Recently, a website about Royalty and Nobility posted a section of Questions and Answers clearly
based on our articles. As we'll prove, isn't more than a BIZARRE DISTORTION purely based on their
personal interpretations and free adaptation of controversial juridical concepts.
Let's go over their quoted questions and citations to easily prove their MISCONCEPTIONS:
" (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.)"
THAT'S NOT TRUTH. According with a citation posted on their own website:
". . . INTERNATIONAL LAW IS DEPENDENT UPON THE VOLUNTARY PARTICIPATION OF STATES IN ITS FORMULATION, OBSERVANCE, AND ENFORCEMENT." (Nelson Dordelly-Rosales, "State Sovereignty and the Protection of Human Rights," Paper presented at the Annual Meeting of the Law and Society Association, Montreal, Quebec, Canada, May 27, 2008: www.allacademic.com/meta/p235808_index.html)
INTERNATIONAL LAW IS "AGREEMENT LAW." IT ". . . IS BINDING ONLY BECAUSE IT IS AGREED TO." (Steven Lee, "A Puzzle of Sovereignty:" www.bu.edu/wep/Papers/Poli/PoliLee.htm
There's not even ONE treaty, positive law or ANYTHING pointing to the forfeiture of Dynastic Rights. Nor even ONE scholar that agrees openly to its application to Dynastic Law.
Again, in order to have any "implied legal juridical abandonment", you need a court rule, a treaty or a positive law of any kind. An "implied legal juridical abandonment" is something called "LEGAL PRESUMPTION" (praesumptio legis) and it's something that DOESN'T HAPPEN BY MAGIC.
"III. Classification:
Praesumptio Legis: these ARE PRESUMPTIONS WHICH THE LAW DIRECTS TO BE MADE BY THE COURT:
a). Juris tantum- or prima facie, rebuttable or disputable presumption or those which may be overcome or disproved
b). Juris et de Jure: conclusive or those which the law does not allow to be contradicted
c). Statutory and Constitutional "
http://www.batasnatin.com/law-library/remedial-law/evidence/1090-rule-131-rules-of-court-burde n-of-proof-and-presumptions.html
" (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."
"Prescription" is a controversial legal principle applied in Territorial Disputes in International law. The website is "ADAPTING" it to Dynastic Law. Again, not even ONE scholar openly supports that theory in the way they present it:
"In law, PRESCRIPTION IS THE METHOD OF SOVEREIGNTY TRANSFER OF A TERRITORY THROUGH INTERNATIONAL LAW ANALOGOUS TO THE COMMON LAW DOCTRINE OF ADVERSE POSSESSION FOR PRIVATE REAL-ESTATE. Prescription involves the open encroachment by the new sovereign upon the TERRITORY in question for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign. This doctrine legalizes de jure the de facto transfer of sovereignty CAUSED IN PART BY THE ORIGINAL SOVEREIGN'S EXTENDED NEGLIGENCE AND/OR NEGLECT OF THE AREA IN QUESTION"." http://en.wikipedia.org/wiki/Prescription_%28sovereignty_transfer%29
Again, LAND not DYNASTIC RIGHTS.
According with the book INTERNATIONAL LAW: A DICTIONARY, Boczek, Adam Boleslaw, pg. 243:
"PRESCRIPTION: a CONTROVERSIAL concept derived from civil (Roman Law) and referring of acquisition by a state of sovereignty over a TERRITORY over one time under the sovereignty of another state, through uninterrupted and UNCONTESTED PEACEFUL exercise of state authority which has persisted by an undefined period of time. Moreover, while many publicists accept prescription as a mode of acquisition, a CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW. In 1960, a judge of the INTERNATIONAL COURT OF JUSTICE (ICJ) Portugal vs. India expressed the opinion that "Prescription, a private law institution finds no place in International law". Whether Prescription belongs to the general principles of law recognized by civilized nations IS DOUBTED BY MOST AUTHORS."
I believe that says all. SEVERAL SCHOLARS DOUBT THE USE OF PRESCRIPTION EVEN FOR TERRITORIAL DISPUTES.
The court's adjudication isn't necessary in international law. But it's the ONLY WAY to make a dispute FINAL, once, according with the website itself, "INTERNATIONAL LAW IS AGREEMENT LAW." So, THE ONLY WAY TO MAKE A DISPUTE OF ANY KIND FINAL, if the parties didn't agree by a treaty.
"(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, the usurpers, to internal sovereignty. "Prescription" as a "juridical act" gives legitimacy without formal or official decree from a court or tribunal. So as to the question of "prescription" causing the forfeiture of the royal right, there have been hundreds of cases and thousands through the centuries."
There are several citations about Territorial Sovereignty and AGAIN, NOT EVEN ONE SINGLE CASE.
". . . 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."
In a very common practice on that website, the addition of brackets twists the real citation which is related to territorial sovereignty. The word "title" refers to "land's title".
"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."
Again, the free adaptation of territorial law. Not a single solitary proof that links anything to Dynastic Law. Not even ONE case.
What is very common in History is a Dynasty (Royal House), that doesn't want to claim their rights. Even having a perfect and recent claim, for personal reasons, they rather stay out of the political pretension.
A perfect example is the Qajar Family of Iran. They were deposed in 1923 by a coup d'état.
From their official website:
"We have absolutely NO POLITICAL AGENDA FOR THE RESTORATION OF THE QAJAR DYNASTY ON THE PERSIAN THRONE." http://qajarfamily.org/
Legally, it doesn't mean that they have no right. They only chose not to claim it for personal reasons. Again, there's not even ONE LAW, CASE OR ANYTHING linking territorial law to Dynastic Rights.
" (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. . . . (Emmer 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)
Emmer 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)"
When you establish what would be the Dynastic and Nobiliary Law there is an immense difference between what is "Code of law", what would popularly know as "black on white" - based on real jurisprudence (court verdicts) and written codes of law; and "Moral law", which are publications based on tendencies and comments, in other words, opinions. Some of the cited "moral works" are from the XVI Century like Hugo Grotius and Emmer de Vattel's books.
Here a comment from Judge Beverly Tucker, Professor of Law in William & Mary College on the book "The Law of Nations" by Emerich Vattel:
"National LAW IS MORE A MORAL THAN A LEGAL SCIENCE. Law is a rule of action prescribed by competent authority. Moreover, all Law implies some sanction to enforce it. Now National law is that which defines and regulates the social duties of Nation to Nation. Where then is the authority that prescribes such duties, and where the sanction that enforces them?"
"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)
Yes, that's correct. There's no need to refer the dispute to a settlement mechanism. But if none of the parties agree with any kind of treaty, the dispute remains PENDING FOREVER.
According with Professor Richard Bilder, "Adjudication: International Arbitral Tribunals and Courts" Peacemaking in International Conflict: Methods and Techniques, eds. I. William Zartman and J. Lewis Rasmussen, Washington DC: United States Institute of Peace Press, 1997, pp. 155-190: http://www.crinfo.org/articlesummary/10048/
"It is important to note that, for many people throughout the world, INTERNATIONAL ADJUDICATION SYMBOLIZES CIVILIZED AND ORDERED BEHAVIOR AND THE RULE OF LAW IN INTERNATIONAL AFFAIRS."(p. 180)
"Compared to other dispute resolution techniques, adjudication has a number of advantages. IT MAKES A FINAL DISPOSITION OF THE DISPUTE."
So, the court it's not mandatory but IS THE ONLY WAY THAT THE DISPUTE IS FINAL AND BINDING. That happens because it's known that even when a treaty is signed, one of the parties can withdraw from the commitment previously agreed. That happens because of the principles that govern the concept of Sovereignty.
"TREATIES ARE NOT NECESSARILY PERMANENTLY BINDING UPON THE SIGNATORY PARTIES. AS OBLIGATIONS IN INTERNATIONAL LAW ARE TRADITIONALLY VIEWED AS ARISING ONLY FROM THE CONSENT OF STATES, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification." http://en.wikipedia.org/wiki/Treaty#Ending_treaty_obligations
"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 completely outside of any kind of tribunal decree or verdict and it still does. "
As a common practice of the website, they simply omit the relevant parts of the citation. Here are the full citations from Professor Noel Cox:
"Legal rights can expire without the intervention of a court - THE LATTER IS DECLARATORY RATHER THAN DETERMINATIVE."
A DECLARATORY JUDGMENT ISN'T FINAL. A DETERMINATIVE IS.
"Final judgment refers to a court's last action that settles the rights of the parties and disposes of all issues in controversy... This is also termed as final appealable judgment or final decision or final decree or definitive judgment or DETERMINATIVE judgment or final appealable order. Final judgment means "A JUDGMENT THAT IS FINAL AND NOT APPEALABLE, AND INCLUDES AN ORDER OF SETTLEMENT." http://definitions.uslegal.com/f/final-judgment/
And again, in order to have a DECLARATORY LAW without a court, you need a legislative act or even an executive act. In other words, you need A POSITIVE LAW:
"POSITIVE LAW is the term generally used to describe man-made laws which BESTOW OR REMOVE SPECIFIC PRIVILEGES UPON AN INDIVIDUAL OR GROUP." http://en.wikipedia.org/wiki/Positive_law
You cannot just "MAGICALLY" apply moral juridical principles as you please.
Dr. Cox also says:
"Thus the dynastic rights of a Sovereign may potentially end without a court ruling. THE SURRENDER OF LEGAL RIGHTS MAY ALSO BE REVERSIBLE (generally depending on the domestic legal rules rather than international law)." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
In other words, even a voluntary and documented abdication CAN BE REVERSED.
As a clear example, in a declaration dated 31 May 1961, Prince Otto von Habsburg, the Head of one of the greatest Imperial and Royal Houses of Europe, the Habsburg-Lorraine, RENOUNCED ALL CLAIMS TO THE AUSTRIAN THRONE AND PROCLAIMED HIMSELF "A LOYAL CITIZEN OF THE REPUBLIC," a move that he made only after much hesitation and certainly "for purely practical reasons". In a 2007 interview on occasion of his approaching 95th birthday, Otto stated:
"This was such an infamy; I'd rather never have signed it. They demanded that I abstain from politics. I would not have dreamed of complying [with that demand]. Once you have tasted the opium of politics, you never get rid of it."
Even with that, the House of Habsburg-Lorraine is considered very much alive and recognized. In 2007, after more than 45 years of his abdication, Otto passed the rights to his son Karl.
That's because:
"the concept of sovereignty formally implies a power that is absolute, perpetual, indivisible, IMPRESCRIPTIBLE and inalienable." (Andrew Vincent, Nationalism and Particularity, 2002, p. 17)
" (e) I read that a dynasty never loses its rights ever no matter what.
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 the fact that 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."
Again, the website "decides" that the quote isn't right, even WITHOUT ANY SCHOLARLY CREDENTIALS. There's not even ONE citation that it's PURE and without twists. Here another example from the same website:
"However, dynastic sovereignty is hereditary and because all the full plenary powers center in a single person --- the monarch, he is the personification and embodiment of all the power, majesty and glory of the nation; which is an ". . . inalienable right of sovereignty, . . . which can be lost only by voluntary [willing or implied] renunciation (transfer) or [the] extinction of the dynasty [or royal family itself]." (Stefan Talmon, Recognition of Governments in International Law, 1998, p. 54) "
The original citation was:
". . . inalienable right of sovereignty, WHICH CAN BE LOST ONLY BY VOLUNTARY RENUNCIATION OR EXTINCTION OF THE DYNASTY."
In other words, exactly what the great majority of scholars defend, ONLY THE CLEAR WILLING, EXPRESS AND VOLUNTARY RENUNCIATION (SURRENDER OF THE CLAIM) may end Royal rights, period.
" (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."
You cannot state, in any level, that any right is forfeited ultimately without something, ANYTHING SOLID. You need a positive law of any kind, not just principles. In the website's amateurism they fail in see that. Without that, it's MERE ASSUMPTION.
