functions of state power. Thus there may be a common monarchy and even some common ministers, but there will be e.g. no common parliament, and therefore no common legislation, no common judiciary or common taxes. Vis-à-vis other countries, such a union may appear very powerful owing to its joint foreign policy and military actions, but internally all state energy will be concentrated within separate local bodies. A real union, depending on the political powers given to its common authorities, will either be closer to a loose confederation or to a more closely-knit federation.
The former Swedish-Norwegian union and today’s Austro-Hungarian union are examples of such real unions, the former having been looser and the second much closer.
5. The loosest union is the personal one, whether accidental or deliberate, which consists in the fact that the same person or dynasty rules two states which are otherwise completely independent. The same natural person is a king or prince both here and there, but state organisations, governments, parliaments and courts are completely separate. Even in foreign policy, such a union may be so loose that when one of these states wages a war against a third country, the other may remain neutral, although of course if two ordinary separate states may enter an alliance, such two states combined by a personal union will find it even easier to conclude such a diplomatic and military alliance, even a perpetual one. However, this will always be just an alliance without any common authorities. The only necessary reflection of this union – an inevitable constraint on full mutual freedom – is the legal inability to wage war against each other where the commander-of-chief of both armies is the same person. If an armed conflict were to occur, this could happen as a result of the union being broken, i.e. of a revolution in one country or the other.
An example of a personal union, and an accidental one at that, was the relationship between England and Hanover until, as a result of two different orders of inheritance, the thrones of these two states became separated.
I mentioned these three looser type of union, that is 3) union of states, i.e. confederation; 4) real union; and 5) personal union in order to demonstrate that it is not in each case that mutual attraction results in the formation of a new state and that this result is only achieved where either a completely unified state or a federation emerges. In the three aforementioned cases, we may have groupings that are very similar to a state, but without all the characteristics of a complete common statehood that is greater than the sum of its fragments; only in closer unions are these attributes clearly visible.
What determines whether there is a closer or looser union – what sacrifices need to be made for a common cause at the expense of full sovereignty?
The first important factor is the feeling of being threatened by foreign powers and the need to join forces in order to undertake common diplomatic action. For this purpose, a real union or a confederation in the form of an irrevocable alliance that involves common foreign policy leadership is enough; even a personal union combined with such a perpetual alliance will suffice.
However, in order for a federal state, and even more for a unified state to be formed, some other factors need to be present: the sense that there are certain social bonds, similarities and interdependencies resulting from past history, the sense of certain shared spiritual interests, which cannot be directly satisfied at this time owing to the absence of common authorities, i.e. common planning and execution, and which can only be properly accounted for when such authorities emerge, obviously at the expense of former local authorities.
The stronger and more common this sense, the easier it will be to shake off earlier customs and attachment to former local arrangements and the easier it will be to persuade people to make such sacrifices. Conversely, the weaker and less common this sense, the lower its chances of overcoming particularist interests and isolation. I have already mentioned that this union may come about lawfully through the combination of all forces that promote statehood in all constituent fragments. But such a union, if it is strongly desired, can also occur unlawfully if the strength of the social bonds that push for a merger is greater than it would be convenient for the authorities in one country or another.
Then a nationwide movement will sweep away these local governments and the union will occur as if it were above their heads – this is the process that took place, for instance, during the Italian unification. There, plebiscites that favoured a single Italian kingdom replaced lawful decisions by legal authorities.
Having considered the two main processes by which new states arise – through the emancipation of former provinces and through unions resulting in unified or federal states – it should be recalled that both these processes may coincide so at first, the emancipation of provinces occurs, resulting in a number of independent states or statelets emerging, and subsequently such liberated new states form a closely-knit union of whichever type.
Examples of such a complex process can be seen in the history of English colonies in North America, which first threw off the yoke of their mother country to become independent statelets, subsequently formed a confederation of sorts and when its inadequacy became all too apparent, eventually established a federation that has functioned since 1788 until today under the name of the United States of America.
In our own post-partition history, we also had the creation of a statelet named the Duchy of Warsaw from the provinces taken away from Prussia after the war of 1806–1807, and the immediate combination of that newly formed statelet with the Kingdom of Saxony even before it could start to lead its own life.
That union was a real one insofar that the Duchy of Warsaw did not have its own Minister of Foreign Affairs and so it was constrained by the common foreign policy led by the Saxon Foreign Minister. Moreover, as Saxony itself was drawn into the French Napoleonic system, the two states were necessarily powerfully influenced by the French diplomacy.
Nevertheless, it should be stressed that this union was imposed on the Duchy of Warsaw without asking whether that state wanted it or not and without checking whether a better union could not have been found.
Foreign diplomacy (the Treaties of Tilsit) decided both the borders of that state and its union with Saxony; indirectly, they also stipulated its constitution, which Napoleon himself undertook to draw up. His might allowed him to impose the octroyed constitution both on the Duchy of Warsaw and on the King of Saxony.
Matters looked similar at the Congress of Vienna a few years later when the Duchy of Warsaw was maintained within narrower borders and was raised to the rank of Kingdom of Poland but also bound by union to the Russian Empire under the sceptre of the King of Poland who was at the same time the Emperor of Russia. So the existence of the state, its borders and its relationship with Russia were decided without a question being asked about the material aspirations of the Polish nation.
This real union, which was only based on common foreign policy, was terminated in 1831 after the newly emancipated Kingdom of Poland had been crushed; from that time onwards, it was deprived of all attributes of fully independent statehood.
This review of possible ways in which new states can arise today appears a dry and formal one, but the fact that these states must necessarily emerge at the expense of existing ones necessarily leads us into the sphere of international diplomacy, wars and treaties, and legal and political aspects of various forms of states. One should not forget, however, that all these matters pertain to form – the form in which matters are settled or the form in which a nation exists. However, the living substance in question is the nation itself, which seeks its own ways through sometimes fallible combinations of foreign diplomacy and foreign raisons d’état. The strangest and most wonderful aspect in the history of such transformations is the inexhaustible force of the national idea, which, despite temporary setbacks and arrangements that are at odds with its demands, continues to push forward and forces the mightiest powers to ultimately account for it and adapt their raisons d’état to it.
Belgium as well as the Balkan states were born in this manner, and thus first rays of our own statehood, a statehood that is aligned with the essence and history of our nation, should finally shine on our lands and on our nation that has been divided and constantly thrown by foreign diplomacies now to one side, and then to the other.