MISCELLANEOUS AGENCIES
I
ARMED FORCES ON FOREIGN TERRITORY
Hall, §§ 54, 56, 102--Lawrence, § 107--Halleck, I. pp.
477-479--Phillimore, I. § 341--Taylor, § 131--Twiss, I. §
165--Wheaton, § 99--Moore, II. § 251--Westlake, I. p. 255--Stoerk
in Holtzendorff, II. pp. 664-666--Rivier, I. pp. 333-335--Calvo,
III. § 1560--Fiore, I. Nos. 528-529.
[Sidenote: Armed Forces State Organs.]
§ 443. Armed forces are organs of the State which maintains them,
because such forces are created for the purpose of maintaining the
independence, authority, and safety of the State. And in this respect it
matters not whether armed forces are at home or abroad, for they are
organs of their home State even when on foreign territory, provided only
they are there in the service of their State and not for their own
purposes. For if a body of armed soldiers enters foreign territory
without orders from, or without being otherwise in the service of, its
State, but on its own account, be it for pleasure or for the purpose of
committing acts of violence, it is no longer an organ of its State.
[Sidenote: Occasions for Armed Forces abroad.]
§ 444. Besides war, there are several occasions for armed forces to be
on foreign territory in the service of their home State. Thus, a State
may have a right to keep troops in a foreign fortress or to send troops
through foreign territory. Thus, further, a State which has been
victorious in war with another may, after the conclusion of peace,
occupy a part of the territory of its former opponent as a guarantee for
the execution of the Treaty of Peace. After the Franco-German war, for
example, the Germans in 1871 occupied a part of the territory of France
until the final instalments of the indemnity for the war costs of five
milliards of francs were paid. It may also be a case of necessity for
the armed forces of a State to enter foreign territory and commit acts
of violence there, such as the British did in the case of the
_Caroline_.[785]
[Footnote 785: See above, § 133, and below, § 446.]
[Sidenote: Position of Armed Forces abroad.]
§ 445. Whenever armed forces are on foreign territory in the service of
their home State, they are considered exterritorial and remain,
therefore, under the jurisdiction of the latter. A crime committed on
foreign territory by a member of the force cannot be punished by the
local civil or military authorities, but only by the commanding officer
of the forces or by other authorities of its home State.[786] This is,
however, valid only in case the crime is committed either within the
place where the force is stationed, or anywhere else where the criminal
was on duty. If, for example, soldiers belonging to a foreign garrison
of a fortress leave the _rayon_ of the latter, not on duty but for
recreation and pleasure, and then and there commit a crime, the local
authorities are competent to punish them.
[Footnote 786: This is nowadays the opinion of the vast majority of
writers on International Law. There are, however, still a few dissenting
authorities, such as Bar ("Lehrbuch des internationalen Privat- und
Strafrecht" (1892), p. 351), and Rivier (I. p. 333).]
[Sidenote: Case of McLeod.]
§ 446. An excellent example of the position of armed forces abroad is
furnished by the case of McLeod,[787] which occurred in 1841. Alexander
McLeod, who was a member of the British force sent by the Canadian
Government in 1837 into the territory of the United States for the
purpose of capturing the _Caroline_, a boat equipped for crossing into
Canadian territory and taking help to the Canadian insurgents, came in
1841 on business to the State of New York, and was arrested and indicted
for the killing of one Amos Durfee, a citizen of the United States, on
the occasion of the capture of the _Caroline_. The English Ambassador at
Washington demanded the release of McLeod, on the ground that he was at
the time of the alleged crime a member of a British armed force sent
into the territory of the United States by the Canadian Government
acting in a case of necessity. McLeod was not released, but had to take
his trial; he was, however, acquitted on proof of an alibi. It is of
importance to quote a passage in the reply of Mr. Webster, the Secretary
of Foreign Affairs of the United States, to a note of the British
Ambassador concerning this affair. The passage runs thus:--"The
Government of the United States entertains no doubt that, after the
avowal of the transaction as a public transaction, authorised and
undertaken by the British authorities, individuals concerned in it ought
not ... to be holden personally responsible in the ordinary tribunals
for their participation in it."
[Footnote 787: See Wharton, I. § 21, and Moore, II. § 179.]
[Sidenote: The Casa Blanca Incident.]
§ 446_a_. Another interesting example is the Casa Blanca incident. On
September 25, 1908, six soldiers--three of them Germans--belonging to
the French Foreign Legion which formed part of the French troops at
Morocco, deserted at Casa Blanca and asked for and obtained the
protection of the local German consul, who intended to take them on
board a German vessel lying in the harbour of Casa Blanca. On their way
to the ship, however, they were forcibly taken by the French out of the
custody of the secretary of the German Consulate and a native soldier in
the service of the consulate who were conducting them. Considering all
Germans in Morocco without exception exterritorial and under the
exclusive jurisdiction of her consul, Germany complained of this act of
force and demanded that those of the deserters concerned who were German
subjects should be given up to her by France, acknowledging the fact
that the consul had no right to extend his protection to other than
German subjects. France refused to concede this demand, maintaining that
the individuals concerned had even after their desertion remained under
the exclusive jurisdiction of their corps, which formed part of a French
force occupying foreign territory. As the parties could not settle the
conflict diplomatically, they agreed, on November 24, 1908, to bring it
before the Hague Court of Arbitration, which gave its award[788] on May
22, 1909, on the whole in favour of France. The Court considered: that
there was a conflict of jurisdiction with regard to the German deserters
because they were as German subjects under the exclusive jurisdiction of
the German Consulate, but as deserters from the French Foreign Legion
under the exclusive jurisdiction of the French Army of Occupation; that
under the circumstances of the case the jurisdiction of the Army of
Occupation should have the preference; that nevertheless the German
consul was not to be blamed for his action on account of the fact that
in a country granting exterritorial jurisdiction to foreigners the
question of the respective competency of the consular jurisdiction and
of the jurisdiction of an Army of Occupation was very complicated and
had never been settled in an express, distinct, and universally
recognised manner; that, since the German deserters were found at the
port under the actual protection of the German Consulate and this
protection was not manifestly illegal, the actual situation should, as
far as possible, have been respected by the French military authority;
that therefore the French military authorities ought to have confined
themselves to preventing the embarkation and escape of the deserters,
and, before proceeding to their arrest and imprisonment, to have offered
to leave them in sequestration of the German Consulate until the
question of the competent jurisdiction had been decided. The Court did
not, however, decree the restitution on the part of France of the three
German deserters to Germany.[789]
[Footnote 788: See Martens, N.R.G. 3rd Ser. II. (1910), p. 19. An
English translation of the Award is printed in A.J. III. (1909), p.
755.]
[Footnote 789: The ambiguity of the award has justly been severely
criticised. If, as the Court correctly asserts, the jurisdiction of an
Army of Occupation must prevail over the jurisdiction of a consul over
his nationals in a country granting exterritorial jurisdiction, a
decision of the conflict on mere legal grounds would have to be entirely
in favour of France, for it is difficult to see how a wrongfully
acquired and illegally asserted protection can create any obligation on
the part of those who are exclusively competent to exercise
jurisdiction. But it is a well-known fact that Courts of Arbitration
frequently endeavour to give an award which satisfies both parties and
the ambiguity of the award in the Casa Blanca incident is manifestly due
to this fact. The award is not of such a kind as one would expect from a
Court of Justice, although it may be an excellent specimen of an
arbitral decision. See A.J. III. (1909), pp. 698-701.]
II
MEN-OF-WAR IN FOREIGN WATERS
Hall, §§ 54-55--Halleck, I. pp. 215-230--Lawrence, §§
107-109--Phillimore, II. §§ 344-350--Westlake, pp.
256-259--Taylor, § 261--Moore, II. §§ 252-256--Twiss, I. §
165--Wheaton, § 100--Bluntschli, § 321--Stoerk in Holtzendorff,
II. pp. 434 and 446--Perels, §§ 11, 14, 15--Heilborn, "System,"
pp. 248-279--Rivier, I. pp. 333-335--Bonfils, Nos.
614-623--Mérignhac, II. pp. 554-564--Calvo, III. §§
1550-1559--Fiore, I. Nos. 547-550--Testa, p. 86--Jordan, R.I. 2nd
Ser. X. (1908), p. 343.
[Sidenote: Men-of-war State Organs.]
§ 447. Men-of-war are State organs just as armed forces are, a
man-of-war being in fact a part of the armed forces of a State. And
respecting their character as State organs, it matters nought whether
men-of-war are at home or in foreign territorial waters or on the High
Seas. But it must be emphasised that men-of-war are State organs only as
long as they are manned and under the command of a responsible officer,
and, further, as long as they are in the service of a State. A
shipwrecked man-of-war abandoned by her crew is no longer a State organ,
nor does a man-of-war in revolt against her State and sailing for her
own purposes retain her character as an organ of a State. On the other
hand, public vessels in the service of the police and the Custom House
of a State; further, private vessels chartered by a State for the
transport of troops and war materials; and, lastly, vessels carrying a
head of a State and his suite exclusively, are also considered State
organs, and are, consequently, in every point treated as though they
were men-of-war.
[Sidenote: Proof of Character as Men-of-war.]
§ 448. The character of a man-of-war or of any other vessel treated as a
man-of-war is, in the first instance, proved by their outward
appearance, such vessels flying the war flag and the pennant of their
State.[790] If, nevertheless, the character of the vessel seems
doubtful, her commission, duly signed by the authorities of the State
which she appears to represent, supplies a complete proof of her
character as a man-of-war. And it is by no means necessary to prove that
the vessel is really the property of the State, the commission being
sufficient evidence of her character. Vessels chartered by a State for
the transport of troops or for the purpose of carrying its head are
indeed not the property of such State, although they bear, by virtue of
their commission, the same character as men-of-war.[791]
[Footnote 790: Attention ought to be drawn here to Convention VII.
(concerning the conversion of merchant-ships into war-ships) of the
second Hague Peace Conference of 1907. Although this convention concerns
the time of war only, it is indirectly of importance for the time of
peace. Its stipulations are the following:--No merchant-ship converted
into a war-ship can have the rights and duties appertaining to that
status unless it is placed under the direct authority, immediate
control, and responsibility of the Power whose flag it flies (art. 1).
Merchant-ships converted into war-ships must bear the external marks
which distinguish the war-ships of their nationality (art. 2). The
commander must be in the service of the State and duly commissioned by
the proper authorities. His name must figure on the list of the officers
of the military fleet (art. 3). The crew must be subject to the rules of
military discipline (art. 4). Every merchant-ship converted into a
war-ship is bound to observe, in its operations, the laws and customs of
war (art. 5). A belligerent who converts a merchant-ship into a war-ship
must, as soon as possible, announce such conversion in the list of the
ships of its military fleet (art. 6).]
[Footnote 791: Privateers used to enjoy the same character and
exemptions as men-of-war.]
[Sidenote: Occasions for Men-of-war abroad.]
§ 449. Whereas armed forces in time of peace have no occasion to be
abroad, cases of a special right from a convention and cases of
necessity excepted, men-of-war of all maritime States possessing a navy
are constantly crossing the High Seas in all parts of the world for all
kinds of purposes. Occasions for men-of-war to sail through foreign
territorial waters and to enter foreign ports necessarily arise
therefrom. And a special convention between the flag-State and the
littoral State is not necessary to enable a man-of-war to enter and sail
through foreign territorial waters and to enter a foreign port. All
territorial waters and ports of the civilised States are, as a rule,
quite as much open to men-of-war as to merchantmen of all nations,
provided they are not excluded by special international stipulations or
special Municipal Laws of the littoral States. On the other hand, it
must be emphasised that, provided special international stipulations or
special treaties between the flag-State and the littoral State do not
prescribe the contrary in regard to one port or another and in regard to
certain territorial waters, a State is in strict law always competent to
exclude men-of-war from all or certain of its ports, and from those
territorial waters which do not serve as highways for international
traffic.[792] And a State is, further, always competent to impose what
conditions it thinks necessary upon men-of-war which it allows to enter
its ports, provided these conditions do not deny to men-of-war their
universally recognised privileges.
[Footnote 792: The matter is controversial. See above, § 188, and
Westlake, I. p. 192, in contradistinction to Hall, § 42.]
[Sidenote: Position of Men-of-war in foreign waters.]
§ 450. The position of men-of-war in foreign waters is characterised by
the fact that they are called "floating" portions of the flag-State. For
at the present time a customary rule of International Law is universally
recognised that the owner State of the waters into which foreign
men-of-war enter must treat them in every point as though they were
floating portions of their flag-State.[793] Consequently, a man-of-war,
with all persons and goods on board, remains under the jurisdiction of
her flag-State even during her stay in foreign waters. No official of
the littoral State is allowed to board the vessel without special
permission of the commander. Crimes committed on board by persons in the
service of the vessel are under the exclusive jurisdiction of the
commander and the other home authorities. Individuals who are subjects
of the littoral State and are only temporarily on board may, although
they need not, be taken to the home country of the vessel, to be there
punished if they commit a crime on board. Even individuals who do not
belong to the crew, and who after having committed a crime on the
territory of the littoral State have taken refuge on board, cannot be
forcibly taken off the vessel; if the commander refuses their surrender,
it can be obtained only by means of diplomacy from the home State.