In a dispute, if none of the parties surrenders the claim, only adjudication or mediation can decide if Prescription or any other legal presumption really took place. Again, in law nothing happens by magic.
"Res judicata or res iudicata (RJ) is the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.[1]"
"... res judicata is a general principle of international law under Article 38 (1)(c) of the International Court of Justice Statute. "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: ... c. the general principles of law recognized by civilized nations".[9][10]" http://en.wikipedia.org/wiki/Res_judicata
From the book INTERNATIONAL LAW by Shaw, Malcolm Nathan, pg. 96:
"A judgment having the authority of RES JUDICATA is judicially binding on the parties to the dispute. THIS IS A FUNDAMENTAL PRINCIPLE OF THE LAW OF NATIONS repeatedly invoked in the jurisprudence, which regards the AUTHORITY OF RES JUDICATA AS A UNIVERSAL AND ABSOLUTE PRINCIPLE OF INTERNATIONAL LAW."
The above citations associate the Principle of "Res Judicata" as FUNDAMENTAL IN THE LAW OF NATIONS (INTERNATIONAL LAW). But, the website seem to "PICK" from International law only what seems convenient to support their fantasies.
"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."
First of all, we need to understand what a so-called "juridical act" is:
"A juridical act is one that conforms to the LAWS and the RULES OF COURT." http://answers.encyclopedia.com/question/juridical-act-614560.html
A legal presumption is a "juridical act"; therefore, it needs a POSITIVE LAW of any kind or a COURT RULE. Without that, there's NO LEGAL PRESUMPTION! The mere and free application of a legal principle ISN'T LAW!
" (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.
"The author believes that "prescription" involves external sovereignty and therefore it could not impact the internal sovereignty rights of deposed kings and sovereign princes."
A deposed or dispossessed monarch denied the privilege of ruling is still a dynast and still holds the highest internally right to rule within his former territory. No one, no country has a higher internal right to rule. The "defacto" ruler is a usurper even if the usurping government receives external "de jure" and "defacto" recognition by other states. In spite of this kind of outward recognition for the usurper, the dethroned monarch, or his rightful heirs, are the "de jure" territorial sovereigns of the land.
That is, this is true, if, and only, if he has kept his rights alive, his supreme secular rights are "de jure" and are inseparably connected to the internal right to rule the territory of his fathers. In other words, dynastic sovereignty cannot be separated from territorial sovereignty. You can't have one without the other. To dissect them is to mutilate and deform an important legal reality. "
The simplistic analysis for the website proves their misunderstandings. The Sovereignty is ALSO composed by territory. But NOT ONLY that. And again, THERE'S NO PROOF OR JURISPRUDENCE THAT THE TERRITORIAL LEGAL RITE SHOULD BE APPLIED TO DEPOSED MONARCHS.
The most important part of Sovereignty is the PEOPLE. The deposed monarch is deprived of BOTH TERRITORY AND PEOPLE. So, the application of "territorial law" to deposed monarchs is a MERE GUESS.
"The "de jure" monarch's sovereignty is territorial or bound up forever with the land. And the connection between the two cannot be divided without creating a misunderstanding. When we identify deposed monarchs as being "non-territorial" elsewhere in the answers in these articles, we are merely referring to the fact that they do not have "defacto" control over the territory. But their sovereignty is indivisibly combined with their rightful territory. In other words, "'dynastic' or monarchical 'territorial' sovereignty" is a real and genuine reality. (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) There is also republican territorial sovereignty."
Again, another serious mistake. The 'ideal' rights of a Dynasty are related to History and Law. Of course the Sovereign will be forever related to the territory, that's even ridiculous to be mentioned, but again, there's NOTHING relating that to "international territorial disputes" and even if there is, nothing is final until one of the parties surrenders the claim or seeks for any kind of settlement.
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) 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) In other words, the same principles apply to all.
Again, amateurism. Of course, the Sovereignty of the King, President or people is the same. None is questioning that. The point is that a "Sovereign Dynastic Title" and a "Sovereign Territorial Title" are two completely different things. The first is related to a Dynasty and is historically attached to land and people but not DEPENDABLE OF IT TO EXIST! A "Territorial Title" is ONLY related and TOTALLY DEPENDABLE OF LAND. Difference enough?
". . . THE KING DOES NOT FORFEIT THE CHARACTER OF ROYALTY MERELY BY THE LOSS OF HIS KINGDOM. If he is unjustly despoiled of it by a usurper, or by rebels, he still preserves his rights. . . ." (Emerich de Vattel, The Law of Nations, Book II, chapter XII, no. 196)
Some serious, awarded authors and scholars defend that the character of pretension of the previous territory isn't even mandatory for a Dynasty to keep the princely qualities.
Here an extract from the book "Studies on Nobility Law" (Estudos sobre Direito Nobiliário), Dr. Mario Silvestre de Meroe, pg. 63:
"There outbreaks of political crises in front of which the monarch himself voluntarily accepted - sometimes even want to - that institutional rupture, expressly agreeing with the new order of things. In such cases, AND ONLY THOSE, he loses the dynastic rights, retaining only the PRINCELY QUALITIES INHERITED AND TRANSMITTED TO THEIR DESCENDANTS, without, however, the attributes of 'PRETENDER'."
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.
The website seems to 'judge' all Dynasties with the European perspective which is absurd! The Treaty of Westphalia is only binding to the signatory parties. And the so-called "founding fathers of international law" are considered to be "moral law" not actual binding law.
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)
Again, another manipulation of a citation. Read it again, without the brackets:
". . . 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."
Have in mind again, that's moral law, NOT ACTUAL LAW. The citation says NOTHING about "IRRETRIEVABLE LOSS OF ROYAL AND SOVEREIGN RIGHTS", he says that 'HE MAY BE PRESUMED', there's NOTHING MANDATORY OR DEFINITIVE.
Or, dynastic sovereignty can be preserved endlessly and forever, if the claim is kept alive in the way specified by law.
What law??? There's no positive law!!! No so-called 'specification' of any sort!
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)
No problem with that. But you cannot escape of a positive law to regulate that. It cannot come from FREE ADAPTATION!
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.
Again, WHICH LAW???
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:
That's a preposterous and ridiculous assumption, absolutely based on international real state not openly defended by even one scholar.
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)"
The above citation was also ADULTERATED, here the right one:
"To object that sovereign rights will thus be arbitrarily destroyed is an UNWARRANTED ASSUMPTION, SINCE THOSE RIGHTS CANNOT REASONABLY BE SHOWN TO EXIST." (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347)
That's TOTALLY AGREED. The Dynastic rights are more Historical than Legal. They're based on the jurisprudence of deposed monarchs that returned to the throne after the deposition. Are also based on the fact that any political act cannot MAGICALLY erase the past. But there're no vested rights for the Dynasty, even if totally lawful, to return to the throne. Also, there's no law (therefore NOTHING to standardize the period of interregnum of a deposed Dynasty) and NO FORUM to rule over deposed sovereign claims. So, it's easier to assume that THERE ARE NO RIGHTS than imagine or adapt some magic to the destruction of these rights.
"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)
Again, examples of dethroned monarchies are not examples of the loss of rights by Prescription. The website tries to deceive the reader.
" (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.
Actually, the question by itself is a deception. Not only "ONE JUDGE" but the citation mentioned above is clear when it says that Prescription is "doubted by MOST AUTHORS", including SEVERAL JUDGES. Also a "CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW".
Just an example, for over 100 years (until present date), NOT EVEN ONE JUDGE in Italy (both Monarchy and Republic) believed that Prescription can destroy Dynastic Rights.
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)
In international law, "prescription" is considered to be among the highest of all laws,
The deception continues. Right or wrong, "Prescription" is a legal principle, NOT A "LAW".
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)
Again, the "magic brackets". The original citation doesn't mention "THE HIGHER LAW" that was INSERTED in the citation to make it looks like "A LAW ABOVE ALL", which is a big and fat LIE. The Law of Nature is only MORAL LAW, Fundamental principles with no enforcement without Positive Law (or man-made law: constitutions, penal codes, treaties, common law, etc.)
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. . . ." (Emmer 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) "Prescription" is universally accepted in every civilized nation and is binding on royal as well as republican sovereignty.
Again, the citations must be repeated once the above deception it's IMMORAL:
According with the book INTERNATIONAL LAW: A DICTIONARY, Boczek, Adam Boleslaw, pg. 243:
"PRESCRIPTION: a CONTROVERSIAL concept derived from civil (Roman Law) and referring of acquisition by a state of sovereignty over a TERRITORY over one time under the sovereignty of another state, through uninterrupted and UNCONTESTED PEACEFUL exercise of state authority which has persisted by an undefined period of time. Moreover, while many publicists accept prescription as a mode of acquisition, a CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW. In 1960, a judge of the INTERNATIONAL COURT OF JUSTICE (ICJ) Portugal vs. India expressed the opinion that "Prescription, a private law institution finds no place in International law". Whether Prescription belongs to the general principles of law recognized by civilized nations IS DOUBTED BY MOST AUTHORS."
From the Book Territorial disputes, acquisition and INTERNATIONAL LAW, Sharma, Surya Prakash, pg.112
About PRESCRIPTION:
" in terms of judicial theory GRAVE DOUBTS have been expressed about ITS RECOGNITION as a mode of acquiring territorial sovereignty."
It goes further:
"There appears to be NO CASE in which an INTERNATIONAL TRIBUNAL has explicitly endorsed the doctrine of PRESCRITPION, although writers have relied upon certain decisions as instances for recognition of this doctrine by tribunals." (Ibid.)
From the Book TEXTBOOK ON INTERNATIONAL LAW, Dixion, Martin, pg. 157:
".. in his separate opinion in El Salvador v. Honduras Judge ad hoc Torres Bernardez made it clear that he did not believe 'peaceful and continuous display' (Prescription) to be a principle of International law as such. Rather, it was an indication of sovereignty which must be connected to a giving norm of International law (i.e. legal justification) before sovereignty could be confirmed."
So, IT'S NOT ONE JUDGE and NOTHING IS "UNIVERSALLY ACCEPTED".
(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. The differences are profound and very important."
Another terrible deception. Please note the citations:
From the Book Territorial disputes, acquisition and INTERNATIONAL LAW, Sharma, Surya Prakash, pg.112
"Even in the past when the TRADITIONAL INTERNATIONAL LAW recognized conquest as a valid mode of acquiring territory, ACQUISITIVE PRESCRIPTION, the same author maintains, "DID NOT OPERATE IN CASES WHERE POSSESSION WAS MAINTAINED BY FORCE."
The book's name is "INTERNATIONA LAW" not "DOMESTIC LAW".
From the Book THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW - Manchester University , Pg. 52:
" even in the traditional law, required something more than the mere seizure of territory by force of arms. Firstly - AND THIS IS MOST IMPORTANT - there is a MOST-ESTABLISHED AND FIRM RULE that the military occupant CANNOT ACQUIRE SOVEREIGNTY AT ALL 'durante bello' (DURING WAR)."
So, there's nothing DOMESTIC about the citations. The occupation must be PEACEFUL and cannot be CONTESTED. So, no Prescription during war or violent occupations. That's in INTERNATIONAL LAW, NOT DOMESTIC.
" (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 website goes on and on trying to convince the public that peaceful means "with no protest". There's nothing wrong with that. Why the invader nation would have to use force if there's no protest??? The citations are clear, during war Prescription cannot occur once obviously there's a dispute based on a protest. Or the website imagines an invader nation would fight against itself?
But again, reading the following citation we see that the author cites it in an interesting way:
"Prescription is often referred to as "adverse possession" in domestic courts, except in an INTERNATIONAL COURT, PRESCRIPTION CAN'T BE ADVERSE OR HOSTILE BUT RATHER PEACEABLE AND WITHOUT PROTEST BY THE OCCUPIED NATION."
http://www.alohaquest.com/arbitration/news_vandykeinerror.htm
"PEACEABLE AND WITHOUT PROTEST BY THE OCCUPIED NATION".
