§ 522. According to the principle _pacta tertiis nec nocent nec
prosunt_, a treaty concerns the contracting States only; neither rights
nor duties, as a rule, arise under a treaty for third States which are
not parties to the treaty. But sometimes treaties have indeed an effect
upon third States. Such an effect is always produced when a treaty
touches previous treaty rights of third States. Thus, for instance, a
commercial treaty conceding more favourable conditions than hitherto
have been conceded by the parties thereto has an effect upon all such
third States as have previously concluded commercial treaties containing
the so-called _most-favoured-nation clause_[888] with one of the
contracting parties.
[Footnote 888: See below, § 580, but note the American interpretation of
this clause.]
The question arises whether in exceptional cases third States can
acquire rights under such treaties as were specially concluded for the
purpose of creating such rights not only for the contracting parties but
also for third States. Thus, the Hay-Pauncefote Treaty between Great
Britain and the United States of 1901, and the Hay-Varilla Treaty
between the United States and Panama of 1903, stipulate that the Panama
Canal to be built shall be open to vessels of commerce and of war of all
nations, although Great Britain, the United States, and Panama only are
parties.[889] Thus, further, article 5 of the Boundary Treaty of Buenos
Ayres of September 15, 1881, stipulates that the Straits of Magellan
shall be open to vessels of all nations, although Argentina and Chili
only are parties. Again, the Treaty of Paris, signed on March 30, 1856,
and annexed to the Peace Treaty of Paris of 1856, stipulates that Russia
shall not fortify the Aland[890] Islands; although this stipulation was
made in the interest of Sweden, only Great Britain, France, and Russia
are parties. I believe that the question must be answered in the
negative, and nothing prevents the contracting parties from altering
such a treaty without the consent of third States, provided the latter
have not in the meantime acquired such rights through the unanimous
tacit consent of all concerned.
[Footnote 889: See above, § 184.]
[Footnote 890: See above, § 205, p. 277, note 2.]
It must be emphasised that a treaty between two States can never
invalidate a stipulation previously created by a treaty between one of
the contracting parties and a third State, unless the latter expressly
consents. If, for instance, two States have entered into an alliance and
one of them afterwards concludes a treaty with a third State, according
to which all conflicts without exception shall be settled by
arbitration, the previous treaty of alliance remains valid even in the
case of war breaking out between the third State and the other party to
the alliance.[891] Therefore, when in 1911 Great Britain contemplated
entering, with the United States of America, into a treaty of general
arbitration according to which all differences should be decided by
arbitration, she notified Japan of her intention, on account of the
existing treaty of alliance, and Japan consented to substitute for the
old treaty a new treaty of alliance,[892] article 4 of which stipulates
that the alliance shall never concern a war with a third Power with whom
one of the allies may have concluded a treaty of general arbitration.
[Footnote 891: See below, § 573.]
[Footnote 892: See below, § 569.]
VII
MEANS OF SECURING PERFORMANCE OF TREATIES
Vattel, II. §§ 235-261--Hall, § 115--Lawrence, § 134--Phillimore,
II. §§ 54-63A--Bluntschli, §§ 425-441--Heffter, §§ 96-99--Geffcken
in Holtzendorff, III. pp. 85-90--Ullmann, § 83--Bonfils, Nos.
838-844--Despagnet, Nos. 451-452--Pradier-Fodéré, II. Nos.
1156-1169--Rivier, II. pp. 94-97--Nys, III. pp. 36-41--Calvo, III.
§§ 1638-1642--Fiore, II. Nos. 1018-1019, and Code, Nos.
784-791--Martens, I. § 115--Nippold, op. cit. pp. 212-227.
[Sidenote: What means have been in use.]
§ 523. As there is no international institution which could enforce the
performance of treaties, and as history teaches that treaties have
frequently been broken, various means of securing performance of
treaties have been made use of. The more important of these means are
oaths, hostages, pledges, occupation of territory, guarantee. Nowadays
these means, which are for the most part obsolete, have no longer great
importance on account of the gratifying fact that all States are now
much more conscientious and faithful as regards their treaty obligations
than in former times.
[Sidenote: Oaths.]
§ 524. Oaths are a very old means of securing the performance of
treaties, which was constantly made use of not only in antiquity and the
Middle Ages, but also in modern times. For in the sixteenth and
seventeenth centuries all important treaties were still secured by
oaths. During the eighteenth century, however, the custom of securing
treaties by oaths gradually died out, the last example being the treaty
of alliance between France and Switzerland in 1777, which was solemnly
confirmed by the oaths of both parties in the Cathedral at Solothurn.
The employment of oaths for securing treaties was of great value in the
times of absolutism, when little difference used to be made between the
State and its monarch. The more the distinction grew into existence
between the State as the subject of International Law on the one hand,
and the monarch as the temporary chief organ of the State on the other
hand, the more such oaths fell into disuse. For an oath can exercise its
force on the individual only who takes it, and not on the State for
which it is taken.
[Sidenote: Hostages.]
§ 525. Hostages are as old a means of securing treaties as oaths, but
they have likewise, for ordinary purposes[893] at least, become
obsolete, because they have practically no value at all. The last case
of a treaty secured by hostages is the Peace of Aix-la-Chapelle in 1748,
in which hostages were stipulated to be sent by England to France for
the purpose of securing the restitution of Cape Breton Island to the
latter. The hostages sent were Lords Sussex and Cathcart, who remained
in France till July 1749.
[Footnote 893: Concerning hostages nowadays taken in time of war, see
below, vol. II. §§ 258-259.]
[Sidenote: Pledge.]
§ 526. The pledging of movable property by one of the contracting
parties to the other for the purpose of securing the performance of a
treaty is possible, but has not frequently occurred. Thus, Poland is
said to have pledged her crown jewels once to Prussia.[894] The pledging
of movables is nowadays quite obsolete, although it might on occasion be
revived.
[Footnote 894: See Phillimore, II. § 55.]
[Sidenote: Occupation of Territory.]
§ 527. Occupation of territory, such as a fort or even a whole province,
as a means of securing the performance of a treaty, has frequently been
made use of with regard to the payment of large sums of money due to a
State under a treaty. Nowadays such occupation is only resorted to in
connection with treaties of peace stipulating the payment of a war
indemnity. Thus, the preliminary peace treaty of Versailles in 1871
stipulated that Germany should have the right to keep certain parts of
France under military occupation until the final payment of the war
indemnity of five milliards of francs.
[Sidenote: Guarantee.]
§ 528. The best means of securing treaties, and one which is still in
use generally, is the guarantee of such other States as are not directly
affected by the treaty. Such guarantee is a kind of accession[895] to
the guaranteed treaty, and a treaty in itself--namely, the promise of
the guarantor eventually to do what is in his power to compel the
contracting party or parties to execute the treaty.[896] Guarantee of a
treaty is a species only of guarantee in general, which will be
discussed below, §§ 574-576_a_.
[Footnote 895: See below, § 532.]
[Footnote 896: Nippold (p. 266) proposes that a universal treaty of
guarantee should be concluded between all the members of the Family of
Nations guaranteeing for the present and the future all international
treaties. I do not believe that this well-meant proposal is feasible.]
VIII
PARTICIPATION OF THIRD STATES IN TREATIES
Hall, § 114--Wheaton, § 288--Hartmann, § 51--Heffter, §
88--Ullmann, § 81--Bonfils, Nos. 832-834--Despagnet, No.
448--Pradier-Fodéré, II. Nos. 1127-1150--Rivier, II. pp.
89-93--Calvo, III. §§ 1621-1626--Fiore, II. Nos.
1025-1031--Martens, I. § 111.
[Sidenote: Interest and Participation to be distinguished.]
§ 529. Ordinarily a treaty creates rights and duties between the
contracting parties exclusively. Nevertheless, third States may be
interested in such treaties, for the common interests of the members of
the Family of Nations are so interlaced that few treaties between single
members can be concluded in which third States have not some kind of
interest. But such interest, all-important as it may be, must not be
confounded with participation of third States in treaties. Such
participation can occur in five different forms--namely, good offices,
mediation, intervention, accession, and adhesion.[897]
[Footnote 897: That certain treaties concluded by the suzerain are _ipso
facto_ concluded for the vassal State does not make the latter
participate in such treaties. Nor is it correct to speak of
participation of a third State in a treaty when a State becomes party to
a treaty through the fact that it has given a mandate to another State
to contract on its behalf.]
[Sidenote: Good Offices and Mediation.]
§ 530. A treaty may be concluded with the help of the good offices or
through the mediation of a third State, whether these offices be asked
for by the contracting parties or be exercised spontaneously by a third
State. Such third State, however, does not necessarily, either through
good offices or through mediation, become a real party to the treaty,
although this might be the case. A great many of the most important
treaties owe their existence to the good offices or mediation of third
Powers. The difference between good offices and mediation will be
discussed below, vol. II. § 9.
[Sidenote: Intervention.]
§ 531. A third State may participate in a treaty in such a way that it
interposes dictatorially between two States negotiating a treaty and
requests them to drop or to insert certain stipulations. Such
intervention does not necessarily make the interfering State a real
party to the treaty. Instances of threatened intervention of such a kind
are the protest on the part of Great Britain against the preliminary
peace treaty concluded in 1878 at San Stefano[898] between Russia and
Turkey, and that on the part of Russia, Germany, and France in 1895
against the peace treaty of Shimonoseki[899] between Japan and China.
[Footnote 898: See above, § 135, p. 190, No. 2.]
[Footnote 899: See R.G. II. pp. 457-463. Details concerning intervention
have been given above, § 134-138; see also below, vol. II. § 50.]
[Sidenote: Accession.]
§ 532. Of accession there are two kinds. Accession means, firstly, the
formal entrance of a third State into an existing treaty so that such
State becomes a party to the treaty with all rights and duties arising
therefrom. Such accession can take place only with the consent of the
original contracting parties, and accession always constitutes a treaty
of itself. Very often the contracting parties stipulate expressly that
the treaty shall be open to the accession of a certain State. And the
so-called law-making treaties, as the Declaration of Paris or the Geneva
Convention for example, regularly stipulate the option of accession of
all such States as have not been originally contracting parties.
But there is, secondly, another kind of accession possible. For a State
may enter into a treaty between other States for the purpose of
guarantee.[900] This kind of accession makes the acceding State also a
party to the treaty; but the rights and duties of the acceding State are
different from the rights and duties of the other parties, for the
former is a guarantor only, whereas the latter are directly affected by
the treaty.
[Footnote 900: See above, § 528.]
[Sidenote: Adhesion.]
§ 533. Adhesion is defined as such entrance of a third State into an
existing treaty as takes place either with regard only to a part of the
stipulations or with regard only to certain principles laid down in the
treaty. Whereas through accession a third State becomes a party to the
treaty with all the rights and duties arising from it, through adhesion
a third State becomes a party only to such parts or principles of the
treaty as it has adhered to. But it must be specially observed that the
distinction between accession and adhesion is one made in theory, to
which practice frequently does not correspond. Often treaties speak of
accession of third States where in fact adhesion only is meant, and
_vice versa_. Thus, article 6 of the Hague Convention with respect to
the laws and customs of war on land stipulates the possibility of future
_adhesion_ of non-signatory Powers, although accession is meant.
IX
EXPIRATION AND DISSOLUTION OF TREATIES
Vattel, II. §§ 198-205--Hall, § 116--Westlake, I. pp.
284-286--Lawrence, § 134--Halleck, I. pp. 293-296--Taylor, §§
394-399--Wharton, II. § 137A--Wheaton, § 275--Moore, V. §§
770-778--Bluntschli, §§ 450-461--Heffter, § 99--Ullmann, §
85--Bonfils, Nos. 855-860--Despagnet, Nos.
453-455--Pradier-Fodéré, II. Nos. 1200-1218--Mérignhac, II. p.
788--Rivier, II. § 55--Nys, III. pp. 48-53--Calvo, III. §§
1662-1668--Fiore, II. Nos. 1047-1052--Martens, I. § 117--Jellinek,
"Die rechtliche Natur der Staatenverträge" (1880), pp.
62-64--Nippold, op. cit. pp. 235-248--Olivi, "Sull' estinzione dei
trattati internazionali" (1883)--Schmidt, "Ueber die
völkerrechtliche _clausula rebus sic stantibus_, &c."
(1907)--Kaufmann, "Das Wesen des Völkerrechts und die _clausula
rebus sic stantibus_" (1911)--Bonucci in Z.V. IV. (1910), pp.
449-471.
[Sidenote: Expiration and Dissolution in Contradistinction to
Fulfilment.]
§ 534. The binding force of treaties may terminate in four different
ways, because a treaty may either expire, or be dissolved, or become
void, or be cancelled.[901] The grounds of expiration of treaties are,
first, expiration of the time for which a treaty was concluded, and,
secondly, occurrence of a resolutive condition. Of grounds of
dissolution of treaties there are three--namely, mutual consent,
withdrawal by notice, and vital change of circumstances. In
contradistinction to expiration and dissolution as well as to voidance
and cancellation, performance of treaties does not terminate their
binding force. A treaty whose obligation has been performed is as valid
as before, although it is now of historical interest only.
[Footnote 901: The distinction made in the text between fulfilment,
expiration, dissolution, voidance, and cancellation of treaties is, as
far as I know, nowhere sharply drawn, although it would seem to be of
considerable importance. Voidance and cancellation will be discussed
below, §§ 540-544 and 545-549.]
[Sidenote: Expiration through Expiration of Time.]
§ 535. All such treaties as are concluded for a certain period of time
only, expire with the expiration of such time, unless they are renewed
or prolonged for another period. Such time-expiring treaties are
frequently concluded, and no notice is necessary for their expirations,
except when specially stipulated.