[Footnote 793: This rule became universally recognised during the
nineteenth century only. On the change of doctrines formerly held in
this country and the United States of America, see Hall, § 54, and
Lawrence, § 107. English and American Courts now recognise the
exterritoriality of foreign public vessels. Thus, in the case of the
_Exchange_ (7 Cranch, 116), the Supreme Court of the United States
recognised the fact that the latter had no jurisdiction over this French
man-of-war. In the case of the _Constitution_, an American man-of-war,
the High Court of Admiralty in 1879 held that foreign public ships
cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in
the case of the _Parlement Belge_ (L.R. 5 P.D. 197) the Court of Appeal,
affirmed by the House of Lords in 1878, held that foreign public vessels
cannot be sued in English Courts for damages for collision. Again the
same was held in 1906 in the case of the _Jassy_, a Roumanian ship, 10
Aspinall, Mar. Cas. p. 278. See also the _Charkieh_ (1873), L.R. 4 Adm.
and Eccl. 59.]
On the other hand, men-of-war cannot do what they like in foreign
waters. They are expected voluntarily to comply with the laws of the
littoral States with regard to order in the ports, the places for
casting anchor, sanitation and quarantine, customs, and the like. A
man-of-war which refuses to do so can be expelled, and, if on such or
other occasions she commits acts of violence against the officials of
the littoral State or against other vessels, steps may be taken against
her to prevent further acts of violence. But it must be emphasised that
even by committing acts of violence a man-of-war does not fall under the
jurisdiction of the littoral State. Only such measures are allowed
against her as are necessary to prevent her from further acts of
violence.[794]
[Footnote 794: Attention ought to be drawn to the "_Règlement sur le
régime légal des navires et de leurs équipages dans les ports
étrangers_," adopted by the Institute of International Law, in 1898, at
its meeting at the Hague of which articles 8-24 deal with men-of-war in
foreign waters; see Annuaire, XVII. (1898), pp. 275-280.]
[Sidenote: Position of Crew when on Land abroad.]
§ 451. Of some importance is the unsettled question respecting the
position of the commander and the crew of a man-of-war in foreign ports
when they are on land.
The majority of publicists distinguish between a stay on land in the
service of the man-of-war and a stay for other purposes.[795] The
commander and members of the crew on land officially in the service of
their vessel, to buy provisions or to make other arrangements respecting
the vessel, remain under the exclusive jurisdiction of their home State,
even for crimes they commit on the spot. Although they may, if the case
makes it necessary, be arrested to prevent further violence, they must
at once be surrendered to the vessel. On the other hand, if they are on
land not officially, but for purposes of pleasure and recreation, they
are under the territorial supremacy of the littoral State like any other
foreigners, and they may be punished for crimes committed ashore.
[Footnote 795: So also Moore, II. § 256.]
There are, however, a number of publicists[796] who do not make this
distinction, and who maintain that commanders or members of the crew
whilst ashore are in every case under the local jurisdiction.
[Footnote 796: See, for instance, Hall, § 55; Phillimore, I. § 346;
Testa, p. 109. See also art. 18 of the "_Règlement sur les régime légal
des navires et de leurs équipages dans les ports étrangers_," adopted by
the Institute of International Law, in 1898, at its meeting at the Hague
(Annuaire, XVII. (1898), p. 278).]
III
AGENTS WITHOUT DIPLOMATIC OR CONSULAR CHARACTER
Hall, §§ 103-104*--Moore, IV. § 623--Bluntschli, §§
241-243--Ullmann, §§ 66-67--Heffter, § 222--Rivier, I. §
44--Calvo, III. §§ 1337-1339--Fiore, II. Nos. 1188-1191--Martens,
II. § 5--Adler, "Die Spionage" (1906), pp. 63-92.
[Sidenote: Agents lacking diplomatic or consular character.]
§ 452. Besides diplomatic envoys and consuls, States may and do send
various kinds of agents abroad--namely, public political agents, secret
political agents, spies, commissaries, bearers of despatches. Their
position is not the same, but varies according to the class they belong
to, and they must therefore be severally treated.
[Sidenote: Public Political Agents.]
§ 453. Public political agents are agents sent by one Power to another
for political negotiations of different kinds. They may be sent for a
permanency or for a limited time only. As they are not invested with
diplomatic character, they do not receive a Letter of Credence, but a
letter of recommendation or commission only. They may be sent by one
full-Sovereign State to another, but also by and to insurgents
recognised as a belligerent Power, and by and to States under
suzerainty. Public (or secret) political agents without diplomatic
character are, in fact, the only means for personal political
negotiations with such insurgents and States under suzerainty.
As regards the position and privileges of such agents, it is obvious
that they enjoy neither the position nor the privileges of diplomatic
envoys.[797] But, on the other hand, they have a public character, being
admitted as public political agents of a foreign State. They must,
therefore, certainly be granted a special protection, but no distinct
rules concerning special privileges to be granted to such agents seem to
have grown up in practice. Inviolability of their persons and official
papers ought to be granted to them.[798]
[Footnote 797: Heffter, § 222, is, as far as I know, the only publicist
who maintains that agents not invested with diplomatic character must
nevertheless be granted the privileges of diplomatic envoys.]
[Footnote 798: Ullmann, § 66, and Rivier, I. § 40, maintain that they
_must_ be granted the privilege of inviolability to the same extent as
diplomatic envoys.]
[Sidenote: Secret Political Agents.]
§ 454. Secret political agents may be sent for the same purposes as
public political agents. But two kinds of secret political agents must
be distinguished. An agent may be secretly sent to another Power with a
letter of recommendation and admitted by that Power. Such agent is a
secret one in so far as third Powers do not know, or are not supposed to
know, of his existence. As he is, although secretly, admitted by the
receiving State, his position is essentially the same as that of a
public political agent. On the other hand, an agent may be secretly sent
abroad for political purposes without a letter of recommendation, and
therefore without being formally admitted by the Government of the State
in which he is fulfilling his task. Such agent has no recognised
position whatever according to International Law. He is not an agent of
a State for its relations with other States, and he is therefore in the
same position as any other foreign individual living within the
boundaries of a State. He may be expelled at any moment if he becomes
troublesome, and he may be criminally punished if he commits a political
or ordinary crime. Such secret agents are often abroad for the purpose
of watching the movements of political refugees or partisans, or of
Socialists, Anarchists, Nihilists, and the like. As long as such agents
do not turn into so-called _agents provocateurs_, the local authorities
will not interfere.
[Sidenote: Spies.]
§ 455. Spies are secret agents of a State sent abroad[799] for the
purpose of obtaining clandestinely information in regard to military or
political secrets. Although all States constantly or occasionally send
spies abroad, and although it is neither morally nor politically and
legally considered wrong to send spies, such agents have, of course, no
recognised position whatever according to International Law, since they
are not agents of States for their international relations. Every State
punishes them severely when they are caught committing an act which is a
crime by the law of the land, or expels them if they cannot be punished.
And a spy cannot legally excuse himself by pleading that he only
executed the orders of his Government. The latter, on the other hand,
will never interfere, since it cannot officially confess to having
commissioned a spy.
[Footnote 799: Concerning spies in time of war, see below, vol. II. §§
159 and 210, and Adler, "Die Spionage" (1906), pp. 7-62.]
[Sidenote: Commissaries.]
§ 456. Commissaries are agents sent with a letter of recommendation or
commission by one State to another for negotiations, not of a political
but of a technical or administrative character only. Such commissaries
are, for instance, sent and received for the purpose of arrangements
between the two States as regards railways, post, telegraphs,
navigation, delineation of boundary lines, and so on. A distinct
practice of guaranteeing certain privileges to such commissaries has not
grown up, but inviolability of their persons and official papers ought
to be granted to them, as they are officially sent and received for
official purposes. Thus Germany, in 1887, in the case of the French
officer of police Schnaebélé, who was invited by local German
functionaries to cross the German frontier for official purposes and
then arrested, recognised the rule that a safe-conduct is tacitly
granted to foreign officials when they enter officially the territory of
a State with the consent of the local authorities, although Schnaebélé
was not a commissary sent by his Government to the German Government.
[Sidenote: Bearers of Despatches.]
§ 457. Individuals commissioned to carry official despatches from a
State to its head or to diplomatic envoys abroad are agents of such
State. Despatch-bearers who belong to the retinue of diplomatic envoys
as their couriers must enjoy, as stated above (§ 405), exemption from
civil and criminal jurisdiction and a special protection in the State to
which the envoy is accredited, and a right of innocent passage through
third States. But bearers of official despatches who are not in the
retinue of the diplomatic envoys employing them must nevertheless be
granted inviolability for their person and official papers, provided
they possess special passports stating their official character as
despatch-bearers. And the same is valid respecting bearers of despatches
between the head of a State who is temporarily abroad and his Government
at home.
IV
INTERNATIONAL COMMISSIONS
Rivier, I. pp. 564-566--Ullmann, § 68--Gareis, §§ 51-52--Liszt, §
16--Moore, IV. § 623.
[Sidenote: Permanent in Contradistinction to Temporary Commissions.]
§ 458. A distinction must be made between temporary and permanent
international commissions. The former consist of commissaries delegated
by two or more States to arrange all kinds of non-political matters,
such as railways, post, telegraphs, navigation, boundary lines, and the
like. Such temporary commissions dissolve as soon as their purpose is
realised.[800] Besides temporary commissions, there are, however,
permanent commissions in existence. They have been instituted by the
Powers[801] in the interest of free navigation on two international
rivers and the Suez Canal; further, in the interest of international
sanitation; thirdly, in the interest of the foreign creditors of several
States unable to pay the interest on their stocks; and, lastly,
concerning bounties on sugar.
[Footnote 800: The position of their members has been discussed above, §
456. Quite novel institutions are the International Commissions of
Inquiry recommended by the Hague Peace Conferences of 1890 and 1907.
Articles 9 to 36 of the Hague Convention for the peaceful adjustment of
international differences provide that, in international differences
involving neither honour nor vital interests, and arising from a
difference of opinion on matters of fact, the parties should institute
an International Commission of Inquiry; this commission to present a
report to the parties, which shall be limited to a statement of the
facts. See below, vol. II. § 5.]
[Footnote 801: Only such permanent commissions are mentioned in the text
as have been instituted by the Powers in conference. There are, however,
many permanent commissions in existence which have been instituted by
neighbouring Powers for local purposes, as for example:--(1) The
American-Canadian International Fisheries Commission, instituted
according to article 1 of the Treaty of Washington of April 11, 1908;
see Treaty Series, 1908, No. 17. (2) The American-Canadian International
Joint Commission concerning boundary waters, instituted by articles 7-12
of the Treaty of Washington of January 11, 1909; see Treaty Series,
1910, No. 23. (3) The permanent Mixed Fisheries Commission between the
United States, Canada, and Newfoundland, instituted in consequence of
the award of the Hague Court of Arbitration in the North Atlantic
Fisheries Case.]
As regards the privileges to be granted to the members of either
temporary or permanent international commissions, no distinct practice
has grown up. If the treaty according to which a commission concerned
does not stipulate anything as regards such privileges, none need be
granted, but the persons of the commissioners must be specially
protected. However that may be, there is no doubt that members of
international commissions cannot, unless this be specially stipulated,
claim the privileges of diplomatic envoys. Thus, when in 1796 Messrs.
Gore and Pinkney,[802] the American Commissioners in London under
article 7 of the Jay Treaty, claimed these privileges, Great Britain
refused to concede them.
[Footnote 802: See Moore, IV. § 623, p. 428.]
[Sidenote: Commissions in the interest of Navigation.]
§ 459. Four international commissions have been instituted in the
interest of navigation--namely, two for the river Danube, one for the
Congo river, and one for the Suez Canal.
1. With regard to navigation on the Danube, the European Danube
Commission was instituted by article 16 of the Peace Treaty of Paris in
1856. This commission, whose members are appointed by the signatory
Powers of the Treaty of Paris, was reconstituted by the Berlin
Conference in 1878 and again by the Conference of London in 1883. The
commission is totally independent of the territorial Governments, its
rights are clearly defined, and its members, offices, and archives enjoy
the privilege of inviolability. The competence of the European Danube
Commission comprehends the Danube from Ibraila downwards to its
mouth.[803]
[Footnote 803: Details in Twiss, I. §§ 150-152.]
2. The above-mentioned London Conference of 1883 has sanctioned
regulations[804] in regard to the navigation and river-police of the
Danube from the Iron Gates down to Ibraila, and has, by article 96 of
these regulations, instituted the Mixed Commission of the Danube to
enforce the observance of the regulations. The members of this
Commission are delegates from Austria-Hungary, Bulgaria, Roumania,
Servia, and the European Danube Commission--one member from each.[805]
[Footnote 804: Martens, N.R.G. 2nd Ser. IX. p. 394.]
[Footnote 805: Details in Twiss, § 152.]