If "PEACEBLE OR PEACEFUL" means just "WITHOUT PROTESTS" why did the author made a REDUNDANT assertion?
" (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."
Again, preposterous! Where is the positive law stating that? What if the fear persists for over 100 years? What if the ignorance of the rights takes 200 years? There's no law to appraise that, so it's a MADE UP!
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."
Again, it cites a territorial case with no relations to deposed monarchs.
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. They cannot be considered after the "prescriptive" transfer of internal sovereignty becomes conclusive and final.
Again, where is the positive law with the deadlines, terms and conditions for that to occur?
Even in International law just principles are not enough. The principles are used to create laws. Here's another comment from Professor Cox that was conveniently omitted by the website:
"One of the difficulties is that we have to distinguish between the principles of international law, and domestic law. EVEN WITH RESPECT TO INTERNATIONAL LAW, THE APPLICATION OF THE LAW VARIES IN INDIVIDUAL COUNTRIES - THOUGH THE PRINCIPLES ARE SUPPOSEDLY THE SAME." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
" (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."
Well, again the website mixes up concepts.
Annexation means:
"Annexation (Latin ad, to, and nexus, joining) is the DE JURE INCORPORATION OF SOME TERRITORY into another geo-political entity (either adjacent or non-contiguous)." http://en.wikipedia.org/wiki/Annexation
"De Jure" means "by Right", "BY LAW".:
"DE JURE (in Classical Latin de iure) is an expression that means "CONCERNING LAW", as contrasted with de facto, which means "concerning fact"." http://en.wikipedia.org/wiki/De_jure
So by that it's easy to conclude that in order to be an Annexation, the Acquisition MUST BE LEGAL. Without the Annexation, the acquisition is ILEGAL and just "De Facto". Hence, if there isn't a formal and legal act we aren't talking about actual LAW. Hence, the State MAY acquire territory without formal Annexation but it's NOT A LAWFUL ACT.
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.
The "highest presumption on earth" needs a court to occur or any positive law (like a treaty or anything). YOU CANNOT INVOKE ANY LEGAL PRESUMPTION OF THIN AIR!
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.
The website used terms like "SET IN LEGAL CEMENT" and "SOLID LEGALLY AS GRANITE ROCK" which is, in this case, SIMPLY PATHETIC. How can someone use in the same website the following citation and say that something is "SET IN LEGAL CEMENT"?
"To object that sovereign rights will thus be arbitrarily destroyed is an UNWARRANTED ASSUMPTION, SINCE THOSE RIGHTS CANNOT REASONABLY BE SHOWN TO EXIST." (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347)
" (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."
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 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 "the right to exercise therein (i.e. on the territory . . . the functions of a sovereign."
Again, fragmented and twisted citations.
In other words, internal sovereignty and territorial sovereignty have one and the same definition.
All of the website's legal statements are based on SEMANTICS. What they fail to understand is the simple fact that all of the citations they use are from legal cases of EXTERNAL SOVEREIGNTY:
"External sovereignty concerns the relationship between a sovereign power and OTHER STATES." http://en.wikipedia.org/wiki/Sovereignty#External
In laymen's terms, you always have the Sovereign Nation "A" disputing a piece of territory with the Sovereign Nation "B". So, the above definition is perfect. There's not even ONE CASE in the whole legal history of a litigation questioning the very OWN SOVEREIGNTY OF A NATION. The website is trying to suggest that "External Sovereignty" jurisprudence can interfere, without any positive law (legislation, treaty. Etc.) in a DOMESTIC CONFLICT.
"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)
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 to "prescription." Why? Because internal sovereignty is the sovereignty of deposed sovereigns, and dynastic and territorial sovereignty is internal, not external; and as shall be seen, "prescription" has authority over internal supremacy.
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)
Semantics, again. The fact that you have the word "TERRITORIAL" in a definition doesn't mean at all, that the correct legal application should be the one they're suggesting. A national conflict is a matter of Internal Sovereignty yes, but it's considered to be a DOMESTIC JURISDICTION:
"IT HAS ALWAYS BEEN CONSIDERED that the CONSTITUTIONAL, POLITICAL and social organization of a state is ESSENTIALLY a matter of coming under the latter's sovereignty i.e. WITHIN ITS DOMESTIC JURISDICTION." (Djura Nincic, The problem of Sovereignty in the charter and in the practice of the United Nations and the , 1970, p. 186)
That reflects the LACK OF JURISDICTION of International Law in domestic disputes. From the United Nations Charter, chapter 1, Article 2:
"7. NOTHING contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the DOMESTIC JURISDICTION OF ANY STATE or shall require the Members to submit such matters to settlement under the present Charter..." http://www.un.org/en/documents/charter/chapter1.shtml
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" can and has both destroyed or preserved the sovereignty of deposed monarchs for hundreds and hundreds of princely and royal houses thoughout the centuries.
One more time, the citation was ADULTERATED, TWISTED and OMITTED in the CRUCIAL points. The book's chapter is called "INTERNATIONAL ARBITRATION" which suggests that the application of Prescription is accepted and considered in MEDIATIONS and ADJUDICATIONS. THE CITATION JUST CONFIRMS THAT. The real and full citation here:
" ON QUESTIONS OF TERRITORIAL SOVEREIGNTY INTERNATIONAL LAW ADMITS NO PRESCRIPTION but immemorial one. Now, international prescription, short of being immemorial, is admitted IN PRINCIPLE by the great majority of jurists: NO TERM OF YEARS HAS BEEN FIXED FOR IT, and the necessary term may vary with the circumstances and BE LEFT TO THE DECISION OF ARBITRATORS IF THE PRINCIPLE BE CONCEDED."
So, according with their own citation, now shown in full, Prescription cannot be ultimate without any kind of arbitration, and even there we find a lot of CONTROVERSY.
"(p) I read that dynastic rights cannot be sold.
This is a myth as history is full of such examples. 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.) "
Here is an extract from the book "The Law of Nations", Emerich Vattel, Book I, Chapter V, #69:
Book I, Chapter V, #69:
"§ 69. EVERY TRUE SOVEREIGNTY IS UNALIENABLE.
But when a prince chooses his successor, or when he cedes the crown to another, - properly
speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, entrusted - he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. EVERY TRUE SOVEREIGNTY IS, IN ITS OWN NATURE, UNALIENABLE."
"WE DO NOT FIND IN EUROPE ANY GREAT STATE THAT IS REPUTED ALIENABLE. If some petty principalities have been considered as such, it is because they WERE NOT TRUE SOVEREIGNTIES."
"Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, THE RIGHT OF REALLY ALIENATING THE STATE CAN NEVER BELONG TO THE SOVEREIGN, unless it be expressly given him by the entire body of the people. "
"CHAPTER XXI
§ 260. HE CANNOT ALIENATE THE PUBLIC PROPERTY.
The prince, or the superior of the society, whatever he is, being naturally no more than the
administrator, and NOT THE PROPRIETOR OF THE STATE, his authority, as sovereign or head of the nation, DOES NOT OF ITSELF GIVE HIM A RIGHT TO ALIENATE OR MORTGAGE THE PUBLIC PROPERTY. The general rule then is, that THE SUPERIOR CANNOT DISPOSE OF THE PUBLIC PROPERTY, as to its substance - the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, THE ALIENATION HE MAKES OF IT WILL BE INVALID, AND MAY AT ANY TIME BE REVOKED by his successor, or by the nation."
" (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)
Removing the "magic brackets" and analyzing the citation in its pure form, it's clear that the citation defends, the praxis of International Law, which is the fact that the RIGHTS ARE ONLY LOST BY THE EXPRESS AND WILLING SURRENDER OF THE CLAIM. Of course, the protests are important for keeping the claim's appeal but, once there are absolutely no regulations or enforcement regarding how these protests should be done, they cannot be considered as "law".
According with many scholars and remembering the example of Prince Otto Von Habsburg, and Prince Vittorio Emmanuelle II di Savoy (among many others), that had to surrender their Royal claims and pretensions in order to regain their citizenship, even the surrender can be reversible what makes the so-called acquiescence theory pure rubbish! According with Professor Noel Cox:
"The surrender of legal rights MAY ALSO BE REVERSIBLE (generally depending on the domestic legal rules rather than international law)." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
From Professor Doctor W. Baroni Santos, Doctor D'Etat in Nobility Law by The University of Reims in France, in his book "Treaty of Heraldry / Nobility Law Vol. I, Book II, chapter I "Jurisprudence of Nobility" page 197:
"A "Chief of Name and Arms", a title attributed to a Claimant, being by juris sanguinis (law of
blood) "heir apparent" of a DEFUNCT THRONE, AS LONG AS HAS NOT FORMALIZED A VOLUNTARY ACT OF RESIGNATION AND ACQUIESCENCE [formalized, not assumed or presumed] to the new political order of the state, according to the classic expression "subito la debellatio", RETAINS, IN ALL ITS FULLNESS, THE SOVEREIGN PREROGATIVES OF FONS HONORUM (FOUNTAIN OF HONOURS) AND JUS MAJESTATIS (RIGHT TO MAJESTIC DIGNITY). IT IS A FORTIORI, THE SOURCE OF NOBILITY AND HONOR, AND MAY, WITHOUT RESTRICTIONS, CREATE NOBLES AND ARM KNIGHTS."
A Court sentence of the Republican Italy (Pretoria de Vico Del Gargano, Repubblica Italiana
sentence number 217/49) corroborates the above mentioned:
"( ) it's IRRELEVANT if that Imperial family in no longer ruling FOR CENTURIES, because the
deposition don't harm the sovereign prerogatives even if the sovereign renounces, spontaneously, to the throne. In substance, in this case, the Sovereign does not't cease to be King, even living in exile or IN PRIVATE LIFE (WITHOUT CLAIMING HIS SOVEREIGNTY), because his prerogatives are, itself, by birth and CANNOT BE EXTINGUISHED, but remains and may be transmitted in time, from generation to generation."
Court Sentence from the Republic of San Marino Case No. 184, 1987 - ALSO CITING JURISPRUDENCE FROM 1596:
" (...) Consequently THIS COURT HAS INTERNATIONAL JURISDICTION (Leges Statutae Rub. I, XXVI and XXXIV of Lib. II)
(...) We should bear in mind that THE FAILURE TO MAKE USE OF THE TITLE DOES NOT RESULT IN GIVING UP, EXPIRE, OR ANY CASE LOSS OR IMPEDIMENT OF GENEALOGICAL OR HERALDIC HISTORICAL PREROGATIVES AS THEY ARE GRANTED JURE SANGUINIS [BY BLOOD RIGHT] OR JURE LEGIS [BY LEGAL RIGHT] AND THEY REMAIN IMPRESCRIPTIBLE IN THE SENSE THAT WHEN THEY HAVE NOT BEEN USED THEY CAN BE, IPSO JURE [AUTOMATICALLY BY LAW], BE RECOVERED "FACTO SUO QUIS AMISERIT CONTRARIO FACTO FACILE RECUPERARE POTEST" [BY FACT A LOSS EASILY TO BE RECOVERED] (Fabro Codex Lib. IX Tit. 29 Def.2 Piedmont Senate Dec 15 Kalend junii 1596) Richeri (Codex Lib. I Tit. IV, Def. XI) ALSO TELL US THAT NOBILITY AND NOBLE TITLES CAN BE RECOVERED IPSO JURE [AUTOMATICALLY BY LAW] AND NULLA OPUS EST UT AIUNT REABILITARIONE [IT'S SAID WITHOUT WORK TO REABILITATE]."
In other words, anything trying to create any kind of expiration date in titles of nobility is absolutely baseless and nonsensical.
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)
Again, the "magic brackets" twist the citation. Textor says exactly what's mentioned before. The only way of losing rights is by the willing and express surrender of the claim. The citation doesn't mention Prescription and absolutely nothing about the consent being implied (by neglect). It was added to deceive the reader.
Keep in mind that ". . . Dynastic rights of a Sovereign may . . . end without a court ruling. (op.cit., Noel Cox)
Now we know that wasn't exactly what Professor Noel Cox said.