A treaty, however, may be concluded for a certain period of time only,
but with the additional stipulation that the treaty shall after the
lapse of such period be valid for another such period, unless one of the
contracting parties gives notice in due time.
[Sidenote: Expiration through Resolutive Condition.]
§ 536. Different from time-expiring treaties are such as are concluded
under a resolutive condition, which means under the condition that they
shall at once expire with the occurrence of certain circumstances. As
soon as these circumstances arise, the treaties expire.
[Sidenote: Mutual Consent.]
§ 537. A treaty, although concluded for ever or for a period of time
which has not yet expired, may nevertheless always be dissolved by
mutual consent of the contracting parties. Such mutual consent can
become apparent in three different ways.
First, the parties can expressly and purposely declare that a treaty
shall be dissolved; this is rescission. Or, secondly, they can conclude
a new treaty concerning the same objects as those of a former treaty
without any reference to the latter, although the two treaties are
inconsistent with each other. This is substitution, and in such a case
it is obvious that the treaty previously concluded was dissolved by
tacit mutual consent. Or, thirdly, if the treaty is such as imposes
obligations upon one of the contracting parties only, the other party
can renounce its rights. Dissolution by renunciation is a case of
dissolution by mutual consent, since acceptance of the renunciation is
necessary.
[Sidenote: Withdrawal by Notice.]
§ 538. Treaties, provided they are not such as are concluded for ever,
may also be dissolved by withdrawal, after notice by one of the parties.
Many treaties stipulate expressly the possibility of such withdrawal,
and as a rule contain details in regard to form and period in which
notice is to be given for the purpose of withdrawal. But there are other
treaties which, although they do not expressly stipulate the
possibility of withdrawal, can nevertheless be dissolved after notice by
one of the contracting parties. To that class belong all such treaties
as are either not expressly concluded for ever or apparently not
intended to set up an everlasting condition of things. Thus, for
instance, a commercial treaty or a treaty of alliance not concluded for
a fixed period only can always be dissolved after notice, although such
notice be not expressly stipulated. Treaties, however, which are
apparently intended, or expressly concluded, for the purpose of setting
up an everlasting condition of things, and, further, treaties concluded
for a certain period of time only, are as a rule not notifiable,
although they can be dissolved by mutual consent of the contracting
parties.
It must be emphasised that all treaties of peace and all boundary
treaties belong to this class. It cannot be denied that history records
many cases in which treaties of peace have not established an
everlasting condition of things, since one or both of the contracting
States took up arms again as soon as they recovered from the exhausting
effect of the previous war. But this does not prove either that such
treaties can be dissolved through giving notice, or that, at any rate as
far as International Law is concerned, they are not intended to create
an everlasting condition of things.
[Sidenote: Vital Change of Circumstances.]
§ 539. Although, as just stated, treaties concluded for a certain period
of time, and such treaties as are apparently intended or expressly
contracted for the purpose of setting up an everlasting condition of
things, cannot in principle be dissolved by withdrawal of one of the
parties, there is an exception to this rule. For it is an almost
universally recognised fact that vital changes of circumstances may be
of such a kind as to justify a party in notifying an unnotifiable
treaty. The vast majority of publicists, as well as all the Governments
of the members of the Family of Nations, defend the principle
_Conventio omnis intelligitur rebus sic stantibus_, and they agree,[902]
therefore, that all treaties are concluded under the tacit condition
_rebus sic stantibus_. That this condition involves a certain amount of
danger cannot be denied, for it can be, and indeed sometimes has been,
abused for the purpose of hiding the violation of treaties behind the
shield of law, and of covering shameful wrong with the mantle of
righteousness. But all this cannot alter the fact that this exceptional
condition is as necessary for International law and international
intercourse as the very rule _pacta sunt servanda_. When, for example,
the existence or the necessary development of a State stands in
unavoidable conflict with such State's treaty obligations, the latter
must give way, for self-preservation and development in accordance with
the growth and the necessary requirements of the nation are the primary
duties of every State. No State would consent to any such treaty as
would hinder it in the fulfilment of these primary duties. The consent
of a State to a treaty presupposes a conviction that such treaty is not
fraught with danger to its existence and development, and implies a
condition that, if by an unforeseen change of circumstances the
obligations stipulated in the treaty should imperil the said State's
existence and necessary development, the treaty, although by its nature
unnotifiable, should nevertheless be notifiable.
[Footnote 902: See Bonucci in Z.V. IV. (1910), pp. 449-471. Many writers
agree to it with great reluctance only and in a very limited sense, as,
for instance, Grotius, II. c. 16, § 25, No. 2; Vattel, II. § 296;
Klüber, § 165. Some few writers, however, disagree altogether, as, for
instance, Bynkershoek, "Quest. jur. public.," II. c. 10, and Wildman,
"Institutes of International Law," I. (1849), p. 175. Schmidt, op. cit.
pp. 97-118, would seem to reject the _clausula_ altogether, but can
nevertheless not help recognising it in the end. A good survey of the
practice of the States in the matter during the nineteenth century is
given by Kaufmann, op. cit. pp. 12-37.]
The danger of the clause _rebus sic stantibus_ is to be found in the
elastic meaning of the term "vital changes of circumstances," as, after
all, a State must in every special case judge for itself whether or no
there is a vital change of circumstances justifying its withdrawal from
an unnotifiable treaty. On the other hand, the danger is counterbalanced
by the fact that the frequent and unjustifiable use of the clause _rebus
sic stantibus_ by a State would certainly destroy all its credit among
the nations.
Be that as it may, it is generally agreed that certainly not every
change of circumstances justifies a State in making use of the clause.
All agree that, although treaty obligations may through a change of
circumstances become disagreeable, burdensome, and onerous, they must
nevertheless be discharged. All agree, further, that a change of
government and even a change in the form of a State, such as the turning
of a monarchy into a republic and _vice versa_, does not alone and in
itself justify a State in notifying such a treaty as is by its nature
unnotifiable. On the other hand, all agree in regard to many cases in
which the clause _rebus sic stantibus_ could justly be made use of.
Thus, for example, if a State enters into a treaty of alliance for a
certain period of time, and if before the expiration of the alliance a
change of circumstances occurs, so that now the alliance endangers the
very existence of one of the contracting parties, all will agree that
the clause _rebus sic stantibus_ would justify such party in notifying
the treaty of alliance.
A certain amount of disagreement as to the cases in which the clause
might or might not be justly applied will of course always remain. But
the fact is remarkable that during the nineteenth century not many cases
of the application of the clause have occurred. And the States and
public opinion everywhere have come to the conviction that the clause
_rebus sic stantibus_ ought not to give the right to a State at once to
liberate itself from the obligations of a treaty, but only the claim to
be released from these obligations by the other parties to the treaty.
Accordingly, when a State is of the opinion that the obligations of a
treaty have through a vital change of circumstances become unbearable,
it should first approach the other party or parties and request them to
abrogate the treaty. And it is only when such abrogation is refused that
a State may perhaps be justified in declaring that it could no longer
consider itself bound by the obligations concerned. Thus, when, in 1870,
during the Franco-German War, Russia declared her withdrawal from such
stipulations of the Treaty of Paris of 1856 as concerned the
neutralisation of the Black Sea and the restriction imposed upon Russia
in regard to men-of-war in that sea, Great Britain protested, and a
conference was held in London in 1871. Although by a treaty signed on
March 13, 1871, this conference, consisting of the signatory Powers of
the Treaty of Paris--namely, Austria, England, France, Germany, Italy,
Russia, and Turkey--complied with the wishes of Russia and abolished the
neutralisation of the Black Sea, it adopted in a protocol[903] of
January 17, 1871, the following declaration:--"Que c'est un principe
essentiel du droit des gens qu'aucune Puissance ne peut se délier des
engagements d'un traité, ni en modifier les stipulations, qu'à la suite
de l'assentiment des parties contractantes, au moyen d'une entente
amicale."
[Footnote 903: See Martens, N.R.G. XVIII. p. 278.]
In spite of this declaration, signed also by herself, Russia in 1886
notified her withdrawal from article 59 of the Treaty of Berlin of 1878
stipulating the freedom of the port of Batoum.[904] The signatory Powers
of the Treaty of Berlin seem to have tacitly consented, with the
exception of Great Britain, which protested. Again, in October 1908,
Austria-Hungary, in defiance of article 25 of the Treaty of Berlin,
1878, proclaimed her sovereignty over Bosnia and Herzegovina, which
hitherto had been under her occupation and administration, and
simultaneously Bulgaria, in defiance of article 1 of the same treaty,
declared herself independent.[905] Thus the standard value of the
Declaration of the Conference of London of 1871 has become doubtful
again.
[Footnote 904: See Martens, N.R.G. 2nd Ser. XIV. p. 170, and
Rolin-Jaequemyns in R.I. XIX. (1887), pp. 37-49.]
[Footnote 905: See above, § 50, p. 76; Martens, N.R.G. 3rd Ser. II. p.
606; and Blociszewski in R.G. XVII. (1910), pp. 417-449. There is hardly
any doubt that, if Austria-Hungary had not ignored the above-mentioned
Declaration contained in the protocol of January 17, 1871, and had
approached the Powers in the matter, the abrogation of article 25 of the
Treaty of Berlin would have been granted and she would have been allowed
to annex Bosnia and Herzegovina after having indemnified Turkey. This is
to be inferred from the fact that, when Austria-Hungary proclaimed her
sovereignty over the provinces, Turkey accepted compensation, and the
Powers, which first had protested and demanded an international
conference, consented to the abrogation of the Treaty of Berlin.]
X
VOIDANCE OF TREATIES
See the literature quoted at the commencement of § 534.
[Sidenote: Grounds of Voidance.]
§ 540. A treaty, although it has neither expired nor been dissolved, may
nevertheless lose its binding force by becoming void.[906] And such
voidance may have different grounds--namely, extinction of one of the
two contracting parties, impossibility of execution, realisation of the
purpose of the treaty otherwise than by fulfilment, and, lastly,
extinction of such object as was concerned in a treaty.
[Footnote 906: But such voidance must not be confounded with the
voidance of a treaty from its very beginning; see above, § 501.]
[Sidenote: Extinction of one of the two Contracting Parties.]
§ 541. All treaties concluded between two States become void through the
extinction of one of the contracting parties, provided they do not
devolve upon such State as succeeds to the extinct State. That some
treaties devolve upon the successor has been shown above (§ 82), but
many treaties do not. On this ground all political treaties, such as
treaties of alliance, guarantee, neutrality, and the like, become void.
[Sidenote: Impossibility of Execution.]
§ 542. All treaties whose execution becomes impossible subsequent to
their conclusion are thus rendered void. A frequently quoted example is
that of three States concluding a treaty of alliance and subsequent war
breaking out between two of the contracting parties. In such case it is
impossible for the third party to execute the treaty, and it becomes
void.[907] It must, however, be added that the impossibility of
execution may be temporary only, and that then the treaty is not void
but merely suspended.
[Footnote 907: See also above, § 521, where the case is mentioned that a
treaty essentially presupposes a certain form of government, and for
this reason cannot be executed when this form of government undergoes a
change.]
[Sidenote: Realisation of Purpose of Treaty other than by Fulfilment.]
§ 543. All treaties whose purpose is realised otherwise than by
fulfilment become void. For example, a treaty concluded by two States
for the purpose of inducing a third State to undertake a certain
obligation becomes void if the third State voluntarily undertakes the
same obligation before the two contracting States have had an
opportunity of approaching the third State with regard to the matter.
[Sidenote: Extinction of such Object as was concerned in a Treaty.]
§ 544. All treaties whose obligations concern a certain object become
void through the extinction of such object. Treaties, for example,
concluded in regard to a certain island become void when such island
disappears through the operation of nature, as likewise do treaties
concerning a third State when such State merges in another.
XI
CANCELLATION OF TREATIES
See the literature quoted at the commencement of § 534.
[Sidenote: Grounds of Cancellation.]
§ 545. A treaty, although it has neither expired, nor been dissolved,
nor become void, may nevertheless lose its binding force by
cancellation. The causes of cancellation are four--namely, inconsistency
with International Law created subsequent to the conclusion of the
treaty, violation by one of the contracting parties, subsequent change
of status of one of them, and war.
[Sidenote: Inconsistency with subsequent International Law.]
§ 546. Just as treaties have no binding force when concluded with
reference to an illegal object, so they lose their binding force when
through a progressive development of International Law they become
inconsistent with the latter. Through the abolition of privateering
among the signatory Powers of the Declaration of Paris of 1856, for
example, all treaties between any of these Powers based on privateering
as a recognised institution of International Law were _ipso facto_
cancelled.[908] But it must be emphasised that subsequent Municipal Law
can certainly have no such influence upon existing treaties. On
occasions, indeed, subsequent Municipal Law creates for a State a
conflict between its treaty obligations and such law. In such case this
State must endeavour to obtain a release by the other contracting party
from these obligations.[909]
[Footnote 908: This must be maintained in spite of the fact that
Protocol No. 24--see Martens, N.R.G. XV. (1857), pp. 768-769--contains
the following: "Sur une observation faite par M.M. les Plénipotentiaires
de la Russie, le Congrès reconnaît que la présente résolution, ne
pouvant avoir d'effet retroactif, ne saurait invalider les Conventions
antérieures." This expression of opinion can only mean that previous
treaties with such States as were not and would not become parties to
the Declaration of Paris are not _ipso facto_ cancelled by the
Declaration.]