3. The Powers represented at the Berlin Congo Conference of 1884 have
sanctioned certain regulations in regard to navigation on the Congo
river, and have, by articles 17-21 of the General Act of the Conference,
instituted an International Commission of the Congo to enforce the
observance of these regulations. This Commission, in which every
signatory Power may be represented by one member, is totally independent
of the territorial Governments, and its members, offices, and archives
enjoy the privilege of inviolability.[806]
[Footnote 806: Details in Calvo, I. § 334. According to Liszt, § 16, II.
3, this Commission has never been appointed.]
4. By article 8 of the Treaty of Constantinople of 1888 in regard to the
neutralisation of the Suez Canal, a Commission was instituted for the
supervision of the execution of that treaty. The Commission consists of
all the consuls of the signatory Powers in Egypt.[807]
[Footnote 807: See above, § 183.]
[Sidenote: Commissions in the interest of Sanitation.]
§ 460. Three international commissions in the interest of sanitation are
in existence. For the purpose of supervising the sanitary arrangements
in connection with the navigation on the lower part of the Danube, the
International Council of Sanitation was instituted at Bucharest in
1881.[808] The _Conseil supérieur de santé_ at Constantinople has the
task of supervising the arrangements concerning cholera and plague. The
_Conseil sanitaire maritime et quarantenaire_ at Alexandria has similar
tasks and is subject to the control of the _Conseil supérieur de santé_
at Constantinople.[809] As regards the International Health Office at
Paris, see below, § 590, No. 6.
[Footnote 808: See article 6 of the _Acte additionnel à l'Acte public du
2 novembre 1865 pour la navigation des embouchures du Danube_, signed on
May 28, 1881; Martens, N.R.G. 2nd Ser. VIII. p. 207.]
[Footnote 809: Details in Liszt, § 16, III., where likewise information
is to be found as regards the _Conseil sanitaire_ at Tangiers, which
consists of all the foreign envoys in Morocco.]
[Sidenote: Commissions in the Interest of Foreign Creditors.]
§ 461. Three international commissions in the interest of foreign
creditors are in existence--namely, in Turkey since 1878, in Egypt since
1880, and in Greece since 1897.[810]
[Footnote 810: See Kaufmann, "Das internationale Recht der aegyptischen
Staatsschuld" (1891), and Murat, "Le contrôle international sur les
finances de l'Egypte, de la Grèce et de la Turquie" (1899).]
[Sidenote: Permanent Commission concerning Sugar.]
§ 462. According to article 7 of the Brussels Convention concerning
bounties on sugar, a permanent commission was instituted in 1902 at
Brussels.[811]
[Footnote 811: See below, § 585, No. 3.]
V
INTERNATIONAL OFFICES
Rivier, I. pp. 564-566--Nys, II. pp. 264-270--Ullmann, §
58--Liszt, § 17--Gareis, § 52--Descamps, "Les offices
internationaux et leur avenir" (1894).
[Sidenote: Character of International Offices.]
§ 463. During the second half of the nineteenth century a great number
of general treaties were entered into by a greater or lesser number of
States for the purpose of settling in common certain non-political
matters. These general treaties create so-called unions among the
parties, and the business of these unions is in most cases transacted by
international offices created specially for that purpose. The
functionaries of these offices, however, ordinarily enjoy no privilege
whatever. The number of these offices is constantly increasing. Only the
more important ones are here enumerated, with the exclusion of the
International Bureau of Arbitration,[812] which, although an
international office, has no relation to those here discussed.
[Footnote 812: See below, § 474.]
[Sidenote: International Telegraph Offices.]
§ 464. In 1868 the international telegraph office of the International
Telegraph Union was created at Berne. It is administered by four
functionaries under the supervision of the Swiss Bundesrath. It edits
the _Journal Télégraphique_ in French.[813] Connected with this office
is, since 1906, the International Office for Radiotelegraphy.[814]
[Footnote 813: See below, § 582, No. 2.]
[Footnote 814: See below, § 582, No. 4.]
[Sidenote: International Post Office.]
§ 465. The pendant of the international telegraph office is the
international post office of the Universal Postal Union created at Berne
in 1874. It is administered by seven functionaries under the supervision
of the Swiss Bundesrath, and edits a monthly, _L'Union Postale_, in
French, German, and English.[815]
[Footnote 815: See below, § 582, No. 1.]
[Sidenote: International Office of Weights and Measures.]
§ 466. The States which have introduced the metric system of weights and
measures created in 1875 the international office of weights and
measures in Paris. Of functionaries there are a director and several
assistants. Their task is the custody of the international prototypes of
the metre and kilogramme and the comparison of the national prototypes
with the international.[816]
[Footnote 816: See below, § 588, No. 1.]
[Sidenote: International Office for the Protection of Works of
Literature and Art and of Industrial Property.]
§ 467. In 1883 an International Union for the Protection of Industrial
Property, and in 1886 an International Union for the Protection of Works
of Literature and Art, were created, with an international office in
Berne. There are a secretary-general and three assistants, who edit a
monthly, _Le Droit d'Auteur_, in French.[817]
[Footnote 817: See below, §§ 584 and 585, No. 2.]
[Sidenote: The Pan-American Union.]
§ 467_a_. The first Pan-American Conference of 1889 created "The
American International Bureau," which, since the fourth Conference of
1910, bears the name "The Pan-American Union." There are a director, an
assistant director, and several secretaries. This office[818] publishes
a "Monthly Bulletin."
[Footnote 818: See below, § 595.]
[Sidenote: Maritime Office at Zanzibar, and Bureau Spécial at Brussels.]
§ 468. In accordance with the General Act of the Anti-Slavery Conference
of Brussels, 1890, the International Maritime Office at Zanzibar and the
"Bureau Spécial" at Brussels were established; the latter is attached to
the Belgian Foreign Office at Brussels.[819]
[Footnote 819: See below, § 592, No. 1.]
[Sidenote: International Office of Customs Tariffs.]
§ 469. The International Union for the Publication of Customs Tariffs,
concluded in 1890, has created an international office[820] at Brussels.
There are a director, a secretary, and ten translators. The office edits
the _Bulletin des Douanes_ in French, German, English, Italian, and
Spanish.
[Footnote 820: See below, § 585, No. 1.]
[Sidenote: Central Office of International Transports.]
§ 470. Nine States--namely, Austria-Hungary, Belgium, France, Germany,
Holland, Italy, Luxemburg, Russia, Switzerland--entered in 1890 into an
international convention in regard to transports and freights on
railways and have created the "Office Central des Transports[821]
Internationaux" at Berne.
[Footnote 821: See below, § 583, No. 1.]
[Sidenote: Permanent Office of the Sugar Convention.]
§ 471. The States which concluded on March 5, 1902, at Brussels the
Convention concerning bounties on sugar[822] have, in compliance with
article 7 of this Convention, instituted a permanent office at Brussels.
The task of this office, which is attached to the permanent
commission,[823] also instituted by article 7, is to collect,
translate, and publish information of all kinds respecting legislation
on and statistics of sugar.
[Footnote 822: See below, § 585, No. 3.]
[Footnote 823: See above, § 462.]
[Sidenote: Agricultural Institute.]
§ 471_a_. In 1905 the Agricultural Institute[824] was established at
Rome. It consists of a General Assembly and a Permanent Committee with a
general secretary.
[Footnote 824: See below, § 586, No. 1.]
[Sidenote: International Health Office.]
§ 471_b_. In 1907 the International Health Office[825] was established
at Paris. It consists of a director, a general secretary, and a number
of clerks. It publishes at least once a month a bulletin in French.
[Footnote 825: See below, § 590, No. 6.]
VI
THE INTERNATIONAL COURT OF ARBITRATION
Lawrence, § 221--Bonfils, No. 970[8]--Despagnet, Nos. 736-740.
[Sidenote: Organisation of Court in general.]
§ 472. In compliance with articles 20 to 29 of the Hague Convention for
the peaceful adjustment of international differences, the signatory
Powers in 1900 organised the International Court of Arbitration at the
Hague. This organisation comprises three distinct bodies--namely, the
Permanent Administrative Council of the Court, the International Bureau
of the Court, and the Court of Arbitration itself. But a fourth body
must also be distinguished--namely, the tribunal to be constituted for
the decision of every case. Articles 20 to 29 are now replaced by
articles 41 to 50 of the Convention for the peaceful adjustment of
international differences produced by the second Hague Peace Conference
of 1907.
[Sidenote: The Permanent Council.]
§ 473. The Permanent Council (article 49) consists of the diplomatic
envoys of the contracting Powers accredited to Holland and the Dutch
Secretary for Foreign Affairs, who acts as president of the Council. The
task of the Council is the control of the International Bureau of the
Court, the appointment, suspension, and dismissal of the _employés_ of
the bureau, the fixing of the payments and salaries, the control of the
general expenditure, and the decision of all questions of administration
with regard to the business of the Court. The Council has, further, the
task of furnishing the signatory Powers with a report of the proceedings
of the Court, the working of the administration, and the expenses. At
meetings duly summoned, the presence of nine members is sufficient to
give the Council power to deliberate, and its decisions are taken by a
majority of votes.
[Sidenote: The International Bureau.]
§ 474. The International Bureau (article 43) serves as the Registry for
the Court. It is the intermediary for communications relating to the
meetings of the Court. It has the custody of the archives and the
conduct of all the administrative business of the Court. The contracting
Powers have to furnish the Bureau with a certified copy of every
stipulation concerning arbitration arrived at between them, and of any
award concerning them rendered by a special tribunal. They likewise have
to communicate to the Bureau the laws, regulations, and documents, if
any, showing the execution of the awards given by the Court. The Bureau
is (article 47) authorised to place its premises and its staff at the
disposal of the contracting Powers for the work of any special[826]
tribunal of arbitration not constituted within the International Court
of Arbitration. The expense (article 50) of the Bureau is borne by the
signatory Powers in the proportion established for the International
Office of the International Postal Union.
[Footnote 826: See below, vol. II. § 20.]
[Sidenote: The Court of Arbitration.]
§ 475. The Court of Arbitration (article 44) consists of a large number
of individuals "of recognised competence in questions of International
Law, enjoying the highest moral reputation," selected and appointed by
the contracting Powers. No more than four members may be appointed by
one Power, but two or more Powers may unite in the appointment of one or
more members, and the same individual may be appointed by different
Powers. Every member is appointed for a term of six years, but his
appointment may be renewed. The place of a resigned or deceased member
is to be refilled by the respective Powers, and in this case the
appointment is made for a fresh period of six years. The names of the
members of the Court thus appointed are enrolled upon a general list,
which is to be kept up to date and communicated to all the contracting
Powers. The Court thus constituted has jurisdiction over all cases of
arbitration, unless there shall be an agreement between the parties for
a special tribunal of arbitrators not selected from the list of the
members of the Court (article 42).
[Sidenote: The Deciding Tribunal.]
§ 476. The Court of Arbitration does not as a body decide the cases
brought before it, but a tribunal is created for every special case by
selection of a number of arbitrators from the list of the members of the
Court. This tribunal (article 45) may be created directly by agreement
of the parties. If this is not done, the tribunal is formed in the
following manner:--Each party selects two arbitrators from the list, of
whom one only can be its national or chosen from the persons appointed
by it as members of the Permanent Court, and the four arbitrators so
appointed choose a fifth as umpire and president. If the votes of the
four are equal, the parties entrust to a third Power the choice of the
umpire. If the parties cannot agree in their choice of such third Power,
each party nominates a different Power, and the umpire is chosen by the
united action of the Powers thus nominated. If within two months' time
these two Powers cannot come to an agreement, each of them presents two
candidates from the list of members of the Permanent Court, exclusive
of the members selected by the parties and not being nationals of either
of them. Which of the candidates thus selected shall be the umpire is
determined by lot.
After this is done, the tribunal is constituted, and the parties
communicate to the International Bureau of the Court the names of the
members of the tribunal, which meets at the time fixed by the parties;
the members of the tribunal must be granted the privileges of diplomatic
envoys when discharging their duties outside their own country (article
46). The tribunal sits at the Hague (article 43), and, except in case of
_force majeure_, the place of session can only be altered by the
tribunal with the assent of the parties, but the parties can from the
beginning designate another place than the Hague as the venue of the
tribunal (article 60). The expenses of the tribunal are paid by the
parties in equal shares, and each party pays its own expenses (article
85).[827]
[Footnote 827: The procedure to be followed by and before the Tribunal
is described below, vol. II. § 27.]
The following nine awards have hitherto been given by the Permanent
Court of Arbitration:--
(1) On October 14, 1902, in the case of the United States of
America _v._ Mexico concerning the _Fonds pieux des Californias_;
see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 193.
(2) On February 22, 1904, in the case of Germany, Great Britain,
and Italy _v._ Venezuela concerning certain claims of their
subjects; see Martens, N.R.G. 3rd Ser. I. (1909), p. 57.
(3) On May 22, 1905, in the case of Germany, France, and Great
Britain _v._ Japan concerning the interpretation of article 18 of
the treaty of April 4, 1896, and of other treaties; see Martens,
N.R.G. 2nd Ser. XXXV. (1908), p. 376.