" (r) I read that all 15 accepted dynasties of the Byzantine Empire are entitled to claim imperial rights according to Dynastic Law.
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
/articlemain.php?artid=mtp_emperor)
This not only a lie but another DECEPTION. The fact that Byzantium didn't "FULLY DEVELOP THE NOTION OF HEREDITARY RULE" doesn't mean that we didn't have Hereditary Dynasties ruling. It's easy to see that just by reading the meaning of the word "DYNASTY":
"A DYNASTY is a sequence of rulers considered members of the same family." http://en.wikipedia.org/wiki/Dynasty
If there's no clear and established electoral system (like the Vatican or the Holy Roman Empire), A MONARCHY CANNOT BE CONSIDERED ELECTIVE IF YOU HAVE MEMBERS OF THE SAME FAMILY SUCCEEDING AS LIFELONG RULERS.
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)
The fact that the succession was violent MEANS NOTHING TO THE LAW. There were no rules of succession established by law. But in the same way, there WEREN'T ELECTIONS ESTABLISHED BY LAW. In practice, the succession was violent but HEREDITARY. It's easy to see that just looking to all the Dynasties. As an example one of the most important ones, the Justinian (518-602 AD):
- Justin I (518 -527 AD)
- Justinian I [NEPHEW AND HEIR of Justin I] (527-565 AD)
- Justin II [NEPHEW AND HEIR of Justinian I] (565-578 AD)
- Tiberius II Constantine [adoptive SON of Justin II] (578-582 AD)
- Maurice [SON-IN-LAW of Tiberius II] (582-602 AD)
"[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)
Again, nothing on the citation mentions any date but the "MAGIC BRACKETS".
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.
Ironic is that over 100 years of SEVERAL COURT VERDICTS in Italy COMPLETELY DISAGREE with that comic assertion:
- 1871 - Italian Supreme Court of Cassation, ratifies the verdict gave by the Court of Appeal of
Naples in 03/16/1870.
- 1872 - Court of Appeal of Naples in 02/05/1872.
- 1909 - Court of Naples 10/22/1909.
- 1914 - Civil and Penal Court of Avezzano in 12/03/1914.
- 1923 - Italian Supreme Court of Cassation in 04/25/1923.
- 1945 - Court of Cassona in 06/05/1945.
- 1945 - Court of Bari in 08/20/1945.
- 1946 - Court of Catania in 09/14/1946 (already Italian Republic).
- 1947 - Civil court of Naples in 06/06/1947 (already Italian Republic).
- 1948 - Court of Rome in 09/10/1948 (already Italian Republic).
- 1949 - Court of Vico Gargano verdict number 217/49 (already Italian Republic).
- 1950 - Court of Perugia in 03/27/1950 (already Italian Republic).
- 1952 - Unified Court of Rome in 03/22/1952 (already Italian Republic).
- 1955 - Court of Santa Agata de Puglia 06/25/1955 (already Italian Republic).
- 2003 - Ordinary Court of Ragusa 02/17/2003 (already Italian Republic)
* Important to mention that even after the Monarchy was abolished in Italy in 1946, the Courts kept respecting the Dynastic and Nobility Law.
According with SEVERAL COURT VERDICTS and SCHOLARS ALL OVER THE WORLD, the Byzantine claim is VERY MUCH ALIVE and for claimants from several Dynasties.
Who knows more of Dynastic Law? High judges, jurists and scholars? Or an AMATEUR WEBSITE?
Also, according with several scholars, The hereditary concept of the Byzantine Imperial throne was finally consolidated by Emperor Heraclius (Heraclitus) in the 7th Century:
" it took sometime before the HEREDITARY SYSTEM was FINALLY ESTABLISHED, and Heraclius himself introduced complications into the system by designating his second son, as well as the first, as Co-Emperor and successor to the throne. "(Georgije Ostrogorski, History of the Byzantine State p. 107)
Therefore, both the Phocid (Nikephorus) and Macedonian Dynasties had the Imperial heredity very well established.
" (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" only takes 100 years to become final and conclusive."
Not according with one of the greatest scholars in Dynastic Law in the world, the former president of the Italian Supreme Court of Cassation Professor Doctor Renato de Francesco in 1959.
"... It's simply RIDICULOUS, from a LEGAL point of view, the distinction intended to be done about Dynasties that have reigned until recently of those who ruled in the DISTANT PAST. It's not understandable how you can launch at the foot numerous pages of history, only to give luster to this or that family, who, aided by good luck, has managed to remain on the throne, after the year 1815. A DYNASTY OR REIGNED OR NOT REIGNED. If reigned, even in very REMOTE TIME, deserves the HISTORICAL and LEGAL treatment as a Dynasty and ALL ITS EFFECTS."
Clear as water, by Professor Dr W. Baroni Santos, Doctor D'état (post-doctorate/ habilitation) from the University of Reims in France in his book "Treaty of Heraldry and Nobility Law" Volume II page 52.:
"Neither the elapsed time, EVEN FOR CENTURIES, or NON-USE OF THE ACTS OF SOVEREIGNTY exercised by the Prince Pretender, Head of Name and Arms of his house, may be derogated, PRESCRIBED or CANCELED. He/She RETAINS THESE RIGHTS UNTIL THE END OF TIMES ' ad perpetuam rei tenendam ' which are inserted in the person of Prince Pretender. "
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.
Vattel declared the following on immemorial "prescription," that after a century, it is absolutely conclusive and final, because evidence that is over 100 years old is legally precluded from consideration. All objections must be considered before this time.
. . . 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.
That's a work of art, so many dots and the "magic brackets". Let's see the quote without them:
. . . Immemorial prescription secures the possessor's right beyond the power of . . . for, it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, . . . be derived, since the origin of the possession is lost in the obscurity means of proving . . . destroyed by time. . . . Immemorial possession, therefore, is an irrefragable title, 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. (The Law of Nations, Book II, #143)
The website, in another act of deception, tries to twist the citation to serve their purposes. But if you see the chapter's subject where the citation came from, it says all:
"CHAP. XI. OF USUCAPTION AND PRESCRIPTION AMONG NATIONS" http://www.constitution.org/vattel/vattel_02.htm
A dethroned King ISN'T A NATION.
But let's for a moment, accept the "moral" theory. On the same Chapter XI, #144, right after the above mentioned citation, Vattel says:
"§ 144. Claimant alleging reasons for his silence.
In cases of ordinary prescription, THE SAME ARGUMENT CANNOT BE USED AGAINST A CLAIMANT WHO ALLEGES JUST REASONS FOR HIS SILENCE, as, the impossibility of speaking, or a well-founded fear, &c., BECAUSE IS THERE IS NO LONGER ANY ROOM FOR A PRESUMPTION THAT HE HAS ABANDONED HIS RIGHT. IT IS NOT HIS FAULT IF PEOPLE HAVE THOUGHT THEMSELVES AUTHORIZED TO FORM SUCH A PRESUMPTION; NOR OUGHT HE TO SUFFER IN CONSEQUENCE: HE CANNOT THEREFORE BE DEBARRED THE LIBERTY OF CLEARLY PROVING HIS PROPERTY. THIS METHOD OF DEFENCE IN BAR OF PRESCRIPTION HAS BEEN OFTEN EMPLOYED AGAINST PRINCES WHOSE FORMIDABLE POWER HAD LONG SILENCED THE FEEBLE VICTIMS OF THEIR USURPATIONS."
Hugo Grotius wrote, ". . . in order that silence may establish the presumption of abandonment of ownership, two conditions are requisite, that the silence be that of one who acts with knowledge and of his own free will. For the failure to act on the part of one who does not know is without legal effect." (On the Law of War and Peace, Book I, chapter IV, number 5).
In other words:
"Presumption of neglect cannot justly exist, where the original owner has, by ignorance of his rights, or by deception, or personal fear, been prevented from claiming what he is entitled to. If he knew not that he had a right, he could not be supposed to relinquish it. And if fear or fraud induced his neglect, his mind could not have voluntarily consented." (John Penford Thomas, A Treatise of Universal Jurisprudence, chapter II, no. 13, 1829, p. 34)
Hugo Grotius also wrote that; "Contracts, or promises obtained by fraud, violence or undue fear entitle the injured party to full restitution."(www.constitution.org/gro/djbp_217.htm)
So, if you have a party alleging the neglect occurred and the other party alleging that it didn't, it creates a LITIGATION that will be PENDING FOREVER without an APPROPRIATE FORUM. Therefore, NO DYNASTIC RIGHT CAN BE ULTIMATELY FORFEITED WITHOUT A DEFINITIVE RULE FOR THIS LITIGATION.
Also, if you cite Vattel as ABSOLUTE TRUTH, you must also agree with him regarding the IMPOSSIBILITY OF SELLING SOVEREIGNTY (without any brackets or twists):
Book I, Chapter V, #69:
"§ 69. EVERY TRUE SOVEREIGNTY IS UNALIENABLE.
But when a prince chooses his successor, or when he cedes the crown to another, - properly
speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, entrusted - he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. EVERY TRUE SOVEREIGNTY IS, IN ITS OWN NATURE, UNALIENABLE."
"WE DO NOT FIND IN EUROPE ANY GREAT STATE THAT IS REPUTED ALIENABLE. If some petty principalities have been considered as such, it is because they WERE NOT TRUE SOVEREIGNTIES."
"Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, THE RIGHT OF REALLY ALIENATING THE STATE CAN NEVER BELONG TO THE SOVEREIGN, unless it be expressly given him by the entire body of the people. "
"CHAPTER XXI
§ 260. HE CANNOT ALIENATE THE PUBLIC PROPERTY.
The prince, or the superior of the society, whatever he is, being naturally no more than the
administrator, and NOT THE PROPRIETOR OF THE STATE, his authority, as sovereign or head of the nation, DOES NOT OF ITSELF GIVE HIM A RIGHT TO ALIENATE OR MORTGAGE THE PUBLIC PROPERTY. The general rule then is, that THE SUPERIOR CANNOT DISPOSE OF THE PUBLIC PROPERTY, as to its substance - the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, THE ALIENATION HE MAKES OF IT WILL BE INVALID, AND MAY AT ANY TIME BE REVOKED by his successor, or by the nation."
" (46) "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 monarch has 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. Sovereignty and "prescription" have been around for at least since 1000 BC and perhaps longer."
For something "SOLID AS GRANITE ROCK" let's say that the uncertainty of something "BEING AROUND AT LEAST since 1000 BC and PERHAPS longer" doesn't accredit the concept very much.
As shown here, NOT EVEN ONE SCHOLAR OF DYNASTIC LAW stands for the forfeiture of Dynastic Rights by prescription. Also, the JUDGES, JURISTS AND SCHOLARS of International Law repute the principle of Prescription as HIGHLY CONTROVERSIAL AND DEBATABLE even for cases of International Territorial Dispute.
Our point is that there's NOTHING hermetic, nothing "black on white" in Dynastic Law.
We have no problem with disagreements. They're positive and healthy for the debate and for the better understanding of any subject. What amazes us is the DECEPTION, ADULTERATION, ADAPTATION and TWISTING of citations to MANIPULATE the public in a certain direction.
Everything stated here from us is the PURE quote of well-known scholars, authors and judges, from domestic and international courts. Also, the legal interpretation of the Dynastic Law as the result of court verdicts. Also, the cited scholars are specific experts of Dynastic and Nobiliary Law. They've published awarded books as recent as 2002.
We don't add, twist or adulterate anything. The right to agree or disagree is yours and will be respected always, but from your own decision, not from MANIPULATIONS and DECEPTIONS.
Let's go over their quoted questions and citations to easily prove their MISCONCEPTIONS:
" (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.)"