[Footnote 909: That Municipal Courts must apply the subsequent Municipal
Law although it conflicts with previous treaty obligations, there is no
doubt, as has been pointed out above, § 21. See The Cherokee Tobacco, 11
Wall 616; Whitney _v._ Robertson, 124 United States 190; Botiller _v._
Dominguez, 130 United States 238. See also Moore, V. § 774.]
[Sidenote: Violation by one of the Contracting Parties.]
§ 547. Violation of a treaty by one of the contracting States does not
_ipso facto_ cancel such treaty, but it is in the discretion of the
other party to cancel it on the ground of violation. There is no
unanimity among writers on International Law in regard to this point, in
so far as a minority makes a distinction between essential and
non-essential stipulations of the treaty, and maintains that violation
of essential stipulations only creates a right for the other party to
cancel the treaty. But the majority of writers rightly oppose this
distinction, maintaining that it is not always possible to distinguish
essential from non-essential stipulations, that the binding force of a
treaty protects non-essential stipulations as well as essential ones,
and that it is for the faithful party to consider for itself whether
violation of a treaty, even in its least essential parts, justifies the
cancelling of the treaty. The case, however, is different when a treaty
expressly stipulates that it should not be considered broken by
violation of merely one or another part of it. And it must be emphasised
that the right to cancel the treaty on the ground of its violation must
be exercised within a reasonable time after the violation has become
known. If the Power possessing such right does not exercise it in due
time, it must be taken for granted that such right has been waived. A
mere protest, such as the protest of England in 1886 when Russia
withdrew from article 59 of the Treaty of Berlin of 1878, which
stipulated the freedom of the port of Batoum, neither constitutes a
cancellation nor reserves the right of cancellation.
[Sidenote: Subsequent Change of Status of one of the Contracting
Parties.]
§ 548. A cause which _ipso facto_ cancels treaties is such subsequent
change of status of one of the contracting States as transforms it into
a dependency of another State. As everything depends upon the merits of
each case, no general rule can be laid down as regards the question when
such change of status must be considered to have taken place, or,
further, as regards the other question as to the kind of treaties
cancelled by such change.[910] Thus, for example, when a State becomes a
member of a Federal State, it is obvious that all its treaties of
alliance are _ipso facto_ cancelled, for in a Federal State the power of
making war rests with the Federal State, and not with the several
members. And the same is valid as regards a hitherto full-Sovereign
State which comes under the suzerainty of another State. On the other
hand, a good many treaties retain their binding force in spite of such a
change in the status of a State, all such treaties, namely, as concern
matters in regard to which the State has not lost its sovereignty
through the change. For instance, if the constitution of a Federal State
stipulates that the matter of extradition remains fully in the
competence of the member-States, all treaties of extradition of members
concluded with third States previous to their becoming members of the
Federal State retain their binding force.
[Footnote 910: See Moore, V. § 773, and above, § 82, p. 128, note 1, and
§ 521.]
[Sidenote: War.]
§ 549. How far war is a general ground of cancellation of treaties is
not quite settled. Details on this point will be given below, vol. II. §
99.
XII
RENEWAL, RECONFIRMATION, AND REDINTEGRATION OF TREATIES
Vattel, II. § 199--Hall, § 117--Taylor, § 400--Hartmann, §
51--Ullmann, § 85--Bonfils, Nos. 851-854--Despagnet, No.
456--Pradier-Fodéré, II. Nos. 1191-1199--Rivier, II. pp.
143-146--Calvo, III. §§ 1637, 1666, 1669--Fiore, II. Nos.
1048-1049, and Code, Nos. 835-838.
[Sidenote: Renewal of Treaties.]
§ 550. Renewal of treaties is the term for the prolongation of such
treaties before their expiration as were concluded for a definite period
of time only. Renewal can take place through a new treaty, and the old
treaty may then be renewed as a body or in parts only. But the renewal
can also take place automatically, many treaties concluded for a certain
period stipulating expressly that they are considered renewed for
another period in case neither of the contracting parties has given
notice.
[Sidenote: Reconfirmation.]
§ 551. Reconfirmation is the term for the express statement made in a
new treaty that a certain previous treaty, whose validity has or might
have become doubtful, is still, and remains, valid. Reconfirmation takes
place after such changes of circumstances as might be considered to
interfere with the validity of a treaty; for instance, after a war, as
regards such treaties as have not been cancelled by the outbreak of war.
Reconfirmation can be given to the whole of a previous treaty or to
parts of it only. Sometimes reconfirmation is given in this very precise
way, that a new treaty stipulates that a previous treaty shall be
incorporated in itself. It must be emphasised that in such a case those
parties to the new treaty which have not been parties to the previous
treaty do not now become so by its reconfirmation, the latter applying
to the previous contracting parties only.
[Sidenote: Redintegration.]
§ 552. Treaties which have lost their binding force through expiration
or cancellation may regain it through redintegration. A treaty becomes
redintegrated by the mutual consent of the contracting parties regularly
given in a new treaty. Thus it is usual for treaties of peace to
redintegrate all those treaties cancelled through the outbreak of war
whose stipulations the contracting parties do not want to alter.
Without doubt, redintegration does not necessarily take place
exclusively by a treaty, as theoretically it must be considered possible
for the contracting parties tacitly to redintegrate an expired or
cancelled treaty by a line of conduct which indicates apparently their
intention to redintegrate the treaty. However, I do not know of any
instance of such tacit redintegration.
XIII
INTERPRETATION OF TREATIES
Grotius, II. c. 16--Vattel, II. §§ 262-322--Hall, §§
111-112--Phillimore, II. §§ 64-95--Halleck, I. pp.
296-304--Taylor, §§ 373-393--Walker, § 31--Wheaton, § 287--Moore,
V. §§ 763-764--Heffter, § 95--Ullmann, § 84--Bonfils, Nos.
835-837--Despagnet, No. 450--Pradier-Fodéré, II. Nos.
1171-1189--Mérignhac, II. p. 678--Nys, III. pp. 41-43--Rivier, II.
pp. 122-125--Calvo, III. §§ 1649-1660--Fiore, II. Nos. 1032-1046,
and Code, Nos. 792-816--Martens, I. § 116--Westlake, I. pp.
282-283--Pick in R.G. XVII. (1907), pp. 5-35--Hyde in A.J. III.
(1909), pp. 46-61.
[Sidenote: Authentic Interpretation, and the Compromise Clause.]
§ 553. Neither customary nor conventional rules of International Law
exist concerning interpretation of treaties. Grotius and the later
authorities applied the rules of Roman Law respecting interpretation in
general to interpretation of treaties. On the whole, such application is
correct in so far as those rules of Roman Law are full of common sense.
But it must be emphasised that interpretation of treaties is in the
first instance a matter of consent between the contracting parties. If
they choose a certain interpretation, no other has any basis. It is only
when they disagree that an interpretation based on scientific grounds
can ask a hearing. And these scientific grounds can be no other than
those provided by jurisprudence. The best means of settling questions of
interpretation, provided the parties cannot come to terms, is
arbitration, as the appointed arbitrators will apply the general rules
of jurisprudence. Now in regard to interpretation given by the parties
themselves, there are two different ways open to them. They may either
agree informally upon the interpretation and execute the treaty
accordingly; or they may make an additional new treaty and stipulate
therein such interpretation of the previous treaty as they choose. In
the latter case one speaks of "authentic" interpretation in analogy with
the authentic interpretation of Municipal Law given expressly by a
statute. Nowadays treaties very often contain the so-called "compromise
clause" as regards interpretation--namely, the clause that, in case the
parties should not agree on questions of interpretation, these questions
shall be settled by arbitration. Italy and Switzerland regularly
endeavour to insert that clause in their treaties.
[Sidenote: Rules of Interpretation which recommend themselves.]
§ 554. It is of importance to enumerate some rules of
interpretation[911] which recommend themselves on account of their
suitability.
[Footnote 911: The whole matter of interpretation of treaties is dealt
with in an admirable way by Phillimore, II. §§ 64-95; see also Moore, V.
§ 763, and Wharton, II. § 133.]
(1) All treaties must be interpreted according to their reasonable in
contradistinction to their literal sense. An excellent example
illustrating this rule is the following, which is quoted by several
writers:--In the interest of Great Britain the Treaty of Peace of
Utrecht of 1713 stipulated in its article 9 that the port and the
fortifications of Dunkirk should be destroyed and never be rebuilt.
France complied with this stipulation, but at the same time began
building an even larger port at Mardyck, a league off Dunkirk. Great
Britain protested on the ground that France in so acting was violating
the reasonable, although not the literal, sense of the Peace of Utrecht,
and France in the end recognised this interpretation and discontinued
the building of the new port.
(2) The terms used in a treaty must be interpreted according to their
usual meaning in the language of every-day life, provided they are not
expressly used in a certain technical meaning or another meaning is not
apparent from the context.
(3) It is taken for granted that the contracting parties intend
something reasonable, something adequate to the purpose of the treaty,
and something not inconsistent with generally recognised principles of
International Law nor with previous treaty obligations towards third
States. If, therefore, the meaning of a stipulation is ambiguous, the
reasonable meaning is to be preferred to the unreasonable, the more
reasonable to the less reasonable, the adequate meaning to the meaning
not adequate for the purpose of the treaty, the consistent meaning to
the meaning inconsistent with generally recognised principles of
International Law and with previous treaty obligations towards third
States.
(4) The principle _in dubio mitius_ must be applied in interpreting
treaties. If, therefore, the meaning of a stipulation is ambiguous, such
meaning is to be preferred as is less onerous for the obliged party, or
as interferes less with the parties' territorial and personal supremacy,
or as contains less general restrictions upon the parties.
(5) Previous treaties between the same parties, and treaties between one
of the parties and third parties, may be alluded to for the purpose of
clearing up the meaning of a stipulation.
(6) If there is a discrepancy between the clear meaning of a
stipulation, on the one hand, and, on the other, the intentions of one
of the parties declared during the negotiations preceding the signing of
a treaty, the decision must depend on the merits of the special case.
If, for instance, the discrepancy was produced through a mere clerical
error or by some other kind of mistake, it is obvious that an
interpretation is necessary in accordance with the real intentions of
the contracting parties.
(7) In case of a discrepancy between the clear meaning of a
stipulation, on the one hand, and, on the other, the intentions of all
the parties unanimously declared during the negotiations preceding the
signing of the treaty, the meaning which corresponds to the real
intentions of the parties must prevail over the meaning of the text. If,
therefore--as in the case of the Declaration of London of 1909--the
Report of the Drafting Committee contains certain interpretations and is
unanimously accepted as authoritative by all the negotiators previous to
the signing of the treaty, their interpretations must prevail.
(8) If two meanings of a stipulation are admissible according to the
text of a treaty, such meaning is to prevail as the party proposing the
stipulation knew at the time to be the meaning preferred by the party
accepting it.
(9) If it is a matter of common knowledge that a State upholds a meaning
which is different from the generally prevailing meaning of a term, and
if nevertheless another State enters into a treaty with the former in
which such term is made use of, such meaning must prevail as is upheld
by the former. If, for instance, States conclude commercial treaties
with the United States of America in which the most-favoured-nation
clause[912] occurs, the particular meaning which the United States
attribute to this clause must prevail.
[Footnote 912: See below, § 580.]
(10) If the meaning of a stipulation is ambiguous and one of the
contracting parties, at a time before a case arises for the application
of the stipulation, makes known what meaning it attributes to the
stipulation, the other party or parties cannot, when a case for the
application of the stipulation occurs, insist upon a different meaning.
They ought to have previously protested and taken the necessary steps to
secure an authentic interpretation of the ambiguous stipulation. Thus,
when in 1911 it became obvious that Germany and other continental States
attributed to article 23(_h_) of the Hague Regulations respecting the
Laws and Usages of War on Land a meaning different from the one
preferred by Great Britain, the British Foreign Office made the British
interpretation of this article known.
(11) It is to be taken for granted that the parties intend the
stipulations of a treaty to have a certain effect and not to be
meaningless. Therefore, such interpretation is not admissible as would
make a stipulation meaningless or inefficient.
(12) All treaties must be interpreted so as to exclude fraud and so as
to make their operation consistent with good faith.
(13) The rules commonly applied by the Courts as regards the
interpretation and construction of Municipal Laws are in so far only
applicable to the interpretation and construction of treaties, and in
especial of law-making treaties, as they are general rules of
jurisprudence. If, however, they are particular rules, sanctioned only
by the Municipal Law or by the practice of the Courts of a particular
country, they may not be applied.
(14) If a treaty is concluded in two languages, for instance, a treaty
between Great Britain and France in English and French, and if there is
a discrepancy between the meaning of the two different texts, each party
is only bound by the text of its own language. But a party cannot claim
any advantage from the text of the language of the other party.
CHAPTER III
IMPORTANT GROUPS OF TREATIES
I
IMPORTANT LAW-MAKING TREATIES
[Sidenote: Important Law-making Treaties a product of the Nineteenth
Century.]
§ 555. Law-making treaties[913] have been concluded ever since
International Law came into existence. It was not until the nineteenth
century, however, that such law-making treaties existed as are of
world-wide importance. Although at the Congress at Münster and Osnabrück
all the then existing European Powers, with the exception of Great
Britain, Russia, and Poland, were represented, the Westphalian Peace of
1648, to which France, Sweden, and the States of the German Empire were
parties, and which recognised the independence of Switzerland and the
Netherlands, on the one hand, and, on the other, the practical
sovereignty of the then existing 355 States of the German Empire, was
not of world-wide importance, in spite of the fact that it contains
various law-making stipulations. And the same may be said with regard to
all other treaties of peace between 1648 and 1815. The first law-making
treaty of world-wide importance was the Final Act of the Vienna
Congress, 1815, and the last, as yet, is the Declaration of London of
1909. But it must be particularly noted that not all of these are _pure_
law-making treaties, since many contain other stipulations besides those
which are law-making.