(4) On August 8, 1905, in the case of France _v._ Great Britain
concerning the Muscat Dhows; see Martens, N.R.G. 2nd Ser. XXXV.
(1908), p. 356.
(5) On May 22, 1909, in the case of France _v._ Germany concerning
the Casa Blanca incident; see Martens, N.R.G. 3rd Ser. II. (1910),
p. 19.
(6) On October 23, 1909, in the case of Norway _v._ Sweden
concerning the question of their maritime frontier; see Martens,
N.R.G. 3rd Ser. III. (1910), p. 85.
(7) On September 7, 1910, in the case of the United States of
America _v._ Great Britain concerning the North Atlantic
Fisheries; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 89.
(8) On October 25, 1910, in the case of the United States of
America _v._ Venezuela concerning the claims of the Orinoco
Steamship Co.; see Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.
(9) On February 24, 1911, in the case of France _v._ Great Britain
concerning the British-Indian Savarkar; see Martens, N.R.G. 3rd
Ser. IV. (1911), p. 744.
VII
THE INTERNATIONAL PRIZE COURT AND THE PROPOSED INTERNATIONAL COURT OF
JUSTICE
Lawrence, § 192--Despagnet, No. 683_bis_--Scott, "The Hague Peace
Conferences" (1909), pp. 465-511 and 423-464, and in A.J. V.
(1911), pp. 302-324--Gregory in A.J. II. (1908), pp. 458-475.
[Sidenote: The International Prize Court.]
§ 476_a_. The International Prize Court will be established at the Hague
according to Convention XII. of the second Hague Peace Conference of
1907. The following are the more important stipulations of this
Convention concerning the constitution[828] of the Court:--The Court
consists of fifteen judges and fifteen deputy-judges, who are appointed
for a period of six years and who rank equally and have precedence
according to the date of the notification of their appointment, but the
deputy judges rank after the judges (articles 10 to 12). Of the fifteen
judges of which the Court is composed, nine constitute a quorum; a judge
who is absent or prevented from sitting is replaced by his deputy judge
(article 14). The judges enjoy diplomatic privileges and immunities in
the performance of their duties when outside their own country (article
13). Each contracting Power appoints one judge and one deputy judge, and
the judges appointed by Great Britain, Germany, the United States of
America, Austria-Hungary, France, Italy, Japan, and Russia are always
summoned to sit, whereas the judges appointed by the other contracting
Powers sit by rota, as shown in the table annexed to the Convention
(article 15). If a belligerent Power has, according to the rota, no
judge sitting in the Court, it may ask that the judge appointed by it
shall take part in the settlement of all cases arising from the war;
lots shall then be drawn as to which of the judges entitled to sit
according to the rota shall withdraw, and this arrangement does not
affect the judge appointed by the other belligerent (article 16). No
judge can sit who has been a party, in any way whatever, to the sentence
pronounced by the National Courts, or has taken part in the case as
counsel or advocate for one of the parties; no judge or deputy judge
can, during his tenure of office, appear as agent or advocate before the
International Prize Court, nor act for one of the parties in any
capacity whatever (article 17). The belligerent captor is entitled to
appoint a naval officer of high rank to sit as assessor, but with no
voice in the decision; a neutral Power, which is a party to the
proceedings or whose national is a party, has the same right of
appointment; if in applying this last provision more than one Power is
concerned, they must agree among themselves, if necessary by lot, on the
officer to be appointed (article 18). The Court elects its President and
Vice-President by an absolute majority of the votes cast; after two
ballots, the election is made by a bare majority, and, in case the votes
are equal, by lot (article 19). The judges of the International Prize
Court are entitled to travelling allowances in accordance with the
regulations in force in their own country, and in addition thereto
receive, while the Court is sitting or while they are carrying out
duties conferred upon them by the Court, a sum of 100 Netherland florins
per diem; the judges may not receive from their own Governments or from
that of any other Power any remuneration in their capacity of members of
the Court (article 20). The seat of the International Prize Court is at
the Hague, and it cannot, except in the case of _force majeure_, be
transferred elsewhere without the consent of the belligerents (article
21).
[Footnote 828: Details concerning the constitution of the International
Prize Court and the mode of procedure to be followed by and before it,
will be given below, vol. II. part III. chapter VI.]
[Sidenote: The proposed International Court of Justice.]
§ 476_b_. Valuable as is the Permanent Court of Arbitration at the
Hague, it must be pointed out that it is not a real Court of Justice.
For, firstly, it is not itself a deciding tribunal, but only a list of
names out of which the parties in each case elect some members and
thereby constitute the Court. Secondly, experience teaches that a Court
of Arbitration endeavours more to give an award _ex aequo et bono_ which
more or less pleases both parties than to decide the conflict in a
judicial manner by simply applying strict legal rules without any
consideration as to whether or no the decision will please either party.
Thirdly, since in conflicts to be decided by arbitration the arbitrators
each time are selected by the parties, there are in most cases different
individuals acting as arbitrators, so that there is no continuity in the
administration of justice.
For these reasons it would be of the greatest value to institute side by
side with the Permanent Court of Arbitration a real International Court
of Justice consisting of a number of judges in the technical sense of
the term, who are once for all appointed and will have to act in each
case that the parties choose to bring before the Court. Such a Court
would only take the legal aspects of the case into consideration and
would base its decision on mere legal deliberations. It would secure
continuity in the administration of international justice, because it
would in each case consider itself bound by its former decisions. It
would in time build up a valuable practice by deciding innumerable
controversies which as yet haunt the theory of International Law. The
second Hague Peace Conference of 1907 therefore discussed the question
of creating such a Court, but only produced the draft of a Convention
concerning the subject. It is, however, to be regretted that this draft
Convention speaks of the creation of a judicial "Arbitration" Court, and
thereby obliterates the boundary line between the arbitral and the
strictly judicial decision of international disputes; it would have been
better to speak simply of an International Court of Justice. However
that may be, there is no doubt that the near future will bring the
establishment of such a Court of Justice in contradistinction to the
Permanent Court of Arbitration, for the parties to a conflict frequently
hesitate to have it settled by arbitration, whereas they would be glad
to have it settled by a strictly judicial decision of the legal
questions involved. The same motives which urged the Powers to leave
aside the Permanent Court of Arbitration in Prize Cases and to enter
into a Convention for the establishment of a real International Prize
Court, will in time compel the Powers to establish a real International
Court of Justice.[829]
[Footnote 829: It should be mentioned that Costa Rica, Guatemala,
Honduras, Nicaragua, and San Salvador in 1907--see Supplement to the
_American Journal of International Law_, II. (1908), p. 231--established
the "Central American Court of Justice" at Cartago, consisting of five
judges, to which they have bound themselves to submit all controversies
arising amongst them, of whatsoever nature, no matter what the origin
may be, in case they cannot be settled by diplomatic negotiation. This
Court is, however, only of local importance, although it is of great
value, being the first Court of its kind.]
PART IV
INTERNATIONAL TRANSACTIONS
CHAPTER I
ON INTERNATIONAL TRANSACTIONS IN GENERAL
I
NEGOTIATION
Heffter, §§ 234-239--Geffcken in Holtzendorff, III. pp.
668-676--Liszt, § 20--Ullmann, § 71--Bonfils, Nos.
792-795--Pradier-Fodéré, III. Nos. 1354-1362--Rivier, II. §
45--Calvo, III. §§ 1316-1320, 1670-1673.
[Sidenote: Conception of Negotiation.]
§ 477. International negotiation is the term for such intercourse
between two or more States as is initiated and directed for the purpose
of effecting an understanding between them on matters of interest. Since
civilised States form a body interknitted through their interests, such
negotiation is in some shape or other constantly going on. No State of
any importance can abstain from it in practice. There are many other
international transactions,[830] but negotiation is by far the most
important of them. And it must be emphasised that negotiation as a means
of amicably settling conflicts between two or more States is only a
particular kind of negotiation, although it will be specially discussed
in another part of this work.[831]
[Footnote 830: See below, §§ 486-490.]
[Footnote 831: See below, vol. II. §§ 4-6.]
[Sidenote: Parties to Negotiation.]
§ 478. International negotiations can be conducted by all such States as
have a standing within the Family of Nations. Full-Sovereign States are,
therefore, the regular subjects of international negotiation. But it
would be wrong to maintain that half- and part-Sovereign States can
never be parties to international negotiations. For they can indeed
conduct negotiations on those points concerning which they have a
standing within the Family of Nations. Thus, for instance, while
Bulgaria was a half-Sovereign State, she was nevertheless able to
negotiate on several matters with foreign States independently of
Turkey.[832] But so-called colonial States, as the Dominion of Canada,
can never be parties to international negotiations; any necessary
negotiation for a colonial State must be conducted by the mother-State
to which it internationally belongs.[833]
[Footnote 832: See above, § 91.]
[Footnote 833: The demand on the part of many influential Canadian
politicians, expressed after the verdict of the Arbitration Court in the
Alaska Boundary dispute, that Canada should have the power of making
treaties independently of Great Britain, necessarily includes the demand
to become in some respects a Sovereign State.]
It must be specially mentioned that such negotiation as is conducted
between a State, on the one hand, and, on the other, a party which is
not a State, is not _international_ negotiation, although such party may
reside abroad. Thus, negotiations of a State with the Pope and the Holy
See are not international negotiations, although all the formalities
connected with international negotiations are usually observed in this
case. Thus, too, negotiations on the part of States with a body of
foreign bankers and contractors concerning a loan, the building of a
railway, the working of a mine, and the like, are not international
negotiations.
[Sidenote: Purpose of Negotiation.]
§ 479. Negotiations between States may have various purposes. The
purpose may be an exchange of views only on some political question; but
it may also be an arrangement as to the line of action to be taken in
future with regard to a certain point, or a settlement of differences,
or the creation of international institutions, such as the Universal
Postal Union for example, and so on. Of the greatest importance are
those negotiations which aim at an understanding between members of the
Family of Nations respecting the very creation of rules of International
Law by international conventions. Since the Vienna Congress at the
beginning of the nineteenth century negotiations between the Powers for
the purpose of defining, creating, or abolishing rules of International
Law have been frequently and very successfully conducted.[834]
[Footnote 834: See below, §§ 555-568_b_.]
[Sidenote: Negotiations by whom conducted.]
§ 480. International negotiations are conducted by the agents which
represent the negotiating States. The heads of these States may conduct
the negotiations in person, either by letters or by a personal
interview. Serious negotiations have in the past been conducted by heads
of States, and, although this is comparatively seldom done, there is no
reason to believe that personal negotiations between heads of States
will not occur in future.[835] Heads of States may also personally
negotiate with diplomatic or other agents commissioned for that purpose
by other States. Ambassadors, as diplomatic agents of the first class,
must, according to International Law, have even the right to approach in
person the head of the State to which they are accredited for the
purpose of negotiation.[836] The rule is, however, that negotiation
between States concerning more important matters is conducted by their
Secretaries for Foreign Affairs, with the help either of their
diplomatic envoys or of agents without diplomatic character and
so-called commissaries.[837]
[Footnote 835: See below, § 495.]
[Footnote 836: See above, § 365.]
[Footnote 837: Negotiations between armed forces of belligerents are
regularly conducted by soldiers. See below, vol. II. §§ 220-240.]
[Sidenote: Form of Negotiation.]
§ 481. The Law of Nations does not prescribe any particular form in
which international negotiations must be conducted. Such negotiations
may, therefore, take place _viva voce_ or through the exchange of
written representations and arguments, or both. The more important
negotiations are regularly conducted through the diplomatic exchange of
written communications, as only in this way can misunderstandings be
avoided, which easily arise during _viva voce_ negotiations. Of the
greatest importance are the negotiations which take place through
congresses and conferences.[838]
[Footnote 838: See below, § 483.]
During _viva voce_ negotiations it happens sometimes that a diplomatic
envoy negotiating with the Secretary for Foreign Affairs reads out a
letter received from his home State. In such case it is usual to leave a
copy of the letter at the Foreign Office. If a copy is refused, the
Secretary for Foreign Affairs can on his part refuse to hear the letter
read. Thus in 1825 Canning refused to allow a Russian communication to
be read to him by the Russian Ambassador in London with regard to the
independence of the former Spanish colonies in South America, because
this Ambassador was not authorised to leave a copy of the communication
at the British Foreign Office.[839]
[Footnote 839: As regards the language used during negotiation, see
above, § 359.]
[Sidenote: End and Effect of Negotiation.]
§ 482. Negotiations may and often do come to an end without any effect
whatever on account of the parties failing to agree. On the other hand,
if negotiations lead to an understanding, the effect may be twofold. It
may consist either in a satisfactory exchange of views and intentions,
and the parties are then in no way, at any rate not legally, bound to
abide by such views and intentions, or to act on them in the future; or
in an agreement on a treaty, and then the parties are legally bound by
the stipulations of such treaty. Treaties are of such importance that it
is necessary to discuss them in a special chapter.[840]
[Footnote 840: See below, §§ 491-554.]