THAT'S NOT TRUTH. According with a citation posted on their own website:
". . . INTERNATIONAL LAW IS DEPENDENT UPON THE VOLUNTARY PARTICIPATION OF STATES IN ITS FORMULATION, OBSERVANCE, AND ENFORCEMENT." (Nelson Dordelly-Rosales, "State Sovereignty and the Protection of Human Rights," Paper presented at the Annual Meeting of the Law and Society Association, Montreal, Quebec, Canada, May 27, 2008: www.allacademic.com/meta/p235808_index.html)
INTERNATIONAL LAW IS "AGREEMENT LAW." IT ". . . IS BINDING ONLY BECAUSE IT IS AGREED TO." (Steven Lee, "A Puzzle of Sovereignty:" www.bu.edu/wep/Papers/Poli/PoliLee.htm
There's not even ONE treaty, positive law or ANYTHING pointing to the forfeiture of Dynastic Rights. Nor even ONE scholar that agrees openly to its application to Dynastic Law.
Again, in order to have any "implied legal juridical abandonment", you need a court rule, a treaty or a positive law of any kind. An "implied legal juridical abandonment" is something called "LEGAL PRESUMPTION" (praesumptio legis) and it's something that DOESN'T HAPPEN BY MAGIC.
"III. Classification:
Praesumptio Legis: these ARE PRESUMPTIONS WHICH THE LAW DIRECTS TO BE MADE BY THE COURT:
a). Juris tantum- or prima facie, rebuttable or disputable presumption or those which may be overcome or disproved
b). Juris et de Jure: conclusive or those which the law does not allow to be contradicted
c). Statutory and Constitutional "
http://www.batasnatin.com/law-library/remedial-law/evidence/1090-rule-131-rules-of-court-burde n-of-proof-and-presumptions.html
" (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."
"Prescription" is a controversial legal principle applied in Territorial Disputes in International law. The website is "ADAPTING" it to Dynastic Law. Again, not even ONE scholar openly supports that theory in the way they present it:
"In law, PRESCRIPTION IS THE METHOD OF SOVEREIGNTY TRANSFER OF A TERRITORY THROUGH INTERNATIONAL LAW ANALOGOUS TO THE COMMON LAW DOCTRINE OF ADVERSE POSSESSION FOR PRIVATE REAL-ESTATE. Prescription involves the open encroachment by the new sovereign upon the TERRITORY in question for a prolonged period of time, acting as the sovereign, without protest or other contest by the original sovereign. This doctrine legalizes de jure the de facto transfer of sovereignty CAUSED IN PART BY THE ORIGINAL SOVEREIGN'S EXTENDED NEGLIGENCE AND/OR NEGLECT OF THE AREA IN QUESTION"." http://en.wikipedia.org/wiki/Prescription_%28sovereignty_transfer%29
Again, LAND not DYNASTIC RIGHTS.
According with the book INTERNATIONAL LAW: A DICTIONARY, Boczek, Adam Boleslaw, pg. 243:
"PRESCRIPTION: a CONTROVERSIAL concept derived from civil (Roman Law) and referring of acquisition by a state of sovereignty over a TERRITORY over one time under the sovereignty of another state, through uninterrupted and UNCONTESTED PEACEFUL exercise of state authority which has persisted by an undefined period of time. Moreover, while many publicists accept prescription as a mode of acquisition, a CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW. In 1960, a judge of the INTERNATIONAL COURT OF JUSTICE (ICJ) Portugal vs. India expressed the opinion that "Prescription, a private law institution finds no place in International law". Whether Prescription belongs to the general principles of law recognized by civilized nations IS DOUBTED BY MOST AUTHORS."
I believe that says all. SEVERAL SCHOLARS DOUBT THE USE OF PRESCRIPTION EVEN FOR TERRITORIAL DISPUTES.
The court's adjudication isn't necessary in international law. But it's the ONLY WAY to make a dispute FINAL, once, according with the website itself, "INTERNATIONAL LAW IS AGREEMENT LAW." So, THE ONLY WAY TO MAKE A DISPUTE OF ANY KIND FINAL, if the parties didn't agree by a treaty.
"(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, the usurpers, to internal sovereignty. "Prescription" as a "juridical act" gives legitimacy without formal or official decree from a court or tribunal. So as to the question of "prescription" causing the forfeiture of the royal right, there have been hundreds of cases and thousands through the centuries."
There are several citations about Territorial Sovereignty and AGAIN, NOT EVEN ONE SINGLE CASE.
". . . 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."
In a very common practice on that website, the addition of brackets twists the real citation which is related to territorial sovereignty. The word "title" refers to "land's title".
"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."
Again, the free adaptation of territorial law. Not a single solitary proof that links anything to Dynastic Law. Not even ONE case.
What is very common in History is a Dynasty (Royal House), that doesn't want to claim their rights. Even having a perfect and recent claim, for personal reasons, they rather stay out of the political pretension.
A perfect example is the Qajar Family of Iran. They were deposed in 1923 by a coup d'état.
From their official website:
"We have absolutely NO POLITICAL AGENDA FOR THE RESTORATION OF THE QAJAR DYNASTY ON THE PERSIAN THRONE." http://qajarfamily.org/
Legally, it doesn't mean that they have no right. They only chose not to claim it for personal reasons. Again, there's not even ONE LAW, CASE OR ANYTHING linking territorial law to Dynastic Rights.
" (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. . . . (Emmer 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)
Emmer 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)"
When you establish what would be the Dynastic and Nobiliary Law there is an immense difference between what is "Code of law", what would popularly know as "black on white" - based on real jurisprudence (court verdicts) and written codes of law; and "Moral law", which are publications based on tendencies and comments, in other words, opinions. Some of the cited "moral works" are from the XVI Century like Hugo Grotius and Emmer de Vattel's books.
Here a comment from Judge Beverly Tucker, Professor of Law in William & Mary College on the book "The Law of Nations" by Emerich Vattel:
"National LAW IS MORE A MORAL THAN A LEGAL SCIENCE. Law is a rule of action prescribed by competent authority. Moreover, all Law implies some sanction to enforce it. Now National law is that which defines and regulates the social duties of Nation to Nation. Where then is the authority that prescribes such duties, and where the sanction that enforces them?"
"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)
Yes, that's correct. There's no need to refer the dispute to a settlement mechanism. But if none of the parties agree with any kind of treaty, the dispute remains PENDING FOREVER.
According with Professor Richard Bilder, "Adjudication: International Arbitral Tribunals and Courts" Peacemaking in International Conflict: Methods and Techniques, eds. I. William Zartman and J. Lewis Rasmussen, Washington DC: United States Institute of Peace Press, 1997, pp. 155-190: http://www.crinfo.org/articlesummary/10048/
"It is important to note that, for many people throughout the world, INTERNATIONAL ADJUDICATION SYMBOLIZES CIVILIZED AND ORDERED BEHAVIOR AND THE RULE OF LAW IN INTERNATIONAL AFFAIRS."(p. 180)
"Compared to other dispute resolution techniques, adjudication has a number of advantages. IT MAKES A FINAL DISPOSITION OF THE DISPUTE."
So, the court it's not mandatory but IS THE ONLY WAY THAT THE DISPUTE IS FINAL AND BINDING. That happens because it's known that even when a treaty is signed, one of the parties can withdraw from the commitment previously agreed. That happens because of the principles that govern the concept of Sovereignty.
"TREATIES ARE NOT NECESSARILY PERMANENTLY BINDING UPON THE SIGNATORY PARTIES. AS OBLIGATIONS IN INTERNATIONAL LAW ARE TRADITIONALLY VIEWED AS ARISING ONLY FROM THE CONSENT OF STATES, many treaties expressly allow a state to withdraw as long as it follows certain procedures of notification." http://en.wikipedia.org/wiki/Treaty#Ending_treaty_obligations
"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 completely outside of any kind of tribunal decree or verdict and it still does. "
As a common practice of the website, they simply omit the relevant parts of the citation. Here are the full citations from Professor Noel Cox:
"Legal rights can expire without the intervention of a court - THE LATTER IS DECLARATORY RATHER THAN DETERMINATIVE."
A DECLARATORY JUDGMENT ISN'T FINAL. A DETERMINATIVE IS.
"Final judgment refers to a court's last action that settles the rights of the parties and disposes of all issues in controversy... This is also termed as final appealable judgment or final decision or final decree or definitive judgment or DETERMINATIVE judgment or final appealable order. Final judgment means "A JUDGMENT THAT IS FINAL AND NOT APPEALABLE, AND INCLUDES AN ORDER OF SETTLEMENT." http://definitions.uslegal.com/f/final-judgment/
And again, in order to have a DECLARATORY LAW without a court, you need a legislative act or even an executive act. In other words, you need A POSITIVE LAW:
"POSITIVE LAW is the term generally used to describe man-made laws which BESTOW OR REMOVE SPECIFIC PRIVILEGES UPON AN INDIVIDUAL OR GROUP." http://en.wikipedia.org/wiki/Positive_law
You cannot just "MAGICALLY" apply moral juridical principles as you please.
Dr. Cox also says:
"Thus the dynastic rights of a Sovereign may potentially end without a court ruling. THE SURRENDER OF LEGAL RIGHTS MAY ALSO BE REVERSIBLE (generally depending on the domestic legal rules rather than international law)." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
In other words, even a voluntary and documented abdication CAN BE REVERSED.
As a clear example, in a declaration dated 31 May 1961, Prince Otto von Habsburg, the Head of one of the greatest Imperial and Royal Houses of Europe, the Habsburg-Lorraine, RENOUNCED ALL CLAIMS TO THE AUSTRIAN THRONE AND PROCLAIMED HIMSELF "A LOYAL CITIZEN OF THE REPUBLIC," a move that he made only after much hesitation and certainly "for purely practical reasons". In a 2007 interview on occasion of his approaching 95th birthday, Otto stated:
"This was such an infamy; I'd rather never have signed it. They demanded that I abstain from politics. I would not have dreamed of complying [with that demand]. Once you have tasted the opium of politics, you never get rid of it."
Even with that, the House of Habsburg-Lorraine is considered very much alive and recognized. In 2007, after more than 45 years of his abdication, Otto passed the rights to his son Karl.
That's because:
"the concept of sovereignty formally implies a power that is absolute, perpetual, indivisible, IMPRESCRIPTIBLE and inalienable." (Andrew Vincent, Nationalism and Particularity, 2002, p. 17)
" (e) I read that a dynasty never loses its rights ever no matter what.
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 the fact that 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."
Again, the website "decides" that the quote isn't right, even WITHOUT ANY SCHOLARLY CREDENTIALS. There's not even ONE citation that it's PURE and without twists. Here another example from the same website:
"However, dynastic sovereignty is hereditary and because all the full plenary powers center in a single person --- the monarch, he is the personification and embodiment of all the power, majesty and glory of the nation; which is an ". . . inalienable right of sovereignty, . . . which can be lost only by voluntary [willing or implied] renunciation (transfer) or [the] extinction of the dynasty [or royal family itself]." (Stefan Talmon, Recognition of Governments in International Law, 1998, p. 54) "
The original citation was:
". . . inalienable right of sovereignty, WHICH CAN BE LOST ONLY BY VOLUNTARY RENUNCIATION OR EXTINCTION OF THE DYNASTY."
In other words, exactly what the great majority of scholars defend, ONLY THE CLEAR WILLING, EXPRESS AND VOLUNTARY RENUNCIATION (SURRENDER OF THE CLAIM) may end Royal rights, period.
" (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."
You cannot state, in any level, that any right is forfeited ultimately without something, ANYTHING SOLID. You need a positive law of any kind, not just principles. In the website's amateurism they fail in see that. Without that, it's MERE ASSUMPTION.
In a dispute, if none of the parties surrenders the claim, only adjudication or mediation can decide if Prescription or any other legal presumption really took place. Again, in law nothing happens by magic.