[Footnote 913: Concerning the conception of law-making treaties, see
above, §§ 18 and 492.]
[Sidenote: Final Act of the Vienna Congress.]
§ 556. The Final Act of the Vienna Congress,[914] signed on June 9,
1815, by Great Britain, Austria, France, Portugal, Prussia, Russia,
Spain, and Sweden-Norway, comprises law-making stipulations of
world-wide importance concerning four points--namely, first, the
perpetual neutralisation of Switzerland (article 118, No. 11); secondly,
free navigation on so-called international rivers (articles 108-117);
thirdly, the abolition of the negro slave trade (article 118, No. 15);
fourthly, the different classes of diplomatic envoys (article 118, No.
16).
[Footnote 914: Martens, N.R. II. p. 379. See Angeberg, "Le congrès de
Vienne et les traités de 1815" (4 vols., 1863).]
[Sidenote: Protocol of the Congress of Aix-la-Chapelle.]
§ 557. The Protocol of November 21 of the Congress of
Aix-la-Chapelle,[915] 1818, signed by Great Britain, Austria, France,
Prussia, and Russia, contains the important law-making stipulation
concerning the establishment of a fourth class of diplomatic envoys, the
so-called "Ministers Resident," to rank before the Chargés d'Affaires.
[Footnote 915: Martens, N.R. IV. p. 648. See Angeberg, op. cit.]
[Sidenote: Treaty of London of 1831.]
§ 558. The Treaty of London[916] of November 15, 1831, signed by Great
Britain, Austria, France, Prussia, and Russia, comprises in its article
7 the important law-making stipulation concerning the perpetual
neutralisation of Belgium.
[Footnote 916: Martens, N.R. XI. p. 390. See Descamps, "La neutralité de
la Belgique" (1902).]
[Sidenote: Declaration of Paris.]
§ 559. The Declaration of Paris[917] of April 13, 1856, signed by Great
Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, is a
pure law-making treaty of the greatest importance, stipulating four
rules with regard to sea warfare--namely, that privateering is
abolished; that the neutral flag covers enemy goods with the exception
of contraband of war; that neutral goods, contraband excepted, cannot be
confiscated even when sailing under the enemy flag; that a blockade must
be effective to be binding.
[Footnote 917: Martens, N.R.G. XV. p. 767.]
Through accession during 1856, the following other States have become
parties to this treaty: Argentina, Belgium, Brazil, Chili, Denmark,
Ecuador, Greece, Guatemala, Hayti, Holland, Peru, Portugal,
Sweden-Norway, and Switzerland. Japan acceded in 1886, Spain and Mexico
in 1907.
[Sidenote: Geneva Convention.]
§ 560. The Geneva Convention[918] of August 22, 1864, and that of July
6, 1906, are pure law-making treaties for the amelioration of the
conditions of the wounded of armies in the field. The Geneva Convention
of 1864 was originally signed only by Switzerland, Baden, Belgium,
Denmark, France, Holland, Italy, Prussia, and Spain, but in time all
other civilised States have acceded except Costa Rica, Lichtenstein, and
Monaco. A treaty[919] containing articles additional to the Geneva
Convention of 1864 was signed at Geneva on October 20, 1868, but was not
ratified. A better fate was in store for the Geneva Convention[920] of
1906, which was signed by the delegates of thirty-five States, many of
which have already granted ratification. Colombia, Costa Rica, Cuba,
Nicaragua, Turkey, and Venezuela have already acceded. It is of
importance to emphasise that the Convention of 1864 is not entirely
replaced by the Convention of 1906, in so far as the former remains in
force between those Powers which are parties to it without being parties
to the latter. And it must be remembered that the Final Act of the First
as well as of the Second Peace Conference contains a convention for the
adaptation to sea warfare of the principles of the Geneva Convention.
[Footnote 918: Martens, N.R.G. XVIII. p. 607. See Lueder, "Die Genfer
Convention" (1876), and Münzel, "Untersuchungen über die Genfer
Convention" (1901).]
[Footnote 919: Martens, N.R.G. XVIII. p. 612.]
[Footnote 920: Martens, N.R.G. 3rd Ser. II. p. 323.]
[Sidenote: Treaty of London of 1867.]
§ 561. The Treaty of London[921] of May 11, 1867, signed by Great
Britain, Austria, Belgium, France, Holland, Italy, Prussia, and Russia,
comprises in its article 2 the important law-making stipulation
concerning the perpetual neutralisation of Luxemburg.
[Footnote 921: Martens, N.R.G. XVIII. p. 445. See Wampach, "Le
Luxembourg Neutre" (1900).]
[Sidenote: Declaration of St. Petersburg.]
§ 562. The Declaration of St. Petersburg[922] of November 29, 1868,
signed by Great Britain, Austria-Hungary, Belgium, Denmark, France,
Greece, Holland, Italy, Persia, Portugal, Prussia and other German
States, Russia, Sweden-Norway, Switzerland, and Turkey--Brazil acceded
later on--is a pure law-making treaty. It stipulates that projectiles of
a weight below 400 grammes (14 ounces) which are either explosive or
charged with inflammable substances shall not be made use of in war.
[Footnote 922: Martens, N.R.G. XVIII. p. 474.]
[Sidenote: Treaty of Berlin of 1878.]
§ 563. The Treaty of Berlin[923] of July 13, 1878, signed by Great
Britain, Austria-Hungary, France, Germany, Italy, Russia, and Turkey, is
law-making with regard to Bulgaria, Montenegro, Roumania, and Servia. It
is of great importance in so far as the present phase of the solution of
the Near Eastern Question arises therefrom, although Bulgaria became
full-sovereign in 1908.
[Footnote 923: Martens, N.R.G. 2nd Ser. III. p. 449. See Mulas, "Il
congresso di Berlino" (1878).]
[Sidenote: General Act of the Congo Conference.]
§ 564. The General Act of the Congo Conference[924] of Berlin of
February 26, 1885, signed by Great Britain, Austria-Hungary, Belgium,
Denmark, France, Germany, Holland, Italy, Portugal, Russia, Spain,
Sweden-Norway, Turkey, and the United States of America, is a law-making
treaty of great importance, stipulating: freedom of commerce for all
nations within the basin of the river Congo; prohibition of
slave-transport within that basin; neutralisation of Congo Territories;
freedom of navigation for merchantmen of all nations on the rivers Congo
and Niger; and, lastly, the obligation of the signatory Powers to notify
to one another all future occupations on the coast of the African
continent.
[Footnote 924: Martens, N.R.G. 2nd Ser. X. p. 414. See Patzig, "Die
afrikanische Conferenz und der Congostaat" (1885).]
[Sidenote: Treaty of Constantinople of 1888.]
§ 565. The Treaty of Constantinople[925] of October 29, 1888, signed by
Great Britain, Austria-Hungary, France, Germany, Holland, Italy, Russia,
Spain, and Turkey, is a pure law-making treaty stipulating the permanent
neutralisation of the Suez Canal and the freedom of navigation thereon
for vessels of all nations.
[Footnote 925: Martens, N.R.G. 2nd Ser. XV. p. 557. See above, § 183.]
[Sidenote: General Act of the Brussels Anti-Slavery Conference.]
§ 566. The General Act of the Brussels Anti-Slavery Conference,[926]
signed on July 2, 1890, by Great Britain, Austria-Hungary, Belgium, the
Congo Free State, Denmark, France,[927] Germany, Holland, Italy, Persia,
Portugal, Russia, Sweden-Norway, Spain, Turkey, the United States of
America, and Zanzibar, is a law-making treaty of great importance which
stipulates a system of measures for the suppression of the slave-trade
in Africa, and, incidentally, restrictive measures concerning the
spirit-trade in certain parts of Africa. To revise the stipulations
concerning this spirit-trade the Convention of Brussels[928] of November
3, 1906, was signed by Great Britain, Germany, Belgium, Spain, the Congo
Free State, France, Italy, Holland, Portugal, Russia, and Sweden.
[Footnote 926: Martens, N.R.G. 2nd Ser. XVI. p. 3, and XXV. p. 543. See
Lentner, "Der afrikanische Sklavenhandel und die Brüsseler Conferenzen"
(1891).]
[Footnote 927: But France only ratified this General Act with the
exclusion of certain articles.]
[Footnote 928: Martens, N.R.G. 3rd Ser. I. p. 722.]
[Sidenote: Two Declarations of the First Hague Peace Conference.]
§ 567. The Final Act of the Hague Peace Conference[929] of July 29,
1899, was a pure law-making treaty comprising three separate
conventions--namely, a convention for the peaceful adjustment of
international differences, a convention concerning the law of land
warfare, and a convention for the adaptation to maritime warfare of the
principles of the Geneva Convention of 1864,--and three
Declarations--namely, a Declaration prohibiting, for a term of five
years, the discharge of projectiles and explosives from balloons, a
Declaration concerning the prohibition of the use of projectiles the
only object of which is the diffusion of asphyxiating or deleterious
gases, and a Declaration concerning the prohibition of so-called dum-dum
bullets. All these conventions, however, and the first of these
declarations have been replaced by the General Act of the Second Hague
Peace Conference, and only the last two declarations are still in force.
All the States which were represented at the Conference are now parties
to these declarations except the United States of America.
[Footnote 929: Martens, N.R.G. 2nd Ser. XXVI. p. 920. See Holls, "The
Peace Conference at the Hague" (1900), and Mérignhac, "La Conférence
internationale de la Paix" (1900).]
[Sidenote: Treaty of Washington of 1901.]
§ 568. The so-called Hay-Pauncefote Treaty of Washington[930] between
Great Britain and the United States of America, signed November 18,
1901, although law-making between the parties only, is nevertheless of
world-wide importance, because it neutralises permanently the Panama
Canal, which is in course of construction, and stipulates free
navigation thereon for vessels of all nations.[931]
[Footnote 930: Martens, N.R.G. 2nd Ser. XXX. p. 631.]
[Footnote 931: It ought to be mentioned that article 5 of the Boundary
Treaty of Buenos Ayres, signed by Argentina and Chili on September 15,
1881--see Martens, N.R.G. 2nd Ser. XII. p. 491--contains a law-making
stipulation of world-wide importance, because it neutralises the Straits
of Magellan for ever and declares them open to vessels of all nations.
See above, p. 267, note 2, and below, vol. II. § 72.]
[Sidenote: Conventions and Declaration of Second Hague Peace
Conference.]
§ 568_a_. The Final Act of the Second Hague Peace Conference of October
18, 1907, is a pure law-making treaty of enormous importance comprising
the following thirteen conventions[932] and a declaration:--
[Footnote 932: Only a greater number of States have as yet ratified the
Conventions, but it is to be expected that many more will grant
ratification in the course of time.]
(1) Convention for the Pacific Settlement of International Disputes. All
States represented at the Conference signed except Nicaragua, but some
signed with reservations only. Nicaragua acceded later.
(2) Convention respecting the Limitation of the Employment of Force for
the Recovery of Contract Debts, signed by Great Britain, Germany, the
United States of America, Argentina, Austria-Hungary, Bolivia,
Bulgaria, Chili, Columbia, Cuba, Denmark, San Domingo, Ecuador, Spain,
France, Greece, Guatemala, Haiti, Italy, Japan, Mexico, Montenegro,
Norway, Panama, Paraguay, Holland, Peru, Persia, Portugal, Russia,
Salvador, Servia, Turkey, Uruguay; China and Nicaragua acceded later.
Some of the South American States signed with reservations.
(3) Convention relative to the Opening of Hostilities. All the States
represented at the Conference signed except China and Nicaragua; both,
however, acceded later.
(4) Convention concerning the Laws and Usages of War on Land. All the
States represented at the Conference signed except China, Spain, and
Nicaragua, but Nicaragua acceded later. Some States made reservations in
signing.
(5) Convention concerning the Rights and Duties of Neutral Powers and
Persons in Case of War on Land. All the States represented at the
Conference signed except China and Nicaragua, but some States made
reservations. Both China and Nicaragua acceded later.
(6) Convention relative to the Status of Enemy Merchantmen at the
Outbreak of Hostilities. All the Powers represented at the Conference
signed except the United States of America, China, and Nicaragua, but
the last named acceded later. Some States made reservations in signing.
(7) Convention relative to the Conversion of Merchant Ships into War
Ships. All the Powers represented at the Conference signed except the
United States of America, China, San Domingo, Nicaragua, and Uruguay,
but Nicaragua acceded later. Turkey made a reservation in signing.
(8) Convention relative to the Laying of Automatic Submarine Contact
Mines. The majority of the States represented at the Conference signed.
China, Spain, Montenegro, Nicaragua, Portugal, Russia, and Sweden have
not signed, but Nicaragua acceded later. Some States made reservations.
(9) Convention respecting Bombardments by Naval Forces in Time of War.
Except China, Spain, and Nicaragua all the States represented at the
Conference signed, but China and Nicaragua acceded later. Some States
made reservations.
(10) Convention for the Adaptation to Naval War of the Principles of the
Geneva Convention. All the Powers represented at the Conference signed
except Nicaragua, but some made reservations. Nicaragua acceded later.
(11) Convention relative to certain Restrictions on the Exercise of the
Right of Capture in Maritime War. All States represented at the
Conference signed except China, Montenegro, Nicaragua, and Russia, but
Nicaragua acceded later.
(12) Convention relative to the Creation of an International Prize
Court. The majority of the States represented at the Conference signed.