II
CONGRESSES AND CONFERENCES
Phillimore, II. §§ 39-40--Twiss, II. § 8--Taylor, §§
34-36--Bluntschli, § 12--Heffter, § 242--Geffcken in Holtzendorff,
III. pp. 679-684--Ullmann, §§ 71-72--Bonfils, Nos.
796-814--Despagnet, Nos. 478-482--Pradier-Fodéré, VI. Nos.
2593-2599--Rivier, II. § 46--Nys, III. pp. 7-17--Calvo, III. §§
1674-1681--Fiore, II. Nos. 1216-1224, and Code, Nos.
1206-1245--Martens, I. § 52--Charles de Martens, "Guide
diplomatique," vol. I. § 58--Pradier-Fodéré, "Cours de droit
diplomatique" (1881), vol. II. pp. 372-424--Zaleski, "Die
völkerrechtliche Bedeutung der Congresse" (1874)--Nippold, "Die
Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten"
(1907), pp. 480-526.
[Sidenote: Conception of Congresses and Conferences.]
§ 483. International congresses and conferences are formal meetings of
the representatives of several States for the purpose of discussing
matters of international interest and coming to an agreement concerning
these matters. As far as language is concerned, the term "congress" as
well as "conference" may be used for the meetings of the representatives
of only two States, but as a rule congresses or conferences denote such
bodies only as are composed of the representatives of a greater number
of States. Several writers[841] allege that there are characteristic
differences between a congress and a conference. But all such alleged
differences vanish in face of the fact that the Powers, when summoning a
meeting of representatives, name such body either congress or conference
indiscriminately. It is not even correct to say that the more important
meetings are named congresses, in contradistinction to conferences, for
the Hague Peace Conferences of 1899 and 1907 were, in spite of their
grand importance, denominated conferences.
[Footnote 841: See, for instance, Martens, I. § 52; Fiore, II. §§
1216-1224, and Code, No. 1231.]
Much more important than the mere terminological difference between
congress and conference is the difference of the representatives who
attend the meeting.
For it may be that the heads of the
States meet at a congress or conference, or that the representatives
consist of diplomatic envoys and Secretaries for Foreign Affairs of the
Powers. But, although congresses and conferences of heads of States have
been held in the past and might at any moment be held again in the
future, there can be no doubt that the most important matters are
treated by congresses and conferences consisting of diplomatic
representatives of the Powers.
[Sidenote: Parties to Congresses and Conferences.]
§ 484. Congresses and conferences not being organised by customary or
conventional International Law, no rules exist with regard to the
parties of a congress or conference. Everything depends upon the purpose
for which a congress or a conference meets, and upon the Power which
invites other Powers to the meeting. If it is intended to settle certain
differences, it is reasonable that all the States concerned should be
represented, for a Power which is not represented need not consent to
the resolutions of the congress. If the creation of new rules of
International Law is intended, at least all full-Sovereign members of
the Family of Nations ought to be represented. To the First Peace
Conference at the Hague, nevertheless, only the majority of States were
invited to send representatives, the South American Republics not being
invited at all. But to the Second Peace Conference of 1907 forty-seven
States were invited, although only forty-four sent representatives.
Costa Rica, Honduras, and Abyssinia were invited, but did not send any
delegates.
It is frequently maintained that only full-Sovereign States can be
parties to congresses and conferences. This is certainly not correct, as
here, too, everything depends upon the merits of the special case. As a
rule, full-Sovereign States only are parties, but there are exceptions.
Thus, Bulgaria, at the time a vassal under Turkish suzerainty, was a
party to the First as well as to the Second Hague Peace Conference,
although without a vote. There is no reason to deny the rule that half-
and part-Sovereign States can be parties to congresses and conferences
in so far as they are able to negotiate internationally.[842] Such
States are, in fact, frequently asked to send representatives to such
congresses and conferences as meet for non-political matters.
[Footnote 842: See above, § 478.]
But no State can be a party which has not been invited, or admitted at
its own request. If a Power thinks it fitting that a congress or
conference should meet, it invites such other Powers as it pleases. The
invited Powers may accept under the condition that certain other Powers
should or should not be invited or admitted. Those Powers which have
accepted the invitation become parties if they send representatives.
Each party may send several representatives, but they have only one
vote, given by the senior representative for himself and his
subordinates.
[Sidenote: Procedure at Congresses and Conferences.]
§ 485. After the place and time of meeting have been arranged--such
place may be neutralised for the purpose of securing the independence of
the deliberations and discussions--the representatives meet and
constitute themselves by exchanging their commissions and electing a
president and other officers. It is usual, but not obligatory,[843] for
the Secretary for Foreign Affairs of the State within which the congress
meets to be elected president. If the difficulty of the questions on the
programme makes it advisable, special committees are appointed for the
purpose of preparing the matter for discussion by the body of the
congress. In such discussion all representatives can take part. After
the discussion follows the voting. The motion must be carried
unanimously to consummate the task of the congress, for the vote of the
majority has no power whatever in regard to the dissenting parties. But
it is possible that the majority considers the motion binding for its
members. A protocol is to be kept of all the discussions and the voting.
If the discussions and votings lead to a final result upon which the
parties agree, all the points agreed upon are drawn up in an Act, which
is signed by the representatives and which is called the Final Act or
the General Act of the congress or conference. A party can make a
declaration or a reservation in signing the Act for the purpose of
excluding a certain interpretation of the Act in the future. And the Act
may expressly stipulate freedom for States which were not parties to
accede to it in future.
[Footnote 843: Thus at both Hague Peace Conferences the first Russian
delegate was elected president.]
III
TRANSACTIONS BESIDES NEGOTIATION
Bluntschli, § 84--Hartmann, § 91; Gareis, § 77--Liszt, § 20.
[Sidenote: Different kinds of Transaction.]
§ 486. International transaction is the term for every act on the
part of a State in its intercourse with other States. Besides
negotiation, which has been discussed above in §§ 477-482, there
are eleven other kinds of international transactions which are of
legal importance--namely, declaration, notification, protest,
renunciation, recognition, intervention, retorsion, reprisals,
pacific blockade, war, and subjugation. Recognition has already
been discussed above in §§ 71-75, as has also intervention in §§
134-138, and, further, subjugation in §§ 236-241. Retorsion,
reprisals, pacific blockade, and war will be treated in the second
volume of this work. There are, therefore, here to be discussed
only the remaining four transactions--namely, declaration,
notification, protest, and renunciation.
[Sidenote: Declaration.]
§ 487. The term "declaration" is used in three different meanings. It
is, first, sometimes used as the title of a body of stipulations of a
treaty according to which the parties engage themselves to pursue in
future a certain line of conduct. The Declaration of Paris, 1856, the
Declaration of St. Petersburg, 1868, and the Declaration of London,
1909, are instances of this. Declarations of this kind differ in no
respect from treaties.[844] One speaks, secondly, of declarations when
States communicate to other States or _urbi et orbi_ an explanation and
justification of a line of conduct pursued by them in the past, or an
explanation of views and intentions concerning certain matters.
Declarations of this kind may be very important, but they hardly
comprise transactions out of which rights and duties of other States
follow. But there is a third kind of declarations out of which rights
and duties do follow for other States, and it is this kind which
comprises a specific international transaction, although the different
declarations belonging to this group are by no means of a uniform
character. Declarations of this kind are declarations of war,
declarations on the part of belligerents concerning the goods they will
condemn as contraband, declarations at the outbreak of war on the part
of third States that they will remain neutral, and others.
[Footnote 844: See below, § 508, where is mentioned the attempt of the
British Foreign Office to give to the term "declaration" a specific
meaning.]
[Sidenote: Notification.]
§ 488. Notification is the technical term for the communication to other
States of the knowledge of certain facts and events of legal importance.
But a distinction must be drawn between obligatory and merely usual
notification.
Notification has of late been stipulated in several cases to be
obligatory. Thus, according to article 34 of the General Act of the
Berlin Congo Conference of 1885, notification of new occupations and the
like on the African coast is obligatory. Thus, further, according to
article 84 of the Hague Convention for the peaceful adjustment of
international differences, in case a number of States are parties to a
treaty and two of the parties are at variance concerning the
interpretation of such treaty and agree to have the difference settled
by arbitration, they have to notify this agreement to all other parties
to the treaty. Again, according to article 2 of the Hague Convention
concerning the Commencement of Hostilities, 1907, the outbreak of war
must be notified to the neutral Powers, and so must the declaration of a
blockade,[845] according to article 11 of the Declaration of London,
1909.
[Footnote 845: See also Declaration of London, articles 11 (2), 16, 23,
25, and 26.]
Apart from such cases in which notification is stipulated as obligatory,
it is in principle not obligatory, although in fact it frequently takes
place because States cannot be considered subject to certain duties
without the knowledge of the facts and events which give rise to these
duties. Thus it is usual to notify to other States changes in the
headship and in the form of government of a State, the establishment of
a Federal State, an annexation after conquest, the appointment of a new
Secretary for Foreign Affairs, and the like.
[Sidenote: Protest.]
§ 489. Protest is a formal communication on the part of a State to
another that it objects to an act performed or contemplated by the
latter. A protest serves the purpose of preservation of rights, or of
making it known that the protesting State does not acquiesce in and does
not recognise certain acts. A protest can be lodged with another State
concerning acts of the latter which have been notified to the former or
which have otherwise become known. On the other hand, if a State
acquires knowledge of an act which it considers internationally illegal
and against its rights, and nevertheless does not protest, such attitude
implies renunciation of such rights, provided a protest would have been
necessary to preserve a claim. It may further happen that a State at
first protests, but afterwards either expressly[846] or tacitly
acquiesces in the act. And it must be emphasised that under certain
circumstances and conditions a simple protest on the part of a State
without further action is not in itself sufficient to preserve the
rights in behalf of which the protest was made.[847]
[Footnote 846: Thus by section 2 of the Declaration concerning Siam,
Madagascar, and the New Hebrides, which is embodied in the Anglo-French
Agreement of April 8, 1904, Great Britain withdrew the protest which she
had raised against the introduction of the Customs tariff established at
Madagascar after the annexation to France.]
[Footnote 847: See below, § 539, concerning the withdrawal of Russia
from article 59 of the Treaty of Berlin, 1878, stipulating the freedom
of the port of Batoum.]
[Sidenote: Renunciation.]
§ 490. Renunciation is the deliberate abandonment of rights. It can be
given _expressis verbis_ or tacitly. If, for instance, a State by
occupation takes possession of an island which has previously been
occupied by another State,[848] the latter tacitly renounces its rights
by not protesting as soon as it receives knowledge of the fact.
Renunciation plays a prominent part in the amicable settlement of
differences between States, either one or both parties frequently
renouncing their claims for the purpose of coming to an agreement. But
it must be specially observed that mere silence on the part of a State
does not imply renunciation; this occurs only when a State remains
silent, although a protest is necessary to preserve a claim.
[Footnote 848: See above, § 247.]
CHAPTER II
TREATIES
I
CHARACTER AND FUNCTION OF TREATIES
Vattel, II. §§ 152, 153, 157, 163--Hall, § 107--Phillimore, II. §
44--Twiss, I. §§ 224-233--Taylor, §§ 341-342--Bluntschli, §
402--Heffter, § 81--Despagnet, Nos. 435-436--Pradier-Fodéré, II.
Nos. 888-919--Rivier, II. pp. 33-40--Nys, III. pp. 18-20 and
43-48--Calvo, III. §§ 1567-1584--Fiore, II. Nos. 976-982--Martens,
I. § 103--Bergbohm, "Staatsverträge und Gesetze als Quellen des
Völkerrechts" (1877)--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880)--Laghi, "Teoria dei trattati
internazionali" (1882)--Buonamici, "Dei trattati internazionali"
(1888)--Nippold, "Der völkerrechtliche Vertrag" (1894)--Triepel,
"Völkerrecht und Landesrecht" (1899), pp. 27-90.
[Sidenote: Conception of Treaties.]
§ 491. International treaties are conventions or contracts between two
or more States concerning various matters of interest. Even before a Law
of Nations in the modern sense of the term was in existence, treaties
used to be concluded between States. And although in those times
treaties were neither based on nor were themselves a cause of an
International Law, they were nevertheless considered sacred and binding
on account of religious and moral sentiment. However, since the manifold
intercourse of modern times did not then exist between the different
States, treaties did not discharge such all-important functions in the
life of humanity as they do now.
[Sidenote: Different kinds of Treaties.]
§ 492. These important functions are manifest if attention is given to
the variety of international treaties which exist nowadays and are day
by day concluded for innumerable purposes. In regard to State property,
treaties are concluded of cession, of boundary, and many others.
Alliances, treaties of protection, of guarantee, of neutrality, and of
peace are concluded for political purposes. Various purposes are served
by consular treaties, commercial[849] treaties, treaties in regard to
the post, telegraphs, and railways, treaties of copyright and the like,
of jurisdiction, of extradition, monetary treaties, treaties in regard
to measures and weights, to rates, taxes, and custom-house duties,
treaties on the matter of sanitation with respect to epidemics, treaties
in the interest of industrial labourers, and treaties with regard to
agriculture and industry. Again, various purposes are served by treaties
concerning warfare, mediation, arbitration, and so on.