"Res judicata or res iudicata (RJ) is the Latin term for "a matter [already] judged", and may refer to two things: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal.[1]"
"... res judicata is a general principle of international law under Article 38 (1)(c) of the International Court of Justice Statute. "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: ... c. the general principles of law recognized by civilized nations".[9][10]" http://en.wikipedia.org/wiki/Res_judicata
From the book INTERNATIONAL LAW by Shaw, Malcolm Nathan, pg. 96:
"A judgment having the authority of RES JUDICATA is judicially binding on the parties to the dispute. THIS IS A FUNDAMENTAL PRINCIPLE OF THE LAW OF NATIONS repeatedly invoked in the jurisprudence, which regards the AUTHORITY OF RES JUDICATA AS A UNIVERSAL AND ABSOLUTE PRINCIPLE OF INTERNATIONAL LAW."
The above citations associate the Principle of "Res Judicata" as FUNDAMENTAL IN THE LAW OF NATIONS (INTERNATIONAL LAW). But, the website seem to "PICK" from International law only what seems convenient to support their fantasies.
"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."
First of all, we need to understand what a so-called "juridical act" is:
"A juridical act is one that conforms to the LAWS and the RULES OF COURT." http://answers.encyclopedia.com/question/juridical-act-614560.html
A legal presumption is a "juridical act"; therefore, it needs a POSITIVE LAW of any kind or a COURT RULE. Without that, there's NO LEGAL PRESUMPTION! The mere and free application of a legal principle ISN'T LAW!
" (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.
"The author believes that "prescription" involves external sovereignty and therefore it could not impact the internal sovereignty rights of deposed kings and sovereign princes."
A deposed or dispossessed monarch denied the privilege of ruling is still a dynast and still holds the highest internally right to rule within his former territory. No one, no country has a higher internal right to rule. The "defacto" ruler is a usurper even if the usurping government receives external "de jure" and "defacto" recognition by other states. In spite of this kind of outward recognition for the usurper, the dethroned monarch, or his rightful heirs, are the "de jure" territorial sovereigns of the land.
That is, this is true, if, and only, if he has kept his rights alive, his supreme secular rights are "de jure" and are inseparably connected to the internal right to rule the territory of his fathers. In other words, dynastic sovereignty cannot be separated from territorial sovereignty. You can't have one without the other. To dissect them is to mutilate and deform an important legal reality. "
The simplistic analysis for the website proves their misunderstandings. The Sovereignty is ALSO composed by territory. But NOT ONLY that. And again, THERE'S NO PROOF OR JURISPRUDENCE THAT THE TERRITORIAL LEGAL RITE SHOULD BE APPLIED TO DEPOSED MONARCHS.
The most important part of Sovereignty is the PEOPLE. The deposed monarch is deprived of BOTH TERRITORY AND PEOPLE. So, the application of "territorial law" to deposed monarchs is a MERE GUESS.
"The "de jure" monarch's sovereignty is territorial or bound up forever with the land. And the connection between the two cannot be divided without creating a misunderstanding. When we identify deposed monarchs as being "non-territorial" elsewhere in the answers in these articles, we are merely referring to the fact that they do not have "defacto" control over the territory. But their sovereignty is indivisibly combined with their rightful territory. In other words, "'dynastic' or monarchical 'territorial' sovereignty" is a real and genuine reality. (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) There is also republican territorial sovereignty."
Again, another serious mistake. The 'ideal' rights of a Dynasty are related to History and Law. Of course the Sovereign will be forever related to the territory, that's even ridiculous to be mentioned, but again, there's NOTHING relating that to "international territorial disputes" and even if there is, nothing is final until one of the parties surrenders the claim or seeks for any kind of settlement.
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) 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) In other words, the same principles apply to all.
Again, amateurism. Of course, the Sovereignty of the King, President or people is the same. None is questioning that. The point is that a "Sovereign Dynastic Title" and a "Sovereign Territorial Title" are two completely different things. The first is related to a Dynasty and is historically attached to land and people but not DEPENDABLE OF IT TO EXIST! A "Territorial Title" is ONLY related and TOTALLY DEPENDABLE OF LAND. Difference enough?
". . . THE KING DOES NOT FORFEIT THE CHARACTER OF ROYALTY MERELY BY THE LOSS OF HIS KINGDOM. If he is unjustly despoiled of it by a usurper, or by rebels, he still preserves his rights. . . ." (Emerich de Vattel, The Law of Nations, Book II, chapter XII, no. 196)
Some serious, awarded authors and scholars defend that the character of pretension of the previous territory isn't even mandatory for a Dynasty to keep the princely qualities.
Here an extract from the book "Studies on Nobility Law" (Estudos sobre Direito Nobiliário), Dr. Mario Silvestre de Meroe, pg. 63:
"There outbreaks of political crises in front of which the monarch himself voluntarily accepted - sometimes even want to - that institutional rupture, expressly agreeing with the new order of things. In such cases, AND ONLY THOSE, he loses the dynastic rights, retaining only the PRINCELY QUALITIES INHERITED AND TRANSMITTED TO THEIR DESCENDANTS, without, however, the attributes of 'PRETENDER'."
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.
The website seems to 'judge' all Dynasties with the European perspective which is absurd! The Treaty of Westphalia is only binding to the signatory parties. And the so-called "founding fathers of international law" are considered to be "moral law" not actual binding law.
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)
Again, another manipulation of a citation. Read it again, without the brackets:
". . . 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."
Have in mind again, that's moral law, NOT ACTUAL LAW. The citation says NOTHING about "IRRETRIEVABLE LOSS OF ROYAL AND SOVEREIGN RIGHTS", he says that 'HE MAY BE PRESUMED', there's NOTHING MANDATORY OR DEFINITIVE.
Or, dynastic sovereignty can be preserved endlessly and forever, if the claim is kept alive in the way specified by law.
What law??? There's no positive law!!! No so-called 'specification' of any sort!
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)
No problem with that. But you cannot escape of a positive law to regulate that. It cannot come from FREE ADAPTATION!
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.
Again, WHICH LAW???
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:
That's a preposterous and ridiculous assumption, absolutely based on international real state not openly defended by even one scholar.
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)"
The above citation was also ADULTERATED, here the right one:
"To object that sovereign rights will thus be arbitrarily destroyed is an UNWARRANTED ASSUMPTION, SINCE THOSE RIGHTS CANNOT REASONABLY BE SHOWN TO EXIST." (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347)
That's TOTALLY AGREED. The Dynastic rights are more Historical than Legal. They're based on the jurisprudence of deposed monarchs that returned to the throne after the deposition. Are also based on the fact that any political act cannot MAGICALLY erase the past. But there're no vested rights for the Dynasty, even if totally lawful, to return to the throne. Also, there's no law (therefore NOTHING to standardize the period of interregnum of a deposed Dynasty) and NO FORUM to rule over deposed sovereign claims. So, it's easier to assume that THERE ARE NO RIGHTS than imagine or adapt some magic to the destruction of these rights.
"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)
Again, examples of dethroned monarchies are not examples of the loss of rights by Prescription. The website tries to deceive the reader.
" (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.
Actually, the question by itself is a deception. Not only "ONE JUDGE" but the citation mentioned above is clear when it says that Prescription is "doubted by MOST AUTHORS", including SEVERAL JUDGES. Also a "CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW".
Just an example, for over 100 years (until present date), NOT EVEN ONE JUDGE in Italy (both Monarchy and Republic) believed that Prescription can destroy Dynastic Rights.
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)
In international law, "prescription" is considered to be among the highest of all laws,
The deception continues. Right or wrong, "Prescription" is a legal principle, NOT A "LAW".
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)
Again, the "magic brackets". The original citation doesn't mention "THE HIGHER LAW" that was INSERTED in the citation to make it looks like "A LAW ABOVE ALL", which is a big and fat LIE. The Law of Nature is only MORAL LAW, Fundamental principles with no enforcement without Positive Law (or man-made law: constitutions, penal codes, treaties, common law, etc.)
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. . . ." (Emmer 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) "Prescription" is universally accepted in every civilized nation and is binding on royal as well as republican sovereignty.
Again, the citations must be repeated once the above deception it's IMMORAL:
According with the book INTERNATIONAL LAW: A DICTIONARY, Boczek, Adam Boleslaw, pg. 243:
"PRESCRIPTION: a CONTROVERSIAL concept derived from civil (Roman Law) and referring of acquisition by a state of sovereignty over a TERRITORY over one time under the sovereignty of another state, through uninterrupted and UNCONTESTED PEACEFUL exercise of state authority which has persisted by an undefined period of time. Moreover, while many publicists accept prescription as a mode of acquisition, a CONSIDERABLE NUMBER OF AUTHORITIES DOES NOT BELIEVE IT HAS MUCH UTILITY IN TODAY'S INTERNATIONAL LAW. In 1960, a judge of the INTERNATIONAL COURT OF JUSTICE (ICJ) Portugal vs. India expressed the opinion that "Prescription, a private law institution finds no place in International law". Whether Prescription belongs to the general principles of law recognized by civilized nations IS DOUBTED BY MOST AUTHORS."
From the Book Territorial disputes, acquisition and INTERNATIONAL LAW, Sharma, Surya Prakash, pg.112
About PRESCRIPTION:
" in terms of judicial theory GRAVE DOUBTS have been expressed about ITS RECOGNITION as a mode of acquiring territorial sovereignty."
It goes further:
"There appears to be NO CASE in which an INTERNATIONAL TRIBUNAL has explicitly endorsed the doctrine of PRESCRITPION, although writers have relied upon certain decisions as instances for recognition of this doctrine by tribunals." (Ibid.)
From the Book TEXTBOOK ON INTERNATIONAL LAW, Dixion, Martin, pg. 157:
".. in his separate opinion in El Salvador v. Honduras Judge ad hoc Torres Bernardez made it clear that he did not believe 'peaceful and continuous display' (Prescription) to be a principle of International law as such. Rather, it was an indication of sovereignty which must be connected to a giving norm of International law (i.e. legal justification) before sovereignty could be confirmed."
So, IT'S NOT ONE JUDGE and NOTHING IS "UNIVERSALLY ACCEPTED".
(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. The differences are profound and very important."
Another terrible deception. Please note the citations:
From the Book Territorial disputes, acquisition and INTERNATIONAL LAW, Sharma, Surya Prakash, pg.112
"Even in the past when the TRADITIONAL INTERNATIONAL LAW recognized conquest as a valid mode of acquiring territory, ACQUISITIVE PRESCRIPTION, the same author maintains, "DID NOT OPERATE IN CASES WHERE POSSESSION WAS MAINTAINED BY FORCE."
The book's name is "INTERNATIONA LAW" not "DOMESTIC LAW".
From the Book THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW - Manchester University , Pg. 52:
" even in the traditional law, required something more than the mere seizure of territory by force of arms. Firstly - AND THIS IS MOST IMPORTANT - there is a MOST-ESTABLISHED AND FIRM RULE that the military occupant CANNOT ACQUIRE SOVEREIGNTY AT ALL 'durante bello' (DURING WAR)."
So, there's nothing DOMESTIC about the citations. The occupation must be PEACEFUL and cannot be CONTESTED. So, no Prescription during war or violent occupations. That's in INTERNATIONAL LAW, NOT DOMESTIC.
" (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 website goes on and on trying to convince the public that peaceful means "with no protest". There's nothing wrong with that. Why the invader nation would have to use force if there's no protest??? The citations are clear, during war Prescription cannot occur once obviously there's a dispute based on a protest. Or the website imagines an invader nation would fight against itself?
But again, reading the following citation we see that the author cites it in an interesting way:
"Prescription is often referred to as "adverse possession" in domestic courts, except in an INTERNATIONAL COURT, PRESCRIPTION CAN'T BE ADVERSE OR HOSTILE BUT RATHER PEACEABLE AND WITHOUT PROTEST BY THE OCCUPIED NATION."
http://www.alohaquest.com/arbitration/news_vandykeinerror.htm
"PEACEABLE AND WITHOUT PROTEST BY THE OCCUPIED NATION".
If "PEACEBLE OR PEACEFUL" means just "WITHOUT PROTESTS" why did the author made a REDUNDANT assertion?
" (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."
Again, preposterous! Where is the positive law stating that? What if the fear persists for over 100 years? What if the ignorance of the rights takes 200 years? There's no law to appraise that, so it's a MADE UP!