Brazil, China, San Domingo, Greece, Luxemburg, Montenegro, Nicaragua,
Roumania, Russia, Servia, and Venezuela have not signed, and some of the
smaller signatory Powers made a reservation with regard to the
composition of the Court according to article 15 of the Convention.
(13) Convention concerning the Rights and Duties of Neutral Powers in
Naval War. All the States represented at the Conference signed except
the United States of America, China, Cuba, Spain, and Nicaragua. Some
States made reservations. But the United States of America, China, and
Nicaragua acceded later.
(14) Declaration prohibiting the Discharge of Projectiles and Explosives
from Balloons. Only twenty-seven of the forty-four States represented at
the Conference signed. Germany, Chili, Denmark, Spain, France,
Guatemala, Italy, Japan, Mexico, Montenegro, Nicaragua, Paraguay,
Roumania, Russia, Servia, Sweden, and Venezuela refused to sign, but
Nicaragua acceded later.
[Sidenote: The Declaration of London.]
§ 568_b_. The Declaration of London[933] of February 26, 1909,
concerning the Laws of Naval War, is a pure law-making treaty of the
greatest importance. All the ten Powers represented at the Conference of
London which produced this Declaration signed[934] it--namely, Great
Britain, Germany, the United States of America, Austria-Hungary, Spain,
France, Italy, Japan, Holland, and Russia, but it is not yet ratified.
[Footnote 933: On account of the opposition to the Ratification of the
Declaration of London which arose in England, the English literature on
the Declaration is already very great. The more important books are the
following:--Bowles, "Sea Law and Sea Power" (1910); Baty, "Britain and
Sea Law" (1911); Bentwich, "The Declaration of London" (1911); Bray,
"British Rights at Sea" (1911); Bate, "An Elementary Account of the
Declaration of London" (1911); Civis, "Cargoes and Cruisers" (1911);
Holland, "Proposed Changes in Naval Prize Law" (1911); Cohen, "The
Declaration of London" (1911). See also Baty and Macdonell in the
Twenty-sixth Report (1911) of the International Law Association. There
are also innumerable articles in periodicals.]
[Footnote 934: There is no doubt that the majority, if not all, of the
States concerned will in time accede to the Declaration of London.]
II
ALLIANCES
Grotius, II. c. 15--Vattel, III. §§ 78-102--Twiss, I. §
246--Taylor, §§ 347-349--Wheaton, §§ 278-285--Bluntschli, §§
446-449--Heffter, § 92--Geffcken in Holtzendorff, III. pp.
115-139--Ullmann, § 82--Bonfils, Nos. 871-881--Despagnet, No.
459--Mérignhac, II. p. 683--Nys, III. pp. 554-557--Pradier-Fodéré,
II. Nos. 934-967--Rivier, II. pp. 111-116--Calvo, III. §§
1587-1588--Fiore, II. No. 1094, and Code, Nos. 893-899--Martens,
I. § 113--Rolin-Jaequemyns in R.I. XX. (1888), pp. 5-35--Erich,
"Ueber Allianzen und Allianzverhältnisse nach heutigem
Völkerrecht" (1907).
[Sidenote: Conception of Alliances.]
§ 569. Alliances in the strict sense of the term are treaties of union
between two or more States for the purpose of defending each other
against an attack in war, or of jointly attacking third States, or for
both purposes. The term "alliance" is, however, often made use of in a
wider sense, and it comprises in such cases treaties of union for
various purposes. Thus, the so-called "Holy Alliance," concluded in 1815
between the Emperors of Austria and Russia and the King of Prussia, and
afterwards joined by almost all of the Sovereigns of Europe, was a union
for such vague purposes that it cannot be called an alliance in the
strict sense of the term.
History relates innumerable alliances between the several States. They
have always played, and still play, an important part in politics. At
the present time the triple alliance between Germany, Austria, and Italy
since 1879 and 1882, the alliance between Russia and France since 1899,
and that between Great Britain and Japan since 1902, renewed in 1905 and
1911, are illustrative examples.[935]
[Footnote 935: The following is the text of the Anglo-Japanese treaty of
Alliance of 1911:--
The Government of Great Britain and the Government of Japan, having in
view the important changes which have taken place in the situation since
the conclusion of the Anglo-Japanese agreement of the 12th August 1905,
and believing that a revision of that Agreement responding to such
changes would contribute to general stability and repose, have agreed
upon the following stipulations to replace the Agreement above
mentioned, such stipulations having the same object as the said
Agreement, namely:--
(_a_) The consolidation and maintenance of the general peace in the
regions of Eastern Asia and of India;
(_b_) The preservation of the common interests of all Powers in China by
insuring the independence and integrity of the Chinese Empire and the
principle of equal opportunities for the commerce and industry of all
nations in China;
(_c_) The maintenance of the territorial rights of the High Contracting
Parties in the regions of Eastern Asia and of India, and the defence of
their special interests in the said regions:--
ARTICLE I.
It is agreed that whenever, in the opinion of either Great Britain or
Japan, any of the rights and interests referred to in the preamble of
this Agreement are in jeopardy, the two Governments will communicate
with one another fully and frankly, and will consider in common the
measures which should be taken to safeguard those menaced rights or
interests.
ARTICLE II.
If by reason of unprovoked attack or aggressive action, wherever
arising, on the part of any Power or Powers, either High Contracting
Party should be involved in war in defence of its territorial rights or
special interests mentioned in the preamble of this Agreement, the other
High Contracting Party will at once come to the assistance of its ally,
and will conduct the war in common, and make peace in mutual agreement
with it.
ARTICLE III.
The High Contracting Parties agree that neither of them will, without
consulting the other, enter into separate arrangements with another
Power to the prejudice of the objects described in the preamble of this
Agreement.
ARTICLE IV.
Should either High Contracting Party conclude a treaty of general
arbitration with a third Power, it is agreed that nothing in this
Agreement shall entail upon such Contracting Party an obligation to go
to war with the Power with whom such treaty of arbitration is in force.
ARTICLE V.
The conditions under which armed assistance shall be afforded by either
Power to the other in the circumstances mentioned in the present
Agreement, and the means by which such assistance is to be made
available, will be arranged by the Naval and Military authorities of the
High Contracting Parties, who will from time to time consult one another
fully and freely upon all questions of mutual interest.
ARTICLE VI.
The present Agreement shall come into effect immediately after the date
of its signature, and remain in force for ten years from that date.
In case neither of the High Contracting Parties should have notified
twelve months before the expiration of the said ten years the intention
of terminating it, it shall remain binding until the expiration of one
year from the day on which either of the High Contracting Parties shall
have denounced it. But if, when the date fixed for its expiration
arrives, either ally is actually engaged in war, the alliance shall,
_ipso facto_, continue until peace is concluded.
In faith whereof the undersigned, duly authorised by their respective
Governments, have signed this Agreement, and have affixed thereto their
Seals.
Done in duplicate at London, the 13th day of July 1911.]
[Sidenote: Parties to Alliance.]
§ 570. Subjects of alliances are said to be full-Sovereign States only.
But the fact cannot be denied that alliances have been concluded by
States under suzerainty. Thus, the convention of April 16, 1877, between
Roumania, which was then under Turkish suzerainty, and Russia,
concerning the passage of Russian troops through Roumanian territory in
case of war with Turkey, was practically a treaty of alliance.[936]
Thus, further, the former South African Republic, although, at any rate
according to the views of the British Government, a half-Sovereign State
under British suzerainty, concluded an alliance with the former Orange
Free State by treaty of March 17, 1897.[937]
[Footnote 936: See Martens, N.R.G. 2nd Ser. III. p. 182.]
[Footnote 937: See Martens, N.R.G. 2nd Ser. XXV. p. 327.]
A neutralised State can be the subject of an alliance for the purpose of
defence, whereas the entrance into an offensive alliance on the part of
such State would involve a breach of its neutrality.
[Sidenote: Different kinds of Alliances.]
§ 571. As already mentioned, an alliance may be offensive or defensive,
or both. All three kinds may be either general alliances, in which case
the allies are united against any possible enemy whatever, or particular
alliances against one or more individual enemies. Alliances, further,
may be either permanent or temporary, and in the latter case they expire
with the period of time for which they were concluded. As regards
offensive alliances, it must be emphasised that they are valid only when
their object is not immoral.[938]
[Footnote 938: See above, § 505.]
[Sidenote: Conditions of Alliances.]
§ 572. Alliances may contain all sorts of conditions. The most important
are the conditions regarding the assistance to be rendered. It may be
that assistance is to be rendered with the whole or a limited part of
the military and naval forces of the allies, or with the whole or a
limited part of their military or with the whole or a limited part of
their naval forces only. Assistance may, further, be rendered in money
only, so that one of the allies is fighting with his forces while the
other supplies a certain sum of money for their maintenance. A treaty of
alliance of such a kind must not be confounded with a simple treaty of
subsidy. If two States enter into a convention that one of the parties
shall furnish the other permanently in time of peace and war with a
limited number of troops in return for a certain annual payment, such
convention is not an alliance, but a treaty of subsidy only. But if two
States enter into a convention that in case of war one of the parties
shall furnish the other with a limited number of troops, be it in return
for payment or not, such convention really constitutes an alliance. For
every convention concluded for the purpose of lending succour in time of
war implies an alliance. It is for this reason that the
above-mentioned[939] treaty of 1877 between Russia and Roumania
concerning the passage of Russian troops through Roumanian territory in
case of war against Turkey was really a treaty of alliance.
[Footnote 939: See above, § 570.]
[Sidenote: _Casus Foederis._]
§ 573. _Casus foederis_ is the event upon the occurrence of which
it becomes the duty of one of the allies to render the promised
assistance to the other. Thus in case of a defensive alliance the _casus
foederis_ occurs when war is declared or commenced against one of
the allies. Treaties of alliance very often define precisely the event
which shall be the _casus foederis_, and then the latter is less
exposed to controversy. But, on the other hand, there have been many
alliances concluded without such specialisation, and, consequently,
disputes have arisen later between the parties as to the _casus
foederis_.
That the _casus foederis_ is not influenced by the fact that a
State, subsequent to entering into an alliance, concludes a treaty of
general arbitration with a third State, has been pointed out above, §
522.
III
TREATIES OF GUARANTEE AND OF PROTECTION
Vattel, II. §§ 235-239--Hall, § 113--Phillimore, II. §§
56-63--Twiss, I. § 249--Halleck, I. p. 285--Taylor, §§
350-353--Wheaton, § 278--Bluntschli, §§ 430-439--Heffter, §
97--Geffcken in Holtzendorff, III. pp. 85-112--Liszt, §
22--Ullmann, § 83--Fiore, Code, Nos. 787-791--Bonfils, Nos.
882-893--Despagnet, No. 461--Mérignhac, II. p. 681--Nys, III. pp.
36-41--Pradier-Fodéré, II. Nos. 969-1020--Rivier, II. pp.
97-105--Calvo, III. §§ 1584-1585--Martens, I. § 115--Neyron,
"Essai historique et politique sur les garanties"
(1779)--Milovanovitch, "Des traités de garantie en droit
international" (1888)--Erich, "Ueber Allianzen und
Allianzverhältnisse nach heutigem Völkerrecht" (1907)--Quabbe,
"Die völkerrechtliche Garantie" (1911).
[Sidenote: Conception and Object of Guarantee Treaties.]
§ 574. Treaties of guarantee are conventions by which one of the parties
engages to do what is in its power to secure a certain object to the
other party. Guarantee treaties may be mutual or unilateral. They may be
concluded by two States only, or by a number of States jointly, and in
the latter case the single guarantors may give their guarantee severally
or collectively or both. And the guarantee may be for a certain period
of time only or permanent.
The possible objects of guarantee treaties are numerous.[940] It
suffices to give the following chief examples: the performance of a
particular act on the part of a certain State, as the discharge of a
debt or the cession of a territory; certain rights of a State; the
undisturbed possession of the whole or a particular part of the
territory; a particular form of Constitution; a certain status, as
permanent neutrality[941] or independence[942] or integrity[943]; a
particular dynastic succession; the fulfilment of a treaty concluded by
a third State.
[Footnote 940: The important part that treaties of guarantee play in
politics may be seen from a glance at Great Britain's guarantee
treaties. See Munro, "England's Treaties of Guarantee," in _The Law
Magazine and Review_, VI. (1881), pp. 215-238.]
[Footnote 941: See above, § 95.]
[Footnote 942: Thus Great Britain, France, and Russia have guaranteed,
by the Treaty with Denmark of July 13, 1863, the independence (but also
the monarchy) of Greece (Martens, N.R.G. XVII. Part. II. p. 79). The
United States of America has guaranteed the independence of Cuba by the
Treaty of Havana of May 22, 1903 (Martens, N.R.G. 2nd Ser. XXXII. p.
79), and of Panama by the Treaty of Washington of November 18, 1903
(Martens, N.R.G. 2nd Ser. XXXI. p. 599).]
[Footnote 943: Thus the integrity of Norway is guaranteed by Great
Britain, Germany, France, and Russia by the Treaty of Christiania of
November 2, 1907; see Martens, N.R.G. 3rd Ser. II. p. 9. A condition of
this integrity is that Norway does not cede any part of her territory to
any foreign Power.]
[Sidenote: Effect of Treaties of Guarantee.]