[Footnote 849: See below, §§ 578-580.]
I do not intend to discuss the question of classification of the
different kinds of treaties, for hitherto all attempts[850] at such
classification have failed. But there is one distinction to be made
which is of the greatest importance and according to which the whole
body of treaties is to be divided into two classes. For treaties may, on
the one hand, be concluded for the purpose of confirming, defining, or
abolishing existing customary rules, and of establishing new rules for
the Law of Nations. Treaties of this kind ought to be termed
_law-making_ treaties. On the other hand, treaties may be concluded for
all kinds of other purposes. Law-making treaties as a source of rules of
International Law have been discussed above (§ 18); the most important
of these treaties will be considered below (§§ 556-568_b_).
[Footnote 850: Since the time of Grotius the science of the Law of
Nations has not ceased attempting a satisfactory classification of the
different kinds of treaties. See Heffter, §§ 88-91; Bluntschli, §§
442-445; Martens, I. § 113; Ullmann, § 82; Wheaton, § 268 (following
Vattel, II. § 169); Rivier, II. pp. 106-118; Westlake, I. p. 283, and
many others.]
[Sidenote: Binding Force of Treaties.]
§ 493. The question as to the reason of the binding force of
international treaties always was, and still is, very much disputed.
That all those publicists who deny the legal character of the Law of
Nations deny likewise a legally binding force in international treaties
is obvious. But even among those who acknowledge the legal character of
International Law, unanimity by no means exists concerning this binding
force of treaties. The question is all the more important as everybody
knows that treaties are sometimes broken, rightly according to the
opinion of the one party, and wrongly according to the opinion of the
other. Many publicists find the binding force of treaties in the Law of
Nature, others in religious and moral principles, others[851] again in
the self-restraint exercised by States in becoming a party to a treaty.
Some writers[852] assert that it is the contracting parties' own will
which gives binding force to their treaties, and others[853] teach that
such binding force is to be found _im Rechtsbewusstsein der
Menschheit_--that is, in the idea of right innate in man. I believe that
the question can satisfactorily be dealt with only by dividing it into
several different questions and by answering those questions _seriatim_.
[Footnote 851: So Hall, § 107; Jellinek, "Staatenverträge," p. 31;
Nippold, § 11.]
[Footnote 852: So Triepel, "Völkerrecht und Landesrecht" (1899), p. 82.]
[Footnote 853: So Bluntschli, § 410.]
First, the question is to be answered why treaties are legally binding.
The answer must categorically be that this is so because there exists a
customary rule of International Law that treaties are binding.
Then the question might be put as to the cause of the existence of such
customary rule. The answer must be that such rule is the product of
several joint causes. Religious and moral reasons require such a rule
quite as much as the interest of the States, for no law could exist
between nations if such rule did not exist. All causes which have been
and are still working to create and maintain an International Law are at
the background of this question.
And, thirdly, the question might be put how it is possible to speak of a
legally binding force in treaties without a judicial authority to
enforce their stipulations. The answer must be that the binding force of
treaties, although it is a legal force, is not the same as the binding
force of contracts according to Municipal Law, since International Law
is a weaker law, and for this reason less enforceable, than Municipal
Law. But just as International Law does not lack legal character in
consequence of the fact that there is no central authority[854] above
the States which could enforce it, so international treaties are not
deficient of a legally binding force because there is no judicial
authority for the enforcement of their stipulations.
[Footnote 854: See above, § 5.]
II
PARTIES TO TREATIES
Vattel, II. §§ 154-156, 206-212--Hall, § 108--Westlake, I. p.
279--Phillimore, II. §§ 48-49--Halleck, I. pp. 275-278--Taylor, §§
361-365--Wheaton, §§ 265-267--Moore, V. §§ 734-737--Bluntschli, §§
403-409--Heffter, §§ 84-85--Ullmann, § 75--Bonfils, No.
818--Despagnet, No. 446--Pradier-Fodéré, II. Nos.
1058-1068--Rivier, II. pp. 45-48--Nys, III. pp. 20-24--Calvo, III.
§§ 1616-1618--Fiore, II. Nos. 984-1000, and Code, Nos.
743-749--Martens, I. § 104--Nippold, op. cit. pp. 104-112--Schoen
in Z.V. V. (1911), pp. 400-431.
[Sidenote: The Treaty-making Power.]
§ 494. The so-called right of making treaties is not a right of a State
in the technical meaning of the term, but a mere competence attaching to
sovereignty. A State possesses, therefore, treating-making power only so
far as it is sovereign. Full-Sovereign States may become parties to
treaties of all kinds, being regularly competent to make treaties on
whatever matters they please. Not-full Sovereign States, however, can
become parties to such treaties only according to their competence to
conclude. It is impossible to lay down a hard-and-fast rule concerning
such competence of all not-full Sovereign States. Everything depends
upon the special case. Thus, the constitutions of Federal States
comprise provisions with regard to the competence, if any, of the
member-States to conclude international treaties among themselves as
well as with foreign States.[855] Thus, again, it depends upon the
special relation between the suzerain and the vassal how far the latter
possesses the competence to enter into treaties with foreign States;
ordinarily a vassal can conclude treaties concerning such matters as
railways, extradition, commerce, and the like.
[Footnote 855: According to articles 7 and 9 of the Constitution of
Switzerland the Swiss member-States are competent to conclude
non-political treaties among themselves, and, further, such treaties
with foreign States as concern matters of police, of local traffic, and
of State economics. According to article 11 of the Constitution of the
German Empire, the German member-States are competent to conclude
treaties concerning all such matters as do not, in conformity with
article 4 of the Constitution, belong to the competence of the Empire.
On the other hand, according to article 1, section 10, of the
Constitution of the United States of America, the member-States are
incompetent either to conclude treaties among themselves or with foreign
States.]
[Sidenote: Treaty-making Power exercised by Heads of States.]
§ 495. The treaty-making power of all States is exercised by their
heads, either personally or through representatives appointed by these
heads. The Holy Alliance of Paris, 1815, was personally concluded by the
Emperors of Austria and Russia and the King of Prussia. And when, on
June 24, 1859, the Austrian army was defeated at Solferino, the Emperors
of Austria and France met on July 11, 1859, at Villafranca and agreed in
person on preliminaries of peace. Yet, as a rule, heads of States do not
act in person, but authorise representatives to act for them. Such
representatives receive a written commission, known as powers or full
powers, which authorises them to negotiate in the name of the respective
heads of States. They also receive oral or written, open or secret
instructions. But, as a rule, they do not conclude a treaty finally, for
all treaties concluded by such representatives are in principle not
valid before ratification.[856] If they conclude a treaty by exceeding
their powers or acting contrary to their instructions, the treaty is not
a real treaty and not binding upon the State they represent. A treaty of
such a kind is called a _sponsio_ or _sponsiones_. _Sponsiones_ may
become a real treaty and binding upon the State through the latter's
approval. Nowadays, however, the difference between real treaties and
_sponsiones_ is less important than in former times, when the custom in
favour of the necessity of ratification for the validity of treaties was
not yet general. If nowadays representatives exceed their powers, their
States can simply refuse ratification of the _sponsio_.
[Footnote 856: See below, § 510.]
[Sidenote: Minor Functionaries exercising Treaty-making Power.]
§ 496. For some non-political purposes of minor importance, certain
minor functionaries are recognised as competent to exercise the
treaty-making power of their States. Such functionaries are _ipso facto_
by their offices and duties competent to enter into certain agreements
without the requirement of ratification. Thus, for instance, in time of
war, military and naval officers in command[857] can enter into
agreements concerning a suspension of arms, the surrender of a fortress,
the exchange of prisoners, and the like. But it must be emphasised that
treaties of this kind are valid only when these functionaries have not
exceeded their powers.
[Footnote 857: See Grotius, III. c. 22.]
[Sidenote: Constitutional Restrictions.]
§ 497. Although the heads of States are regularly, according to the Law
of Nations, the organs that exercise the treaty-making power of the
States, constitutional restrictions imposed upon the heads concerning
the exercise of this power are nevertheless of importance for the Law of
Nations. Such treaties concluded by heads of States or representatives
authorised by these heads as violate constitutional restrictions are not
real treaties and do not bind the State concerned, because the
representatives have exceeded their powers in concluding the
treaties.[858] Such constitutional restrictions, although they are not
of great importance in Great Britain,[859] play a prominent part in the
Constitutions of most countries. Thus, according to article 8 of the
French Constitution, the President exercises the treaty-making power;
but peace treaties and such other treaties as concern commerce, finance,
and some other matters, are not valid without the co-operation of the
French Parliament. Thus, further, according to articles 1, 4, and 11 of
the Constitution of the German Empire, the Emperor exercises the
treaty-making power; but such treaties as concern the frontier,
commerce, and several other matters, are not valid without the
co-operation of the Bundesrath and the Reichstag. Again, according to
article 2, section 2, of the Constitution of the United States, the
President can only ratify treaties with the consent of the Senate.
[Footnote 858: The whole matter is discussed with great lucidity by
Nippold, op. cit. pp. 127-164; see also Schoen, loc. cit.]
[Footnote 859: See Anson, "The Law and Custom of the Constitution," II.
(2nd ed.), pp. 297-300.]
[Sidenote: Mutual Consent of the Contracting Parties.]
§ 498. A treaty being a convention, mutual consent of the parties is
necessary. Mere proposals made by one party and not accepted by the
other are, therefore, not binding upon the proposer. Without force are
also pollicitations which contain mere promises without acceptance by
the party to whom they were made. Not binding are, lastly, so-called
_punctationes_, mere negotiations on the items of a future treaty,
without the parties entering into an obligation to conclude that treaty.
But such _punctationes_ must not be confounded either with a preliminary
treaty or with a so-called _pactum de contrahendo_. A preliminary treaty
requires the mutual consent of the parties with regard to certain
important points, whereas other points have to be settled by the
definitive treaty to be concluded later. Such preliminary treaty is a
real treaty and therefore binding upon the parties. A _pactum de
contrahendo_ requires likewise the mutual consent of the parties. It is
an agreement upon certain points to be incorporated in a future treaty,
and is binding upon the parties. The difference between _punctationes_
and a _pactum de contrahendo_ is, that the latter stipulates an
obligation of the parties to settle the respective points by a treaty,
whereas the former does not.
[Sidenote: Freedom of Action of consenting Representatives.]
§ 499. As a treaty will lack binding force without real consent,
absolute freedom of action on the part of the contracting parties is
required. It must, however, be understood that circumstances of urgent
distress, such as either defeat in war or the menace of a strong State
to a weak State, are, according to the rules of International Law, not
regarded as excluding the freedom of action of a party consenting to the
terms of a treaty. The phrase "freedom of action" applies only to the
_representatives_ of the contracting States. It is _their_ freedom of
action in consenting to a treaty which must not have been interfered
with and which must not have been excluded by other causes. A treaty
concluded through intimidation exercised against the representatives of
either party or concluded by intoxicated or insane representatives is
not binding upon the party so represented. But a State which was forced
by circumstances to conclude a treaty containing humiliating terms has
no right afterwards to shake off the obligations of such treaty on the
ground that its freedom of action was interfered with at the time.[860]
This must be emphasised, because in practice such cases of repudiation
have frequently occurred. A State may, of course, hold itself justified
by political necessity in shaking off such obligations, but this does
not alter the fact that such action is a breach of law.
[Footnote 860: See examples in Moore, V. § 742.]
[Sidenote: Delusion and Error in Contracting Parties.]
§ 500. Although a treaty was concluded with the real consent of the
parties, it is nevertheless not binding if the consent was given in
error, or under a delusion produced by a fraud of the other contracting
party. If, for instance, a boundary treaty were based upon an incorrect
map or a map fraudulently altered by one of the parties, such treaty
would by no means be binding. Although there is freedom of action in
such cases, consent has been given under circumstances which prevent the
treaty from being binding.
III
OBJECTS OF TREATIES
Vattel, II. §§ 160-162, 166--Hall, § 108--Phillimore, II. §
51--Walker, § 30--Bluntschli, §§ 410-416--Heffter, § 83--Ullmann,
§ 97--Bonfils, No. 819--Despagnet, No. 445--Pradier-Fodéré, II.
Nos. 1080-1083--Mérignhac, II. p. 640--Rivier, II. pp. 57-63--Nys,
III. p. 24--Fiore, II. Nos. 1001-1004, and Code, Nos.
755-758--Martens, I. § 110--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880), pp. 59-60--Nippold, op. cit. pp. 181-190.
[Sidenote: Objects in general of Treaties.]
§ 501. The object of treaties is always an obligation, whether mutual
between all the parties or unilateral on the part of one only. Speaking
generally, the object of treaties can be an obligation concerning any
matter of interest for States. Since there exists no other law than
International Law for the intercourse of States with each other, every
agreement between them regarding any obligation whatever is a treaty.