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."
Again, it cites a territorial case with no relations to deposed monarchs.
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. They cannot be considered after the "prescriptive" transfer of internal sovereignty becomes conclusive and final.
Again, where is the positive law with the deadlines, terms and conditions for that to occur?
Even in International law just principles are not enough. The principles are used to create laws. Here's another comment from Professor Cox that was conveniently omitted by the website:
"One of the difficulties is that we have to distinguish between the principles of international law, and domestic law. EVEN WITH RESPECT TO INTERNATIONAL LAW, THE APPLICATION OF THE LAW VARIES IN INDIVIDUAL COUNTRIES - THOUGH THE PRINCIPLES ARE SUPPOSEDLY THE SAME." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
" (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."
Well, again the website mixes up concepts.
Annexation means:
"Annexation (Latin ad, to, and nexus, joining) is the DE JURE INCORPORATION OF SOME TERRITORY into another geo-political entity (either adjacent or non-contiguous)." http://en.wikipedia.org/wiki/Annexation
"De Jure" means "by Right", "BY LAW".:
"DE JURE (in Classical Latin de iure) is an expression that means "CONCERNING LAW", as contrasted with de facto, which means "concerning fact"." http://en.wikipedia.org/wiki/De_jure
So by that it's easy to conclude that in order to be an Annexation, the Acquisition MUST BE LEGAL. Without the Annexation, the acquisition is ILEGAL and just "De Facto". Hence, if there isn't a formal and legal act we aren't talking about actual LAW. Hence, the State MAY acquire territory without formal Annexation but it's NOT A LAWFUL ACT.
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.
The "highest presumption on earth" needs a court to occur or any positive law (like a treaty or anything). YOU CANNOT INVOKE ANY LEGAL PRESUMPTION OF THIN AIR!
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.
The website used terms like "SET IN LEGAL CEMENT" and "SOLID LEGALLY AS GRANITE ROCK" which is, in this case, SIMPLY PATHETIC. How can someone use in the same website the following citation and say that something is "SET IN LEGAL CEMENT"?
"To object that sovereign rights will thus be arbitrarily destroyed is an UNWARRANTED ASSUMPTION, SINCE THOSE RIGHTS CANNOT REASONABLY BE SHOWN TO EXIST." (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347)
" (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."
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 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 "the right to exercise therein (i.e. on the territory . . . the functions of a sovereign."
Again, fragmented and twisted citations.
In other words, internal sovereignty and territorial sovereignty have one and the same definition.
All of the website's legal statements are based on SEMANTICS. What they fail to understand is the simple fact that all of the citations they use are from legal cases of EXTERNAL SOVEREIGNTY:
"External sovereignty concerns the relationship between a sovereign power and OTHER STATES." http://en.wikipedia.org/wiki/Sovereignty#External
In laymen's terms, you always have the Sovereign Nation "A" disputing a piece of territory with the Sovereign Nation "B". So, the above definition is perfect. There's not even ONE CASE in the whole legal history of a litigation questioning the very OWN SOVEREIGNTY OF A NATION. The website is trying to suggest that "External Sovereignty" jurisprudence can interfere, without any positive law (legislation, treaty. Etc.) in a DOMESTIC CONFLICT.
"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)
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 to "prescription." Why? Because internal sovereignty is the sovereignty of deposed sovereigns, and dynastic and territorial sovereignty is internal, not external; and as shall be seen, "prescription" has authority over internal supremacy.
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)
Semantics, again. The fact that you have the word "TERRITORIAL" in a definition doesn't mean at all, that the correct legal application should be the one they're suggesting. A national conflict is a matter of Internal Sovereignty yes, but it's considered to be a DOMESTIC JURISDICTION:
"IT HAS ALWAYS BEEN CONSIDERED that the CONSTITUTIONAL, POLITICAL and social organization of a state is ESSENTIALLY a matter of coming under the latter's sovereignty i.e. WITHIN ITS DOMESTIC JURISDICTION." (Djura Nincic, The problem of Sovereignty in the charter and in the practice of the United Nations and the , 1970, p. 186)
That reflects the LACK OF JURISDICTION of International Law in domestic disputes. From the United Nations Charter, chapter 1, Article 2:
"7. NOTHING contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the DOMESTIC JURISDICTION OF ANY STATE or shall require the Members to submit such matters to settlement under the present Charter..." http://www.un.org/en/documents/charter/chapter1.shtml
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" can and has both destroyed or preserved the sovereignty of deposed monarchs for hundreds and hundreds of princely and royal houses thoughout the centuries.
One more time, the citation was ADULTERATED, TWISTED and OMITTED in the CRUCIAL points. The book's chapter is called "INTERNATIONAL ARBITRATION" which suggests that the application of Prescription is accepted and considered in MEDIATIONS and ADJUDICATIONS. THE CITATION JUST CONFIRMS THAT. The real and full citation here:
" ON QUESTIONS OF TERRITORIAL SOVEREIGNTY INTERNATIONAL LAW ADMITS NO PRESCRIPTION but immemorial one. Now, international prescription, short of being immemorial, is admitted IN PRINCIPLE by the great majority of jurists: NO TERM OF YEARS HAS BEEN FIXED FOR IT, and the necessary term may vary with the circumstances and BE LEFT TO THE DECISION OF ARBITRATORS IF THE PRINCIPLE BE CONCEDED."
So, according with their own citation, now shown in full, Prescription cannot be ultimate without any kind of arbitration, and even there we find a lot of CONTROVERSY.
"(p) I read that dynastic rights cannot be sold.
This is a myth as history is full of such examples. 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.) "
Here is an extract from the book "The Law of Nations", Emerich Vattel, Book I, Chapter V, #69:
Book I, Chapter V, #69:
"§ 69. EVERY TRUE SOVEREIGNTY IS UNALIENABLE.
But when a prince chooses his successor, or when he cedes the crown to another, - properly
speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, entrusted - he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. EVERY TRUE SOVEREIGNTY IS, IN ITS OWN NATURE, UNALIENABLE."
"WE DO NOT FIND IN EUROPE ANY GREAT STATE THAT IS REPUTED ALIENABLE. If some petty principalities have been considered as such, it is because they WERE NOT TRUE SOVEREIGNTIES."
"Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, THE RIGHT OF REALLY ALIENATING THE STATE CAN NEVER BELONG TO THE SOVEREIGN, unless it be expressly given him by the entire body of the people. "
"CHAPTER XXI
§ 260. HE CANNOT ALIENATE THE PUBLIC PROPERTY.
The prince, or the superior of the society, whatever he is, being naturally no more than the
administrator, and NOT THE PROPRIETOR OF THE STATE, his authority, as sovereign or head of the nation, DOES NOT OF ITSELF GIVE HIM A RIGHT TO ALIENATE OR MORTGAGE THE PUBLIC PROPERTY. The general rule then is, that THE SUPERIOR CANNOT DISPOSE OF THE PUBLIC PROPERTY, as to its substance - the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, THE ALIENATION HE MAKES OF IT WILL BE INVALID, AND MAY AT ANY TIME BE REVOKED by his successor, or by the nation."
" (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)
Removing the "magic brackets" and analyzing the citation in its pure form, it's clear that the citation defends, the praxis of International Law, which is the fact that the RIGHTS ARE ONLY LOST BY THE EXPRESS AND WILLING SURRENDER OF THE CLAIM. Of course, the protests are important for keeping the claim's appeal but, once there are absolutely no regulations or enforcement regarding how these protests should be done, they cannot be considered as "law".
According with many scholars and remembering the example of Prince Otto Von Habsburg, and Prince Vittorio Emmanuelle II di Savoy (among many others), that had to surrender their Royal claims and pretensions in order to regain their citizenship, even the surrender can be reversible what makes the so-called acquiescence theory pure rubbish! According with Professor Noel Cox:
"The surrender of legal rights MAY ALSO BE REVERSIBLE (generally depending on the domestic legal rules rather than international law)." http://en.allexperts.com/q/Anglicans-943/2010/12/Dynastic-Law-1.htm
From Professor Doctor W. Baroni Santos, Doctor D'Etat in Nobility Law by The University of Reims in France, in his book "Treaty of Heraldry / Nobility Law Vol. I, Book II, chapter I "Jurisprudence of Nobility" page 197:
"A "Chief of Name and Arms", a title attributed to a Claimant, being by juris sanguinis (law of
blood) "heir apparent" of a DEFUNCT THRONE, AS LONG AS HAS NOT FORMALIZED A VOLUNTARY ACT OF RESIGNATION AND ACQUIESCENCE [formalized, not assumed or presumed] to the new political order of the state, according to the classic expression "subito la debellatio", RETAINS, IN ALL ITS FULLNESS, THE SOVEREIGN PREROGATIVES OF FONS HONORUM (FOUNTAIN OF HONOURS) AND JUS MAJESTATIS (RIGHT TO MAJESTIC DIGNITY). IT IS A FORTIORI, THE SOURCE OF NOBILITY AND HONOR, AND MAY, WITHOUT RESTRICTIONS, CREATE NOBLES AND ARM KNIGHTS."
A Court sentence of the Republican Italy (Pretoria de Vico Del Gargano, Repubblica Italiana
sentence number 217/49) corroborates the above mentioned:
"( ) it's IRRELEVANT if that Imperial family in no longer ruling FOR CENTURIES, because the
deposition don't harm the sovereign prerogatives even if the sovereign renounces, spontaneously, to the throne. In substance, in this case, the Sovereign does not't cease to be King, even living in exile or IN PRIVATE LIFE (WITHOUT CLAIMING HIS SOVEREIGNTY), because his prerogatives are, itself, by birth and CANNOT BE EXTINGUISHED, but remains and may be transmitted in time, from generation to generation."
Court Sentence from the Republic of San Marino Case No. 184, 1987 - ALSO CITING JURISPRUDENCE FROM 1596:
" (...) Consequently THIS COURT HAS INTERNATIONAL JURISDICTION (Leges Statutae Rub. I, XXVI and XXXIV of Lib. II)
(...) We should bear in mind that THE FAILURE TO MAKE USE OF THE TITLE DOES NOT RESULT IN GIVING UP, EXPIRE, OR ANY CASE LOSS OR IMPEDIMENT OF GENEALOGICAL OR HERALDIC HISTORICAL PREROGATIVES AS THEY ARE GRANTED JURE SANGUINIS [BY BLOOD RIGHT] OR JURE LEGIS [BY LEGAL RIGHT] AND THEY REMAIN IMPRESCRIPTIBLE IN THE SENSE THAT WHEN THEY HAVE NOT BEEN USED THEY CAN BE, IPSO JURE [AUTOMATICALLY BY LAW], BE RECOVERED "FACTO SUO QUIS AMISERIT CONTRARIO FACTO FACILE RECUPERARE POTEST" [BY FACT A LOSS EASILY TO BE RECOVERED] (Fabro Codex Lib. IX Tit. 29 Def.2 Piedmont Senate Dec 15 Kalend junii 1596) Richeri (Codex Lib. I Tit. IV, Def. XI) ALSO TELL US THAT NOBILITY AND NOBLE TITLES CAN BE RECOVERED IPSO JURE [AUTOMATICALLY BY LAW] AND NULLA OPUS EST UT AIUNT REABILITARIONE [IT'S SAID WITHOUT WORK TO REABILITATE]."
In other words, anything trying to create any kind of expiration date in titles of nobility is absolutely baseless and nonsensical.
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)
Again, the "magic brackets" twist the citation. Textor says exactly what's mentioned before. The only way of losing rights is by the willing and express surrender of the claim. The citation doesn't mention Prescription and absolutely nothing about the consent being implied (by neglect). It was added to deceive the reader.
Keep in mind that ". . . Dynastic rights of a Sovereign may . . . end without a court ruling. (op.cit., Noel Cox)
Now we know that wasn't exactly what Professor Noel Cox said.
" (r) I read that all 15 accepted dynasties of the Byzantine Empire are entitled to claim imperial rights according to Dynastic Law.