§ 575. The effect of guarantee treaties is the creation of the duty of
the guarantors to do what is in their power in order to secure the
guaranteed objects. The compulsion to be applied by a guarantor for that
purpose depends upon the circumstances; it may eventually be war. But
the duty of the guarantor to render, even by compulsion, the promised
assistance to the guaranteed depends upon many conditions and
circumstances. Thus, first, the guaranteed must request the guarantor to
render assistance. When, for instance, the possession of a certain part
of its territory is guaranteed to a State which after its defeat in a
war with a third State agrees as a condition of peace to cede such
piece of territory to the victor without having requested the
intervention of the guarantor, the latter has neither a right nor a duty
to interfere. Thus, secondly, the guarantor must at the critical time be
able to render the required assistance. When, for instance, its hands
are tied through waging war against a third State, or when it is so weak
through internal troubles or other factors that its interference would
expose it to a serious danger, it is not bound to fulfil the request for
assistance. So too, when the guaranteed has not complied with previous
advice given by the guarantor as to the line of its behaviour, it is not
the guarantor's duty to render assistance afterwards.
It is impossible to state all the circumstances and conditions upon
which the fulfilment of the duty of the guarantor depends, as every case
must be judged upon its own merits. And it is certain that, more
frequently than in other cases, changes in political constellations and
the general developments of events may involve such vital change of
circumstances as to justify[944] a State in refusing to interfere in
spite of a treaty of guarantee. It is for this reason that treaties of
guarantee to secure permanently a certain object to a State are
naturally of a more or less precarious value to the latter. The
practical value, therefore, of a guarantee treaty, whatever may be its
formal character, would as a rule seem to extend to the early years only
of its existence while the original conditions still obtain.
[Footnote 944: See above, § 539.]
[Sidenote: Effect of Collective Guarantee.]
§ 576. In contradistinction to treaties constituting a guarantee on the
part of one or more States severally, the effect of treaties
constituting a _collective_ guarantee on the part of several States
requires special consideration. On June 20, 1867, Lord Derby
maintained[945] in the House of Lords concerning the collective
guarantee by the Powers of the neutralisation of Luxemburg that in case
of a collective guarantee each guarantor had only the duty to act
according to the treaty when all the other guarantors were ready to act
likewise; that, consequently, if one of the guarantors themselves should
violate the neutrality of Luxemburg, the duty to act according to the
treaty of collective guarantee would not accrue to the other guarantors.
This opinion is certainly not correct,[946] and I do not know of any
publicist who would or could approve of it. There ought to be no doubt
that in a case of collective guarantee one of the guarantors alone
cannot be considered bound to act according to the treaty of guarantee.
For a collective guarantee can have the meaning only that the guarantors
should act in a body. But if one of the guarantors themselves violates
the object of his own guarantee, the body of the guarantors remains, and
it is certainly their duty to act against such faithless co-guarantor.
If, however, the majority,[947] and therefore the body of the
guarantors, were to violate the very object of their guarantee, the duty
to act against them would not accrue to the minority.
[Footnote 945: Hansard, vol. 183, p. 150.]
[Footnote 946: See Hall, § 113; Bluntschli, § 440; and Quabbe, op. cit.
pp. 149-159.]
[Footnote 947: See against this statement Quabbe, op. cit. p. 158.]
Different, however, is the case in which a number of Powers have
_collectively and severally_ guaranteed a certain object. Then, not only
as a body but also individually, it is their duty to interfere in any
case of violation of the object of guarantee.
[Sidenote: Pseudo-Guarantees.]
§ 576_a_. Different from real Guarantee Treaties are such treaties as
declare the policy of the parties with regard to the maintenance of
their territorial _status quo_. Whereas treaties guaranteeing the
maintenance of the territorial _status quo_ engage the guarantors to do
what they can to maintain such _status quo_, treaties declaring the
policy of the parties with regard to the maintenance of their
territorial _status quo_ do not contain any legal engagements, but
simply state the firm resolution of the parties to uphold the _status
quo_. In contradistinction to real guarantee treaties, such treaties
declaring the policy of the parties may fitly be called Pseudo-Guarantee
Treaties, and although their political value is very great, they have
scarcely any legal importance. For the parties do not bind themselves to
pursue a policy for maintaining the _status quo_, they only declare
their firm resolution to that end. Further, the parties do not engage
themselves to uphold the _status quo_, but only to communicate with one
another, in case the _status quo_ is threatened, with a view to agreeing
upon such measures as they may consider advisable for the maintenance of
the _status quo_. To this class of pseudo-guarantee treaties belong:--
(1) The Declarations[948] exchanged on May 16, 1907, between France and
Spain on the one hand, and, on the other hand, between Great Britain and
Spain, concerning the territorial _status quo_ in the Mediterranean.
Each party declares that its general policy with regard to the
Mediterranean is directed to the maintenance of the territorial _status
quo_, and that it is therefore resolved to preserve intact its rights
over its insular and maritime possessions within the Mediterranean. Each
party declares, further, that, should circumstances arise which would
tend to alter the existing territorial _status quo_, it will communicate
with the other party in order to afford it the opportunity to concert,
if desired, by mutual agreement the course of action which the two
parties shall adopt in common.
[Footnote 948: See Martens, N.R.G. 2nd Ser. XXXV. p. 692, and 3rd Ser.
I. p. 3.]
(2) The Declarations[949] concerning the maintenance of the territorial
_status quo_ in the North Sea, signed at Berlin on April 23, 1908, by
Great Britain, Germany, Denmark, France, Holland, and Sweden, and
concerning the maintenance of the territorial _status quo_ in the
Baltic, signed at St. Petersburg, likewise on April 23, 1908, by
Germany, Denmark, Russia, and Sweden. The parties declare their firm
resolution to preserve intact the rights of all the parties over their
continental and insular possessions within the region of the North Sea,
and of the Baltic respectively. And the parties concerned further
declare that, should the present territorial _status quo_ be threatened
by any events whatever, they will enter into communication with one
another with a view to agreeing upon such measures as they may consider
advisable in the interest of the maintenance of the _status quo_.
[Footnote 949: See Martens, N.R.G. 3rd Ser. I. pp. 17 and 18.]
There is no doubt that the texts of the Declarations concerning the
_status quo_ in the North Sea and the Baltic stipulate a stricter
engagement of the respective parties than the texts of the Declarations
concerning the _status quo_ in the Mediterranean, but neither[950] of
them comprises a real legal guarantee.
[Footnote 950: Whereas Quabbe (p. 97, note 1), correctly denies the
character of a real guarantee to the Declarations concerning the
Mediterranean, he (p. 105) considers the Declarations concerning the
North Sea and the Baltic real Guarantee Treaties.]
[Sidenote: Treaties of Protection.]
§ 577. Different from guarantee treaties are treaties of protection.
Whereas the former constitute the guarantee of a certain object to the
guaranteed, treaties of protection are treaties by which strong States
simply engage to protect weaker States without any guarantee whatever. A
treaty of protection must, however, not be confounded with a treaty of
protectorate.[951]
[Footnote 951: See above, § 92.]
IV
COMMERCIAL TREATIES
Taylor, 354--Moore, V. §§ 765-769--Melle in Holtzendorff, III. pp.
143-256--Liszt, § 28--Ullmann, § 145--Bonfils, No. 918--Despagnet,
No. 462--Pradier-Fodéré, IV. Nos. 2005-2033--Mérignhac, II. pp.
688-693--Rivier, I. pp. 370-374--Fiore, II. Nos. 1065-1077, and
Code, Nos. 848-854--Martens, II. §§ 52-55--Steck, "Versuch über
Handels- und Schiffahrtsverträge" (1782)--Schraut, "System der
Handelsverträge und der Meistbegünstigung" (1884)--Veillcovitch,
"Les traités de commerce" (1892)--Nys, "Les origines du droit
international" (1894), pp. 278-294--Herod, "Favoured Nation
Treatment" (1901)--Calwer, "Die Meistbegünstigung in den
Vereinigten Staaten von Nord-America" (1902)--Glier, "Die
Meistbegünstigungs-Klausel" (1906)--Cavaretta, "La clausola della
natiozione più favorita" (1906)--Barclay, "Problems of
International Law and Diplomacy" (1907), pp. 137-142--Hornbeck,
"The Most-Favoured Nation Clause" (1910), and in A.J. III. (1909),
pp. 394-422, 619-647, and 798-827--Lehr in R.I. XXV. (1893), pp.
313-316--Visser in R.I. 2nd Ser. IV. (1902), pp. 66-87, 159-177,
and 270-280--Lehr in R.I. 2nd Ser. XII. (1910), pp.
657-668--Shepheard in _The Journal of the Society of Comparative
Legislation_, New Series, III. (1901), pp. 231-237, and V. (1903),
pp. 132-136--Oppenheim in _The Law Quarterly Review_, XXIV.
(1908), pp. 328-334.
[Sidenote: Commercial Treaties in General.]
§ 578. Commercial treaties are treaties concerning the commerce and
navigation of the contracting States and concerning the subjects of
these States who are engaged in commerce and navigation. Incidentally,
however, they also contain clauses concerning consuls and various other
matters. They are concluded either for a limited or an unlimited number
of years, and either for the whole territory of one or either party or
only for a part of such territory--_e.g._, by Great Britain for the
United Kingdom alone, or for Canada alone, and the like. All
full-Sovereign States are competent to enter into commercial treaties,
but it depends upon the special case whether half- and part-Sovereign
States are likewise competent. Although competent to enter upon
commercial treaties, a State may, by an international compact, be
restricted in its freedom with regard to its commercial policy. Thus,
according to articles 1 to 5 of the General Act of the Berlin Congo
Conference of February 26, 1885, all the Powers which have possessions
in the Congo district must grant complete freedom of commerce to all
nations. Again, to give another example, France and Germany are by
article 11 of the Peace of Frankfort of May 10, 1871, compelled to grant
one another most-favoured-nation treatment in their commercial
relations, in so far as favours which they grant to Great Britain,
Belgium, Holland, Switzerland, Austria, and Russia are concerned.
The details of commercial treaties are for the most part purely
technical and are, therefore, outside the scope of a general treatise on
International Law. There are, however, two points of great importance
which require discussion--namely, the meaning of coasting trade and of
the most-favoured-nation clause.
[Sidenote: Meaning of Coasting Trade in Commercial Treaties.]
§ 579. The meaning of the term coasting-trade[952] in commercial
treaties must not be confounded with its meaning in International Law
generally. The meaning of the term in International Law becomes apparent
through its synonym _cabotage_--that is, navigation from cape to cape
along the coast combined with trading between the ports of the coast
concerned without going out into the Open Sea. Therefore, trade between
Marseilles and Nice, between Calais and Havre, between London and
Liverpool, and between Dublin and Belfast is coasting-trade, but trade
between Marseilles and Havre, and between London and Dublin is not. It
is a universally recognised rule[953] of International Law that every
littoral State can exclude foreign merchantmen from the _cabotage_
within its maritime belt. Cabotage is the contrast to the over-sea[954]
carrying trade, and has nothing to do with the question of free trade
from or to a port on the coast to or from a port abroad. This question
is one of commercial policy, and International Law does not prevent a
State from restricting to vessels of its subjects the export from or the
import to its ports, or from allowing such export or import under
certain conditions only.
[Footnote 952: See Oppenheim in _The Law Quarterly Review_, XXIV.
(1908), pp. 328-334.]
[Footnote 953: See above, § 187.]
[Footnote 954: It must be emphasised that navigation and trade from
abroad to several ports of the same coast successively--for instance,
from Dover to Calais and then to Havre--is not coasting-trade but
over-sea trade, provided that all the passengers and cargo are shipped
from abroad.]
There is no doubt that originally the meaning of coasting-trade in
commercial treaties was identical with its meaning in International Law
generally, but there is likewise no doubt that the practice of the
States gives now a much more extended meaning to the term coasting-trade
as used in commercial treaties. Thus France distinguishes between
cabotage _petit_ and _grand_; whereas _petit_ cabotage is coasting-trade
between ports in the same sea, _grand_ cabotage is coasting-trade
between a French port situated in the Atlantic Ocean and a French port
situated in the Mediterranean, and--according to a statute of September
21, 1793--both _grand_ and _petit_ cabotage are exclusively reserved for
French vessels. Thus, further, the United States of America has always
considered trade between one of her ports in the Atlantic Ocean and one
in the Pacific to be coasting-trade, and has exclusively reserved it for
vessels of her own subjects; she considers such trade coasting-trade
even when the carriage takes place not exclusively by sea around Cape
Horn, but partly by sea and partly by land through the Isthmus of
Panama. Great Britain has taken up a similar attitude. Section 2 of the
Navigation Act of 1849 (12 & 13 Vict. c. 29) enacted "that no goods or
passengers shall be carried _coastwise_ from one part of the United
Kingdom to another, or from the Isle of Man to the United Kingdom,
except in British ships," and thereby declared trade between a port of
England or Scotland to a port of Ireland or the Isle of Man to be
coasting-trade exclusively reserved for British ships in spite of the
fact that the Open Sea flows between these ports. And although the
Navigation Act of 1849 is no longer in force, and this country now does
admit foreign ships to its coasting-trade, it nevertheless still
considers all trade between one port of the United Kingdom and another
to be coasting-trade, as becomes apparent from Section 140 of the
Customs Laws Consolidation Act of July 24, 1876 (39 & 40 Vict. c. 36).
Again, Germany declared by a statute of May 22, 1881, coasting-trade to
be trade between any two German ports, and reserved it for German
vessels, although vessels of such States can be admitted as on their
part admit German vessels to their own coasting-trade. Thus trade
between Koenigsberg in the Baltic and Hamburg in the North Sea is
coasting-trade.
These instances are sufficient to demonstrate that an extension of the
original meaning of coasting-trade has really taken place and has found
general recognition. A great many commercial treaties have been
concluded between such countries as established that extension of
meaning and others, and these commercial treaties no doubt make use of
the term coasting-trade in this its extended meaning. It must,
therefore, be maintained that the term coasting-trade or cabotage as
used in commercial treaties has acquired the following meaning:
_Sea-trade between any two ports of the same country whether on the same
coast or different coasts, provided always that the different coasts are
all of them the coasts of one and the same country as a political and
geographical unit in contradistinction to the coasts of Colonial
dependencies of such country_.