However, the Law of Nations prohibits some obligations from becoming
objects of treaties, so that such treaties as comprise obligations of
this kind are from the very beginning null and void.[861]
[Footnote 861: The voidance _ab origine_ of these treaties must not be
confounded with voidance of such treaties as are valid in their
inception, but become afterwards void on some ground or other; see
below, §§ 541-544.]
[Sidenote: Obligations of Contracting Parties only can be Object.]
§ 502. Obligations to be performed by a State other than a contracting
party cannot be the object of a treaty. A treaty stipulating such an
obligation would be null and void. But this must not be confounded with
the obligation undertaken by one of the contracting States to exercise
an influence upon another State to perform certain acts. The object of a
treaty with such a stipulation is an obligation of one of the
contracting States, and the treaty is therefore valid and binding.
[Sidenote: An Obligation inconsistent with other Obligations cannot be
an Object.]
§ 503. Such obligation as is inconsistent with obligations under
treaties previously concluded by one State with another cannot be the
object of a treaty with a third State. Thus, in 1878, when after the war
Russia and Turkey concluded the preliminary Treaty of Peace of San
Stefano, which was inconsistent with the Treaty of Paris of 1856 and the
Convention of London of 1871, England protested,[862] and the Powers met
at the Congress of Berlin to arrange matters by mutual consent.
[Footnote 862: See Martens, N.R.G. 2nd Ser. III. p. 257.]
[Sidenote: Object must be physically possible.]
§ 504. An obligation to perform a physical impossibility[863] cannot be
the object of a treaty. If perchance a State entered into a convention
stipulating an obligation of that kind, no right to claim damages for
non-fulfilment of the obligation would arise for the other party, such
treaty being legally null and void.
[Footnote 863: See below, § 542.]
[Sidenote: Immoral Obligations.]
§ 505. It is a customarily recognised rule of the Law of Nations that
immoral obligations cannot be the object of an international treaty.
Thus, an alliance for the purpose of attacking a third State without
provocation is from the beginning not binding. It cannot be denied that
in the past many treaties stipulating immoral obligations have been
concluded and executed, but this does not alter the fact that such
treaties were legally not binding upon the contracting parties. It must,
however, be taken into consideration that the question as to what is
immoral is often controversial. An obligation which is considered
immoral by other States may not necessarily appear immoral to the
contracting parties, and there is no Court that can decide the
controversy.
[Sidenote: Illegal Obligations.]
§ 506. It is a unanimously recognised customary rule of International
Law that obligations which are at variance with universally recognised
principles of International Law cannot be the object of a treaty. If,
for instance, a State entered into a convention with another State not
to interfere in case the latter should appropriate a certain part of the
Open Sea, or should command its vessels to commit piratical acts on the
Open Sea, such treaty would be null and void, because it is a principle
of International Law that no part of the Open Sea can be appropriated,
and that it is the duty of every State to interdict to its vessels the
commission of piracy on the High Seas.
IV
FORM AND PARTS OF TREATIES
Grotius, II. c. 15, § 5--Vattel, II. § 153--Hall, § 109--Westlake,
I. pp. 279-281--Wheaton, § 253--Moore, V. § 740--Bluntschli, §§
417-427--Hartmann, §§ 46-47--Heffter, §§ 87-91--Ullmann, §
80--Bonfils, Nos. 821-823--Pradier-Fodéré, II. Nos.
1084-1099--Mérignhac, II. p. 645--Rivier, II. pp. 64-68--Nys, III.
pp. 25-28--Fiore, II. Nos. 1004-1006, and Code, Nos.
759-763--Martens, I. § 112--Jellinek, "Die rechtliche Natur der
Staatenverträge" (1880), p. 56--Nippold, op. cit. pp. 178-181.
[Sidenote: No necessary Form of Treaties.]
§ 507. The Law of Nations includes no rule which prescribes a necessary
form of treaties. A treaty is, therefore, concluded as soon as the
mutual consent of the parties becomes clearly apparent. Such consent
must always be given expressly, for a treaty cannot be concluded by
tacit consent. But it matters not whether an agreement is made in
writing, orally, or by symbols. Thus, in time of war, the exhibition of
a white flag symbolises the proposal of an agreement as to a brief truce
for the purpose of certain negotiations, and the acceptance of the
proposal on the part of the other side by the exhibition of a similar
symbol establishes a convention as binding as any written treaty. Thus,
too, history tells of an oral treaty of alliance, secured by an oath,
concluded in 1697 at Pillau between Peter the Great of Russia and
Frederick III., Elector of Brandenburg.[864] Again, treaties are
sometimes concluded through an exchange of diplomatic notes between the
Secretaries for Foreign Affairs of two States or through the exchange of
personal letters between the heads of two States. However, as a matter
of reason, treaties usually take the form of a written[865] document
signed by duly authorised representatives of the contracting parties.
[Footnote 864: See Martens, I. § 112.]
[Footnote 865: The only writer who nowadays insists upon a _written_
agreement for a treaty to be valid is, as far as I know, Bulmerincq (§
56). But although all important treaties are naturally concluded in
writing, the example of the agreements concluded between armed forces in
time of war either orally or through symbols proves that the written
form is not absolutely necessary.]
[Sidenote: Acts, Conventions, Declarations.]
§ 508. International compacts which take the form of written contracts,
are, besides _Agreements_ or _Treaties_, sometimes termed _Acts_,
sometimes _Conventions_, sometimes _Declarations_. But there is no
essential difference between them, and their binding force upon the
contracting parties is the same whatever be their name. The Geneva
Convention, the Declarations of Paris and of London, and the Final Act
of the Vienna Congress are as binding as any agreement which goes under
the name of "Treaty" or "Convention." The attempt[866] to distinguish
fundamentally between a "Declaration" and a "Convention" by maintaining
that whereas a "Convention" creates rules of particular International
Law between the contracting States only, a "Declaration" contains the
recognition, on the part of the best qualified and most interested
Powers, of rules of universal International Law, does not stand the
test of scientific criticism. A "Declaration" is nothing else but the
title of a law-making treaty according to which the parties engage
themselves to pursue in future a certain line of conduct.[867] But such
law-making treaties are quite as frequently styled "Conventions" as
"Declarations." The best example is the Hague "Convention" concerning
the laws and usages of war, which is based upon the unratified
"Declaration" concerning the laws and customs of war produced by the
Brussels Conference of 1874.
[Footnote 866: On the part of the British Foreign Office, see
Parliamentary Papers, Miscellaneous, No. 5 (1909), Cd. 4555, Proceedings
of the International Naval Conference held in London, December
1908-1909, p. 57.]
[Footnote 867: See above, § 487.]
[Sidenote: Parts of Treaties]
§ 509. Since International Law lays down no rules concerning the form of
treaties, there exist no rules concerning the arrangement of the parts
of written treaties. But the following order is usually observed. A
first part, the so-called _preamble_, comprises the names of the heads
of the contracting States, of their duly authorised representatives, and
the motives for the conclusion of the treaty. A second part consists of
the primary stipulations in numbered articles. A third part consists of
miscellaneous stipulations concerning the duration of the treaty, its
ratification, the accession of third Powers, and the like. The last part
comprises the signatures of the representatives. But this order is by no
means necessary. Sometimes, for instance, the treaty itself does not
contain the very stipulations upon which the contracting parties have
agreed, such stipulations being placed in an annex to the treaty. It may
also happen that a treaty contains secret stipulations in an additional
part, which are not made public with the bulk of the stipulations.[868]
[Footnote 868: The matter is treated with all details by Pradier-Fodéré,
II. §§ 1086-1096.]
V
RATIFICATION OF TREATIES
Grotius, II. c. 11, § 12--Pufendorf, III. c. 9, § 2--Vattel, II. §
156--Hall, § 110--Westlake, I. pp. 279-280--Lawrence, §
132--Phillimore, II. § 52--Twiss, I. § 214--Halleck, I. pp.
276-277--Taylor, §§ 364-367--Moore, V. §§ 743-756--Walker, §
30--Wharton, II. §§ 131-131A--Wheaton, §§ 256-263--Bluntschli, §§
420-421--Heffter, § 87--Gessner in Holtzendorff, III. pp.
15-18--Ullmann, § 78--Bonfils, Nos. 824-831--Pradier-Fodéré, II.
Nos. 1100-1119--Mérignhac, II. pp. 652-666--Nys, III. pp.
28-36--Rivier, II. § 50--Calvo, III. §§ 1627-1636--Fiore, II. No.
994, and Code, No. 750--Martens, I. §§ 105-108--Wicquefort,
"L'Ambassadeur et ses fonctions" (1680), II. Section
XV.--Jellinek, "Die rechtliche Natur der Staatenverträge" (1880),
pp. 53-56--Nippold, op. cit. pp. 123-125--Wegmann, "Die
Ratifikation von Staatsverträgen" (1892).
[Sidenote: Conception and Function of Ratification.]
§ 510. Ratification is the term for the final confirmation given by the
parties to an international treaty concluded by their representatives.
Although a treaty is concluded as soon as the mutual consent is manifest
from acts of the duly authorised representatives, its binding force is
as a rule suspended till ratification is given. The function of
ratification is, therefore, to make the treaty binding, and, if it is
refused, the treaty falls to the ground in consequence. As long as
ratification is not given, the treaty is, although concluded, not
perfect. Many writers[869] maintain that, as a treaty is not binding
without ratification, it is the latter which really contains the mutual
consent and really concludes the treaty. Before ratification, they
maintain, there is no treaty concluded, but a mere mutual proposal
agreed to to conclude a treaty. But this opinion does not accord with
the real facts.[870] For the representatives are authorised and intend
to conclude a treaty by their signatures. The contracting States have
always taken the standpoint that a treaty is concluded as soon as their
mutual consent is clearly apparent. They have always made a distinction
between their consent given by representatives and their ratification to
be given afterwards, they have never dreamt of confounding the two and
considering their ratification their consent. It is for that reason that
a treaty cannot be ratified in part, that no alterations of the treaty
are possible through the act of ratification, that a treaty may be
tacitly ratified by its execution, that a treaty always is dated from
the day when it was duly signed by the representatives and not from the
day of its ratification, that there is no essential difference between
such treaties as want and such as do not want ratification.
[Footnote 869: See, for instance, Ullmann, § 78; Jellinek, p. 55;
Nippold, p. 123; Wegmann, p. 11.]
[Footnote 870: The matter is very ably discussed by Rivier, II. pp
74-76.]
[Sidenote: Rationale for the Institution of Ratification.]
§ 511. The rationale for the institution of ratification is another
argument for the contention that the conclusion of the treaty by the
representatives is to be distinguished from the confirmation given by
the respective States through ratification. The reason is that States
want to have an opportunity of re-examining not the single stipulations,
but the whole effect of the treaty upon their interests. These interests
may be of various kinds. They may undergo a change immediately after the
signing of the treaty by the representatives. They may appear to public
opinion in a different light from that in which they appear to the
Governments, so that the latter want to reconsider the matter. Another
reason is that treaties on many important matters are, according to the
Constitutional Law of most States, not valid without some kind of
consent of Parliaments. Governments must therefore have an opportunity
of withdrawing from a treaty in case Parliaments refuse their
recognition. These two reasons have made, and still make, the
institution of ratification a necessity for International Law.
[Sidenote: Ratification regularly, but not absolutely, necessary.]
§ 512. But ratification, although necessary in principle, is not always
essential. Although it is now a universally recognised customary rule of
International Law that treaties are regularly in need of ratification,
even if the latter was not expressly stipulated, there are exceptions
to the rule. For treaties concluded by such State functionaries[871] as
have within certain narrow limits, _ipso facto_ by their office, the
power to exercise the treaty-making competence of their State do not
want ratification, but are binding at once when they are concluded,
provided the respective functionaries have not exceeded their powers.
Further, treaties concluded by heads of States in person do not want
ratification provided that they do not concern matters in regard to
which constitutional restrictions[872] are imposed upon heads of States.
And, lastly, it may happen that the contracting parties stipulate
expressly, for the sake of a speedy execution of a treaty, that it shall
be binding at once without ratifications being necessary. Thus, the
Treaty of London of July 15, 1840, between Great Britain, Austria,
Russia, Prussia, and Turkey concerning the pacification of the
Turko-Egyptian conflict was accompanied by a secret protocol,[873]
signed by the representatives of the parties, according to which the
treaty was at once, without being ratified, to be executed. For the
Powers were, on account of the victories of Mehemet Ali, very anxious to
settle the conflict as quickly as possible. But it must be emphasised
that renunciation of ratification is valid only if given by
representatives duly authorised to make such renunciation. If the
representatives have not received a special authorisation to dispense
with ratification, then renunciation is not binding upon the States
which they represent.
[Footnote 871: See above, § 496.]
[Footnote 872: See above, § 497.]
[Footnote 873: See Martens, N.R.G. I. p. 163.]
[Sidenote: Length of Time for Ratification.]
§ 513. No rule of International Law prescribes the length of time within
which ratification must be given or refused. If such length of time is
not specially stipulated by the contracting parties in the very treaty,
a reasonable length of time must be presumed as mutually granted.