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
/articlemain.php?artid=mtp_emperor)
This not only a lie but another DECEPTION. The fact that Byzantium didn't "FULLY DEVELOP THE NOTION OF HEREDITARY RULE" doesn't mean that we didn't have Hereditary Dynasties ruling. It's easy to see that just by reading the meaning of the word "DYNASTY":
"A DYNASTY is a sequence of rulers considered members of the same family." http://en.wikipedia.org/wiki/Dynasty
If there's no clear and established electoral system (like the Vatican or the Holy Roman Empire), A MONARCHY CANNOT BE CONSIDERED ELECTIVE IF YOU HAVE MEMBERS OF THE SAME FAMILY SUCCEEDING AS LIFELONG RULERS.
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)
The fact that the succession was violent MEANS NOTHING TO THE LAW. There were no rules of succession established by law. But in the same way, there WEREN'T ELECTIONS ESTABLISHED BY LAW. In practice, the succession was violent but HEREDITARY. It's easy to see that just looking to all the Dynasties. As an example one of the most important ones, the Justinian (518-602 AD):
- Justin I (518 -527 AD)
- Justinian I [NEPHEW AND HEIR of Justin I] (527-565 AD)
- Justin II [NEPHEW AND HEIR of Justinian I] (565-578 AD)
- Tiberius II Constantine [adoptive SON of Justin II] (578-582 AD)
- Maurice [SON-IN-LAW of Tiberius II] (582-602 AD)
"[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)
Again, nothing on the citation mentions any date but the "MAGIC BRACKETS".
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.
Ironic is that over 100 years of SEVERAL COURT VERDICTS in Italy COMPLETELY DISAGREE with that comic assertion:
- 1871 - Italian Supreme Court of Cassation, ratifies the verdict gave by the Court of Appeal of
Naples in 03/16/1870.
- 1872 - Court of Appeal of Naples in 02/05/1872.
- 1909 - Court of Naples 10/22/1909.
- 1914 - Civil and Penal Court of Avezzano in 12/03/1914.
- 1923 - Italian Supreme Court of Cassation in 04/25/1923.
- 1945 - Court of Cassona in 06/05/1945.
- 1945 - Court of Bari in 08/20/1945.
- 1946 - Court of Catania in 09/14/1946 (already Italian Republic).
- 1947 - Civil court of Naples in 06/06/1947 (already Italian Republic).
- 1948 - Court of Rome in 09/10/1948 (already Italian Republic).
- 1949 - Court of Vico Gargano verdict number 217/49 (already Italian Republic).
- 1950 - Court of Perugia in 03/27/1950 (already Italian Republic).
- 1952 - Unified Court of Rome in 03/22/1952 (already Italian Republic).
- 1955 - Court of Santa Agata de Puglia 06/25/1955 (already Italian Republic).
- 2003 - Ordinary Court of Ragusa 02/17/2003 (already Italian Republic)
* Important to mention that even after the Monarchy was abolished in Italy in 1946, the Courts kept respecting the Dynastic and Nobility Law.
According with SEVERAL COURT VERDICTS and SCHOLARS ALL OVER THE WORLD, the Byzantine claim is VERY MUCH ALIVE and for claimants from several Dynasties.
Who knows more of Dynastic Law? High judges, jurists and scholars? Or an AMATEUR WEBSITE?
Also, according with several scholars, The hereditary concept of the Byzantine Imperial throne was finally consolidated by Emperor Heraclius (Heraclitus) in the 7th Century:
" it took sometime before the HEREDITARY SYSTEM was FINALLY ESTABLISHED, and Heraclius himself introduced complications into the system by designating his second son, as well as the first, as Co-Emperor and successor to the throne. "(Georgije Ostrogorski, History of the Byzantine State p. 107)
Therefore, both the Phocid (Nikephorus) and Macedonian Dynasties had the Imperial heredity very well established.
" (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" only takes 100 years to become final and conclusive."
Not according with one of the greatest scholars in Dynastic Law in the world, the former president of the Italian Supreme Court of Cassation Professor Doctor Renato de Francesco in 1959.
"... It's simply RIDICULOUS, from a LEGAL point of view, the distinction intended to be done about Dynasties that have reigned until recently of those who ruled in the DISTANT PAST. It's not understandable how you can launch at the foot numerous pages of history, only to give luster to this or that family, who, aided by good luck, has managed to remain on the throne, after the year 1815. A DYNASTY OR REIGNED OR NOT REIGNED. If reigned, even in very REMOTE TIME, deserves the HISTORICAL and LEGAL treatment as a Dynasty and ALL ITS EFFECTS."
Clear as water, by Professor Dr W. Baroni Santos, Doctor D'état (post-doctorate/ habilitation) from the University of Reims in France in his book "Treaty of Heraldry and Nobility Law" Volume II page 52.:
"Neither the elapsed time, EVEN FOR CENTURIES, or NON-USE OF THE ACTS OF SOVEREIGNTY exercised by the Prince Pretender, Head of Name and Arms of his house, may be derogated, PRESCRIBED or CANCELED. He/She RETAINS THESE RIGHTS UNTIL THE END OF TIMES ' ad perpetuam rei tenendam ' which are inserted in the person of Prince Pretender. "
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.
Vattel declared the following on immemorial "prescription," that after a century, it is absolutely conclusive and final, because evidence that is over 100 years old is legally precluded from consideration. All objections must be considered before this time.
. . . 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.
That's a work of art, so many dots and the "magic brackets". Let's see the quote without them:
. . . Immemorial prescription secures the possessor's right beyond the power of . . . for, it affords a legal presumption that he is the proprietor, as long as the adverse party fails to adduce substantial reasons in support of his claim: and, indeed, . . . be derived, since the origin of the possession is lost in the obscurity means of proving . . . destroyed by time. . . . Immemorial possession, therefore, is an irrefragable title, 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. (The Law of Nations, Book II, #143)
The website, in another act of deception, tries to twist the citation to serve their purposes. But if you see the chapter's subject where the citation came from, it says all:
"CHAP. XI. OF USUCAPTION AND PRESCRIPTION AMONG NATIONS" http://www.constitution.org/vattel/vattel_02.htm
A dethroned King ISN'T A NATION.
But let's for a moment, accept the "moral" theory. On the same Chapter XI, #144, right after the above mentioned citation, Vattel says:
"§ 144. Claimant alleging reasons for his silence.
In cases of ordinary prescription, THE SAME ARGUMENT CANNOT BE USED AGAINST A CLAIMANT WHO ALLEGES JUST REASONS FOR HIS SILENCE, as, the impossibility of speaking, or a well-founded fear, &c., BECAUSE IS THERE IS NO LONGER ANY ROOM FOR A PRESUMPTION THAT HE HAS ABANDONED HIS RIGHT. IT IS NOT HIS FAULT IF PEOPLE HAVE THOUGHT THEMSELVES AUTHORIZED TO FORM SUCH A PRESUMPTION; NOR OUGHT HE TO SUFFER IN CONSEQUENCE: HE CANNOT THEREFORE BE DEBARRED THE LIBERTY OF CLEARLY PROVING HIS PROPERTY. THIS METHOD OF DEFENCE IN BAR OF PRESCRIPTION HAS BEEN OFTEN EMPLOYED AGAINST PRINCES WHOSE FORMIDABLE POWER HAD LONG SILENCED THE FEEBLE VICTIMS OF THEIR USURPATIONS."
Hugo Grotius wrote, ". . . in order that silence may establish the presumption of abandonment of ownership, two conditions are requisite, that the silence be that of one who acts with knowledge and of his own free will. For the failure to act on the part of one who does not know is without legal effect." (On the Law of War and Peace, Book I, chapter IV, number 5).
In other words:
"Presumption of neglect cannot justly exist, where the original owner has, by ignorance of his rights, or by deception, or personal fear, been prevented from claiming what he is entitled to. If he knew not that he had a right, he could not be supposed to relinquish it. And if fear or fraud induced his neglect, his mind could not have voluntarily consented." (John Penford Thomas, A Treatise of Universal Jurisprudence, chapter II, no. 13, 1829, p. 34)
Hugo Grotius also wrote that; "Contracts, or promises obtained by fraud, violence or undue fear entitle the injured party to full restitution."(www.constitution.org/gro/djbp_217.htm)
So, if you have a party alleging the neglect occurred and the other party alleging that it didn't, it creates a LITIGATION that will be PENDING FOREVER without an APPROPRIATE FORUM. Therefore, NO DYNASTIC RIGHT CAN BE ULTIMATELY FORFEITED WITHOUT A DEFINITIVE RULE FOR THIS LITIGATION.
Also, if you cite Vattel as ABSOLUTE TRUTH, you must also agree with him regarding the IMPOSSIBILITY OF SELLING SOVEREIGNTY (without any brackets or twists):
Book I, Chapter V, #69:
"§ 69. EVERY TRUE SOVEREIGNTY IS UNALIENABLE.
But when a prince chooses his successor, or when he cedes the crown to another, - properly
speaking, he only nominates, by virtue of the power with which he is, either expressly or by tacit consent, entrusted - he only nominates, I say, the person who is to govern the state after him. This neither is nor can be an alienation, properly so called. EVERY TRUE SOVEREIGNTY IS, IN ITS OWN NATURE, UNALIENABLE."
"WE DO NOT FIND IN EUROPE ANY GREAT STATE THAT IS REPUTED ALIENABLE. If some petty principalities have been considered as such, it is because they WERE NOT TRUE SOVEREIGNTIES."
"Let us conclude then, that, as the nation alone has a right to subject itself to a foreign power, THE RIGHT OF REALLY ALIENATING THE STATE CAN NEVER BELONG TO THE SOVEREIGN, unless it be expressly given him by the entire body of the people. "
"CHAPTER XXI
§ 260. HE CANNOT ALIENATE THE PUBLIC PROPERTY.
The prince, or the superior of the society, whatever he is, being naturally no more than the
administrator, and NOT THE PROPRIETOR OF THE STATE, his authority, as sovereign or head of the nation, DOES NOT OF ITSELF GIVE HIM A RIGHT TO ALIENATE OR MORTGAGE THE PUBLIC PROPERTY. The general rule then is, that THE SUPERIOR CANNOT DISPOSE OF THE PUBLIC PROPERTY, as to its substance - the right to do this being reserved to the proprietor alone, since proprietorship is defined to be the right to dispose of a thing substantially. If the superior exceeds his powers with respect to this property, THE ALIENATION HE MAKES OF IT WILL BE INVALID, AND MAY AT ANY TIME BE REVOKED by his successor, or by the nation."
" (46) "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 monarch has 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. Sovereignty and "prescription" have been around for at least since 1000 BC and perhaps longer."
For something "SOLID AS GRANITE ROCK" let's say that the uncertainty of something "BEING AROUND AT LEAST since 1000 BC and PERHAPS longer" doesn't accredit the concept very much.
As shown here, NOT EVEN ONE SCHOLAR OF DYNASTIC LAW stands for the forfeiture of Dynastic Rights by prescription. Also, the JUDGES, JURISTS AND SCHOLARS of International Law repute the principle of Prescription as HIGHLY CONTROVERSIAL AND DEBATABLE even for cases of International Territorial Dispute.
Our point is that there's NOTHING hermetic, nothing "black on white" in Dynastic Law.
We have no problem with disagreements. They're positive and healthy for the debate and for the better understanding of any subject. What amazes us is the DECEPTION, ADULTERATION, ADAPTATION and TWISTING of citations to MANIPULATE the public in a certain direction.
Everything stated here from us is the PURE quote of well-known scholars, authors and judges, from domestic and international courts. Also, the legal interpretation of the Dynastic Law as the result of court verdicts. Also, the cited scholars are specific experts of Dynastic and Nobiliary Law. They've published awarded books as recent as 2002.
We don't add, twist or adulterate anything. The right to agree or disagree is yours and will be respected always, but from your own decision, not from MANIPULATIONS and DECEPTIONS.