In spite of this established extension of the term coasting-trade, it
did not include colonial trade until nearly the end of the nineteenth
century.[955] Indeed, when Russia, by _ukase_ of 1897, enacted that
trade between any of her ports should be considered coasting trade and
be reserved for Russian vessels, this did not comprise a further
extension of the conception of coasting-trade. The reason is that
Russia, although her territory extends over different parts of the
globe, is a political and geographical unit, and there is one stretch of
territory only between St. Petersburg and Vladivostock. But when, in
1898 and 1899, the United States of America declared trade between any
of her ports and those of Porto Rico, the Philippines, and the Hawaiian
Islands to be coasting-trade, and consequently reserved it exclusively
for American vessels, the distinction between coasting-trade and
over-sea or colonial trade fell to the ground. It is submitted that this
American extension of the conception of coasting-trade as used in her
commercial treaties before 1898 is inadmissible[956] and contains a
violation of the treaty rights of the other contracting parties. Should
these parties consent to the American extension of the meaning of
coasting-trade, and should other countries follow the American lead and
apply the term coasting-trade indiscriminately to trade along their
coasts _and_ to their colonial trade, the meaning of the term would
then become _trade between any two ports which are under the sovereignty
of the same State_. The distinction between coasting-trade and colonial
trade would then become void, and the last trace of the synonymity
between coasting-trade and cabotage would have disappeared.
[Footnote 955: See details in Oppenheim, loc. cit. pp. 331-332, but it
is of value to draw attention here to a French statute of April 2, 1889.
Whereas a statute of April 9, 1866, had thrown open the trade between
France and Algeria to vessels of all nations, article 1 of the statute
of April 2, 1889, enacts: _La navigation entre la France et l'Algérie ne
pourra s'effectuer que sous pavillon français_. This French statute does
not, as is frequently maintained, declare the trade between France and
Algeria to be coasting-trade, but it nevertheless reserves such trade
exclusively for French vessels. The French Government, in bringing the
bill before the French Parliament, explained that the statute could not
come into force before February 1, 1892, because art. 2 of the treaty
with Belgium of May 14, 1882, and art. 21 of the treaty with Spain of
February 6, 1882--both treaties to expire on February 1,
1892--stipulated the same treatment for Belgian and Spanish as for
French vessels, _cabotage excepted_. It is quite apparent that, if
France had declared trade between French and Algerian ports to be
coasting-trade in the meaning of her commercial treaties, the expiration
of the treaties with Belgium and Spain need not have been awaited for
putting the law of April 2, 1889, into force.]
[Footnote 956: In the case of Huus _v._ New York and Porto Rico
Steamship Co. (1901), 182 United States 392, the Court was compelled to
confirm the extension of the term coasting-trade to trade between any
American port and Porto Rico, because this extension was recognised by
section 9 of the Porto Rican Act, and because in case of a conflict
between Municipal and International Law--see above, § 21--the Courts are
bound to apply their Municipal Law.]
[Sidenote: Meaning of most-favoured-nation Clause.]
§ 580. Most of the commercial treaties of the nineteenth century contain
a stipulation which is characterised as the most-favoured-nation clause.
The wording of this clause is by no means the same in all treaties, and
its general form has therefore to be distinguished from several others
which are more specialised in their wording. According to the
most-favoured-nation clause in its general form, all favours which
either contracting party has granted in the past or will grant in the
future to any third State must be granted to the other party. But the
real meaning of this clause in its general form has ever been
controverted since the United States of America entered into the Family
of Nations and began to conclude commercial treaties embodying the
clause. Whereas in former times the clause was considered obviously to
have the effect of causing all favours granted to any one State _at once
and unconditionally_ to accrue to all other States having
most-favoured-nation treaties with the grantor, the United States
contended that these favours could accrue to such of the other States
only as _fulfilled the same conditions under which these favours had
been allowed to the grantee_. The majority of the commercial treaties of
the United States, therefore, do not contain the most-favoured-nation
clause in its general form, but in what is called its conditional,
qualified, or reciprocal, form. In this form it stipulates that all
favours granted to third States shall accrue to the other party
unconditionally, in case the favours have been allowed unconditionally
to the grantee, but only under the same compensation, in case they have
been granted conditionally. The United States, however, has always
upheld the opinion, and the supreme Court of the United States has
confirmed[957] this interpretation, that, even if a commercial treaty
contains the clause in its general, and not in its qualified, form, it
must always be interpreted as though it were worded in its qualified
form.
[Footnote 957: See Bartram _v._ Robertson, 122 United States 116, and
Whitney _v._ Robertson, 124 United States 190.]
Now nobody doubts that according to the qualified form of the clause a
favour granted to any State can only accrue to other States having
most-favoured-nation treaties with the grantor, provided they fulfil the
same conditions and offer the same compensations as the grantee. Again,
nobody doubts that, if the clause is worded in its so-called
unconditional form stipulating the accrument of a favour to other States
whether it was allowed to the grantee gratuitously or conditionally
against compensation, all favours granted to any State accrue
immediately and without condition to all the other States. However, as
regards the clause in its general form, what might, broadly speaking, be
called the European is confronted by the American interpretation. This
American interpretation is, I believe, unjustifiable, although it is of
importance to mention that two European writers of such authority as
Martens (II. p. 225) and Westlake (I. p. 283) approve of it.
It has been suggested[958] that the controversy should be brought before
the Hague Court of Arbitration, yet the United States will never consent
to this. Those States which complain of the American interpretation had
therefore better notify their commercial treaties with the United States
and insert in new treaties the most-favoured-nation clause in such a
form as puts matters beyond all doubt. So much is certain, a State that
at present enters upon a commercial treaty with the United States
comprising the clause in its general form cannot complain[959] of the
American interpretation, which, whatever may be its merits, is now a
matter of common knowledge.[960]
[Footnote 958: See Barclay, op. cit. pp. 142 and 159.]
[Footnote 959: See above, § 554, No. 9.]
[Footnote 960: It is not possible in a general treatise on International
Law to enter into the details of the history, the different forms, the
application, and the interpretation of the most-favoured-nation clause.
Readers must be referred for further information to the works and
articles of Calwer, Herod, Glier, Cavaretta, Visser, Melle, and others
quoted above before § 578. See also Moore, V. §§ 765-769.]
V
UNIONS CONCERNING COMMON NON-POLITICAL INTERESTS
Nys, II. pp. 264-270--Mérignhac, II. pp. 694-731--Descamps, "Les
offices internationaux et leur avenir" (1894)--Moynier, "Les
Bureaux internationaux des unions universelles" (1892)--Poinsard,
"Les Unions et ententes internationales" (2nd ed. 1901)--Renault
in R.G. III. (1896), pp. 14-26--Reinsch, "Public International
Unions" (1911), and in A.J. I. pp. 579-623, and III. pp. 1-45.
[Sidenote: Object of the Unions.]
§ 581. The development of international intercourse has called into
existence innumerable treaties for the purpose of satisfying economic
and other non-political interests of the several States. Each nation
concludes treaties of commerce, of navigation, of extradition, and of
many other kinds with most of the other nations, and tries in this way,
more or less successfully, to foster its own interests. Many of these
interests are of such a particular character and depend upon such
individual circumstances and conditions that they can only be satisfied
and fostered by special treaties from time to time concluded by each
State with other States. Yet experience has shown that the several
States have also many non-political interests in common which can better
be satisfied and fostered by a general treaty between a great number of
States than by special treaties singly concluded between the several
parties. Therefore, since the second half of the nineteenth century,
such general treaties have more and more come into being, and it is
certain that their number will in time increase. Each of these treaties
creates what is called a Union among the contracting parties, since
these parties have united for the purpose of settling certain subjects
in common. The number of States which are members of these Unions
varies, of course, and whereas some of them will certainly become in
time universal in the same way as the Universal Postal Union, others
will never reach that stage. But all the treaties which have created
these Unions are general treaties because a lesser or greater number of
States are parties, and these treaties have created so-called Unions,
although the term "Union" is not always made use of.[961]
[Footnote 961: A general treatise on Public International Law cannot
attempt to go into the details of these Unions; it is really a matter
for monographs or for a treatise on International Administrative Law,
such as Neumayer's "Internationales Verwaltungsrecht," which is to
comprise three volumes, and of which the first volume appeared in 1910.
See also Reinsch, "Public International Unions" (1911).]
[Sidenote: Post and Telegraphs.]
§ 582. Whereas previously the States severally concluded treaties
concerning postal and telegraphic arrangements, they entered into Unions
for this purpose during the second part of the nineteenth century:--
(1) Twenty-one States entered on October 9, 1874, at Berne, into a
general postal convention[962] for the purpose of creating a General
Postal Union. This General turned into the Universal Postal Union
through the Convention of Paris[963] of June 1, 1878, to which thirty
States were parties. This convention has several times been revised by
the congresses of the Union, which have to meet every five years. The
last revision took place at the Congress of Rome, 1906, where, on May
26, a new Universal Postal Convention[964] was signed by all the members
of the Family of Nations for themselves and their colonies and
dependencies. This Union possesses an International Office seated at
Berne.[965]
[Footnote 962: See Martens, N.R.G. 2nd Ser. I. p. 651.]
[Footnote 963: See Martens, N.R.G. 2nd Ser. III. p. 699.]
[Footnote 964: See Martens, N.R.G. 3rd Ser. I. p. 355.]
[Footnote 965: See Fischer, "Post und Telegraphie im Weltverkehr"
(1879); Schröter, "Der Weltpostverein" (1900); Rolland, "De la
correspondance postale et télégraphique dans les relations
internationales" (1901).]
(2) A general telegraphic convention was concluded at Paris already on
May 17, 1865, and in 1868 an International Telegraph Office[966] was
instituted at Berne. In time more and more States joined, and the basis
of the Union is now the Convention of St. Petersburg[967] of July 22,
1875, which has been amended several times, the last time at Lisbon on
June 11, 1908. That the Union will one day become universal there is no
doubt, but as yet, although called "Universal" Telegraphic Union, only
about thirty States are members.
[Footnote 966: See above, § 464, and Fischer "Die Telegraphie und das
Völkerrecht" (1876).]
[Footnote 967: See Martens, N.R.G. 2nd Ser. III. p. 614.]
(3) Concerning the general treaty of March 14, 1884, for the protection
of submarine telegraph cables,[968] see above, § 287.
[Footnote 968: See Martens, N.R.G. 2nd Ser. XI. p. 281.]
(4) A general radio-telegraphic convention[969] was signed by
twenty-seven States on November 3, 1906, at Berlin. This Union has an
International Office at Berne which is combined with that of the
Universal Telegraph Union.
[Footnote 969: See Martens, N.R.G. 3rd Ser. III. p. 147, and above, §
174, No. 2, and §§ 287_a_ and 287_b_, where the literature concerned is
also to be found.]
[Sidenote: Transport and Communication.]
§ 583. Two general conventions are in existence in the interest of
transport and communication:--
(1) A general convention[970] was concluded on October 14, 1890, at
Berne concerning railway transports and freights. The parties--namely,
Austria-Hungary, Belgium, France, Germany, Holland, Italy, Luxemburg,
Russia, and Switzerland--form a Union for this purpose, although the
term "Union" is not made use of. The Union possesses an International
Office[971] at Berne, which issues the _Zeitschrift für den
internationalen Eisenbahn transport_ and the _Bulletin des transports
internationaux par chemins de fer_. Denmark, Roumania, and Sweden
acceded to this Union some time after its conclusion.
[Footnote 970: See Martens, N.R.G. 2nd Ser. XIX. p. 289.]
[Footnote 971: See above, § 470, and Kaufmann, "Die mitteleuropäischen
Eisenbahnen und das internationale öffentliche Recht" (1893); Rosenthal,
"Internationales Eisenbahnfrachtrecht" (1894); Magne, "Des raccordements
internationaux de chemins de fer, &c." (1901); Eger, "Das internationale
Uebereinkommen über den Eisenbahnfrachtverkehr" (2nd ed. 1903).]
(2) A general convention concerning the International Circulation of
Motor Vehicles[972] was concluded on October 11, 1909, at Paris. The
original signatory Powers were:--Great Britain, Germany,
Austria-Hungary, Belgium, Bulgaria, Spain, France, Greece, Italy,
Monaco, Montenegro, Holland, Portugal, Roumania, Russia, Servia; but
Greece, Montenegro, Portugal, and Servia have not yet ratified.
Luxemburg, Sweden, and Switzerland acceded later on. To give effect to
this convention in Great Britain, Parliament passed in 1909 the Motor
Car (International Circulation) Act,[973] 9 Edw. VII. c. 37.
[Footnote 972: See Martens, N.R.G. 3rd Ser. III. p. 834, and Treaty
Series, 1910, No. 19.]
[Footnote 973: See also the Motor Car (International Circulation) Order
in Council, 1910.]
[Sidenote: Copyright.]