Without doubt, a refusal to ratify must be presumed from the lapse of an
unreasonable time without ratification having been made. In most cases,
however, treaties which are in need of ratification contain nowadays a
clause stipulating the reservation of ratification, and at the same time
a length of time within which ratification should take place.
[Sidenote: Refusal of Ratification.]
§ 514. The question now requires attention whether ratification can be
refused on just grounds only or according to discretion. Formerly[874]
it was maintained that ratification could not be refused in case the
representatives had not exceeded their powers or violated their secret
instructions. But nowadays there is probably no publicist who maintains
that a State is in any case _legally_[875] bound not to refuse
ratification. Yet many insist that a State is, except for just reasons,
in principle _morally_ bound not to refuse ratification. I cannot see,
however, the value of such a moral in contradistinction to a legal duty.
The fact upon which everybody agrees is that International Law does in
no case impose a duty of ratification upon a contracting party. A State
refusing ratification will always have reasons for such line of action
which appear just to itself, although they may be unjust in the eyes of
others. In practice, ratification is given or withheld at discretion.
But in the majority of cases, of course, ratification is not refused. A
State which often and apparently wantonly refused ratification of
treaties would lose all credit in international negotiations and would
soon feel the consequences. On the other hand, it is impossible to lay
down hard-and-fast rules respecting just and unjust causes of refusal of
ratification. The interests at stake are so various, and the
circumstances which must influence a State are so imponderable, that it
must be left to the discretion of every State to decide the question for
itself. Numerous examples of important treaties which have not found
ratification can be given. It suffices to mention the Hay-Pauncefote
Treaty between the United States and Great Britain regarding the
proposed Nicaragua Canal, signed on February 5, 1900, which was ratified
with modifications by the Senate of the United States, this being
equivalent to refusal of ratification. (See below, § 517.)
[Footnote 874: See Grotius, II. c. 11, § 12; Bynkershoek, "Quaestiones
juris publici," II. 7; Wicquefort, "L'Ambassadeur," II. 15; Vattel, II.
§ 156; G. F. von Martens, § 48.]
[Footnote 875: This must be maintained in spite of Wegmann's (p. 32)
assertion that a customary rule of the Law of Nations has to be
recognised that ratification can not regularly be refused. The
hair-splitting scholasticism of this writer is illustrated by a
comparison between his customary rule for the non-refusal of
ratification as arbitrarily constructed by himself, and the opinion
which he (p. 11) emphatically defends that a treaty is concluded only by
ratification.]
[Sidenote: Form of Ratification.]
§ 515. No rule of International Law exists which prescribes a necessary
form of ratification. Ratification can therefore be given as well
tacitly as expressly. Tacit ratification takes place when a State begins
the execution of a treaty without expressly ratifying it. Further,
ratification may be given orally or in writing, although I am not aware
of any case in which ratification was given orally. For it is usual for
ratification to take the form of a document duly signed by the heads of
the States concerned and their Secretaries for Foreign Affairs. It is
usual to draft as many documents as there are parties to the convention,
and to exchange these documents between the parties. Sometimes the whole
of the treaty is recited _verbatim_ in the ratifying documents, but
sometimes only the title, preamble, and date of the treaty, and the
names of the signatory representatives are cited. As ratification is the
necessary confirmation only of an already existing treaty, the essential
requirement in a ratifying document is merely that it refer clearly and
unmistakably to the treaty to be ratified. The citation of title,
preamble, date, and names of the representatives is, therefore, quite
sufficient to satisfy that requirement, and I cannot agree with those
writers who maintain that the whole of the treaty ought to be recited
_verbatim_.
[Sidenote: Ratification by whom effected.]
§ 516. Ratification is effected by those organs which exercise the
treaty-making power of the States. These organs are regularly the heads
of the States, but they can, according to the Municipal Law of some
States, delegate the power of ratification for some parts of the globe
to other representatives. Thus, the Viceroy of India is empowered to
ratify treaties with certain Asiatic monarchs in the name of the King of
Great Britain and Emperor of India, and the Governor-General of
Turkestan has a similar power for the Emperor of Russia.
In case the head of a State ratifies a treaty, although the necessary
constitutional requirements have not been previously fulfilled, as, for
instance, in the case in which a treaty has not received the necessary
approval from the Parliament of the said State, the question arises
whether such ratification is valid or null and void. Many writers[876]
maintain that such ratification is nevertheless valid. But this opinion
is not correct, because it is clearly evident that in such a case the
head of the State has exceeded his powers, and that, therefore, the
State concerned cannot be held to be bound by the treaty.[877] The
conflict between the United States and France in 1831, frequently quoted
in support of the opinion that such ratification is valid, is not in
point. It is true that the United States insisted on payment of the
indemnity stipulated by a treaty which had been ratified by the King of
France without having received the necessary approval of the French
Parliament, but the United States did not maintain that the ratification
was valid; she insisted upon payment because the French Government had
admitted that such indemnity was due to her.[878]
[Footnote 876: See, for instance, Martens, § 107, and Rivier, II. p.
85.]
[Footnote 877: See above, § 497, and Nippold, p. 147.]
[Footnote 878: See Wharton, II. § 131A, p. 20.]
[Sidenote: Ratification can not be partial and conditional.]
§ 517. It follows from the nature of ratification as a necessary
confirmation of a treaty already concluded that ratification must be
either given or refused, no conditional or partial ratification being
possible. That occasionally a State tries to modify a treaty in
ratifying it cannot be denied, yet conditional ratification is no
ratification at all, but equivalent to refusal of ratification. Nothing,
of course, prevents the other contracting party from entering into fresh
negotiations in regard to such modifications; but it must be emphasised
that such negotiations are negotiations for a new treaty,[879] the old
treaty having become null and void through its conditional ratification.
On the other hand, no obligation exists for such party to enter into
fresh negotiations, it being a fact that conditional ratification is
identical with refusal of ratification, whereby the treaty falls to the
ground. Thus, for instance, when the United States Senate on December
20, 1900, in consenting[880] to the ratification of the Hay-Pauncefote
Treaty as regards the Nicaragua Canal, added modifying amendments, Great
Britain did not accept the amendments and considered the treaty fallen
to the ground.
[Footnote 879: This is the correct explanation of the practice on the
part of States, which sometimes prevails, of acquiescing, after some
hesitation, in alterations proposed by a party to a treaty in ratifying
it; see examples in Pradier-Fodéré, II. No. 1104, and Calvo, III. §
1630.]
[Footnote 880: It is of importance to emphasise that the United States'
Senate, in proposing an amendment to a treaty before its ratification,
does not, strictly speaking, ratify such treaty conditionally, since it
is the President, and not the Senate, who possesses the power of
granting or refusing ratification; see Willoughby, "The Constitutional
Law of the United States" (1910), I. p. 462, note 14. The President,
however, according to article 2 of the Constitution, cannot grant
ratification without the consent of the Senate, and the proposal of an
amendment to a treaty on the part of the Senate, therefore, comprises,
indirectly, the proposal of a new treaty.]
Quite particular is the case of a treaty to which a greater number of
States are parties and which is only partially ratified by one of the
contracting parties. Thus France, in ratifying the General Act of the
Brussels Anti-Slavery Conference of July 2, 1890, excepted from
ratification articles 21 to 23 and 42 to 61, and the Powers have
acquiesced in this partial ratification, so that France is not bound by
these twenty-three articles.[881]
[Footnote 881: See Martens, N.R.G. 2nd Ser. XXII. (1897), p. 260.]
But it must be emphasised that ratification is only then partial and
conditional if one or more stipulations of the treaty which has been
signed without reservation are exempted from ratification, or if an
amending clause is added to the treaty during the process of
ratification. It is therefore quite legitimate for a party who has
signed a treaty with certain reservations as regards certain
articles[882] to ratify the approved articles only, and it would be
incorrect to speak in this case of a partial ratification.
[Footnote 882: See below, § 519.]
Again, it is quite legitimate--and one ought not in that case to speak
of conditional ratification--for a contracting party who wants to secure
the interpretation of certain terms and clauses of a treaty to grant
ratification with the understanding only that such terms and clauses
should be interpreted in such and such a way. Thus when, in 1911,
opposition arose in Great Britain to the ratification of the Declaration
of London on account of the fact that the meaning of certain terms was
ambiguous and that the wording of certain clauses did not agree with the
interpretation given to them by the Report of the Drafting Committee,
the British Government declared that they would only ratify with the
understanding that the interpretation contained in the Report should be
considered as binding and that the ambiguous terms concerned should have
a determinate meaning. In such cases ratification does not introduce an
amendment or an alteration, but only fixes the meaning of otherwise
doubtful terms and clauses of the treaty.
[Sidenote: Effect of Ratification.]
§ 518. The effect of ratification is the binding force of the treaty.
But the question arises whether the effect of ratification is
retroactive, so that a treaty appears to be binding from the date when
it is duly signed by the representatives. No unanimity exists among
publicists as regards this question. As in all important cases treaties
themselves stipulate the date from which they are to take effect, the
question is chiefly of theoretical interest. The fact that ratification
imparts the binding force to a treaty seems to indicate that
ratification has regularly no retroactive effect. Different, however, is
of course the case in which the contrary is expressly stipulated in the
very treaty, and, again, the case when a treaty contains such
stipulations as shall at once be executed, without waiting for the
necessary ratification. Be this as it may, ratification makes a treaty
binding only if the original consent was not given in error or under a
delusion.[883] If, however, the ratifying State discovers such error or
delusion and ratifies the treaty nevertheless, such ratification makes
the treaty binding. And the same is valid as regards a ratification
given to a treaty although the ratifying State knows that its
representatives have exceeded their powers by concluding the treaty.
[Footnote 883: See above, § 500.]
VI
EFFECT OF TREATIES
Hall, § 114--Lawrence, § 134--Halleck, I. pp. 279-281--Taylor, §§
370-373--Wharton, II. § 137--Wheaton, § 266--Bluntschli, §§
415-416--Hartmann, § 49--Heffter, § 94--Bonfils, Nos.
845-848--Despagnet, Nos. 447-448--Pradier-Fodéré, II. Nos.
1151-1155--Mérignhac, II. pp. 667-672--Rivier, II. pp.
119-122--Calvo, III. §§ 1643-1648--Fiore, II. Nos. 1008-1009, and
Code, Nos. 768-778--Martens, I. §§ 65 and 114--Nippold, op. cit.
pp. 151-160.
[Sidenote: Effect of Treaties upon Contracting Parties.]
§ 519. By a treaty the contracting parties in the first place are
concerned. The effect of the treaty upon them is that they are bound by
its stipulations, and that they must execute it in all its parts. No
distinction should be made between more and less important parts of a
treaty as regards its execution. Whatever may be the importance or the
insignificance of a part of a treaty, it must be executed with good
faith, for the binding force of a treaty covers equally all its parts
and stipulations. If, however, a party to a treaty concluded between
more than two parties signs it with a reservation as regards certain
articles, such party is not bound by these articles, although it
ratifies[884] the treaty.
[Footnote 884: See above, § 518.]
[Sidenote: Effect of Treaties upon the Subjects of the Parties.]
§ 520. It must be specially observed that the binding force of a treaty
concerns the contracting States only, and not their subjects. As
International Law is a law between States only and exclusively, treaties
can have effect upon States and can bind States only and exclusively. If
treaties contain stipulations with regard to rights and duties of the
contracting States' subjects,[885] courts, officials, and the like,
these States have to take such steps as are necessary, according to
their Municipal Law, to make these stipulations binding upon their
subjects, courts, officials, and the like. It may be that according to
the Municipal Laws of some countries the official publication of a
treaty concluded by the Government is sufficient for this purpose, but
in other countries other steps are necessary, such as, for example,
special statutes to be passed by the respective Parliaments.[886]
[Footnote 885: See above, § 289.]
[Footnote 886: The distinction between International and Municipal Law
as discussed above, §§ 20-25, is the basis from which the question must
be decided whether international treaties have a direct effect upon the
officials and subjects of the contracting parties.]
[Sidenote: Effect of Changes in Government upon Treaties.]
§ 521. As treaties are binding upon the contracting States, changes in
the government or even in the form of government of one of the parties
can as a rule have no influence whatever upon the binding force of
treaties. Thus, for instance, a treaty of alliance concluded by a State
with constitutional government remains valid, although the Ministry may
change. And no head of a State can shirk the obligations of a treaty
concluded by his State under the government of his predecessor. Even
when a monarchy turns into a republic, or _vice versa_, treaty
obligations regularly remain the same. For all such changes and
alterations, important as they may be, do not alter the person of the
State which concluded the treaty. If, however, a treaty stipulation
essentially presupposes a certain form of government, then a change from
such form makes such stipulation void, because its execution has become
impossible.[887]
[Footnote 887: See below, § 542. Not to be confounded with the effect of
changes in government is the effect of a change in international status
upon treaties, as, for instance, if a hitherto full-sovereign State
becomes half- or part-Sovereign, or _vice versa_, or if a State merges
entirely into another, and the like. This is a case of succession of
States which has been discussed above, §§ 82-84; see also below, § 548.]