§ 584. On September 9, 1886, the Convention of Berne was signed for the
purpose of creating an international Union for the Protection of Works
of Art and Literature. The Union has an International Office[974] at
Berne. An additional Act to the convention was signed at Paris on May 4,
1906. Since, however, the stipulations of these conventions did not
prove quite adequate, the "Revised[975] Berne Convention" was signed at
Berlin on November 13, 1908. The parties are Great Britain, Germany,
Belgium, Denmark, Spain, France, Haiti, Italy, Japan, Liberia,
Luxemburg, Monaco, Norway, Sweden, Switzerland, Tunis; but Denmark,
France, Italy, Sweden, and Tunis have not yet ratified. Portugal acceded
later. To give effect to the Convention of Berne of 1886, Parliament
passed in 1886 the "Act to amend the Law respecting International and
Colonial Copyright" (49 & 50 Vict. c. 33). This Act, however, was, in
consequence of the "Revised Berne Convention" of Berlin of 1908,
repealed by section 37 of the Copyright Act, 1911 (1 Geo. V. c. 00), and
sections 30 and 31 of the latter Act now deal with International
Copyright.
[Footnote 974: See above, § 467, and Orelli, "Der internationale Schutz
des Urheberrechts" (1887); Thomas, "La convention littéraire et
artistique internationale, &c." (1894); Briggs, "The Law of
International Copyright" (1906); Röthlisberger, "Die Berner Übereinkunft
zum Schutze von Werken der Literatur und Kunst" (1906).]
[Footnote 975: See Martens, N.R.G. 3rd Ser. IV. p. 590; Wauwermans, "La
convention de Berne (revisée à Berlin) pour la protection des
oeuvres littéraires et artistiques" (1910).]
[Sidenote: Commerce and Industry.]
§ 585. In the interests of commerce and industry three Unions are in
existence:--
(1) On July 5, 1890, the Convention of Brussels was signed for the
purpose of creating an international Union for the Publication of
Customs Tariffs.[976] The Union has an International Office[977] at
Brussels, which publishes the customs tariffs of the various States of
the globe. The members of the Union are at present the following
States:--Great Britain, Germany, Argentina, Austria-Hungary, Belgium,
Bolivia, Brazil, Bulgaria, Chili, China, Colombia, Costa Rica, Cuba,
Denmark, San Domingo, Ecuador, Egypt, France, Greece, Guatemala, Haiti,
Holland, Honduras, Italy, Japan, Mexico, Nicaragua, Norway, Panama,
Paraguay, Persia, Peru, Portugal, Roumania, Russia, Salvador, Servia,
Siam, Spain, Sweden, Switzerland, Turkey, the United States of America,
Uruguay, and Venezuela.
[Footnote 976: See Martens, N.R.G. 2nd Ser. XVIII. p. 558.]
[Footnote 977: See above, § 469.]
(2) On March 20, 1883, the Convention of Paris[978] was signed for the
purpose of creating an international Union for the Protection of
Industrial Property. The original members were:--Belgium, Brazil, San
Domingo, France, Holland, Guatemala, Italy, Portugal, Salvador, Servia,
Spain, and Switzerland. Great Britain, Japan, Denmark, Mexico, the
United States of America, Sweden-Norway, Germany, Cuba, and
Austria-Hungary acceded later. This Union has an International
Office[979] at Berne. The object of the Union is the protection of
patents, trade-marks, and the like. On April 14, 1891, at Madrid, this
Union agreed to arrangements concerning false indications of origin and
the registration of trade-marks[980]; and an additional Act[981] was
signed at Brussels on December 14, 1900. These later arrangements,
however, are accepted only by certain States of the Union; Great
Britain, for instance, is a party to the former but not to the latter.
[Footnote 978: See Martens, N.R.G. 2nd Ser. X. p. 133.]
[Footnote 979: See above, § 467.]
[Footnote 980: See Martens, N.R.G. 2nd Ser. XXII. p. 208, and Pelletier
et Vidal-Noguet, "La convention d'union pour la protection de la
propriété industrielle du 20 mars 1883 et les conférences de révision
postérieures" (1902).]
[Footnote 981: See Martens, N.R.G. 2nd Ser. XXX. p. 475.]
(3) On March 5, 1902, the Convention of Brussels[982] was signed
concerning the abolition of bounties on the production and exportation
of sugar. The original parties were:--Great Britain, Austria-Hungary,
Belgium, France, Germany, Holland, Italy, Spain, and Sweden; but Spain
has never ratified. Luxemburg, Peru, and Russia acceded later. A
Permanent Commission[983] was established at Brussels for the purpose of
supervising the execution of the convention. An additional Act[984] was
signed at Brussels on August 28, 1907.
[Footnote 982: See Martens, N.R.G. 2nd Ser. XXXI. p. 272, and Kaufmann,
"Welt-Zuckerindustrie und internationales und coloniales Recht" (1904).]
[Footnote 983: See above, §§ 462 and 471.]
[Footnote 984: See Martens, N.R.G. 3rd Ser. I. p. 874.]
[Sidenote: Agriculture.]
§ 586. Three general conventions are in existence in the interest of
Agriculture:--
(1) On June 7, 1905, the Convention for the Creation of an International
Agricultural Institute[985] was signed at Rome by forty States. The
Institute has its seat at Rome.
[Footnote 985: See above, § 471_a_, and Martens, N.R.G. 3rd Ser. II. p.
238, and Treaty Series, 1910, No. 17.]
(2) Owing to the great damage done to grapes through phylloxera
epidemics a general convention[986] for the prevention of the extension
of such epidemics was concluded on September 17, 1878, at Berne. Its
place was afterwards taken by the convention[987] signed at Berne on
November 3, 1881. The original members were:--Austria-Hungary, France,
Germany, Portugal, and Switzerland. Belgium, Italy, Spain, Holland,
Luxemburg, Roumania, and Servia acceded later.
[Footnote 986: See Martens, N.R.G. 2nd Ser. VI. p. 261.]
[Footnote 987: See Martens, N.R.G. 2nd Ser. VIII. p. 435.]
(3) On March 19, 1902, a general convention[988] was signed at Paris
concerning the preservation of birds useful to agriculture. The parties
are:--Germany, Austria-Hungary, Belgium, Spain, France, Greece,
Luxemburg, Monaco, Norway, Portugal, Sweden, Switzerland.
[Footnote 988: See Martens, N.R.G. 2nd Ser. XXX. p. 686.]
[Sidenote: Welfare of Working Classes.]
§ 587. Two general treaties are in existence with regard to the welfare
of the working classes:--
(1) On September 26, 1906, was signed at Berne a convention[989]
concerning the prohibition of the use of white phosphorus in the
manufacture of matches. The original parties were:--Germany, Denmark,
France, Holland, Luxemburg, Switzerland. Great Britain, Italy, Spain,
and Tunis acceded later. To give effect to this convention in Great
Britain, Parliament passed in 1908 the White Phosphorus Matches
Prohibition Act (8 Edw. VII. c. 42).
[Footnote 989: See Martens, N.R.G. 3rd Ser. II. p. 872, and Treaty
Series, 1909, No. 4.]
(2) Likewise at Berne on September 26, 1906, was signed the
convention[990] for the prohibition of night-work for women in
industrial employment. The original parties are:--Great Britain,
Germany, Austria-Hungary, Belgium, Spain, France, Luxemburg, Holland,
Portugal, and Switzerland. Italy and Sweden, which had signed the
convention, but had not ratified in time, acceded in 1910.
[Footnote 990: See Martens, N.R.G. 3rd Ser. II. p. 861, and Treaty
Series, 1910, No. 21.]
[Sidenote: Weights, Measures, Coinage.]
§ 588. One Union concerning weights and measures and two monetary Unions
are in existence.
(1) In the interest of the unification and improvement of the metric
system a general convention[991] was signed at Paris on May 20, 1875,
for the purpose of instituting at Paris an International Office[992] of
Weights and Measures. The original parties were:--Argentina,
Austria-Hungary, Belgium, Brazil, Denmark, France, Germany, Italy, Peru,
Portugal, Russia, Spain, Sweden-Norway, Switzerland, Turkey, the United
States of America, and Venezuela; but Brazil has never ratified. Great
Britain, Japan, Mexico, Roumania, and Servia acceded later.
[Footnote 991: See Martens, N.R.G. 2nd Ser. I. p. 663.]
[Footnote 992: See above, § 466.]
(2) On December 23, 1865, Belgium, France, Italy, and Switzerland signed
the Convention of Paris which created the so-called "Latin Monetary
Union" between the parties; Greece acceded in 1868.[993] This convention
was three times renewed and amended--namely, in 1878, 1885, and
1893.[994]
[Footnote 993: See Martens, N.R.G. XX. pp. 688 and 694.]
[Footnote 994: See Martens, N.R.G. 2nd Ser. IV. p. 725, XI. p. 65, XXI.
p. 285.]
Another Monetary Union is that entered into by Denmark, Sweden, and
Norway by the Convention of Copenhagen[995] of May 27, 1873.
[Footnote 995: See Martens, N.R.G. 2nd Ser. I. p. 290.]
On November 22, 1892, the International Monetary Conference[996] met at
Brussels, where the following States were represented:--Great Britain,
Austria-Hungary, Belgium, Denmark, France, Germany, Greece, Holland,
Italy, Mexico, Portugal, Roumania, Spain, Sweden-Norway, Switzerland,
Turkey, and the United States of America. The deliberations of this
conference, however, had no practical result.
[Footnote 996: See Martens, N.R.G. 2nd Ser. XXIV. pp. 167-478.]
[Sidenote: Official Publications.]
§ 589. On March 15, 1886, Belgium, Brazil, Italy, Portugal, Servia,
Spain, Switzerland, and the United States of America signed at Brussels
a convention[997] concerning the exchange of their official documents
and of their scientific and literary publications in so far as they are
edited by the Governments. The same States, except Switzerland, signed
under the same date at Brussels a convention[998] for the exchange of
their _Journaux officiels ainsi que des annales et des documents
parlementaires_.
[Footnote 997: See Martens, N.R.G. 2nd Ser. XIV. p. 287.]
[Footnote 998: See Martens, N.R.G. 2nd Ser. XIV. p. 285.]
[Sidenote: Sanitation.]
§ 590. In the interest of public health as endangered by cholera and
plague a number of so-called sanitary conventions have been concluded:--
(1) On January 30, 1892, Great Britain, Germany, Austria-Hungary,
Belgium, Denmark, Spain, France, Greece, Italy, Holland, Portugal,
Russia, Sweden-Norway, and Turkey signed the International Sanitary
Convention of Venice.[999]
[Footnote 999: See Martens, N.R.G. 2nd Ser. XIX. p. 261, and Treaty
Series, 1893, No. 8.]
(2) On April 15, 1893, Germany, Austria-Hungary, Belgium, France, Italy,
Luxemburg, Montenegro, Holland, Russia, Switzerland signed the Cholera
Convention of Dresden;[1000] but Montenegro has not ratified. Great
Britain, Servia, Lichtenstein, and Roumania acceded later.
[Footnote 1000: See Martens, N.R.G. 2nd Ser. XIX. p. 39, and Treaty
Series, 1894, No. 4.]
(3) On April 3, 1894, Great Britain, Germany, Austria-Hungary, Belgium,
Denmark, Spain, France, Greece, Italy, Holland, Persia, Portugal, and
Russia signed the Cholera Convention of Paris; an additional declaration
was signed at Paris on October 30, 1897.[1001] Sweden-Norway acceded
later.
[Footnote 1001: See Martens, N.R.G. 2nd Ser. XXIV. pp. 516 and 552, and
Treaty Series, 1899, No. 8.]
(4) On March 19, 1897, Great Britain, Germany, Austria-Hungary,
Belgium, Spain, France, Greece, Italy, Luxemburg, Montenegro, Turkey,
Holland, Persia, Portugal, Roumania, Russia, Servia, and Switzerland
signed the Plague Convention of Venice; an additional declaration was
signed at Rome on January 24, 1900;[1002] but Greece, Turkey, Portugal,
and Servia do not seem to have ratified. Sweden acceded later.
[Footnote 1002: See Martens, N.R.G. 2nd Ser. XXVIII. p. 339, XXIX. p.
495, and Treaty Series, 1900, No. 6--See also Loutti, "La politique
sanitaire internationale" (1906). Attention should be drawn to a very
valuable suggestion made by Ullmann in R.I. XI. (1879), p. 527, and in
R.G. IV. (1897), p. 437. Bearing in mind the fact that frequently in
time of war epidemics break out in consequence of insufficient
disinfection of the battlefields, Ullmann suggests a general convention
instituting neutral sanitary commissions whose duty would be to take all
necessary sanitary measures after a battle.]
(5) For the purpose of revising the previous cholera and plague
conventions and amalgamating them into one document, Great Britain,
Germany, Austria-Hungary, Belgium, Brazil, Spain, the United States of
America, France, Italy, Luxemburg, Montenegro, Holland, Persia,
Portugal, Roumania, Russia, Switzerland, and Egypt signed on December 3,
1903, the International Sanitary Convention of Paris.[1003] Denmark,
Mexico, Norway, Sweden, and Zanzibar acceded later. It is, however, of
importance to mention that the previous sanitary conventions remain in
force for those signatory Powers who do not become parties to this
convention.
[Footnote 1003: See Martens, N.R.G. 3rd Ser. I. p. 78, and Treaty
Series, 1907, No. 27.]
(6) For the purpose of organising the International Office of Public
Health contemplated by the Sanitary Convention of Paris of December 3,
1903, Great Britain, Belgium, Brazil, Spain, the United States of
America, France, Italy, Holland, Portugal, Russia, Switzerland, and
Egypt signed at Rome on December 9, 1907, an agreement[1004] concerning
the establishment of such an office at Paris;[1005] but it would seem
that Holland and Portugal have not yet ratified. Argentina, Bulgaria,
Mexico, Persia, Peru, Servia, Sweden, and Tunis acceded later.
[Footnote 1004: See Martens, N.R.G. 3rd Ser. II. p. 913, and Treaty
Series, 1909, No. 6.]
[Footnote 1005: See above, § 471_b_.]